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110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-457

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



 
  SUPPLEMENTAL MINE IMPROVEMENT AND NEW EMERGENCY RESPONSE ACT OF 2007

                                _______
                                

 November 15, 2007.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. George Miller of California, from the Committee on Education and 
                     Labor, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 2768]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Education and Labor, to whom was referred 
the bill (H.R. 2768) to establish improved mandatory standards 
to protect miners during emergencies, and for other purposes, 
having considered the same, report favorably thereon with an 
amendment and recommend that the bill as amended do pass.

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) Short Title.--This Act may be cited as the ``Supplemental Mine 
Improvement and New Emergency Response Act of 2007'' or the ``S-MINER 
Act''.
  (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings.
Sec. 3. Definitions; references.
Sec. 4. Supplementing emergency response plans.
Sec. 5. Supplementing enforcement authority.
Sec. 6. Supplementing rescue, recovery, and incident investigation 
authority.
Sec. 7. Respirable dust standards.
Sec. 8. Other health requirement.

SEC. 2. FINDINGS.

  Congress finds that--
          (1) while the MINER Act of 2006 (Public Law 109-236) was an 
        essential first step in addressing the many health and safety 
        hazards that miners still face, supplemental action is 
        necessary and feasible to better protect miners in coal and 
        other mines;
          (2) essential standards to protect miner health established 
        by the Federal Mine Safety and Health Act of 1977 are out of 
        date after 40 years, posing a significant threat to miner 
        health; and
          (3) the Secretary of Labor has failed in recent years to 
        adequately fulfill the Secretary's obligations under the 
        Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et 
        seq.), additional Congressional intervention is needed.

SEC. 3. DEFINITIONS; REFERENCES.

  (a) Definitions.--As used in this Act--
          (1) the term ``Secretary'' refers to the Secretary of Labor; 
        and
          (2) any other term used in this Act that is defined in 
        section 3 of the Federal Mine Safety and Health Act of 1977 (30 
        U.S.C. 802) shall have the meaning given the term in such 
        section.
  (b) References.--Except as otherwise expressly provided, whenever in 
this Act an amendment or repeal is expressed in terms of an amendment 
to, or repeal of, a section or other provision, the reference shall be 
considered to be made to a section or other provision of the Federal 
Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.).

SEC. 4. SUPPLEMENTING EMERGENCY RESPONSE PLANS.

  (a) Post Accident Communications.--Section 316(b)(2)(F)(ii) (30 
U.S.C. 876(b)(2)(F)(ii)) is amended--
          (1) by striking ``Not later than'' and inserting the 
        following:
                                  ``(II) Not later than''; and
          (2) by inserting after the clause designation the following:
                                  ``(I) Not later than 120 days after 
                                the enactment of the S-MINER Act, a 
                                plan shall, to be in approved status, 
                                provide for a post accident 
                                communication system between 
                                underground and surface personnel, and 
                                for an electronic tracking system 
                                permitting surface personnel to 
                                determine the location of any persons 
                                trapped underground, that utilizes a 
                                system at least as effective as a 
                                `leaky feeder' or wireless mesh type 
                                communication and tracking system 
                                currently in use in the industry. These 
                                systems shall be enhanced physically, 
                                electronically, or redundantly, to 
                                improve their survivability in the 
                                event of a mine disaster. In addition, 
                                to be in approved status, an emergency 
                                response plan must be revised promptly 
                                to incorporate new technology which the 
                                National Institute for Occupational 
                                Safety and Health certifies can be 
                                added to the existing system to improve 
                                its ability to facilitate post-accident 
                                communication with or tracking of 
                                miners. No miner shall be disciplined 
                                based on information obtained from an 
                                electronic communications and tracking 
                                system.''.
  (b) Underground Refuges.--Section 316(b)(2)(E) (30 U.S.C. 
876(b)(2)(E)) is amended by adding at the end the following:
                          ``(vi) Not later than June 15, 2008, the 
                        Secretary shall issue interim final 
                        regulations, consistent with the design 
                        criteria recommended by National Institute for 
                        Occupational Safety and Health in its report 
                        pursuant to section 13(b)(1) of the MINER Act, 
                        and subject to the requirements of the next 
                        sentence, requiring each emergency response 
                        plan to provide for the installation of 
                        portable rescue chambers meeting National 
                        Institute for Occupational Safety and Health 
                        design criteria, or refuge shelters carved out 
                        of the mine workings and sealed with bulkheads 
                        meeting National Institute for Occupational 
                        Safety and Health design criteria, or other 
                        refuge designs recommended by National 
                        Institute for Occupational Safety and Health 
                        that provide miners with equivalent or better 
                        protection, in the working areas of underground 
                        coal mines within 60 days following plan 
                        approval. In addition, a plan shall provide for 
                        the maintenance of a mobile emergency shelter 
                        within 500 feet of the nearest working face in 
                        each working section of an underground coal 
                        mine.''.
  (c) Improvements to Seals, Ventilation Controls, and Rock Dusting To 
Limit the Damage From Explosions.--
          (1) Repeal.--The MINER Act (30 U.S.C. 801 note) is amended by 
        striking section 10 (concerning sealing of abandoned areas).
          (2) Seals.--Section 303(z) (30 U.S.C. 863(z)) is amended by 
        adding at the end the following:
  ``(4)(A) The Secretary shall inspect all seals under construction 
after the date of enactment of the S-MINER Act, during at least part of 
their construction, to ensure the mine operator is complying with the 
approved seal plan, and shall develop an inspection protocol for this 
purpose.
  ``(B) Not later than 3 months of the date of enactment of the S-MINER 
Act, the Secretary shall issue final rules regarding approval, design, 
construction, inspection, maintenance and monitoring of underground 
coal mine seals which shall meet the requirements of this paragraph. 
Except as otherwise provided by this paragraph, these regulations shall 
implement the most recent recommendations of the National Institute of 
Occupational Safety and Health concerning seal design, construction, 
inspection, maintenance and monitoring. The regulations shall also 
provide that all seals in a mine shall be monitored if they are not 
designed or installed to withstand a constant total pressure of 240 
pounds per square inch, using a static structural analysis. Monitoring 
of seals shall be done by continuous monitoring devices within one year 
of the date of enactment of this Act, and prior thereto by qualified 
personnel at such intervals as the Secretary determines are adequate to 
ensure safety. The Secretary shall require mine operators to utilize a 
tamper-resistant method to retain records of all such monitoring and 
ensure they are available for examination and verification by the 
agency. Monitoring of seals shall be done both by--
          ``(i) sampling through at least 1 seal in each bank of seals; 
        and
          ``(ii) for new seals, unless infeasible due to property 
        rights, sampling through a sufficient number of boreholes from 
        the surface to the sealed areas underground to effectively 
        determine the gas concentrations within the area.
  ``(C) In addition, the regulations shall provide that--
          ``(i) seal sampling pipes shall be composed of materials that 
        minimize the risk of transmitting any electrical charge, and no 
        conductive materials may be used to line boreholes within three 
        feet of the surface;
          ``(ii) an action plan for sealing and repair be established 
        that will, among any other requirements, include specific 
        actions the mine operator will take to protect miners during 
        the critical time period immediately after sealing or repair 
        takes place, and which shall be reviewed by personnel from the 
        Mine Safety and Health Administration who have the required 
        expertise prior to approval; and
          ``(iii) methane pressures behind any seal required to be 
        monitored shall be maintained in such a manner as ensure that 
        normal pressure variations that can be reasonably anticipated 
        in the area of the seal do not bring the methane-air mixture 
        into an appropriate safety range surrounding the known 
        explosive range of such mixtures.''.
          (3) Ventilation controls.--Section 303(c) (30 U.S.C. 863) is 
        amended by inserting at the end the following new paragraph:
  ``(4) Not later than 1 year after the date of enactment of the S-
MINER Act, the Secretary shall publish interim final regulations to 
enhance the survivability of underground mine ventilation controls. The 
Secretary shall require that stoppings be constructed using solid 
concrete blocks laid wet and sealed with an appropriate bonding agent 
on at least the side subjected to the velocity of the intake air 
coursing through the entry, except that in the case of stoppings 
constructed during barrier reduction and pillar removal operations, 
such stoppings may be constructed using hollow block and an appropriate 
bonding agent.''.
          (4) Rock dusting.--Section 304(d) (30 U.S.C. 864) is amended 
        by adding at the end the following: ``Not later than June 15, 
        2009, the National Institute for Occupational Safety and Health 
        shall issue recommendations as to whether changes to these 
        requirements are necessary to ensure an equivalent level of 
        protection in light of any changes to the size and composition 
        of coal dust since these requirements were established, and the 
        Secretary of Labor shall take appropriate action, including the 
        issuance of an emergency temporary standard if warranted, to 
        respond to these recommendations.''.
  (d) Limiting Conveyor Belt Risks.--
          (1) Flame resistant conveyor belts.--Section 311(h) is 
        amended by adding at the end the following: ``Not later than 
        January 31, 2008, the Secretary shall publish interim final 
        regulations to ensure that all conveyor belts in use in 
        underground coal mines are replaced no later than December 31, 
        2012, with belts that can meet the flame resistance 
        requirements recommended by the National Institute for 
        Occupational Safety and Health, and which limit smoke and toxic 
        emissions. Any conveyor belt installed in a coal mine after the 
        date of enactment of the S-MINER Act shall meet such 
        requirements.''.
          (2) Belt air.--Section 303(y) (30 U.S.C. 863) is amended by 
        adding at the end the following:
  ``(3) Not later than June 20, 2008, the Secretary shall revise the 
regulations prescribed pursuant to this section to require, in any coal 
mine, regardless of the date on which it was opened, that belt haulage 
entries not be used to ventilate active working places. The Secretary 
may agree to a modification of this requirement, pursuant to the 
procedures of section 101(c), if and only if--
          ``(A) the mine operator establishes to the satisfaction of 
        the Secretary that significant safety constraints require such 
        usage; and
          ``(B) the mine operator agrees to comply with criteria 
        established by the Secretary which shall, at a minimum, include 
        the conditions recommended by the Technical Study Panel 
        established under section 514.
  ``(4) Plans that have been approved by the Secretary prior to the 
date of enactment of the S-MINER Act that permit the use of belt-air to 
ventilate active working places in a mine are permitted to remain in 
use to complete current mining up until the date of issuance of the 
regulation required pursuant to paragraph (3).''.
  (e) Pre-Shift Review of Mine Conditions.--Section 303(d) (30 U.S.C. 
863(d)) is amended by adding at the end the following new paragraph:
  ``(3) Not later than 90 days after the date of enactment of the S-
MINER Act, all mine operators shall be required to implement a 
communication program at each of such operators' facilities to ensure 
that each person entering the operation is made aware at the start of 
that person's shift of the current conditions of the mine in general 
and of that person's specific worksite in particular. In an effort to 
facilitate these communications, all agents of the operator who are 
responsible for ensuring the safe and healthful working conditions at 
the mine, including mine foremen, assistant mine foremen, and mine 
examiners, shall, upon exiting the mine or workplace, communicate with 
those replacing them on duty to verbally update them on the conditions 
they observed during their shift, including any conditions that are 
abnormal or hazardous. Prior to entering the mine or other workplace 
the on-coming agent of the operator shall meet with all members of the 
crew they are responsible for and inform them of the general conditions 
at the operation and in their specific work area. This process shall be 
completed prior to the start of each shift at the operation and 
recorded in a book designated for that purpose and available for 
inspection by all interested parties. In the event the operation is 
idle prior to the start of any shift the agent of the operator shall 
meet with the individual or individuals who were responsible for 
examining the mine to obtain the necessary information.''.
  (f) Atmospheric Monitoring Systems.--Section 317 (30 U.S.C. 877) is 
amended by adding at the end the following:
  ``(u) Not later than May 1, 2008, an operator of an underground mine 
shall install atmospheric monitoring systems in all underground areas 
where miners normally work and travel that provide real-time 
information regarding carbon monoxide levels, and that can, to the 
maximum extent possible, withstand explosions and fires.''.
  (g) Methane Monitors.--Section 303(h) (30 U.S.C. 863(h)) is amended 
by redesignating paragraph (2) as paragraph (3), and inserting after 
paragraph (1) the following new paragraph:
  ``(2) Each miner who is working alone for part of a shift shall be 
equipped with a multi-gas detector that measures current levels of 
methane, oxygen, and carbon monoxide.''.
  (h) Lightning Study by National Academy of Sciences.--Not later than 
1 year after the date of enactment of this Act, the National Academy of 
Sciences shall submit to the Secretary and to Congress recommendations 
on--
          (1) actions that need to be taken to strengthen existing 
        requirements in law or regulations to ensure that miners are 
        protected, to the fullest extent permitted, from the risks of 
        lightning strikes near a mine;
          (2) recommendations for adopting any existing technology to 
        the mining environment to minimize any such risks; and
          (3) research needed for improved technology.
  (i) Roof and Rib Support, Barrier Reduction and Pillar Extraction, 
Special Attention to Deep Mining.--
          (1) Amendments to existing law.--Section 302 is amended--
                  (A) by amending the section heading to read ``roof 
                and rib support, barrier reduction and pillar 
                extraction, special attention to deep mining'';
                  (B) in subsection (a), by inserting after the second 
                sentence the following: ``The Secretary shall by 
                regulation ensure the appropriate use of roof screen in 
                belt entries, travelroads, and designated intake and 
                return escapeways in accordance with the requirements 
                of subsection (g).''; and
                  (C) by inserting at the end the following:
  ``(g) Where screening is required, at least forty percent of the 
width of the exposed roof shall be screened. Screening to meet the 
requirements of this section must have a load bearing capacity at least 
equivalent to a load of 2.5 tones between bolts on a 4 foot pattern.
  ``(h)(1) An operator shall be required to have a current and approved 
barrier reduction or pillar extraction plan, or both, before performing 
such activities. The Secretary shall only approve a barrier reduction 
or pillar extraction plan if it provides adequate protection and 
minimizes the risks for miners engaged in the activity, reflecting 
appropriate engineering analysis, computer simulations, and 
consultations with technical experts in the agency, in the National 
Institute for Occupational Safety and Health, and in the Bureau of Land 
Management for any mines leasing Federal coal resources, and only if 
the plan complies with any specific requirements that may be adopted by 
the Secretary for barrier reduction or pillar extraction activities 
including requirements related to the depth of the mine, geology of the 
mine, mine height and methods, and emergency response capabilities.
  ``(2) A copy of a proposed barrier reduction or pillar extraction 
plan, or both, shall be provided to the authorized representative of 
miners at least 10 days prior to submission to the Secretary for 
approval. The authorized representative of miners may provide comments 
to the Secretary who shall respond thereto.
  ``(3) The Secretary shall establish a special internal review process 
for operator plans to protect miners from the risks addressed by this 
section when working at depths of more than 1500 feet and in other 
mines with a history of mountain bumps.
  ``(i) Not later than 1 week before the commencement of any barrier 
reduction or pillar extraction operations, the mine operator shall 
notify the appropriate representative of the Secretary of his intention 
to begin or resume barrier reduction or pillar extraction. The 
Secretary shall document such notification in writing, and shall, 
before barrier reduction or pillar extraction operations begin, take 
action to ensure that every person who will be participating in such 
operations is trained in the operator's barrier reduction and/or and 
pillar extraction plan. The Secretary shall observe the barrier 
reduction or pillar extraction operations for a sufficient period of 
time to ensure that the mine operator is fully complying with the 
barrier reduction or pillar extraction plan. The Secretary may preclude 
the commencement of such operations or halt such operations at any time 
the safety of miners comes into question.''.
          (2) Study.--Not later than 1 year after the date of enactment 
        of this Act, the National Academy of Sciences shall, in 
        consultation with the National Institute for Occupational 
        Safety and Health, submit to the Secretary and to Congress 
        recommendations for--
                  (A) actions that need to be taken to strengthen 
                existing requirements in law or regulations to ensure 
                that miners are protected, to the fullest extent 
                permitted, from ground control hazards, including the 
                special hazards associated with barrier reduction and 
                pillar extraction;
                  (B) adopting any existing technology to the mining 
                environment to improve miner protections during barrier 
                reduction and pillar extraction, and on research needed 
                for improved technology to improve miner protections 
                during such operations;
                  (C) adopting any existing technology to the mining 
                environment to improve miner protections during mining 
                at depths below 1000 feet, and on research needed for 
                improved technology to improve miner protections during 
                such operations; and
                  (D) adopting any existing technology to the mining 
                environment to improve miner protections during 
                secondary mining of coal resources, and on research 
                needed for improved technology to improve miner 
                protections during such operations.
  (j) SCSR Inspection Program.--
          (1) In general.--The Secretary shall--
                  (A) establish a program to randomly remove and have 
                tested by the National Institute for Occupational 
                Safety and Health field samples of each model of self-
                rescue device used in an underground coal mine in order 
                to ensure that the self-rescue devices in coal mine 
                inventories are working in accordance with the approval 
                criteria for such devices;
                  (B) require a manufacturer of a self-rescue device 
                and the mine operator who owns a device to contact the 
                Secretary immediately upon notification of any 
                potential problem with any such device, and provide a 
                copy of such notice to the representative of miners at 
                the affected operation; and
                  (C) notify immediately all operators of underground 
                coal mines if the Secretary detects or is advised of 
                any problems with the self-rescue devices.
          (2) Determination.--For the purposes of paragraph (1)(A), the 
        National Institute for Occupational Safety and Health shall 
        determine the number of field samples of each device to be 
        removed for testing, and the mines from which the samples are 
        to be drawn to ensure a random sample is obtained, and shall 
        provide mine operators with self-rescue devices to replace any 
        removed for random testing. Should this testing reveal a 
        potential problem with a device that requires additional 
        testing, the Secretary shall remove such additional samples 
        from such mines as may be requested by the National Institute 
        for Occupational Safety and Health, and it shall be the 
        obligation of mine operators to provide self-rescue devices to 
        promptly replace any removed as a result of such additional 
        testing.
  (k) Application to Underground Metal and Nonmetal Mines.--Title II is 
amended by adding at the end the following new section:

``SEC. 207. APPLICATION TO UNDERGROUND METAL AND NONMETAL MINES.

  ``(a) Conveyor Belts.--The regulations to be issued pursuant to 
section 311(h) concerning conveyor belts shall also provide that all 
conveyor belts in use in underground metal and nonmetal mines are to be 
replaced, on the same schedule, with belts that can meet the flame 
resistance requirements recommended by the National Institute for 
Occupational Safety and Health, and which limit smoke and toxic 
emissions. Any conveyor belt installed in an underground metal or 
nonmetal mine after the date of enactment of the S-MINER Act shall meet 
such requirements.
  ``(b) Seals.--The regulations to be issued pursuant to section 
303(z)(2) concerning the approval, design, construction, inspection, 
maintenance and monitoring of underground coal mine seals shall make 
the same rules applicable to seals in underground metal and nonmetal 
mines which have been classified by the Secretary as a category I, III, 
or V mine pursuant to section 57.22003 of title 30, Code of Federal 
Regulations, because they naturally emit defined quantities of methane.
  ``(c) Advisory Committee.--Promptly after the date of enactment of 
the S-MINER Act The Secretary shall establish an advisory committee to 
provide recommendations as to the need to revise the regulations 
applicable to underground metal and nonmetal mines to ensure that 
miners in such mines are as protected in emergency situations as will 
be underground coal miners following the full implementation of the 
MINER Act, the provisions of the S-MINER Act, and related actions by 
the Secretary. The advisory committee shall be established pursuant to 
the Advisory Committee Act, and shall provide recommendations to the 
Secretary and to Congress not later than 21 months after the date of 
enactment of this Act, including recommendations as to any action by 
Congress that could facilitate the goal of providing equivalent 
protections to miners in underground metal and nonmetal mines.''.
  (l) Approval Center Priorities.--The Secretary shall expedite the 
process for approving any--
          (1) self-rescue device that permits the replenishment of 
        oxygen without requiring the device user to remove the device; 
        and
          (2) underground communication device that provides for 
        communication between underground and surface personnel via a 
        wireless two-way medium.
  (m) Technology and Mine Emergency Health and Safety Research 
Priorities.--In implementing its research activities in the 5-year 
period beginning on the date of enactment of this Act, the National 
Institute for Occupational Safety and Health shall give due 
consideration to new technologies, and existing technologies that could 
be adapted for use in underground coal or other mines, that could 
facilitate the survival of miners in a mining emergency. Such 
technologies include--
          (1) self-contained self-rescue devices capable of delivering 
        enhanced performance;
          (2) improved battery capacity and common connection 
        specifications to enable emergency communication devices for 
        miners to be run from the same portable power source as a 
        headlamp, continuous dust monitor, or other device carried by a 
        miner;
          (3) improved technology for assisting mine rescue teams, 
        including devices to enhance vision during rescue or recovery 
        operations;
          (4) improved technology, and improved protocols for the use 
        of existing technologies, to enable conditions underground to 
        be assessed promptly and continuously in emergencies, so as to 
        facilitate the determination by appropriate officials of the 
        instructions to provide both to miners trapped underground and 
        to mine rescue teams and others engaged in rescue efforts;
          (5) improvements to underground mine ventilation controls 
        separating mine entries to be more resistant to mine fires and 
        explosions, particularly in those entries used for miner 
        escapeways;
          (6) mine-wide monitoring systems and strategies that can 
        monitor mine gases, oxygen, air flows, and air quantities at 
        strategic locations throughout the mine that would be 
        functional during normal mining operations and following mine 
        fires, explosions, roof falls, and mine bursts, including 
        systems utilizing monitoring sensors that transfer data to the 
        mine surface and the installation of tubing to draw mine gas 
        samples that are distributed throughout the mine and can 
        quickly deliver samples to the mine surface; and
          (7) protective strategies for the placement of equipment, 
        cables, and devices that are to be utilized during mine 
        emergencies such as communication systems, oxygen supplies, and 
        mine atmosphere monitoring systems, to protect them from mine 
        fires, roof falls, explosions, and other damage.

SEC. 5. SUPPLEMENTING ENFORCEMENT AUTHORITY.

  (a) Authority of Inspectors.--Section 103(a) (30 U.S.C. 813(a)) is 
amended by adding at the end the following: ``No person shall limit or 
otherwise prevent the Secretary from entry on a coal or other mine, or 
interfere with the Secretary's inspection activities, investigative 
activities, or rescue or recovery activities.''.
  (b) Transition to a New Generation of Inspectors.--Section 505 (30 
U.S.C. 954) is amended--
          (1) by striking ``The Secretary'' the first place it appears 
        and inserting ``(a) The Secretary''; and
          (2) by adding at the end the following:
  ``(b) Within 270 days of the enactment of the S-MINER Act, the 
Secretary shall establish a Master Inspector program to ensure that the 
most experienced and skilled employees in the Nation have the 
incentive, in terms of responsibilities and pay, to serve as mine 
safety and health inspectors in this Nation's mines.
  ``(c) In order to ensure that the Secretary has adequate time to 
provide that a sufficient number of qualified and properly trained 
inspectors of the Mine Safety and Health Administration are in place 
before any inspectors employed as of the date of enactment of the S-
MINER Act retire, any ceilings on the number of personnel that may be 
employed by the Administration with respect to mine inspectors are 
abolished for the 5-year period beginning on the date of enactment of 
such Act.
  ``(d) In the event that, notwithstanding the actions taken by the 
Secretary to hire and train qualified inspectors, the Secretary is 
temporarily unable, at any time during the 5-year period beginning on 
the date of enactment of the S-MINER Act, to employ the number of 
inspectors required to staff all district offices devoted to coal mines 
at the offices' highest historical levels without transferring 
personnel from supervisory or plan review activities or diminishing 
current inspection resources devoted to other types of mines, the 
Administration is authorized to hire retired inspectors on a 
contractual basis to conduct mine inspections, and the retirement 
benefits of such retired inspectors shall not be reduced as a result of 
such temporary contractual employment.
  ``(e) During the 5-year period beginning on the date of enactment of 
the S-MINER Act, the Secretary shall issue a special report to the 
appropriate committees of Congress each year, or at such more frequent 
intervals as the Secretary or any such committee may consider 
appropriate, providing information about the actions being taken under 
this section, the size and training of the inspector workforce at the 
Mine Safety and Health Administration, the level of enforcement 
activities, and the number of requests by individual operators of mines 
for compliance assistance.''.
  (c) Office of Miner Ombudsman.--Title V is amended by adding at the 
end the following:

``SEC. 516. OFFICE OF MINER OMBUDSMAN.

  ``(a) Establishment of Miner Ombudsman.--There shall be established, 
within the Office of the Inspector General of the Department of Labor, 
the position of Miner Ombudsman. The President, by and with the advice 
and consent of the Senate, shall appoint an individual with expertise 
in mine safety and health to serve as the Miner Ombudsman. The 
Ombudsman shall have authority to hire such personnel as are required 
to administer his duties in accordance with applicable law, provided 
they meet any general requirements for employment within the Office of 
the Inspector General.
  ``(b) Duties.--The Miner Ombudsman shall--
          ``(1) recommend to the Secretary appropriate practices to 
        ensure the confidentiality of the identity of miners, and the 
        families or personal representatives of the miners, who contact 
        mine operators, authorized representatives of the miners, the 
        Mine Safety and Health Administration, the Department of Labor, 
        or others with information about mine accidents, incidents, 
        injuries, illnesses, possible violations of mandatory health or 
        safety standard violations or plans or other mine safety and 
        health concerns;
          ``(2) establish a toll-free telephone number and appropriate 
        Internet website to permit individuals to confidentially report 
        mine accidents, incidents, injuries, illnesses, possible 
        violations of mandatory health or safety standard violations or 
        plans or other mine safety and health concerns, and provide 
        plastic wallet cards, refrigerator magnets, or similar devices 
        to all mine operators, which mine operators shall distribute to 
        all current and new miners, with contact information for such 
        confidential reports, and also provide supplies of these 
        devices to miner communities;
          ``(3) collect and forward information concerning accidents, 
        incidents, injuries, illnesses, possible violations of 
        mandatory health or safety standard violations or plans or 
        other mine safety and health concerns to the appropriate 
        officials of the Mine Safety and Health Administration for 
        investigation, or to appropriate officials within the Office of 
        Inspector General for investigation or audit, or both, while 
        establishing practices to protect the confidentiality of the 
        identify of those who provide such information to the 
        Ombudsman; and
          ``(4) monitor the Secretary of Labor's efforts to promptly 
        act upon complaints filed by miners under section 105(c) of the 
        Act or pursuant to other programs administered by the 
        Department to protect whistleblowers, and report to Congress 
        any recommendations that would enhance such rights or 
        protections.
  ``(c) Authority.--All complaints of operator violations of any 
section of this Act or regulations prescribed under this Act that are 
reported to the Secretary shall be forwarded to the Ombudsman for 
logging and appropriate action, except that this requirement shall be 
implemented in such a way as to avoid interference in any way with the 
ability of the Assistant Secretary for Mine Safety and Health to take 
prompt actions that may be required in such situations. This shall 
include complaints submitted in writing, via any phone system, or 
orally, along with all relevant information available regarding the 
complainant. All such information shall be retained in a confidential 
manner pursuant to the Privacy Act of 1974. The Ombudsman shall use 
such information to monitor the actions taken to ensure that miners' 
complaints are addressed in a timely manner and in compliance with the 
appropriate statutes and regulations. The Ombudsman shall refer to 
appropriate personnel within the Office of the Inspector General for 
further review any case which he determines was not handled in such 
fashion.
  ``(d) Authorization of Appropriations.--There are hereby authorized 
to be appropriated to the Ombudsman such sums as may be required for 
the implementation of his duties out of the sums otherwise made 
available to the Mine Safety and Health Administration for its 
activities.''.
  (d) Pattern of Violations.--
          (1) Prompt identification of pattern.--Not later than 3 
        months after the date of enactment of this Act, the Secretary 
        shall revise the regulations issued by the Secretary under 
        section 104(e) of the Federal Mine Safety and Health Act of 
        1977 (30 U.S.C. 814(e)) as in effect on the day before such 
        date of enactment, so that the regulations provide that--
                  (A) when a potential pattern of violations is 
                identified by any inspector or district manager of the 
                Mine Safety and Health Administration, the operator of 
                the coal or other mine and the authorized 
                representative of miners for the mine shall be notified 
                by the inspector or district manager not later than 10 
                days after such identification; and
                  (B) after receiving the notification described in 
                subparagraph (A), the appropriate official of the Mine 
                Safety and Health Administration shall promptly review 
                any such potential pattern of violations and, not later 
                than 45 days after receiving such notification, make a 
                final decision as to whether a citation for a violation 
                of section 104(e) of such Act should be issued in light 
                of the gravity of the violations and the operator's 
                conduct in connection therewith.
          (2) Identification of pattern.--Section 104(e)(1) (30 U.S.C. 
        814(e)(1)) is amended by inserting after the first sentence the 
        following: ``In determining whether a pattern of violations 
        exists, the Secretary shall give due consideration to all 
        relevant information, such as the gravity of the violations, 
        operator negligence, history of violations, the number of 
        inspection shifts the Secretary or her agents have spent at the 
        operation, and the frequency of violations per number of 
        inspection days spent at the operation.''.
          (3) Termination of pattern.--Section 104(e)(3) (30 U.S.C. 
        814(e)(3)) is amended by adding at the end the following: ``In 
        addition, if an operator subject to paragraphs (1) and (2) 
        demonstrates objective evidence that they are correcting the 
        problems that gave rise to the pattern of violations, and the 
        violation frequency rate for such operator declines 
        significantly for a period of 180 days, the withdrawal order 
        provisions of paragraphs (1) and (2) shall no longer apply.''.
          (4) Fine for a pattern of violations.--Section 110 (30 U.S.C. 
        820) is amended--
                  (A) by redesignating subsections (i) through (l) as 
                subsections (j) through (m), respectively; and
                  (B) by inserting after subsection (h) the following:
  ``(i)(1) If the Secretary determines that a pattern of violations 
under section 104(e) exists, the Secretary shall assess a penalty, in 
addition to any other penalty authorized in this Act for a violation of 
such section, of not less than $50,000 nor more than $250,000. All 
operators of the mine, including any corporate owners, shall be jointly 
and severally liable for such penalty. The amount of the assessment 
under this paragraph shall be designed to ensure a change in the future 
conduct of the operators and corporate owners of such mine with respect 
to mine safety and health, given the overall resources of such 
operators. Notwithstanding subsection (k) or section 113, a penalty 
assessed by the Secretary under this paragraph may not be reduced by 
the Commission.
  ``(2) In addition to the authority to withdraw miners from an area of 
a coal or other mine pursuant to section 104(e), the Secretary shall 
withdraw all miners from the entire mine when any pattern of violations 
has been determined to exist until such time as the Secretary certifies 
that all identified violations have been corrected and the operator has 
agreed to abide by a written plan approved by the Mine Safety and 
Health Administration to ensure that such a pattern of conduct will not 
recur.''.
  (e) Notification of Abatement.--Section 104(b) (30 U.S.C. 814(b)) is 
amended--
          (1) by redesignating paragraphs (1) and (2) as subparagraphs 
        (A) and (B), respectively;
          (2) by striking ``If,'' and inserting:
  ``(2) If,''; and
          (3) by inserting after the subsection designation the 
        following:
  ``(1) An operator issued a citation pursuant to subsection (a) shall 
notify the Secretary that the operator has abated the violation 
involved. If such operator fails to provide such a notice to the 
Secretary within the abatement time as provided for in the citation, 
the Secretary shall issue an order that requires the operator (or the 
agent of the operator) to immediately cause all persons, except those 
persons referred to in subsection (c), to be withdrawn from, and to be 
prohibited from entering, such area as the Secretary determines until 
an authorized representative of the Secretary determines that such 
violation has been abated. Notwithstanding any operator notice, no 
violation shall be determined to be abated until an authorized 
representative of the Secretary visits the site and determines such 
violation has been fully abated.''.
  (f) Failure to Timely Pay Penalty Assessments.--Section 105(a) (30 
U.S.C. 815(a)) is amended by striking the third sentence and inserting 
the following: ``The operator shall, not later than 30 days from the 
receipt of the notification of a citation issued by the Secretary, 
notify the Secretary that the operator intends to contest the citation 
or proposed assessment of a penalty, and the operator shall place in 
escrow with the Secretary the amount of the proposed assessment. The 
Secretary shall place any escrow submitted by a mine operator for this 
purpose into an interest bearing account and shall release the funds to 
the operator, including interest accrued, upon the payment of any final 
assessment determination. If notification and proof of escrow is not 
provided to the Secretary, the citation and the proposed assessment of 
penalty shall be deemed a final order of the Commission and not subject 
to review by any court or agency. In the event that a mine operator 
refuses to comply with a final order of the Commission to pay civil 
monetary penalties and statutory interest, the Secretary shall have the 
authority to issue an order requiring the mine operator to cease 
production under such final orders of the Commission have been paid in 
full.''
  (g) Maximum and Minimum Penalties.--Section 110(a)(1) (30 U.S.C. 
820(a)(1)) is amended by striking ``more than $50,000 for each such 
violation.'' and inserting ``less than $500 or more than $100,000 for 
each such violation, except that, in the case of a violation of a 
mandatory health or safety standard that could significantly and 
substantially contribute to the cause and effect of a coal or other 
mine health or safety hazard, the penalty shall not be less than $1,000 
or more than $150,000, for each such violation.''.
  (h) Factors in Assessing Penalties.--The Federal Mine Safety and 
Health Act of 1977 is amended--
          (1) in section 105(b)(1)(B)--
                  (A) by striking: ``the size of the business of the 
                operator charged'' and inserting ``the combined size of 
                the business of the operator and any controlling 
                entity'';
                  (B) by striking ``the effect on the operator's 
                ability to continue in business,''; and
                  (C) by adding at the end the following: ``In settling 
                cases, the Secretary shall utilize the same point 
                system as that utilized to propose penalties, so as to 
                ensure consistency in operator penalty assessments.''; 
                and
          (2) in section 110(j) (as redesignated by subsection 
        (a)(4))--
                  (A) by striking: ``the size of the business of the 
                operator charged'' and inserting ``the combined size of 
                the business of the operator and any controlling 
                entity'';
                  (B) by striking ``the effect on the operator's 
                ability to continue in business,''; and
                  (C) by adding at the end the following: ``In any 
                review requested by a mine operator, or in settling 
                cases, the Commission shall utilize the same point 
                system as that developed by the Secretary for proposed 
                assessments so as to ensure consistency in operator 
                penalty assessments.''.
  (i) Civil Penalty for Interference or Discrimination.--Section 110 
(30 U.S.C. 820) is further amended by adding at the end the following:
  ``(n) Civil Penalty for Interference or Discrimination.--Any operator 
who is found to be in violation of section 105(c), or in violation of 
section 103(a) (as amended by this Act) shall be subject to a civil 
penalty of not less than $10,000 nor more than $100,000 for each 
occurrence of such violation.''.
  (j) Withdrawal Order.--Section 107(a) (30 U.S.C. 817(a)) is amended 
by inserting after the first sentence the following: ``In addition, in 
the event of any violation of section 315 or section 316, or 
regulations issued pursuant to such sections, such representative shall 
determine the extent of the area of such mine throughout which the 
danger exists and issue an order requiring the operator of such mine to 
cause all persons, except those referred to in section 104(c), to be 
withdrawn from, and to be prohibited from entering, such area until an 
authorized representative of the Secretary determines that the 
violations have been abated.''.
  (k) Clarifications of Intent in the 1977 Act.--The Federal Mine 
Safety and Health Act of 1977 is amended--
          (1) in section 3(d) (30 U.S.C. 802)--
                  (A) by inserting ``mineral'' before ``owner'';
                  (B) by inserting ``mineral'' before ``lessee'';
                  (C) by striking ``or any independent'' and inserting 
                ``and any independent''; and
                  (D) by inserting before the semicolon the following: 
                ``, and no operator may, by contract or other 
                agreement, limit any liability under this Act through 
                transfer of any responsibilities to another person'';
          (2) in section 103 (30 U.S.C. 813)--
                  (A) in subsection (b)--
                          (i) by striking the first sentence and 
                        inserting the following: ``For the purpose of 
                        enabling the Secretary to perform the functions 
                        under this Act, the Secretary may, after 
                        notice, hold public hearings and sign and issue 
                        subpoenas for the attendance and testimony of 
                        witnesses and the production of information, 
                        including but not limited to relevant data, 
                        papers, books, documents and items of physical 
                        evidence, and administer oaths, whether or not 
                        in connection with a public hearing.''; and
                          (ii) in the last sentence by striking 
                        ``documents'' and inserting ``information, 
                        including data, papers, books, documents, and 
                        items of physical evidence''; and
                  (B) in subsection (h), in the first sentence, by 
                striking ``information'' and inserting ``data, papers, 
                books, documents, and items of physical evidence'';
          (3) in section 104 (30 U.S.C. 814)--
                  (A) in subsections (d)(1), (e)(1), (e)(2), (e)(3), 
                and (e)(4), as amended by this Act, by inserting ``or 
                any provision of this Act'' after ``standard'' or 
                ``standards'' each place either such term appears; and
                  (B) in subsection (d)(1), as amended by this Act, by 
                striking ``while the conditions created by such 
                violation do not cause imminent danger,'';
          (4) in section 105 (30 U.S.C. 815)--
                  (A) in subsection (a), in the first sentence, by 
                striking ``, within a reasonable time after the 
                termination of such inspection or investigation,'';
                  (B) in subsection (c)--
                          (i) in paragraph (1)--
                                  (I) by inserting ``or an injury or 
                                illness in a coal or other mine or that 
                                may be associated with mine 
                                employment,'' after ``of an alleged 
                                danger or safety or health violation in 
                                a coal or other mine,''; and
                                  (II) by inserting at the end the 
                                following: ``No miner shall be required 
                                to work under conditions he has 
                                reasonable grounds to believe to be 
                                abnormally and immediately dangerous to 
                                himself beyond the normal hazards 
                                inherent in the operation which could 
                                reasonably be expected to cause death 
                                of serious physical harm before such 
                                condition or practice can be abated.''; 
                                and
                          (ii) in paragraph (2), by inserting after the 
                        fifth sentence the following: ``No 
                        investigation or hearing authorized by this 
                        paragraph may be stayed to await resolution of 
                        a related grievance proceeding''; and
                  (C) by adding at the end the following:
  ``(e) Attorneys representing the Secretary are authorized to contact 
any miner or non-managerial employee of a mine operator for the 
purposes of carrying out the Secretary's functions under this Act and 
no attorney representing the Secretary shall be disbarred or 
disciplined by any State bar or State court for making such contacts. 
No attorney representing a mine operator in a matter under this Act may 
concurrently represent individual miners in the same matter.''; and
          (5) in section 110 (30 U.S.C. 820)--
                  (A) in subsection (b)(2), by striking ``under'' and 
                inserting ``of subsections (a) through (h) of''; and
                  (B) in subsection (c)--
                          (i) by striking ``Whenever a corporate 
                        operator'' and inserting ``Whenever a mine 
                        operator'';
                          (ii) by striking ``safety standard'' and 
                        inserting ``safety standard or requirement of 
                        this Act'';
                          (iii) by inserting ``partner, owner,'' after 
                        ``director,''; and
                          (iv) by striking ``such corporation'' and 
                        inserting ``such mine operator''.
  (l) Federal Licensing.--The Secretary shall promptly establish an 
advisory committee to provide recommendations as to whether the Federal 
Mine Safety and Health Act of 1977 should provide for Federal licensing 
of mines, mine operators, mine controllers, or various mine personnel 
in order to ensure that those engaged in mining activities are not 
frequent violators of safety and health requirements, and establish a 
national registry in connection therewith. The advisory committee shall 
be established pursuant to the Advisory Committee Act, and shall 
conduct a review of existing State licensing requirements and 
registries, assess their effectiveness, and shall provide its 
recommendations to Congress not later than 2 years after the date of 
enactment of this Act.

SEC. 6. SUPPLEMENTING RESCUE, RECOVERY, AND INCIDENT INVESTIGATION 
                    AUTHORITY.

  (a) Emergency Call Center.--Not later than 30 days after the date of 
enactment of this Act, the Secretary shall establish, within the Mine 
Safety and Health Administration, a central communications emergency 
call center for all coal or other mine operations that shall be staffed 
and operated 24 hours per day, 7 days per week, by 1 or more employees 
of the Mine Safety and Health Administration. All calls placed to the 
emergency call center shall be answered by an individual with adequate 
experience and training to handle emergency mine situations. A single 
national phone number shall be provided for this purpose and the 
Secretary shall ensure that all miners and mine operators are issued 
laminated cards with emergency call center information.
  (b) Contact Information.--The Secretary shall provide the emergency 
call center with a contact list, updated not less often than quarterly, 
that contains--
          (1) the contact phone numbers, including the home phone 
        numbers, for the members of each mine rescue team responsible 
        for each coal or other mine;
          (2) the phone numbers for the local emergency and rescue 
        services unit that is located nearest to each mine;
          (3) the contact phone numbers, including the home phone 
        number, for the operator of each mine;
          (4) the contact phone numbers, including the home phone 
        numbers, for the national and district officials of the Mine 
        Safety and Health Administration;
          (5) the contact phone numbers, including the home phone 
        numbers, for the State officials in each State who should be 
        contacted in the event of a mine emergency in such State; and
          (6) the contact phone numbers, including the home phone 
        number, for the authorized representative of the miners at each 
        mine.
Each mine operator shall ensure that the Secretary is provided with 
completely current information required to be maintained by the 
Secretary pursuant to paragraphs (1), (3), and (6). The Secretary shall 
give due consideration to the information collected by the joint 
government-industry Mine Emergency Operations database.
  (c) Mine Locations; Repository of Mining Maps.--
          (1) Mine locations.--The Secretary shall establish, maintain, 
        and keep current, on the Department of Labor's website, a 
        detailed map or set of maps showing the exact geographic 
        location of each operating or abandoned mine in the United 
        States, as determined by a global positioning system. Such map 
        or maps shall--
                  (A) be presented, through links within the website, 
                in such a way as to make the location of a mine 
                instantly available to the emergency personnel 
                responding to the mine;
                  (B) be available to members of the public;
                  (C) allow a user to find the geographic location of a 
                particular mine, or the geographic locations of all 
                mines of a particular type in a county, congressional 
                district, State, or other commonly used geographic 
                region; and
                  (D) provide the geographic location of any mining 
                waste impoundments with links to associated emergency 
                contact information and available emergency response 
                plans.
          (2) Repository of mining maps.--The Secretary shall establish 
        a national repository for preserving a digital archive of 
        mining maps to be accessible directly and without delay from 
        the Department's web site. The mining maps shall include copies 
        of all historic maps that can be obtained, as well as copies of 
        currently approved mining maps, which the Secretary shall 
        arrange to copy and preserve in digital form. The Secretary may 
        coordinate the operation of such repository with the Secretary 
        of the Interior provided the other requirements of this 
        paragraph are observed. In addition, the Secretary shall 
        include in this repository copies of the most currently 
        available mine emergency response plan, roof plans, ventilation 
        plans, and such other plans required for any type of mine, 
        following any required approval, so that they may be 
        immediately accessed in an emergency, in a manner consistent 
        with the requirements of section 312(b) of the Act.
  (d) Required Notification of Emergencies and Serious Incidents.--
Section 103(j) (30 U.S.C. 813(j)) is amended--
          (1) in the first sentence, by inserting ``or reportable 
        event'' after ``accident'';
          (2) in the second sentence--
                  (A) by inserting ``of accidents'' after ``the 
                notification''; and
                  (B) by inserting ``, or in the case of a reportable 
                event that is not required to be reported as an 
                accident, within 1 hour of the time at which the 
                operator realizes that the event has occurred'' before 
                the period; and
          (3) by inserting at the end the following: ``For the purposes 
        of this subsection, a reportable event shall include--
          ``(1) a fire not required to be reported more promptly;
          ``(2) a sudden change in mine atmospheric conditions in a 
        sealed area;
          ``(3) a coal or rock outburst that causes the withdrawal of 
        miners; or
          ``(4) any other event, as determined in regulations 
        promulgated by the Secretary, that needs to be reported within 
        1 hour in order for the Secretary to determine if the working 
        conditions in the mine are safe.''.
  (e) Enhancing the Capabilities of Mine Rescue Teams.--
          (1) Amendment to fmsha.--Section 115(e)(2)(B) (30 U.S.C. 
        825(e)(2)(B)) is amended by adding at the end the following:
  ``(v) The provision of uniform credentials to mine rescue team 
members, support personnel, or vehicles for immediate access to any 
mine site.
  ``(vi) The plans required at each mine to ensure coordination with 
local emergency response personnel and to ensure that such personnel 
receive adequate training to offer necessary assistance to mine rescue 
teams in the event such assistance is requested. Such local emergency 
response personnel shall not perform the duties of any mine rescue 
team.
  ``(vii) Requirements to ensure that operators are prepared to 
facilitate the work of mine rescue teams during an emergency by--
          ``(I) storing necessary equipment not brought on site by mine 
        rescue teams in locations readily accessible to mine rescue 
        teams;
          ``(II) providing mine rescue teams with a parking and staging 
        area adequate for their needs;
          ``(III) identifying a space appropriate for coordinating 
        emergency communications with the mine rescue team; and
          ``(IV) identifying and maintaining separate spaces for family 
        members, community members, and press to assemble during an 
        emergency so as to facilitate communications with these groups 
        while ensuring the efforts of the mine rescue teams are not 
        hindered.''.
          (2) Research.--Section 22(h)(5)(A) of the Occupational Safety 
        and Health Act of 1970 (29 U.S.C. 671(h)(5)(A)) is amended by 
        adding before the period at the end thereof: ``including 
        advanced drilling technologies, and any special technologies 
        required for safety or rescue in mining more than 1,500 feet in 
        depth''.
  (f) Title I of the Act is amended by adding at the end thereof a new 
section:''.

``SEC. 117. EMERGENCY PREPAREDNESS PLAN.

  ``Not later than 6 months of the enactment of the S-MINER Act, the 
Secretary shall establish and disseminate guidelines for rescue 
operations that will: (1) establish clear lines of authority within the 
agency for such operations; (2) establish clear lines of demarcation so 
private sector and State responders can properly implement their 
responsibilities; (3) be appropriate for rescue in various types of 
conditions reasonably likely to be encountered in the United States, 
including such factors as the depth of the mining, ground stability, 
ground slope, remoteness from major roads, surface ownership and access 
problems, and the availability of necessary communications linkages. 
The Secretary shall consult with States, rescue teams and other 
responders in developing such guidelines, and shall update them from 
time to time based upon experience.''.
  (g) Authority of Secretary During Rescue Operations.--Section 103 (30 
U.S.C. 813) is further amended--
          (1) in subsection (j), by adding at the end thereof:
``If the representative of the Secretary supervises and directs the 
rescue and recovery activities in such mine, the operator shall comply 
with the requests of the authorized representative of the Secretary to 
facilitate rescue and recovery activities including the provision of 
all equipment, personnel, and other resources required to perform such 
activities in accordance with the schedule and requirements established 
by the representative of the Secretary for this purpose, and failure of 
the operator to comply in this regard shall be considered an egregious 
violation of this Act.''; and
          (2) in subsection (k), by striking ``, when present,''.
  (h) Rescue Communications.--
          (1) Repeal.--The MINER Act (30 U.S.C. 801 note) is amended by 
        striking section 7, redesignating sections 8 and 9 as sections 
        7 and 8, and sections 11 through 14 as sections 9 through 12, 
        respectively.
          (2) Amendment to fmsha.--Title I of the Act is further 
        amended by adding at the end the following:

``SEC. 118. FAMILY LIAISONS REQUIREMENT.

  ``The Secretary shall--
          ``(1) designate a full-time permanent employee of the Mine 
        Safety and Health Administration to serve as a Family Liaison, 
        who shall, at least in instances where multiple miners are 
        trapped, severely injured or killed, act as the primary 
        communication with the families of the miners concerning all 
        aspects of the rescue operations, including the location or 
        condition of miners, and assist the families in getting answers 
        to their questions, and otherwise serve as a liaison to the 
        families, and provide for the temporary reassignment of other 
        personnel who may be required to assist the Family Liaison in 
        connection with a particular incident;
          ``(2) require the Mine Safety and Health Administration to be 
        as responsive as possible to requests from the families of such 
        miners for information relating to the mine accident, and waive 
        any fees required for the production of documents pursuant to 5 
        U.S.C. 552(a)(3) in connection with a request from a family 
        member, or authorized representative of miners, for documents 
        relating to a mine fatality, notwithstanding any conditions for 
        fee waivers law that may otherwise be imposed by law; and
          ``(3) designate a highly qualified representative of the 
        Secretary with experience in public communications to be 
        present at mine accident sites where rescues are in progress 
        during the entire duration of such rescues, to serve as the 
        primary communicator with the press and the public concerning 
        all aspects of the rescue operations, including the location or 
        condition of miners.''.
          (3) Conforming amendments.--The Act is amended--
                  (A) in section 103(f), by inserting before the period 
                at the end of the first sentence the following: ``, and 
                to participate in any accident investigation pursuant 
                to the requirements of this Act. Any family member of a 
                miner trapped or otherwise unable to execute a 
                designation of a miner representative on his or her own 
                behalf may do so on behalf of the miner for any and all 
                purposes''; and
                  (B) in section 316(b)(2)(E)(vi) (as added by this 
                Act), by adding at the end the following ``The plan 
                shall also set forth the operator's plans for assisting 
                the Secretary in the implementation of section 118.''.
  (i) Recovery.--Section 103 is amended by adding at the end thereof--
  ``(l) Rescue efforts for trapped miners shall not cease as long as 
there is any possibility that miners are alive, unless such efforts 
pose a serious danger to rescue or other workers, and the decision to 
cease a rescue shall be made by the Secretary`s representative. 
Thereafter, efforts to recover the remains of miners shall continue 
unless such efforts pose a serious danger to recovery workers, and the 
decision to cease such recovery efforts shall be made by the 
Secretary's representative.''.
  (j) Accident and Incident Investigations.--Section 103(b) (30 U.S.C. 
813(b), as amended by section 5(k)(2) of this Act, is further amended--
          (1) by striking ``For the purpose'' and inserting the 
        following:
  ``(3) For the purpose'';
          (2) by inserting after the subsection designation the 
        following:
  ``(1) For all accident and incident investigations under this Act, 
the Secretary shall determine why the accident or incident occurred; 
determine whether civil or criminal requirements were violated and, if 
so, issue citations and penalties, and make recommendations to avoid 
any recurrence. The Secretary shall also determine whether the conduct 
or lack thereof by Agency personnel contributed to the accident or 
incident.
  ``(2)(A) For any accidents or incidents involving multiple serious 
injuries or deaths, or multiple entrapments, there shall also be an 
independent investigation to consider why the accident or incident 
occurred, make recommendations to avoid a recurrence, and determine 
whether the conduct or lack thereof by agency personnel contributed to 
the accident or incident.
  ``(B) Not later than 30 days after the date of enactment of the S-
MINER Act, the Secretary shall initiate rulemaking activity to 
establish rules on the procedures that will be used to investigate 
accidents and incidents involving multiple serious injuries or deaths, 
or multiple entrapments, and shall directly contact and solicit the 
participation of
          ``(i) individuals identified by the Secretary as family 
        members of miners who perished in mining accidents of any type 
        during the preceding 10-year period;
          ``(ii) organizations representing miners;
          ``(iii) mine rescue teams;
          ``(iv) Federal, State, and local investigation and 
        prosecutorial authorities; and
          ``(v) others whom the Secretary determines may have 
        information relevant to this rulemaking.
Such rulemaking shall be completed by October 1, 2008.
  ``(C) The rules for the investigation of accidents or incidents 
involving multiple serious injuries or deaths, or multiple entrapments, 
shall provide for the appointment and operations of any such 
independent investigation team in accordance with the requirements of 
this paragraph. An independent investigation team shall be appointed by 
the Director of the National Institute for Occupational Safety and 
Health as soon as possible after a qualifying accident or incident. The 
members shall consist of:
          ``(i) a representative from the National Institute for 
        Occupational Safety and Health who shall serve as the Chairman;
          ``(ii) a representative of mine operators with familiarity 
        with the type of mining involved;
          ``(iii) a representative of mine workers with familiarity 
        with the type of mining involved, who shall be the workers' 
        certified bargaining representative at the mine or, if there is 
        no certified representative at the mine, then a workers' 
        representative jointly selected by organized labor 
        organizations:
          ``(iv) an academic with expertise in mining; and
          ``(v) a representative of the State in which the accident or 
        incident occurred to be selected by the Governor.
  ``(D) Such rules shall include procedures to ensure that the 
Secretary will be able to cooperate fully with the independent 
investigation team and will use the powers of the Secretary under this 
section to help obtain information and witnesses required by the 
independent investigation team, procedures to ensure witnesses are not 
coerced and to avoid conflicts of interest in witness representation, 
procedures to ensure confidentiality if requested by any witness, and 
procedures to enable the independent investigation team to conduct such 
public hearings as it deems appropriate. Such rules shall also require 
that upon completion of any accident or incident investigation of 
accidents or incidents involving multiple serious injuries or deaths, 
or multiple entrapments, the independent investigation team shall--
          ``(i) issue findings as to the actions or inactions which 
        resulted in the accident or incident;
          ``(ii) make recommendations as to policy, regulatory, 
        enforcement or other changes, including statutory changes, 
        which in the judgment of the independent investigation team 
        would best prevent a recurrence of such actions or inactions at 
        other mines; and
          ``(iii) promptly make all such findings and recommendations 
        public (except findings and recommendations that must be 
        temporarily withheld in connection with a criminal referral), 
        including appropriate public hearings to inform the mining 
        community of their respective findings and recommendations.
  ``(E) As part of the Secretary's annual report to Congress pursuant 
to section 511(a), the Secretary shall report on implementation of 
recommendations issued by any independent investigation teams in the 
preceding 5 years.''; and
          (3) by adding at the end the following:
  ``(4) Nothing in this Act shall be construed to limit the authority 
of the Chemical Safety and Hazard Investigation Board to conduct an 
independent investigation of the accident or incident or the events or 
factors resulting therein, nor with the authority of the Office of the 
Inspector General to conduct an investigation of the conduct of DOL 
personnel in connection with an accident or incident or the events or 
factors resulting therein, and the Secretary shall cooperate in full 
with any such investigation. Such investigation shall be in addition to 
any investigation authorized by section 103(b).''.

SEC. 7. RESPIRABLE DUST STANDARDS.

  (a) Respirable Dust; Respirable Silica Dust.--Section 202 (30 U.S.C. 
842) is amended to read as follows:

``SEC. 202. DUST STANDARD AND RESPIRATORY EQUIPMENT.

  ``(a)(1) Effective on the date of enactment of the S-MINER Act, each 
coal mine operator shall continuously maintain the concentration of 
respirable dust in the mine atmosphere during each shift to which each 
miner in the active workings of such mine is exposed at or below a 
time-weighted average of 1.00 milligrams of respirable dust per cubic 
meter of air averaged over 10 hours or its dose-equivalent for shorter 
or longer period of time. For purposes of this paragraph, `a dose-
equivalent' means the amount of dust that a miner would inhale during 
his work shift as if he were working for 10 hours, and the term `shift' 
means portal-to-portal for underground coal mines and `bank to bank' 
for other coal mines.
  ``(2) At regular intervals to be prescribed by the Secretary and the 
Secretary of Health and Human Services, the Secretary will take 
accurate samples of the amount of respirable dust in the coal mine 
atmosphere to which each miner in the active workings of such mine is 
exposed in order to determine compliance with the requirements of 
paragraph (a)(1) of this section. In addition, the Secretary shall 
cause to be made such frequent spot inspections as he deems appropriate 
of the active workings of coal mines for the purpose of obtaining 
compliance with the provisions of this title. All samples by the 
Secretary shall be taken by a personal dust monitor that measures, 
records and displays in real time the concentration of respirable dust 
to which the miner wearing the device is exposed, and shall include the 
sampling of areas, occupations or persons. For the purposes of 
determining compliance with the exposure limit for respirable dust, 
only a single sample shall be required to determine non-compliance, and 
there shall be no adjustment for measurement error in the measured 
level of respirable dust.
  ``(3) At intervals established by the Secretary, each operator of a 
coal mine shall take accurate samples of the amount of respirable dust 
in the mine atmosphere to which each miner in the active workings of 
such mine is exposed to identify sources of exposure so that the 
operator can take corrective action and assure that the exposure of 
each mine is below the exposure limit. Under the provisions of this 
Act, all such samples shall be taken by a personal dust monitor that 
measures, records and displays the concentration of respirable dust to 
which the miner wearing the device is exposed, and may include samples 
of less than a full shift. The results of such sampling shall be 
transmitted to the Secretary in a manner established by him, and 
recorded by him in a manner that will assure application of the 
provisions of this section of the Act.
  ``(4) Each miner shall be equipped with a personal dust monitor that 
measures, records and displays in real time the concentration of 
respirable dust to which the miner wearing the device is exposed. Each 
miner shall be permitted to adjust his work activities whenever 
necessary to keep his exposure to respirable coal dust, as measured, 
recorded and displayed by such device, at all times at or below the 
permitted concentration.
  ``(b) Effective on the date of enactment of the S-MINER Act, each 
operator of a coal or other mine shall continuously maintain the 
concentration of respirable silica dust in the mine atmosphere during 
each shift to which each miner in the active workings of such mine is 
exposed at or below a time-weighted average of 0.05 milligrams of 
respirable silica dust per cubic meter of air averaged over ten hours 
or its dose-equivalent for shorter or longer period of time. For the 
purposes of this paragraph, compliance shall be determined by the 
sampling of areas, occupations or persons, only a single sample shall 
be required to determine non-compliance, and there shall be no 
adjustment for measurement error in the measured level of respirable 
silica dust. For the purposes of this paragraph, a `dose-equivalent' 
means the amount of dust that a miner would inhale during his work 
shift as if he were working for 10 hours, and the term `shift' means 
portal-to-portal for underground mines and `bank to bank' for other 
mines.
  ``(c) Respiratory equipment approved by the Secretary and the 
Secretary of Health and Human Services shall be made available to all 
persons whenever exposed to concentrations of respirable dust or silica 
in excess of the levels required to be maintained under this section. 
Use of respirators shall not be substituted for environmental control 
measures in the active workings. Each operator shall maintain a supply 
of respiratory equipment adequate to deal with occurrences of 
concentrations of respirable dust and silica in the mine atmosphere in 
excess of the levels required to be maintained under this section.
  ``(d) Each operator shall report and certify to the Secretary at such 
intervals as the Secretary may require as to the conditions in the 
active workings of a coal mine, including, the average number of 
working hours worked during each shift, the quantity and velocity of 
air regularly reaching the working faces, the method of mining, the 
amount and pressure of the water, if any, reaching the working faces, 
and the number, location, and type of sprays, if any, used.''.
  (b) Conforming Amendment.--Section 205 (30 U.S.C. 845) is repealed.
  (c) Assessment on Program Operations of Cumulative Impact of External 
Requirements Added Since 1977.--The Secretary shall request the 
National Academy of Sciences to conduct a study of the impact on the 
mine safety and health responsibilities of the Department of Labor of 
various statutes, executive orders, and memoranda applicable to the 
issuance of rulemaking and guidance and to enforcement. The study shall 
include an assessment of the Equal Access to Justice Act, the 
Regulatory Flexibility Act, the Small Business Regulatory Enforcement 
Fairness Act, the Data Quality Act, the Paperwork Reduction Act, the 
Unfunded Mandates Reform Act, the Federal Advisory Committee Act, the 
Congressional Review Act, Executive Order 12866, Executive Order 13422, 
and memoranda from the Office of Management and Budget on guidance, 
risk assessment and cost analysis. The Secretary shall request that the 
National Academy of Sciences consult widely with experts in 
administrative law and other disciplines knowledgeable about such 
requirements, and to quantify to the extent possible the costs to 
miners of the aforementioned requirements. The Secretary shall further 
request that recommendations be included in the report, and that such 
report and recommendations be completed, and forwarded to the Congress, 
no later than 21 months after the date of enactment of this Act.

SEC. 8. OTHER HEALTH REQUIREMENT.

  (a) Air Contaminants.--Section 101 of (30 U.S.C. 811) is amended by 
adding at the end the following:
  ``(f) Notwithstanding the other requirements of this section, not 
later than 30 days of the enactment of the S-MINER Act, the National 
Institute for Occupational Safety and Health shall forward to the 
Secretary its Recommended Exposure Limits (RELs) for chemical and other 
hazards to which miners may be exposed, along with the research data 
and other necessary information. Within 30 days of receipt of this 
information, the Secretary shall to adopt such recommended exposure 
limits as the Permissible Exposure Limits (PELs) for application in the 
mining industry. The National Institute of Occupational Safety and 
Health shall annually submit to the Secretary any additional or revised 
recommended exposure limits for all chemicals and other hazards to 
which miners may be exposed, and the Secretary shall be obligated to 
adopt such exposure limits as PELs for application in the mining 
industry within 30 days of receipt of such information. Upon petition 
from miners or mine operators providing credible evidence that 
feasibility may be an issue for the industry as a whole, the Secretary 
may review the feasibility of any PEL established pursuant to this 
paragraph before placing it into effect and, following public notice 
and comment, make necessary adjustments thereto, provided that the 
adjusted standard is as protective as is feasible, and that the PEL 
shall go into effect as required by the other provisions of this 
paragraph if such action is not completed within one year. Moreover, 
upon petition from miners or mine operators providing credible evidence 
that a REL issued by the National Institute of Occupational Safety and 
Health lacks the specificity required to serve as a PEL pursuant to 
this Act, the Secretary may defer implementation of the requirements of 
this paragraph and shall promptly request National Institute of 
Occupational Safety and Health to recommend a sufficiently detailed 
REL, at which time the provisions of this paragraph shall be 
implemented. Nothing in this subsection shall limit the ability of the 
National Institute of Occupational Safety and Health to make such 
recommendations more frequently than 1 time per year, nor limit the 
Secretary from establishing requirements for chemical and other 
substances or health hazards in the mining industry that are more 
comprehensive and protective than those established pursuant to this 
subsection and in accordance with the other requirements of this 
section.''.
  (b) Asbestos.--Section 101 (30 U.S.C. 811) is further amended by 
adding at the end the following:
  ``(g) The health standard for asbestos established by the 
Occupational Safety and Health Administration that is set forth in 
section 1910.1001 of title 29, Code of Federal Regulations, or any 
subsequent revision of that regulation, shall be adopted by the 
Secretary for application in the mining industry not later than 30 days 
of the enactment of the S-MINER Act. Nothing in this paragraph shall 
preclude the Secretary from adopting regulations to address asbestos 
hazards to miners not covered by the regulations of the Occupational 
Safety and Health Administration.''.
  (c) Hazard Communication.--Section 101 (30 U.S.C. 811) is further 
amended by adding at the end the following:
  ``(h) Unless and until there is additional rulemaking pursuant to the 
requirements of this section, the Secretary shall apply the provisions 
of the interim final rule of October 3, 2000, concerning hazard 
communication, in lieu of the final rule of June 21, 2002, concerning 
hazard communication.''.

                               I. Purpose

    The purpose of H.R. 2768 is to enhance occupational safety 
and health protection for this Nation's miners.

      II. Committee Action Including Legislative History and Votes


             Early Federal Action on Mine Safety and Health

    The Federal Government recognized the safety and health 
dangers in mining as early as 1865, when a bill to create a 
Federal Mining Bureau was introduced in the Congress.\1\ In 
1891, Congress passed the first statute governing mine safety. 
This legislation was modest and applied only to mines in U.S. 
territories, establishing minimum ventilation requirements and 
prohibiting the employment of children under age 12.\2\
---------------------------------------------------------------------------
    \1\U.S. Senate, The Federal Coal Mine Health and Safety Act of 
1969, 91st Congress, 1st Session, Report No. 91-411 (September 17, 
1969); U.S. House of Representatives, The Federal Coal Health and 
Safety Act, 91st Congress, 1st Session, Report No. 91-563 (October 13, 
1969), p. 1. House Report can be found at http://www.msha.gov/
SOLICITOR/COALACT/69hous.htm.
    \2\U.S. Department of Labor, History of Mine Safety and Health 
Legislation (October 5, 2007), http://www.msha.gov/MSHAINFO/
MSHAINF2.HTM.
---------------------------------------------------------------------------
    Between 1880 and 1910, there were well over 2,400 
fatalities a year.\3\ As a result, on July 1, 1910, Congress 
passed Public Law 179, creating the Bureau of Mines within the 
Department of the Interior.\4\ It was charged with:
---------------------------------------------------------------------------
    \3\Department of Labor, Coal Fatalities for 1900 through 2006 
(October 5, 2007), http://www.msha.gov/stats/centurystats/
coalstats.asp.
    \4\George Siehl, ``The Federal Role in Mine Safety,'' The Library 
of Congress Legislative Reference Service (February 3, 1969), p. 1.

        diligent investigation of the methods of mining, 
        especially in relation to the safety of miners, and the 
        appliances best adapted to prevent accidents, the 
        possible improvement of conditions under which mining 
        operations are carried on, the treatment of ores and 
        other mineral substances, the use of explosives and 
        electricity, the prevention of accidents, and other 
        inquiries and technologic investigations pertinent to 
        said industries.\5\
---------------------------------------------------------------------------
    \5\Report No. 91-563 at pp. 1-2; Siehl, supra, p. 1. See also: 
Report No. 91-411, pp. 3-4.

    This legislation was very limited and specifically denied 
``any right or authority in connection with, the inspection or 
supervision of mines in any state'' on the part of any Bureau 
employee.''\6\ It was, however, a Federal recognition of the 
need to address hazards in the mineral industries.\7\
---------------------------------------------------------------------------
    \6\Id.
    \7\Report No. 91-411, p. 4.
---------------------------------------------------------------------------
    In 1941, the House and Senate passed the bill which became 
Public Law 49 and was called Title I of the Federal Coal Mine 
Safety Act.\8\ Title I specifically authorized Federal 
authorities to inspect coal mines for health and safety 
hazards. Over the next 25 years, several other mine safety and 
health laws were enacted, expanding the authority of inspectors 
and providing for mandatory safety codes.
---------------------------------------------------------------------------
    \8\Siehl, supra, p. 3.
---------------------------------------------------------------------------

               Modern Mine Safety and Health Legislation


                             91ST CONGRESS

    In 1967, there were 222 mine fatalities, followed by 311 in 
1968.\9\ The most infamous of these mine disasters was a mine 
explosion that occurred at an underground coal mine near 
Farmington, Marion County, West Virginia on November 20, 1968. 
Of the 99 miners in the mine at the time of the explosion, only 
21 were able to escape. After several days of rescue efforts, 
the mine was sealed and 78 miners were lost forever.\10\
---------------------------------------------------------------------------
    \9\Report No. 91-563, p. 2.
    \10\Chris Stirewalt, supra; Report, No. 91-563, p. 2.
---------------------------------------------------------------------------
    After many days of hearings, mine tours, and consultations 
with experts, Public Law 91-173, the Federal Coal Mine Health 
and Safety Act of 1969, or the Coal Act, was enacted. The Coal 
Act was more comprehensive and more stringent than any previous 
Federal legislation.\11\ It covered both surface mining and 
underground mining and required, on a yearly basis, 2 
inspections for surface mines and 4 inspections for underground 
mines. Safety standards were strengthened and interim health 
standards were adopted. In addition, it included specific 
instructions to the Agency on how to develop these improved 
standards. The law increased Federal enforcement powers and 
mandated monetary penalties for all violations and adopted 
criminal penalties for ``knowing and willful'' violations. 
Finally, the Coal Act provided compensation for those miners 
disabled by ``black lung'' disease.\12\
---------------------------------------------------------------------------
    \11\U.S. Department of Labor, History of Mine Safety and Health 
Legislation, supra.
    \12\Id.
---------------------------------------------------------------------------
    Over the next several Congresses, additional mine safety 
and health legislation was introduced, hearings were held, but 
nothing was enacted. In 1970, the Senate Committee on Human 
Resources held 3 hearings on health and mine safety, but no 
further legislative action was taken.\13\
---------------------------------------------------------------------------
    \13\U.S. Senate, The Federal Mine Safety and Health Act of 1977, 
95th Congress, 1st Session, Report No. 95-181 (May 16, 1977), p. 5, 
http://www.msha.gov/SOLICITOR/COALACT/leghist2.htm.
---------------------------------------------------------------------------

                             95TH CONGRESS

    In 1977, Congress and the President moved forward with 
additional mine safety legislation. On November 9, 1977, the 
President signed the Federal Mine Safety and Health Act of 1977 
(Public Law 95-164) into law on November 9, 1977. It placed 
coal mines and metal and nonmetal mines under a single law, 
with enforcement provisions similar to the 1969 Act, although 
it maintained separate safety and health standards. The new law 
moved enforcement from the Department of Interior to the 
Department of Labor and renamed the agency the Mine Safety and 
Health Administration (MSHA).
    The law also improved the assessment and collection of 
civil penalties and provided for 4 inspections a year at all 
underground mines and 2 at all surface mines. The advisory 
standards for metal and nonmetal mines and state enforcement 
plans were eliminated.
    In addition, the law enhanced the protection of miners from 
retaliation for exercising their rights under the new law. It 
also provided for mandatory miner training and required mine 
rescue teams for all underground mines. Finally, the law 
increased the involvement of miners and their representatives 
in health and safety activities and established the Federal 
Mine Safety and Health Review Commission to provide for 
independent review of a majority of MSHA's enforcement 
actions.\14\
---------------------------------------------------------------------------
    \14\U.S. Department of Labor, Fact Sheet, supra; U.S. Department of 
Labor, History of Mine Safety and Health Legislation, supra. See also: 
J. Davitt McAteer, The Federal Mine Safety and Health Act of 1977: 
Preserving a Law that Works,98 W. VaL. Rev. 1105 (Summer, 1996).
---------------------------------------------------------------------------
    In 1978, the Congress also passed and the President signed 
the Black Lung Benefits Reform Act, which amended the Mine Act 
of 1969 to strengthen somewhat the provisions regarding black 
lung benefits for miners.\15\
---------------------------------------------------------------------------
    \15\When the House considered the legislation on September 20, 
1977, it inserted provisions of an amended S. 1538, which had been 
introduced by Senator Randolph on May 16, 1977. Several other bills 
were introduced regarding black lung, including H.J. Res 151 (Rahall), 
H.R. 2185 (Duncan) H.R. 1532, H.R. 4388, H.R. 4389, H.R. 5152 (Simon), 
H.R. 4426 (Findlay) H.R. 4858 (Slack), H.R. 5297 (Beard), H.R. 7598 
(Murtha), H.R. 7979 (Sarasin), H.R. 8484 (Erlenborn), as well as S. 
1041 (Sparkman), extending black lung benefits to miners from iron 
mines with silicosis.
---------------------------------------------------------------------------

          Recent Legislative Action on Mine Safety and Health


                             104TH CONGRESS

    On June 14, 1995, Representative Cass Ballenger introduced 
H.R. 1834, the Safety and Health Improvement and Regulatory 
Reform Act of 1995. It would have repealed the Mine Act of 1977 
and eliminated MSHA. Instead it would have regulated mining 
under a scaled-back version of the Occupational Safety and 
Health Act (OSHA). While the House Subcommittee on Workforce 
Protections of the Committee on Economic and Educational 
Opportunities, held hearings on the bill on June 20, 1995, June 
28, 1995 and July 27, 1995, no legislation was enacted.\16\
---------------------------------------------------------------------------
    \16\McAteer, supra, pp.1-2. In addition in the 104th Congress, 
Senator Robb introduced S. 1517 to appropriate funds for the Black Lung 
Disability Trust Fund, and Rep. Kanjorski (D-PA) introduced H.R. 293, a 
bill regarding black lung. He also introduced similar legislation in 
the 105th (H.R. 1600) and 106th Congresses (H.R. 722).
---------------------------------------------------------------------------

                             107TH CONGRESS

    On October 21, 2002, the labor subcommittee\17\ of the 
Senate Committee on Appropriations held a field hearing in 
Johnstown, Pennsylvania, to investigate the Quecreek mine 
disaster of July 24, 2002. Nine miners were trapped 300 feet 
below in the surface when an estimated 77 million gallons of 
water had poured into the mine. All of the miners were rescued. 
The subcommittee examined the adequacy of funding for MSHA, 
mine inspection regulations, safety reviews and accident 
investigation procedures.
---------------------------------------------------------------------------
    \17\Subcommittee on Departments of Labor, Health and Human 
Services, and Education, and Related Agencies.
---------------------------------------------------------------------------

                           108TH CONGRESS\18\
---------------------------------------------------------------------------

    \18\Congressional Record, debated p. H6561-6562, voted p. HR6578.
---------------------------------------------------------------------------
    On July 10, 2003, Rep. Nick Rahall proposed an amendment to 
bar the use of any funds appropriated to the Department of 
Labor to implement regulations proposed on March 6, 2003. The 
regulations in question, proposed by the Bush Administration, 
would have permitted an increase in the amount of coal dust to 
which miners could be exposed. The amendment failed by 2 votes, 
but the Administration halted work on the proposed 
regulation.\19\
---------------------------------------------------------------------------
    \19\68 FR 39881.
---------------------------------------------------------------------------

                           109TH CONGRESS\20\
---------------------------------------------------------------------------

    \20\In the 106th Congress, there were a few bills addressing mine 
operations, including S. 1114 introduced by Senator Enzi to treat small 
mines as ``small entities for data collection purposes. On November 11, 
2000, the HELP Committee reported the bill out of Committee but no 
further action was taken on the legislation.
---------------------------------------------------------------------------
    In 2006, there were 3 serious mine disasters that killed 18 
miners. At the Sago mines in West Virginia 12 miners died, 
followed by 2 fatalities at the Aracoma Alma mine, also in West 
Virginia and 4 deaths at the Darby mine in Harlan County, 
Kentucky, bringing the death toll in the first 5 months of 2006 
nearly 50% higher than the previous year.\21\
---------------------------------------------------------------------------
    \21\U.S. Senate, The Mine Improvement and New Emergency Response 
Act of 2006 or the ``Miner Act'', 109th Congress, 2d Session, Report 
No. 109-365, (December 6, 2006), p. 2.
---------------------------------------------------------------------------
    These disasters, along with the rise in coal production in 
recent years, put mine safety front and center. On February 13, 
2006, House Education and Workforce Committee Ranking Member 
George Miller, joined by Resources Committee Ranking Member 
Nick Rahall, conducted a congressional forum with families from 
the Sago, Aracoma Alma, and Jim Walters mine disasters. On 
February 15, 2006, the Senate Employment and Workforce Safety 
Subcommittee of the Health, Education, Labor and Pensions 
(HELP) Committee held a roundtable hearing on ``Mine Safety 
Technology.'' On March 2, 2006, the full HELP Committee held a 
hearing on the state of mine safety and health.\22\
---------------------------------------------------------------------------
    \22\Id..
---------------------------------------------------------------------------
    As a result of the Committee's inquires, the Mine 
Improvement and New Emergency Response Act, S. 2803, called the 
MINER Act, was introduced on May 16 by Senators Enzi, Kennedy, 
Isakson, Murray, Rockefeller, Byrd, DeWine and Santorum. This 
compromise bill was referred to the HELP Committee, which held 
an executive session on May 17, 2006. A manager's amendment was 
accepted, along with an amendment offered by Senator Sessions 
to change the name of the Sago Mine Safety Grant program in 
Section 14 to ``Brookwood-Sago.'' The bill was unanimously 
voted out of the HELP Committee with approval and passed in the 
Senate by unanimous consent on May 24, 2006.\23\
---------------------------------------------------------------------------
    \23\Id., p.3.
---------------------------------------------------------------------------
    The House companion bill, H.R. 5432, was introduced on May 
19, 2006 by Representative Capito (R-WV). This bill was 
referred to the Committee on Education and Labor and then to 
the Subcommittees on Workforce Protections and on 21st Century 
Competitiveness.
    On June 7, 2006, S. 2083 was passed by the House of 
Representatives under suspension on a vote of 381-37. The 
President signed the bill, which became Public Law No. 109-236, 
on June 15, 2006.\24\
---------------------------------------------------------------------------
    \24\Id.
---------------------------------------------------------------------------
    Some technical changes were made to the Act and were 
included in Section 1301 of H.R. 4, the Pension Protection Act. 
H.R. 4 was signed into law by the President on August 20, 2006. 
These changes affected only the numbering of the penalties 
sections.\25\
---------------------------------------------------------------------------
    \25\Id.
---------------------------------------------------------------------------
    Legislation that was broader and comprehensive in scope 
than the MINER Act was also introduced in 2006 in both the 
House and Senate. H.R. 5389, introduced by Representatives 
Miller and Rahall on May 16, 2006 and S. 2798 introduced by 
Senator Kennedy on May 12, 2006 would have provided for 
additional safety measures, including the continuous monitoring 
of the mine atmosphere, refuges stocked with 5 days of 
supplies, as well as a lower limit on dust concentrations. In 
addition the legislation provided more stringent requirements 
for rescue teams, required family involvement in accident 
investigations, provided for stricter penalties and created a 
safety ombudsman within the Department of Labor Office of 
Inspector General.\26\
---------------------------------------------------------------------------
    \26\Edward Rappaport, Coal Mine Safety, CRS (June 23, 2006), p. 6.
---------------------------------------------------------------------------
    The MINER Act has many provisions to improve miner health 
and safety. It requires underground coal mine operators to 
develop an emergency plan for each mine they run. In addition, 
each mine must have at least 2 rescue teams located no less 
than an hour away. The Act increases civil and criminal 
penalties for violations of Federal safety standards and gives 
MSHA the authority to close a mine on a temporary basis that 
fails to pay penalties assessed against it. The Act also 
requires MSHA to issue a new standard regarding the sealing of 
abandoned mines. In addition, the law mandates studies into 
ways to enhance safety and establishes a new office in the 
National Institute for Occupational Health and Safety (NIOSH) 
to improve mine safety. Finally, the law establishes new 
scholarships and grant programs for training about mine 
safety.\27\
---------------------------------------------------------------------------
    \27\Report, 109-365; p. 11, Rappaport, supra. Also in the 109th, 
other bills were introduced on mine safety including, H.R. 4695 
(Rahall), S.2231 (Byrd), S.2308 (Specter), S. 2448 (Durbin), and H.R. 
5481 (Norwood). Finally, on June 8, 2006, Representative Norwood 
introduced H.R. 5554, which would have prohibited the Secretary of 
Labor from promulgating regulations based on guidelines, etc. of any 
organization, unless the Secretary determined that the organization was 
a nationally recognized standard setting organization. No action was 
taken on any of these bills.
---------------------------------------------------------------------------

                             110TH CONGRESS

    In 2007, the Education and Labor Committee established as 
one of its priorities, oversight of the activities of MSHA, 
including its implementation of the 2006 MINER Act.\28\
---------------------------------------------------------------------------
    \28\Democratic Staff Report, Background on the Activities of the 
House Education and Labor Committee with Respect to Mine Safety and 
Health, House Committee on Education and Labor (September 9, 2007), 
Http://edlabor.house.gov/publications/20070907MineSafety.pdf. In 
addition to the oversight hearings, the staff report notes that a 
number of letters were sent from the Committee to the Secretary of 
Labor expressing concern about implementation of the MINER Act or other 
requirements of law.
---------------------------------------------------------------------------
    Three oversight hearings were held during the year. On 
March 28, 2007, the Committee held a hearing entitled 
``Protecting the Health and Safety of America's Mine Workers.'' 
On May 16, 2007, the Committee held a hearing entitled 
``Evaluating the Effectiveness of MSHA's Mine Safety and Health 
Programs. And on October 3, 2007, the Committee held an 
additional oversight hearing on ``The Perspective of the 
Families at Crandall Canyon.''
    On June 19, 2007, one year after the passage of the MINER 
Act, Representatives Miller, Rahall and Woolsey introduced H.R. 
2768, the S-MINER Act and H.R. 2769, the Miner Health and 
Enhancement Act of 2007 to address the problems documented by 
the Committee's oversight activities.\29\ On July 26, 2007, the 
Subcommittee on Workforce Protections conducted a legislative 
hearing on these two bills.
---------------------------------------------------------------------------
    \29\Also, on January 19, 2007, Representative Rahall introduced 
H.R. 576 to prohibit belt haulage entries from being used to ventilate 
mines.
---------------------------------------------------------------------------
    In the Senate, parallel legislation was introduced by 
Senators Kennedy, Byrd and Murray. The Senate bill covered in 
one bill the provisions in the two House bills, and disagreed 
with the House bills in only one particular.\30\ Also, during 
2007, oversight hearings on mine safety and health were held on 
May 22, 2007 by the Subcommittee on Employment and Workplace 
Safety of the Senate Health, Education, Labor and Pensions 
Committee on May 22, and by the full committee on October 2. 
Hearings were also held on February 28 and September 5 by the 
Subcommittee on Labor, Health and Human Services, Education and 
Related Agencies of the Senate Committee on Appropriations.
---------------------------------------------------------------------------
    \30\The one difference between the two House bills and the unified 
Senate bill involved the date for implementation of new restrictions on 
the use of belt air.
---------------------------------------------------------------------------
    The Education and Labor Committee marked up the legislation 
on October 31, 2007. Chairman Miller offered an amendment in 
the nature of a substitute for H.R. 2768. The substitute 
combined the provisions of H.R. 2768 and H.R. 2769, and made 
further changes to those provisions.
    Following discussion of the need to discuss one matter with 
the Energy and Commerce Committee, Chairman Miller moved to 
strike a provision of the substitute extending to concrete 
plants (which are mines under the law) the protections of 
section 311 and 312 of the Emergency Planning Community Right-
to-Know Act. This was agreed to by unanimous consent.
    Three amendments to the revised substitute were offered.
    Mr. Kline offered an amendment to add a new section to the 
bill concerning safety and health committees. Mr. Wilson 
offered a substitute amendment in the nature of a substitute, 
striking all after the enacting clause and substituting 
requirements for several studies, providing for coordination 
between MSHA and the Bureau of Land Management, and for the 
dissemination of accident information. Mr. McKeon offered an 
amendment to strike provisions of the bill concerning post-
accident communication systems, refuges, seals, conveyor belts, 
belt air, and several others. Rollcall votes were taken on each 
amendment and each was defeated.
    The substitute was then approved by a rollcall vote of 26-
18, and the bill ordered reported as amended.

                        III. Summary of the Bill

    This bill would supplement the MINER Act of 2006. The MINER 
Act established some new requirements for underground coal 
mines in order to protect underground coal miners in the event 
of an emergency, and to address certain hazards which became 
clear after the tragedies early that year. On certain other 
matters, MINER Act provided for further research and 
development.
    The Supplemental MINER Act, or ``S-MINER Act'' for short, 
builds upon the framework established in the MINER Act. 
Following are:
         an overview of the problems identified by the 
        Committee, and the solutions provided in the S-MINER 
        Act;
         a short summary of which provisions of the S-
        MINER Act are applicable to various sectors of the 
        mining industry; and
         a timeline of implementation dates in the S-
        MINER Act.

   1. OVERVIEW OF PROBLEMS AND SOLUTIONS PROVIDED IN THE S-MINER ACT

Group A: Problems highlighted by Crandall Canyon

    Problem 1: Retreat mining is dangerous and poorly 
regulated. As underground coal mine operators run out of 
resources they can readily extract from their properties, they 
have used every available method to extract more. Where it can 
be used, longwall mining equipment permits coal extraction 
without the need to leave pillars of coal in place to hold up 
the roof, and the equipment is designed to protect miners from 
harm. Retreat mining is another way to get extra coal. It 
involves the extraction of the coal pillars originally left in 
place to hold up the roof, and it must be performed under a 
plan specifically designed for the situation so miners will not 
be hurt as the roof collapses. Sometimes retreat mining also 
involves reduction of giant ``barriers'' of coal left in place 
to hold up roofs under high mountains. Crandall Canyon threw 
light on the risky nature of retreat mining, and the poor 
oversight of retreat mining plans by MSHA.
    Solution:
     The bill requires MSHA to more closely review 
retreat mining plans bringing computer simulations and experts 
to bear, and also requires MSHA to include an extra layer of 
review before approving plans for deep mines.
     The bill requires MSHA to observe retreat mining 
operations when they begin for a long enough period of time to 
ensure they are being performed in accordance with the approved 
plans, and to ensure that miners are properly trained.
     The bill requires a thorough study of ground 
control science and technology.
    Problem 2: MSHA's authority to control rescue efforts is 
unclear. The agency generally makes joint decisions with mine 
operators because it believes operators will not provide the 
required drilling equipment, supplies and personnel to assist 
rescue efforts if it takes over control. While this joint 
decision-making has proved effective in certain cases, what 
happened at Crandall Canyon suggests the agency could use the 
added leverage.
    Solution:
     The bill clarifies the statute to ensure that when 
the Secretary directs a rescue, the operator shall cooperate 
and comply with requests for resources.
    Problem 3: MSHA's family and press liaison activities need 
strengthening. The MINER Act required MSHA to be in charge of 
communicating with families and the press during a rescue in 
order to ensure that incorrect and misleading information does 
not get disseminated. The first test of this new authority was 
at Crandall Canyon and it failed miserably.
    Solution:
    The bill more clearly defines MSHA's responsibilities and 
requires full-time positions be created to carry them out. It 
also requires each mine operator's emergency response plan to 
set forth how it will cooperate with MSHA in such situations.
    Problem 4: MSHA does not have its own emergency response 
plan. At our Crandall Canyon hearing, Governor Huntsman was 
highly critical of the lack of advance planning for 
coordination with state and local authorities.
    Solution:
    The bill requires MSHA to issue such a plan within 6 
months.
    Problem 5: The law does not provide a mechanism for 
independent investigations of multiple-fatality mine accidents. 
Both the House and the Senate have been forced to initiate our 
own investigations of the Crandall Canyon accident for this 
reason. MSHA accident investigation teams are focused on 
determining civil or criminal liability of the mine operator 
and other personnel. They are composed of staff from around the 
country, often take a year or more to complete, are generally 
not open to the families or labor representatives or the 
public, and employ different procedures each time on how 
witness interviews are conducted. The Department is so 
protective of its authority that it has thrown up numerous 
roadblocks to efforts by outside panels to conduct simultaneous 
investigations (West Virginia state and special panels after 
Sago, Utah's commission, and our investigations). A separate 
investigation of the conduct of MSHA's own staff is also 
conducted to ascertain if policy changes are required. These 
are usually performed by MSHA staff from a general staffing 
office, although in the case of Crandall Canyon the Secretary 
has asked senior retired personnel to take charge These 
investigations often take a year or more to complete, and do 
not involve public hearings nor established procedures for 
obtaining input on agency conduct.
    Solution:
    The bill establishes ground rules for independent accident 
investigations of multiple-fatality mine accidents. The 
Director of NIOSH would appoint the panels which would include 
labor, management and academic experts. MSHA would be required 
to cooperate with the independent investigators.

Group B: The unresolved problems highlighted by Dago, Darby and Aracoma 
        Alma

    Problem 6: Enhanced communication and tracking systems are 
still not in place. Those who put together the MINER Act pinned 
their hopes on a new generation of truly wireless technology. 
They envisioned miners with cell phones being able to talk 
directly to the surface without reliance upon a cable or wire 
underground that could be disrupted by fire, explosion or roof 
collapse. To provide time for this technology to be developed, 
the MINER Act does not require such technology to be installed 
until June 2009, and provides for further delays if it isn't 
ready. It now appears that a purely wireless two-way technology 
may remain elusive. NIOSH has since developed a ``road-map'' 
for the gradual enhancement of existing technology that can 
provide most of the advantages of a pure wireless system.
    Solution:
     The bill requires operators to begin installation 
of such a ``fill the gap'' system within a few months of 
enactment, and to supplement it as NIOSH develops enhancements.
    Problem 7: Underground refuges are not required. Although 
committee members saw a perfectly workable portable chamber to 
protect trapped miners, and West Virginia has already mandated 
their use,\31\ the MINER Act did not require their use 
nationwide. It simply required NIOSH to study their 
capabilities and report by the end of this year. The MINER Act, 
under a liberal interpretation by the Department, did require 
mine operators to provide 96 hours of ``breathable air'' for 
trapped miners through the storage of air cylinders or through 
bore holes to the surface, but did not provide for a secure 
environment that would keep the good air in and keep the toxic 
gases away.
---------------------------------------------------------------------------
    \31\In early November of 2006, the director of the state Office of 
Miners' Health, Safety and Training said that shelters were starting to 
be received by West Virginia mines and expected more than 50 such units 
to be delivered by the end of 2008. Tim Huber, Associated Press, Nov.6, 
2007.
---------------------------------------------------------------------------
    Solution:
     The bill requires underground coal mines to start 
installing such chambers, or similar refuges dug out of the 
mine workings and sealed by NIOSH approved doors, by June 2008. 
At least one chamber has to be within 500 feet of the working 
face.
    Problem 8: Explosion-proof seals are not yet guaranteed. 
After seals composed of an artificial material known as ``Omega 
block'' could not contain methane fueled explosions in 
abandoned areas of the Sago and Darby mines, MSHA used 
emergency authority to ban the use of Omega block, and increase 
from 20psi to 50psi the pressure requirements for any new seal 
installed underground. NIOSH launched research into the problem 
and discovered that seals really need to be constructed to meet 
pressures of 240psi, or the pressures behind seals regularly 
monitored so that miners can be evacuated.if the pressures 
reach explosive levels. The MINER Act required MSHA to take 
rulemaking action, and the agency has established interim rules 
that meet the NIOSH recommendations. Existing seals would have 
to be rebuilt or monitored just like new seals. The rules 
remain under review, however, and in danger of being weakened.
    Solution:
     The bill imposes minimum requirements by statute 
so that the current rule cannot be weakened, and extends these 
rules to underground metal and nonmetal mines which face 
similar risks.
    Problem 9: Stoppings are not explosion proof. To get air to 
miners working at the ``face'', giant fans blow air through a 
set of passageways designed for that purpose. The walls of 
these passageways, known as ``stoppings,'' used to be 
constructed of solid concrete block cemented together, but in 
recent years walls have been constructed of hollow block, 
without cement, or using certain substitutes.
    Solution:
     The bill requires stoppings be constructed in the 
traditional fashion, although hollow block would be permitted 
in areas scheduled for retreat mining.
    Problem 10: Mines continue to rely on dangerous conveyor 
belt technology. There are miles of conveyor belts in 
underground mines to carry materials to the surface, and some 
run 24/7. The friction of the mechanisms can create sparks and 
the belts themselves can then catch on fire, generating smoke 
and toxic fumes in addition to spreading a fire widely. The 
existing rules on flame resistance are about 50 years old. 
Efforts to update them by rulemaking were stopped by the Bush 
Administration. The MINER Act established a task force to 
examine the problem and it recently reported that a new 
generation of less risky belts should be installed. The MINER 
Act did not, however, require MSHA to adopt these 
recommendations.
    Solution:
     The bill requires all new conveyor belts installed 
in underground mines after enactment to be the new technology 
belts, and limits to 5 years the length of time mine operators 
can continue to use their supply of old technology belts. These 
requirements would apply to both underground coal and 
underground metal and nonmetal mines.
    Problem 11: ``Belt air'' is used too frequently and with 
inadequate safeguards. This is the practice in underground coal 
mines of using the passageway that brings air to the miners at 
the face for the conveyor belt system to take coal out of the 
mine. It saves the substantial cost of digging an additional 
``entryway'' to house the conveyor belt system. The 1977 Act 
prohibited the practice because of concern that a fire on the 
belt would carry toxic fumes right toward where the miners are 
working. Over time, the agency used authority to ``modify'' 
safety requirements to permit it to be used in certain cases. 
Under the Bush Administration, the ``paperwork'' was eliminated 
and operators were given to use it provided certain conditions 
are met. The MINER Act established a Technical Review Panel to 
study the matter and it recently released a consensus 
recommendation--belt air can be used if approved on a case by 
case basis and the mine operator provides certain standards to 
protect safety. The MINER Act did not, however, require MSHA to 
adopt these recommendations.
    Solution:
     The bill permits belt air only if: (1) it is 
necessary for safety reasons; (2) it is approved only through 
the modification process (a case by case review, in which the 
authorized miner representative may participate) and includes 
all the protections recommended by the Technical Review Panel.
    Problem 12: The law currently provides questionable 
protection against two serious explosion hazards--lightning 
storms and coal dust. The MSHA report on the Sago accident, 
backed by research from Sandia National 
Laboratories,\32\believes the explosion was ignited by 
lightning traveling straight through the earth without any 
metal conductor and into an abandoned piece of wire cable. 
While MSHA has ordered all such metal items to be removed from 
newly sealed areas, technology to deal with this newly revealed 
power of lightning has not been developed. Coal dust poses a 
major explosive hazard, which is controlled in part by diluting 
it with stone or ``rock'' dust. New types of mining equipment 
(e.g., longwalls) are believed to be creating finer coal dust 
particles than older technologies, and it is not known if 
current rock dusting rules are sufficient to dilute this finer 
coal particulate.
---------------------------------------------------------------------------
    \32\Sandia is a government-owned/contractor operated facility. 
Sandia Corporation, a Lockheed Martin company, manages Sandia for the 
U.S. Department of Energy's National Nuclear Security Administration. 
See http://www.sandia.gov/.
---------------------------------------------------------------------------
    Solution:
     The bill requires studies of both risks (lightning 
and coal dust).
    Problem 13: The reliability of miners' Self-Contained Self-
Rescuers (SCSRs) remains a concern. SCSRs provide breathing air 
for escape through toxic fumes. Mine operators were required to 
make many more available under the MINER Act. These devices 
fail if not properly maintained, and there is a history of bad 
manufacturing runs.
    Solution:
     The bill provides that NIOSH and MSHA will work 
together to identify and obtain random samples of SCSRs in 
mines and test those samples. Additionally, SCSR manufacturers 
and mine operators will be required to notify the Secretary 
whenever a problem with an SCSR is identified.

Group C: Problems identified through oversight

    Problem 14: Too many mine operators ignore the law. Some 
large mining companies operate mines through corporate shells 
that give them the advantage of penalty breaks designed for 
really small companies, and MSHA is one of the few agencies 
that lack subpoena authority to get at the truth. Other mine 
operators refuse to pay penalties that are overdue because MSHA 
lacks effective tools to collect. Many mine operators just 
treat penalties as a cost of doing business, because the 
penalties for common violations are not substantial or 
immediate enough to compel compliance. MSHA lacks the authority 
to shut down mines that fail to timely abate violations. And 
the agency has never once used its authority to impose heavy 
fines for a continuing ``pattern of violations'' by a mine 
operator.
    Solution:
     The bill provides MSHA subpoena authority. It 
requires mine operators who want to contest citations to put 
their penalties in escrow to ensure they can be collected, and 
permits MSHA to stop production in mines that do not pay off 
delinquent accounts. It increases penalties that were not 
adjusted by the MINER Act, allows MSHA to shut down mines that 
do not timely abate violations, and modifies the ``pattern of 
violations'' authority to make it easier to use.
    Problem 15: Miner rights have been undermined. Safety and 
health hazards reported to MSHA by phone have often been 
ignored in recent years, in part because the function of taking 
the incoming complaints over the phone has been contracted out 
to individuals not familiar with mining terminology or miners. 
Whistleblowers are often blacklisted in the industry, and 
miners and families don't trust MSHA to protect their 
identities. Those who complain about blacklisting may have to 
go through the grievance process before their cases can be 
adjudicated. The families at Crandall Canyon were unable to 
designate miner representatives, because the law only permits 
miners to do this--even when they are trapped below ground.
    Solution:
     The bill requires the President to appoint, and 
the Senate to confirm, a Miner Ombudsman, to be located in the 
Inspector General's office in DOL, to process incoming 
complaints and assist whistleblowers with their cases. The 
existing whistleblower protections under the law would be 
enhanced in a few respects, and the families of trapped miners 
could designate miner representatives.
    Problem 16: Black lung is back. Generations of coal miners 
suffered and died from pneumoconiosis, or ``black lung,'' a 
severe and latent lung disease triggered by exposure to coal 
dust. The scope and severity of the problem was a key reason 
why the Congress enacted the Coal Act of 1969, including 
compensation provisions that have cost the Federal government 
and the mining industry significant amounts. The protections 
adopted in 1969--an exposure limit and requirements for MSHA 
compliance checks--were supposed to ensure that the next 
generation of miners would not develop the disease, 
Unfortunately in the last few months, NIOSH has confirmed that 
more miners are coming down with the disease, and some of them 
still relatively young. Worries about current protections are 
of long standing--some miner operators were convicted of 
tampering with the measuring instruments used to determine 
compliance, NIOSH recommended an exposure limit half of that in 
the statute, and the UMWA pointed out that miners were now 
working longer shifts than in 1969 and hence needed a lower 
limit just to stay even with the exposure limit set in 1969. 
Meanwhile, under the direction of NIOSH, new technology to more 
accurately and securely measure coal dust exposure has been 
developed, but it cannot be utilized for compliance purposes 
unless the law is changed.
    Solution:
     The bill updates the law to permit the new 
measuring device (known as a personal dust monitor, or ``pdm'') 
to be used to determine compliance, and cut the exposure limit 
in half.
    Problem 17: Other health protections have been allowed to 
slowly erode. Most of the rules protecting miner safety and 
health consist simply of a ``permissible exposure limit'' or 
PEL, that cap the amount of a substance to which a miner may be 
exposed during a shift. Most of these limits were established 
decades ago, many picked up in the early days of the agency 
from limits established by trade groups. Over the years, NIOSH 
has recommended that many of the PELs be reduced to reflect its 
findings that the current limits do not provide adequate 
protection against serious diseases, including various cancers. 
In the late 1980s MSHA undertook an effort to update these 
limits en masse, but court decisions and industry opposition 
brought the effort to a halt. The agency lacks the capability 
to update each of the PELs through a separate rulemaking.
    Solution:
     The bill requires MSHA to upgrade the PELs to 
reflect NIOSH recommendations. However, the original bill has 
been amended to provide that should labor or industry have 
legitimate concerns about the technological or economic 
feasibility of implementing a new PEL, MSHA would have to 
conduct rulemaking on those concerns before setting the revised 
exposure limit. Moreover while MSHA must act quickly to update 
the PELs, it would retain authority to set appropriate 
effective dates to further accommodate feasibility concerns. 
The bill would also set a specific new statutory limit on 
silica exposure.
    Problem 18: This Administration has delayed action or 
rolled back specific health protections. At industry's behest, 
the Bush Administration tried to weaken and delay for years the 
implementation of a new rule to protect metal and nonmetal 
miners from the risks of exposure to diesel particulate matter, 
and our strong intervention and a favorable court ruling were 
needed to halt that rollback. But there are others we need to 
address in the legislation. (1) The Administration has refused 
to move forward with a rule to put asbestos exposure standards 
in this industry on a par with other industries, and (2) it has 
weakened what was previously uniform set of rules to let 
workers know of the hazards in the products they are using on 
the job (hazard communication rule).
    Solution:
     The bill corrects these two problems by codifying 
these necessary health protections in statute.

 2. MINING SECTORS COVERED BY VARIOUS PROVISIONS OF HR2768, AS REPORTED

    This summary table is a quick guide to the coverage of the 
bill. It should be used in close conjunction with the section-
by-section discussion of the bill.
    Underground Coal Mines only
         post-accident communications
         underground refuges
         ventilation controls (stoppings)
         studies of rock dusting and lightning risks
         belt air
         pre-shift review of mine conditions
         atmospheric monitoring systems (carbon 
        monoxide)
         methane monitors (multi-gas detectors)
         roof screening, barrier reduction and pillar 
        extraction (retreat mining)
         SCSR inspection program
         MSHA approval center priorities
         coal dust standard and measurement rules
    Underground Non-Coal (metal and nonmetal) mines only
         study of other emergency requirements that may 
        be suitable for this sector
    Underground Mines, both Coal and Non-Coal (metal and 
nonmetal)
         conveyor belt composition
         seals--all underground coal mines and 
        designated ``gassy'' non-coal mines
    All sectors (coal and non-coal, surface and underground)--
all of the other provisions in the bill, including--
         new authority for MSHA to retain retiring 
        inspectors
         miner ombudsman created
         new authority for MSHA concerning inspections 
        and rescues
         enhanced sanctions in certain cases
         establishment of emergency call center
         independent accident investigations
         revision of asbestos and hazard communication 
        standards
         limit on silica exposure
         process to facilitate revision of personal 
        exposure limits

    3. GENERAL TIMETABLE OF IMPLEMENTATION DATES, HR2768 AS REPORTED

    This table is general in character, and is subject to 
misinterpretation if not used in close conjunction with the 
detailed information about implementation dates in the section-
by-section analysis of the bill. For example, the reported bill 
does not generally specify when various rules that must be 
issued are to become effective; information in that regard is 
not included in the table, but is discussed in the section-by-
section. The bill has no general effective date, so unless 
otherwise specified the provisions go into effect upon 
enactment.

                 S-MINER ACT OF 2007--TIMEFRAME SUMMARY
------------------------------------------------------------------------
               Requirements                       To be implemented
------------------------------------------------------------------------
Provide for new Post Accident               Emergency response plans
 Communications system.                      must be amended to require
                                             such systems within 120
                                             days of enactment.
Refuge Chambers...........................  Interim final rules issued
                                             by June 15, 2008;
                                             installation within 60 days
                                             of next plan approval.
Seals.....................................  Final rules to be issued
                                             within 3 months of
                                             enactment.
Stoppings.................................  Interim final rule within 1
                                             year of enactment.
NIOSH Recommendations on Rock Dusting       By June 15, 2009.
 Standards.
Flame-resistant Conveyor Belts............  Interim final regulations to
                                             be issued by January 31,
                                             2008.
Belt Air..................................  Regulations to be revised by
                                             June 20, 2008.
Pre-shift communication plan..............  Required within 90 days of
                                             enactment.
Atmospheric Monitoring Systems (CO).......  Installation required by May
                                             1, 2008.
NAS lighting study........................  Report within 1 year of
                                             enactment.
NAS ground control study..................  Report within 1 year of
                                             enactment.
Advisory committee on metal/nonmetal        Report within 21 months of
 emergency response issues.                  enactment.
Master inspector program..................  Within 270 days of
                                             enactment.
Pattern of violations.....................  Regulations to revised
                                             within 3 months of
                                             enactment.
Advisory committee on licensing/registry..  Report within 2 years of
                                             enactment.
Call Center...............................  Established within 30 days
                                             of enactment.
MSHA Emergency Preparedness Plan..........  Within 6 months of
                                             enactment.
Independent Accident Investigations.......  Rulemaking to commence
                                             within 30 days of enactment
                                             and be completed by October
                                             1, 2008.
Personal Exposure Limits..................  NIOSH to forward existing
                                             recommended limits within
                                             30 days of enactment, and
                                             DOL to adopt with 30 days
                                             thereafter except as
                                             provided.
------------------------------------------------------------------------

                   IV. Statement and Committee Views

    The Nation's mine safety and health laws are in dire need 
of updating. In recent years we have witnessed several major 
accidents, a mine death toll that has not declined, and the 
renewed appearance of mine-related illnesses that we thought 
were a thing of the past. The total number of deaths from black 
lung disease has increased sharply. The agency in charge of 
mine safety and health has been underfunded and understaffed. 
Its work as a regulator has been stymied. In some cases, health 
and safety standards are decades out of date. In other cases, 
protections have been whittled away through years of 
exceptions, or have failed to keep up with modern mining 
techniques or operations.
    The Congress has begun to respond. The 109th Congress 
enacted limited legislation in 2006 known as the MINER Act. 
This law has made some improvements, but more needs to be done. 
And the ongoing death toll--and recent tragic events at 
Crandall Canyon--underscore the need to move swiftly.
    The Committee believes the case for additional legislation 
is overwhelming. The reported bill is not a complete reform of 
the Federal Mine Safety and Health Act, but neither is it 
directed too narrowly. The full Committee held 3 oversight 
hearings on the agency and the law this year, and our 
colleagues in the Senate have held hearings of their own. These 
hearings revealed a number of problems that require legislative 
attention. In addition to dealing with lessons learned from 
recent tragedies, the Committee believes it is appropriate to 
address the hazards likely to cause death and disability 
tomorrow, not just those that led to death and disability 
yesterday.
    In working on this problem, the Committee has sought out 
the views of all stakeholders. In crafting legislation, the 
Committee sought bipartisan discussions and engaged in dialogue 
with the mining industry, miners' representatives, mining 
experts, and MSHA. Notwithstanding differences on substance, 
the Committee very much appreciates the technical comments 
received from all quarters of the mining community, and the 
reported bill benefits significantly from this input.
    (1) Background. In 1969, Congress enacted landmark 
legislation to protect the health and safety of coal miners. 
Legislation passed in 1977 added significant new protections, 
placed coal and non-coal miners under a single regulatory 
framework, and established the Mine Safety and Health 
Administration (MSHA) in the Department of Labor to administer 
and implement the law.\33\ Unfortunately, it appears that the 
intent of the Congress in setting up these laws decades ago--
that ``the first priority and concern of all in the coal or 
other mining industry must be the health and safety of its most 
precious resource--the miner''--has never been fulfilled.\34\
---------------------------------------------------------------------------
    \33\Edward Rappaport, Coal Mine Safety, CRS, (June 23, 2006), p. 2. 
NOTE: The 1977 legislation moved the responsibility for administering 
the law from the Department of Interior to the Department of Labor to 
avoid obvious conflicts of interests between the Agency and industry.
    \34\Testimony of Representative Rahall before the House Education 
and Labor Committee, U.S. House of Representatives (May 16, 2007). See 
also: Testimony of Dan Berconi before the House Education and Labor 
Committee, U.S. House of Representatives (May 16, 2007); Testimony of 
Larry Grayson before the Education and Labor Committee, U.S. House of 
Representatives (May 16, 2007); Testimony of Davit McAteer before the 
Education and Labor Committee, U.S. House of Representatives (May 16, 
2006); and Testimony of Cecil Roberts, supra.
---------------------------------------------------------------------------
    Although there has been a decrease in miner deaths over the 
past century,\35\ mining is still one of the most dangerous 
occupations in the United States. Mining fatalities occur at a 
rate more than seven times the average for all private 
industries, exceeding other dangerous occupations such as 
construction and trucking.\36\ According to the latest 
information provided by MSHA, 56 miners have died from January 
1, 2007 through the end of October 2007. While news reports 
this year and last have focused on multiple-fatality accidents 
involving coal miners, 26 of the 56 deaths so far this year 
have been in coal mines and 30 have been in non-coal (metal and 
nonmetal mines), most of which have been at surface mines.
---------------------------------------------------------------------------
    \35\In 1925, over 2,500 miners were killed as compared to 22 in 
2005 and 47 in 2006. Of course employment in this industry has also 
declined from 749,000 in 1925 to 110,000 currently. Id. at p. 2.
    \36\Id. at p. 3. See also: Testimony of Cecil Roberts before the 
House Education and Labor Committee, U.S. House of Representatives 
(March 28, 2007).
---------------------------------------------------------------------------
    It was the Sago disaster in early 2006 that refocused the 
nation's attention on the need for mine safety and health 
reform. On January 2, 2006, an explosion ripped through the 
Sago mine in Upshur Country, West Virginia, trapping 13 miners 
underground. Fifty-two hours later, 12 of the 13 miners were 
brought out dead. Just over two weeks later, a fire at the 
Aracoma Alma Mine No. 1 killed two miners, and on May 20, 2006, 
an explosion rocked the Kentucky Darby Mine No. 1, killing five 
miners. In all, 47 coal miners would die on the job in 2006--a 
ten-year high and more than twice as many as in 2005.
    In the absence of an official Congressional committee 
hearing on the Sago tragedy, the Democratic Members of the 
House Education and the Workforce Committee held a Forum on 
Mine Safety on February 13, 2006. The witnesses, including 
family members of miners killed on the job, shared accounts and 
perspectives on how to improve mine safety conditions in order 
to prevent further mining tragedies.
    Also in early in 2006, the Democrats on the House Committee 
on Education and Labor issued a report documenting a very 
troubling track record by the Bush Administration and the 
Department of Labor in protecting the health and safety of tens 
of thousands of hard-working American miners. Among other 
things, according to the report, the Administration sought 
budget and staffing cuts at MSHA, embarked on policies favoring 
compliance assistance over enforcement, and withdrew more than 
a dozen proposed safety and health rules.
    Following the forum, and the disasters at the Aracoma and 
Darby mines, then Committee Senior Democratic Member George 
Miller and others introduced the ``Protecting America's Miners 
Act'' (H.R. 5389) in May 2006, to revise safety, inspection, 
rescue, and emergency standards contained within the Federal 
Mine Safety and Health Act of 1977. Following the Darby 
incident, a more limited mine safety bill, the MINER Act, was 
overwhelmingly passed by the Congress and was signed into law 
on June 15, 2006.
    At the time, Congressman Miller and others pointed out that 
the MINER Act was only a first step, and that much unfinished 
business remained.
    In 2007 in the new 110th Congress, the Education and Labor 
Committee initiated the first detailed oversight of MSHA 
activities in many years. Its first step was to take a careful 
look at the actions of the Administration in implementing the 
MINER Act.
    On February 27, 2007, more than eight months after the 
signing of the MINER Act, the House Education and Labor 
Committee released a staff report\37\ which documented that 
MSHA was moving far too slowly in implementing the new law. The 
Government Accountability Office, at the request of the 
Committee, is also conducting an analysis of MSHA's 
implementation of the MINER Act.
---------------------------------------------------------------------------
    \37\February 27, 2007, http://edworkforce.house.gov/publications/
MinerActStatus022707.pdf.
---------------------------------------------------------------------------
    In September 2007, the Committee requested and received 
detailed spreadsheets maintained by MSHA that show the status 
of implementation of MINER Act requirements at each mine, 
including any delays in the actual implementation date at each 
mine that were approved by MSHA. This information reveals that 
some of the MINER Act's requirements remain unimplemented 16 
months after the legislation was passed.\38\
---------------------------------------------------------------------------
    \38\Data current through September 20, 2007, according to 
information provided to the Committee in response to our request to 
Department of Labor of August 23, 2007. http://www.house.gov/apps/list/
speech/edlabor_--dem/RelAug24.html.
---------------------------------------------------------------------------
    In addition, a number of letters were sent to the 
Department requesting information on specific oversight 
concerns and seeking specific action where appropriate. For 
example, on March 16, 2007, Chairman Miller wrote to Secretary 
Chao requesting that the Department issue an emergency 
temporary standard to immediately require the use of 
underground refuge chambers in underground coal mines 
throughout the nation (the Secretary declined).
    The full Committee also held three oversight hearings on 
mine safety and health in 2007.
    On March 28, 2007, the Committee on Education and Labor 
conducted an oversight hearing on the need for further reform 
of the current law on mine safety regulation. This hearing, 
``Protecting the Health & Safety of America's Mine Workers,'' 
revealed that, despite enactment of the MINER Act, many of the 
hazards that led to disaster at Sago, Aracoma Alma, and Darby 
remain just as real today as they were 18 months ago.
    On May 16, 2007, the Committee on Education and Labor 
conducted a second oversight hearing to determine the 
effectiveness and progress of MSHA and its safety programs and 
initiatives since the enactment of the MINER Act of 2006. At 
this hearing, the Assistant Secretary for Mine Safety made very 
clear to the Committee that the Administration did not intend 
to go further than it was required to do under the MINER Act. 
Nor did it intend to move more swiftly than the deadlines 
established in that Act, notwithstanding new evidence that 
quicker action is feasible and necessary to ensure the safety 
of miners.\39\
---------------------------------------------------------------------------
    \39\See, e.g., dialogue between Mr. Stickler and Chairman Miller, 
hearing of May 16, 2007.
---------------------------------------------------------------------------
    And on October 3, 2007, the Committee held an oversight 
hearing on the Crandall Canyon mine tragedy that took place in 
Utah in August 2007, entitled ``The Perspective of the Families 
at Crandall Canyon.'' Most of the families who lost loved ones, 
including the families of rescue personnel, participated in the 
hearing to offer insights into what had happened. In addition, 
the Governor of Utah, Jon Huntsman, Jr. (R), joined the 
families to urge the Committee to act.
    The Committee also initiated its own investigation into the 
Crandall Canyon mine tragedy. As part of this investigation, 
the Committee will, among other things, specifically consider 
whether the mine operator and MSHA complied with the 
requirements of the MINER Act, as well as other requirements of 
existing law. The Committee is committed to a full and through 
investigation.
    (2) A review of recent serious mine accidents. Recent 
tragedies have highlighted weaknesses in the program 
established some years ago by the Congress to protect miners 
from on-the-job deaths, injuries and diseases.
    In 2006, three serious mine accidents occurred in quick 
succession--at Sago and Aracoma Alma in West Virginia and at 
Darby in Kentucky. Nineteen workers were killed as a result of 
these incidents, making a total of 47 deaths in 2006. In the 
Spring of 2007, MSHA finally completed its investigation on 
what happened in each mine. It also completed investigations on 
whether its own performance prior to each accident contributed 
to a climate which may have contributed to the accident. West 
Virginia also prepared reports of its own.
     Sago Mine, West Virginia. On January 2, 2006, an 
explosion took place in an abandoned area at the Sago mine, 
allegedly because of a lightning storm in the area that ignited 
methane. The explosion completely destroyed seals that should 
have contained the damage in the abandoned area, releasing 
clouds of dust and poisonous gasses into the mine. Some miners 
escaped but fourteen others were trapped. One died before he 
could even put on a self-rescue device. The rest, unable to 
communicate with the surface and with a limited supply of air 
to escape, retreated to an area to await rescue, barricading 
themselves behind curtains and boards, as they had been trained 
to do to keep out poisonous gasses. Management was slow in 
contacting MSHA and rescue teams, and when they arrived 
rescuers lacked the critical information they needed to start 
their efforts--the conditions below ground, and the location 
where the miners were trapped. Confusion in the command center 
contributed to delays. Once the rescue began, it had to proceed 
slowly to permit the restoration of ventilation controls that 
had been destroyed by the explosion. By the time the rescuers 
got to the trapped miners, all but one had expired.
     Aracoma Alma Mine, West Virginia. On January 19, 
2006, a fire started on a conveyor belt at the Aracoma Alma 
mine. It was triggered when excessive coal dust in the air was 
ignited by sparks due to the misalignment of a belt. Initial 
attempts to extinguish the fire were delayed because an 
untrained employee in the mine office thought the alarm was 
malfunctioning. In addition, efforts to put out the fire and 
evacuate miners were hampered because waterlines to the area 
were out of service and the mine was not well-ventilated. 
Rescue efforts were further delayed by the lack of accurate 
maps. Two miners died. Criminal charges are still being 
contemplated in this case. Also, MSHA subsequently determined 
that the local office assigned responsibility for this mine had 
particularly serious management problems.
     Darby #1 Mine, Kentucky. On May 19, 2006, there 
was an explosion at the Darby Mine. One of the seals to an 
abandoned area of the mine was known to be improperly 
constructed, and a miner instructed to make repairs with a 
torch ignited methane gas leaking out of the sealed area. Five 
workers died.
    In 2007, tragedy struck again. This time lives were lost at 
the Crandall Canyon Mine near Price, Utah. Investigations are 
still underway by MSHA and by this Committee, which has had to 
already issue one subpoena to get necessary information.\40\ 
While the investigation is not complete, following are some 
highlights that have been discussed by the press or in the 
Congressional hearings since the accident.
---------------------------------------------------------------------------
    \40\September 24, 2007; copy currently available at http://
edlabor.house.gov/correspondence/20070924DOLSubpoena.pdf.
---------------------------------------------------------------------------
     The coal seam is actually under a mountain, and 
the location of the accident was covered by about 1,800 feet of 
mountaintop.
     By the time the current owners bought the mine in 
2006, most of the available coal had already been removed. The 
coal that remained was contained within the barriers and 
pillars holding up the mountaintop.\41\ At some point, an 
outside firm was hired to conduct an engineering study to 
determine if more coal could safely be removed--in particular 
from two long barriers running more or less down the center of 
the mine on each side of the main passages used for 
ventilation, equipment, and escape. The study concluded that 
this could be done under specified conditions. Plans were then 
prepared for this work, and approved by MSHA.
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    \41\The traditional method of mining underground coal is the ``room 
and pillar system''. This is done today by machines known as 
``continuous miners''. These machines advance into a solid block of 
coal and grind out portions of the block. After advancing a few feet, 
they pull back and allow ``roof bolting'' machines to secure the 
exposed ``roof'' of the passage being cut so that it will not fall upon 
the miners as they advance. The miners also leave large pillars of coal 
in place to support the rock above the mine. Hence the mined area 
gradually comes to resemble a large checkerboard of white squares (coal 
removed) and black squares (pillars of coal left in place). In deeper 
mines, even larger areas of coal may be left undisturbed to keep the 
ground above from collapsing into the mine--from the top, or by 
pressure so high that the coal ``bursts'' from the pillars or floor. 
Such supports are known as ``barriers.''
    When the mining has advanced as far as it can go, the operator may 
begin to remove the pillars one at a time, moving from the far end back 
toward the entrance, allowing the roof of the mine to collapse in a 
controlled manner. This is known as pillar extraction or ``retreat'' 
mining. The mine operator may also cut back on the barrier walls, 
mining them out into room and pillars and then collapsing the pillars 
in retreat mining.
    A more recent approach is known as ``longwall'' mining, which 
combines the advance and retreat phases into a single operation. Rather 
than leaving pillars in place as the mining advances, the longwall 
system cuts out everything in a very wide block of coal. It contains a 
large roof shield that moves along with the cutting head, protecting 
the miners during the operation from the collapse of the new ceiling, 
and the roof collapses in a controlled manner after the entire system 
moves forward. Room and pillar passageways on the side of the 
longwalled areas are kept in place for ventilation, equipment movement 
and escape. Both roof and pillar and longwall mining were used in the 
Crandall Canyon mine.
    Each stage of the mining process requires a plan to be submitted to 
MSHA and approved. These plans are often called ``roof control'' plans, 
but in fact look broadly at ground control issues to ensure the plan 
protects miners from unanticipated collapses or bursts.
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     The operation ultimately proceeded in four stages. 
Stage 1 involved mining out the barrier of coal on the north 
side by continuous miner to leave rooms and pillars in place of 
the solid barrier. Stage 2 involved the extraction of the 
pillars created during stage 1, starting from the far end of 
the advance. This work began in early 2007. However it was 
stopped before the plan was completed following series of 
``bumps'' in the area. Mining then began to remove coal from 
the south barrier. Stage 3 used a continuous miner to leave 
rooms and pillars in place of the solid barrier, and Stage 4 
involved the extraction of pillars. It was during this last 
stage, on Monday, August 6, 2007, that a significant section of 
area being mined apparently ``burst'' as the walls imploded 
from the weight of the mountaintop, trapping six workers.
     Rescue teams were dispatched to assess the damage 
to the mine and begin clearing rubble to reach the cavity, 
about 3.5 miles from the mine entrance. As with the miners 
trapped during the incidents in 2006, there was no way to 
determine the exact location of the miners following the 
accident, to ascertain whether they were in an area that could 
support life, or had enough water or food to survive. Under the 
MINER Act of 2006, the mine was not required to have an 
advanced communication or tracking system in place, nor 
shelters in known locations that could sustain life for at 
least several days. The mine was required under the MINER Act 
to have 96 hours of breathable air for trapped miners in 
containers near the work site; but pursuant to the emergency 
response plan for the mine approved by MSHA, this supply was 
not required to be installed in the Crandall Canyon mine until 
the week after the collapse. Accordingly, while clearing of the 
passageways continued, crews also began a series of efforts to 
drill a borehole to the miners to provide communication, air, 
food and water until they could be rescued. These efforts were 
beset by initial delays due to lack of advance planning.
     The rubble clearing efforts were also beset by 
delays because the mountain continued to ``bump''. After 
several weeks, the mine walls burst again, killing three rescue 
workers and injuring six others. All remaining rescue workers 
were pulled from the mine. The bodies of the six trapped miners 
have not been recovered.
     As a result of a miscommunication during the Sago 
rescue in early 2006,\42\ the MINER Act required that MSHA be 
responsible for handling all communications with the public and 
the families during rescue efforts. At Crandall Canyon, the 
owner nevertheless played a prominent role in press and family 
briefings.\43\ Moreover in testimony before this Committee, the 
Governor of the State of Utah expressed serious concern about 
the confusion at the site resulting from the lack of an 
emergency response plan;\44\ and at Senate hearings, MSHA 
expressed concern that it doubted its own authority to tell 
operators to cooperate had MSHA actually taken over the 
rescue.\45\
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    \42\Rescue workers who finally found the trapped miners had to 
shout to each other to relay information to the surface, and the 
command center on the surface understood that the men were found alive. 
This information was leaked to the families. It turned out there was 
only one survivor.
    \43\In a related matter, a camera crew of reporters was also 
permitted underground during the rescue with MSHA permission, an 
unprecedented action. The Committee leadership expressed public concern 
about these aspects of the rescue at the time they occurred. http://
www.house.gov/apps/list/speech/edlabor_dem/rel081707crandall.html.
    \44\Comments of Jon Huntsman, Jr., Governor of Utah, hearing of the 
full committee October 3, 2007, ``The Perspective of the Families at 
Crandall Canyon'' (transcript not yet available).
    \45\Comments of Richard E. Stickler, Assistant Secretary of Labor. 
Mine Safety and Health Administration, Subcommittee on Labor, Health 
and Human services, Education, and Related Agencies, Committee on 
Appropriations, United States Senate, September 5, 2007 (transcript not 
yet available).
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    During the course of its oversight hearings, the Committee 
also heard information about past tragedies that continue to 
resonate in this country's mining communities. Foremost among 
these are:
     Jim Walters No. 5 mine--2001, Alabama--A roof fall 
onto a battery charger set off a methane explosion. One miner 
was unable to walk to safety. Twelve more miners came back to 
help evacuate that miner when a second explosion killed them 
all. This incident created a great deal of caution in the 
mining community about sending in rescue teams, a fact that may 
well have influenced what happened at Sago. JWR #5 is a deep 
mine using belt air, and the explosions revealed deficiencies 
that were not addressed and revealed again in the Sago tragedy. 
The United Mine Workers and family members of the miners who 
perished were deeply distressed by what they regard as 
inadequate MSHA investigations of the accident, and the role 
they were permitted to play therein. Civil penalties assessed 
in connection with the accident were eventually reduced 
dramatically due to procedural problems.\46\
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    \46\The $435,000 in fines that MSHA assessed after the accident 
were reduced by an administrative law judge to $3,000. ``Judge Vacates 
Citations, Reduces Fines for Jim Walters Resources'' Fatal Explosion,'' 
Daily Labor Report, Nov. 9, 2005, pp. A4, A5.
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     Willow Creek Mine--2000, Price, Utah--This 
underground coal mine was was located very close to the 
Crandall Canyon mine, and the mining community in the area has 
yet to recover from the earlier accident. On July 31, 2000, a 
series of four explosions ripped through this mine. According 
to MSHA's accident report, the most likely cause was a roof 
fall in the worked-out area behind a longwall mining system. 
The roof fall ignited methane and other gaseous hydrocarbons. 
This resulted in the first explosion and fire. Believing that a 
roof fall had occurred, personnel remained on the longwall 
section to extinguish a fire near the base of the shields that 
protect the miners during this operation. Eventually, however, 
liquid hydrocarbons--unique to this particular mine--became 
involved in the fire and there were three more explosions. Two 
fatalities occurred as a result of the second and third 
explosions.
    Although the mine was sealed and not reopened for the 
investigation, MSHA later determined that the ventilation 
system was faulty. It was supposed to dilute and render 
harmless concentrations of methane and other gaseous 
hydrocarbons in the worked-out area where potential ignition 
sources existed, but did not do so. It appears that liquid 
hydrocarbons are still not directly addressed in MSHA 
regulations. This has been brought to the attention of the 
State of Utah which is considering whether to adopt a 
regulatory program of its own.
     Wilberg Mine--1984, Utah.--The Wilberg mine fire, 
which claimed the lives of twenty-seven miners on December 19, 
1984, was the most deadly coal-mine fire in Utah history and 
the worst U.S. mine disaster in a dozen years. Investigation of 
the fire revealed serious failures by the agencies charged with 
assuring coal mine safety.\47\
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    \47\This summary of the Wilberg mine fire is based on one prepared 
by the United States Mine Rescue Association, http://www.usmra.com/
saxsewell/wilberg.htm.
---------------------------------------------------------------------------
    Fire broke out in a main passageway which ran several miles 
into the mountain. Within minutes, smoke and lethal gases 
traveled 2,400 feet a side passageway to the working face of 
the mine. One miner escaped, but eighteen miners and nine 
company officials were trapped and killed. Among the victims 
was Nannett Wheeler, the first woman to die in a Utah mine 
since women officially entered mining in 1973.
    Rescuers, believing that the trapped miners might still be 
alive, worked frantically to reach them. Following three days 
of heroic effort, rescue crews entered Fifth Right and located 
25 bodies. Before the bodies could be removed, however, the 
fire rekindled, forcing rescuers to evacuate and seal the mine. 
Recovery of the bodies was finally completed in December 1985, 
nearly a full year after the disaster. The sealed area where 
the fire began was not opened until July 1986. Only then could 
the Federal Mine Safety and Health Administration (MSHA) begin 
its investigation into the cause of the fire.
    In the Spring of 1987, MSHA ruled that the Wilberg fire was 
caused by a faulty air compressor, allowed to run unattended in 
a non-fireproofed area. MSHA issued thirty-four citations 
against Utah Power and Light and Emery Mining Company (the 
mine's operator). Nine of the citations were for violations 
that directly contributed to the disaster. However, MSHA itself 
received strong criticism from the United Mine Workers of 
America, in part for failing to issue these same citations when 
it inspected the mine only days before the fire. The union also 
questioned MSHA's focus on the cause of the fire rather than 
the cause of the deaths, insisting that miners died, not 
because there was a fire, but because they had no escape route.
    Following a Senate Labor and Human Resources Committee 
hearing into the Wilberg disaster, Utah Senator Orrin G. Hatch 
requested an investigation by the General Accounting Office 
(GAO)--the investigative arm of Congress--into MSHA's conduct 
regarding the Wilberg Mine. The GAO review, released in 
November 1987, cited MSHA for allowing the Wilberg Mine to 
operate with an outdated firefighting and evacuation plan, to 
operate with no fire suppression devices, and to run a 
compressor known to be faulty. The GAO report also criticized 
MSHA for permitting the section where the miners were working 
to operate while a tunnel running off the area was blocked to 
human travel by a cave-in.
    (3) A review of recent serious health threats. Miners are 
exposed to a variety of substances that significantly increase 
their risk of substantial impairment or death. Some of these 
substances are natural, and miners are exposed to their hazards 
in the process of removing them from the ground or processing 
them in related facilities (e.g., mills or preparation plants). 
Many other toxic substances are brought into mines to help in 
mining operations. In addition, mines contain poisonous gases, 
such as methane, carbon monoxide, and many others that are 
either produced by the mine itself or by the heavy equipment 
operating in closed environments or in close quarters with the 
miners.
    Following is some background information on examples of 
specific health threats to miners that have come to the 
attention of the Committee.
    (a) Coal dust standard and compliance measurement: the 
return of Black Lung disease.
    Coal Workers' Pneumoconiosis (CWP) is a chronic disease 
that develops slowly and is caused by inhaling respirable coal 
mine dust. It is an irreversible condition that can be 
disabling. There is no cure; it must be prevented. Respirable 
dust includes coal, quartz, and other dusts that occur in 
mines. On a gram for gram basis, quartz dust is more pathogenic 
than other dusts and is especially important for miners who cut 
into rock in the roof or bottom of a mine--such as roof 
bolters, some continuous miner operators, or construction 
workers. The occurrence of CWP depends on the level and the 
duration of exposure to respirable dust. CWP has a higher 
prevalence with increasing level of exposure and with longer 
duration of work as a miner.
    According to data recently released by the National 
Institute for Occupational Safety and Health (NIOSH), black 
lung disease rates among U.S. Coal Miners have doubled in the 
last decade. Ten years ago, about 4 percent of coal miners with 
25 years or more years working underground showed evidence of 
the disease, and rates had consistently declined since 1970. 
The most recent data, however, found a 9 percent rate of 
disease in this group. Moreover, the rates increased for miners 
with even fewer years of exposure.\48\
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    \48\Ken Ward, Charleston Gazette, Sept.14, 2007.
---------------------------------------------------------------------------
    The graph reproduced here is a display of the NIOSH 
data.\49\ It shows the prevalence of CWP by calendar year and 
by years worked as a miner. ``Calendar Year'' in this graph is 
the first year of a five year interval during which chest x-ray 
films were made. CWP is identified with the use of a chest x-
ray in a surveillance program conducted by NIOSH.\50\ On this 
graph, prevalence is measured on the vertical axis and years on 
the horizontal axis. Each line represents the prevalence by 
year for miners with different years of experience, as 
indicated in the legend. It shows that from 1970 to about 1995, 
the overall trend in the prevalence of CWP has decreased. It 
shows that miners with more years work as a miner are more 
likely to develop CWP than those with fewer years. This is 
expected and adds to the reliability of these data. Over the 
past ten years, however, the prevalence of CWP has increased 
two-fold for miners with longer employment histories.
---------------------------------------------------------------------------
    \49\Graph and explanatory statement provided to the Committee by 
James L. Weeks, ScD, CIH, November 6, 2007, based on data supplied by 
NIOSH. See also MD Attfield and EL Petsonk, CDC MMWR Weekly, July 6, 
2007, 56(26); 652-655.
    \50\Each film is graded by an international convention (developed 
by the International Labor Organization) for scoring chest x-ray films. 
According to this convention, films are scored by the size, shape, and 
profusion of opacities in the film. Films can be graded as normal 
(profusion 0), simple (small opacities with profusion 1, 2, or 3), or 
complicated (large opacities with profusion A, B, or C) indicating 
increasing levels of profusion and of severity. Due to the uncertainty 
inherent in this scheme, a typical profusion score is given as X/Y with 
X representing the most likely score but it could also be Y which is 
the next higher or lower score. In these data, the prevalence of CWP 
is, more precisely, the prevalence of films graded 1/0 or higher. These 
represent early stages of CWP. The significance of this score is that 
miners with any score 1/0 or higher are at much higher risk of becoming 
permanently disabled than are miners with normal scores. 


    One thing that can be done to reduce the problem is to 
reduce the level of coal dust to which miners can be exposed. 
---------------------------------------------------------------------------
NIOSH recommended that MSHA do just that in 1995:

          In November 1995, the National Institute for 
        Occupational Safety and Health (NIOSH) issued a 
        comprehensive review of the literature concerning 
        occupational exposure to respirable coal mine dust in 
        its Criteria Document (NIOSH Criteria Document, 1995). 
        NIOSH concluded, among other things, that coal miners 
        in our country continue to be at increased risk for 
        developing respiratory disease as a result of their 
        exposure to respirable coal mine dust. Although it is 
        beyond the scope of this rulemaking, in its 1995 
        Criteria Document, NIOSH recommended a time weighted 
        average exposure limit to respirable coal mine dust of 
        1.0 mg/m\3\, up to ten hours per day for a 40-hour work 
        week. 65 FR 42069

    A dozen years later, however, the NIOSH recommendation has 
not been adopted. Instead, the exposure level remains at the 
minimum level set by the Congress in legislation established 
almost 40 years ago.
    A second approach to lowering coal dust levels is to revise 
the manner in which compliance with the standard is determined, 
so as to ensure that miners are not being overexposed even to 
the existing standard. This includes ensuring that miners 
working longer than normal shifts have their exposure limit 
adjusted to reflect that fact, and changing the sampling method 
and protocols to eliminate fraud resulting in overexposures.
    The exposure level is based on a weekly ``dose'' of coal 
dust that a miner inhales. However, the current exposure limit 
assumes that miners work a traditional 40 hour week work 
schedule. In fact, miners now generally work non-traditional 
work schedules that often last longer than 40 hours. 
Unfortunately, however, the exposure limit has not changed. 
This means that miners are actually being exposed to more coal 
dust than intended by the Congress when the standard was set in 
the 1969 Coal Act.
    The existing system of measuring coal dust, which relies 
heavily upon operator sampling in addition to whatever sampling 
MSHA inspectors can take during their visits, has suffered from 
considerable fraud. In 1975, for example the government's 
General Accounting Office reported that 18 percent of the air 
samples submitted by operators from the dirtiest areas of mines 
had 0.1 mg. of dust per cubic meter of air. These readings were 
found even in mines where, just days later, federal inspectors 
were finding the legal limit of 2.0 mg. To test whether these 
very low readings could possibly be accurate, the auditors took 
their own dust tests inside and outside of coal mines. Only 
those taken entirely outdoors had 0.1 mg. of dust. Even tests 
taken in mine offices had more than 0.2 mg. of dust. Cheating 
went on everywhere they looked, the auditors wrote. A series of 
tests in 1978, 1984 and 1988 produced similar results. While 
this clearly meant that miners were being exposed to dust 
levels far in excess of what the law permitted, MSHA did little 
to address the problem.\51\
---------------------------------------------------------------------------
    \51\This discussion draws heavily on a summary of the problem by 
Gardiner Harris, Courier Journal, April 20, 1998, originally run as a 
series called Dust, Deception and Death.
---------------------------------------------------------------------------
    In mid-1989, an MSHA lab technician noted a white spot on a 
filter which was used to collect dust samples. Hundreds more 
were found. Determining that the spots were due to blowing air 
into the sampling cassettes to rid them of dust collected, the 
Department of Labor in 1991 charged about half the underground 
coal mines in the country with tampering. The charges were 
dismissed, but subsequent prosecutions for tampering were 
successful.
    In 1995, an advisory committee was created to address the 
situation. The committee recommended that MSHA take over 
compliance dust sampling. It took MSHA a few more years to 
figure out how to deal with this in practice.
    In 2000, MSHA proposed several changes to the current 
sampling system.\52\ As explained by the agency:
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    \52\65 FR 42068, July 7, 2000.

          The Secretary of Labor and the Secretary of Health 
        and Human Services believe that miners' health can be 
        further protected from the debilitating effects of 
        occupational respiratory disease by limiting their 
        exposures to respirable coal mine dust exceeding the 
        applicable standards. MSHA's improved program to 
        eliminate overexposures on each and every shift 
        includes multiple rulemakings. Through this proposal, 
        MSHA would be able to use single, fullshift respirable 
        coal mine dust samples to more effectively identify 
        overexposures and address them. Other overexposures to 
        respirable coal mine dust would be prevented through 
        finalizing a proposed rule that would require each 
        underground coal mine operator to have a verified mine 
        ventilation plan. MSHA would verify the effectiveness 
        of the mine ventilation plan for each mechanized mining 
        unit (MMU) to controlling respirable dust under typical 
        mining conditions. Furthermore, that proposal would 
        revoke underground operator compliance and abatement 
        sampling. Consequently in underground coal mines, MSHA 
        intends to increase the number of compliance 
        inspections per year, and MSHA would conduct abatement 
        sampling for non-compliance determinations. The notice 
        of proposed rulemaking to promulgate new regulations to 
        require operators to have a verified ventilation plan 
        in underground coal mines is published elsewhere in 
---------------------------------------------------------------------------
        today's Federal Register.'' 65 FR 42069

    Thus, the agency embarked on a plan to revise the existing 
sampling system to take over the responsibility for compliance 
sampling, to ensure that one compliance sample would be 
adequate to issue a citation,\53\ and to tighten control of 
operator dust control plans. The agency did not, however, 
proposed to change the exposure limit to that recommended by 
NIOSH. The proposal was never finalized.
---------------------------------------------------------------------------
    \53\This is the case in the violation of any other exposure level; 
coal dust was treated uniquely in this regard based on a 1972 
interpretation, which MSHA was unable to change without rulemaking. As 
explained in the rulemaking: ``The Secretaries are proposing to rescind 
a previous 1972 finding, by the Secretary of the Interior and the 
Secretary of Health, Education, and Welfare, on the validity of such 
single shift sampling. Today's proposal addresses the final decision 
and order in NMA v. Secretary of Labor, issued by the United States 
Court of Appeals for the 11th Circuit on September 4, 1998 (153 F. 3d 
1264). That case vacated a 1997 Joint Finding and MSHA's proposed 
policy concerning the use of single, full-shift respirable dust 
measurements to determine noncompliance when the applicable respirable 
dust standard was exceeded. 65 FR 42068.
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    In 2003, a new Administration proposed a different approach 
to revise the long standing program coal dust sampling.\54\ As 
noted previously in this Committee report, the regulations in 
question would have permitted an increase in the amount of coal 
dust to which miners could be exposed. On July 10, 2003, Rep. 
Nick Rahall proposed an amendment to bar the use of any funds 
appropriated to the Department of Labor to implement 
regulations proposed on March 6, 2003; and although the 
amendment failed by 2 votes, the Administration halted work on 
the proposed regulation.\55\
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    \54\68 FR 10874, March 6, 2003.
    \55\68 FR 39881.
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    In the meantime, NIOSH had been working on a new device to 
measure coal dust known as the Personal Dust Monitor (PDM). 
Work began in 1992. Following a long period of laboratory and 
field tests to verify the accuracy of the unit in practice, 
NIOSH announced success in 2004.\56\ These devices continuously 
display a miner's current coal dust exposure, and records the 
exposures in a format that can be electronically downloaded 
each shift to the operator and MSHA. Instead of waiting weeks 
for a sample to come back from a laboratory, the PDM provides 
immediate feedback to both miners and operators on coal dust 
levels. Moreover, it records the data in tamper-proof form, 
enabling it to be used for compliance purposes. There is 
general agreement among miners and the mining industry that the 
PDM offers a real possibility to resolve some of the problems 
that have plagued the industry since the FMSCA was adopted, and 
help it to reduce current coal dust exposures.
---------------------------------------------------------------------------
    \56\Volkwein-JC, Vinson-RP, McWilliams-LJ, Tuchman-DP, Mischler-SE, 
U.S. Department of Health and Human Services, Public Health Service, 
Centers for Disease Control and Prevention, National Institute for 
Occupational Safety and Health, DHHS (NIOSH) Publication No. 2004-151, 
Report of Investigations 9663, 2004 Jun :1-25.
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    (b) Asbestos standard.
    In March 2001 the Office of the Inspector General (OIG) of 
the Department of Labor issued a report evaluating MSHA's 
enforcement actions at an open pit vermiculite mine owned by 
W.R. Grace & company in Libby, Montana.\57\ The widespread 
asbestos contamination at this mine and the surrounding 
community attracted considerable public attention.\58\ Miners 
were exposed to asbestos through the processing of the ore, and 
carried the dust home on clothing and personal vehicles, 
thereby allegedly exposing family members. Among other matters 
examined by the OIG was whether MSHA had properly inspected the 
mine, and appropriate exposure sampling of the miners. The OIG 
found that MSHA had conducted regular inspections from 1978 
through 1990, and that with a few exceptions the laboratory 
analysis of the asbestos samples showed them to be under MSHA's 
permissible exposure limit (PEL) for asbestos. Yet miners and 
their families were clearly becoming ill. Accordingly, the OIG 
recommended to MSHA that it lower it's PEL for asbestos.\59\
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    \57\Evaluation of MSHA's Handling of Inspections at the W.R. Grace 
& Company Mine in Libby, Montana, Report No. 2E-06-620-0002 (March 22, 
2001), http://www.oig.dol.gov/public/reports/oa/2001/2E/06/620/
0002.pdf.
    \58\The Seattle Post-Intelligencer published a series of articles 
on the asbestos-related illnesses and fatalities among people living in 
Libby, Montana, in November 1999. The Senate Committee on Health, 
Education, Labor and Pensions held a hearing on the matter on July 31, 
2001, at which the new assistant Secretary for Mine Safety and Health, 
David Lauriski, testified.
    \59\OIG report, Finding B, p.8, op cit.
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    The OIG noted that MSHA's PEL of 2 fibers per cubic 
centimeter was established in 1978, two years after OSHA 
adopted the same PEL. In August 1989, the Agency proposed 
lowering the standard by a factor of 10 as part of an effort to 
revised roughly 620 airborne contaminants and impose limits on 
145 new substances. A 1992 decision by the 11th Circuit on a 
similar rulemaking initiative by OSHA discouraged MSHA from 
moving forward with this effort, and the PEL for asbestos 
remained at 2 fibers per cubic centimeter. However, unlike 
MSHA, OSHA reacted to the court decision by moving ahead with a 
new standard just on asbestos, and lowered its PEL by a factor 
of 20 (to 0.1 fiber) in 1994. Accordingly, the OIG recommended 
MSHA now move forward and initiate similar rulemaking.
    Unfortunately, efforts to undertake this action have 
stalled. An effort to begin the rulemaking process at the end 
of the Clinton Administration failed due to the press of other 
rulemaking business.\60\ Despite assurances by the incoming 
Assistant Secretary for Mine Safety and Health that the new 
Administration would give serious consideration to the OIG 
recommendations,\61\ the agency did not ask for any public 
input until the next year. Thereafter, several stakeholder 
meetings were held, but a notice of proposed rulemaking to 
lower the PEL on asbestos was not published until July 2005--a 
full four years after the commitment of the Assistant Secretary 
to review the matter. Since then, the agency has extended the 
date for final action on changing this single PEL several 
times.\62\
---------------------------------------------------------------------------
    \60\Id.
    \61\Lauriski statement at Senate hearing, note 79.
    \62\Unified Agenda, RIN (Regulatory Information Number) 1219-AB24. 
In addition to lowering the PEL, the rulemaking also involves a 
determination as to whether to incorporate OSHA procedures for the 
analysis of asbestos samples.
---------------------------------------------------------------------------
    (c) Hazard communication standard.
    The Occupational Safety and Health Administration issued a 
standard almost 25 years ago, in 1983,\63\ to require:
---------------------------------------------------------------------------
    \63\48 FR 53280.

          ``chemical manufacturers and importer to evaluate 
        chemicals produced in their workplaces or imported by 
        them to determine if they are hazardous. . . . Chemical 
        manufacturers and importers or employers evaluating 
        chemicals shall identify and consider the available 
        scientific evidence concerning such hazards . . . and 
        shall treat the following sources as establishing . . . 
        them [as] hazardous'': . . . ``threshold limit values 
        for chemical substances and physical agents in the work 
        environment, ACGIH (latest edition).'' 29 CFR 
---------------------------------------------------------------------------
        1910.100(d)

    The threshold limit values (TLVs) are updated from time to 
time by the ACGIH (American Conference of Governmental 
Industrial Hygienists), and as required by the OSHA standard, 
the latest set are among the triggers that require 
manufacturers, importers and employers to treat an item as 
hazardous. If a substance is hazardous, the Material Safety 
Data Sheet provided to the end user of the substance with the 
product must indicate that fact and providing various 
additional information.
    A similar standard was not in effect for mine workers until 
October 3, 2000, when an interim final rule providing 
essentially the same requirements was issued.
    Since that time, a concerted attack has been made on the 
use of TLVs as the basis for any regulatory action or to 
trigger the determination of a hazard under the hazard 
communication rules.\64\ In the case of OSHA, a lawsuit was 
filed by the National Association of Manufacturers in 2006. The 
industry asserted that in requiring chemical manufacturers to 
use the latest edition of the TLVs, OSHA had in essence 
``amended'' its rule and needed to engage in notice and comment 
rulemaking. This assertion was rejected and the court dismissed 
the lawsuit in May of this year.\65\ In the case of MSHA, 
however, recent regulatory action undermined the use of up-to-
date TLVs. In 2002, the MSHA hazard communication standard was 
revised to refer exclusively to the ACGIH TLVs 2001 edition--
hence freezing the science to that point in time, and once 
again leaving miners less protected than all other workers in 
the U.S.\66\ The final rule went beyond this to also freeze in 
time the versions of certain other scientific publications that 
can define a hazard: the National Toxicology Program's Report 
on Carcinogens, and the International Agency for Research on 
Cancer's Monograph Series.\67\
---------------------------------------------------------------------------
    \64\See, e.g., June 18, 2001, article on Occupational Hazards 
magazine, http://www.occupationalhazards.com/News/Article/34493/
OSHA_ACGIH_and_Norwood_Draw_Fire_at_House_Hearing.aspx.
    \65\Monforton, ``Appeals Court Upholds HazCom from Industry 
Challenge, The Pump Handle, May 14, 1007; see also The Project on 
Scientific Knowledge and Public Policy, case study, 
http://www.defendingscience.org/case_studies/ACGIH-TLVs.cfm.
    \66\67 FR 42314, June 21, 2002.
    \67\For a more detailed discussion, see Monforton, ``Appeals Court 
Upholds HazCom from Industry Challenge'', supra note 64.
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    (d) Diesel particulate standard.
    Workers in underground metal and nonmetal mines--such as 
salt, limestone, gold, and silver mines--often use diesel-
powered machines which emit fumes containing fine particles 
known as ``diesel particulate matter'' or DPM. Researchers have 
concluded that exposure to these particles in the average metal 
or nonmetal mine over an eight-hour period can be anywhere from 
27 to 162 times the level of exposure on the streets of Los 
Angeles over a one-year period. Research has also shown--
overwhelmingly--that such exposure to diesel particulate matter 
can greatly increase the risk of a range of illnesses, from 
headaches to cancer and heart disease.
    In early 2001, MSHA published regulations to help reduce 
mine workers' exposure to diesel particulate matter inside 
metal and nonmetal mines.\68\ This was the first comprehensive 
health rule issued by MSHA during its existence. It followed 5 
years of rulemaking, including a lengthy and peer-reviewed risk 
assessment of the risks, a detailed analysis of the economic 
and technological feasibility of the rule, and procedural 
challenges to related scientific studies.\69\ The regulations 
provided for a phased implementation, beginning with a lengthy 
period of compliance assistance prior to any enforcement, and 
concluding in 2006.
---------------------------------------------------------------------------
    \68\66 FR 5706, January 19, 2001.
    \69\For a history of those procedural challenges, see Monforton, 
``Weight of the Evidence or Wait for the Evidence? Protecting 
Underground Miners From Diesel Particulate Matter, American Journal of 
Public Health, Vol. 96, No. 2, February 2006.
---------------------------------------------------------------------------
    The Bush Administration delayed implementation several 
times, and revised the rule to delay enforcement and eliminate 
some protective requirements. In January 2006, Democratic 
members of the Committee, responding to a proposal by the 
Administration to delay implementation of this rule for yet 
another five years, sent a letter to the Secretary of Labor 
opposing this action.\70\ The Administration ultimately backed 
away, although it did delay the rule's final implementation 
date for another 18 months until June 2008. This year, the 
District of Columbia Court of Appeals recently rejected 
continuing industry challenges to the rule.\71\
---------------------------------------------------------------------------
    \70\Letter of January 18, 2006, http://edlabor.house.gov/
correspondence/011806ChaoLetter.pdf.
    \71\Kennecott Greens Creek Mining Company v. MSHA, No. 01-1046, 
U.S. Court of Appeals (DC Cir), decided February 9, 2007.
---------------------------------------------------------------------------
    The Committee remains concerned that irresponsible mine 
operators might try and take advantage of loopholes the Bush 
Administration created for them to avoid compliance. Chairman 
Miller has made it clear that he wants to be informed anytime 
the Secretary grants an extension of time to a mine operator 
for compliance with the requirements of a critical health 
rule.\72\ Nevertheless, in light of its understanding that all 
challenges to final implementation of the rule have been 
withdrawn, and that the Department will implement the final 
limit in June 2008 using the required measurement method (total 
carbon, not elemental carbon),\73\ barring further events that 
warrant otherwise, the Committee has decided that legislation 
to finally put this rule fully into place is not required.
---------------------------------------------------------------------------
    \72\Letter of March 7, 2007, http://edlabor.house.gov/
correspondence/030707GMChaoLetterDiesel.pdf.
    \73\The Court of Appeals determined that MSHA's decision to use 
total carbon (which consists of elemental carbon plus organic carbon) 
as a surrogate for diesel particulate, both at the interim and final 
exposure levels established by the rule, was not arbitrary and 
capricious, although it has interferences that must be taken into 
account in sampling and compliance determinations. The Court also 
determined that MSHA could also use elemental carbon alone as a 
surrogate for diesel particulate matter at the original interim 
compliance limit based upon data establishing that at this level, a 
conversion factor could be established enabling MSHA to reliably 
convert an amount of elemental carbon to an amount of total carbon. The 
court noted that MSHA did not yet have a reliable basis for using 
elemental carbon as a surrogate for dpm at other exposure limits 
required by the rule. See Section III of the decision, pp. 11-16. The 
Committee understands NIOSH is not able to provide MSHA with a reliable 
elemental carbon to total carbon conversation factor for this purpose 
because at such low levels, the ratio varies significantly depending 
upon such factors as equipment operation. The Committee emphasizes that 
the Court found the use of total carbon, with appropriate sampling 
rules to deal with the possible interferences, to be a perfectly 
acceptable approach, and it expects the agency to proceed to implement 
its own determination in that regard.
---------------------------------------------------------------------------
    (e) Permissible exposure limits.
    As discussed in connection with asbestos, MSHA has not been 
able to update hundreds of permissible exposure limits (PELs) 
because of concern about an 11th Circuit court decision in 1992 
prohibiting its sister agency, OSHA, from taking a similar 
approach under similar language.\74\ An effort to update the 
PELs, initiated by MSHA in 1983\75\ was put on hold as a result 
of the Court's decision.
---------------------------------------------------------------------------
    \74\Similar, but not identical. Moreover, the standard of review 
for MSHA standards, ``arbitrary and capricious'', is much more flexible 
than the standard for review under OSHA and applied by the 11th 
Circuit. Nevertheless, given all of MSHA's other regulatory 
obligations, a decision to spend a substantial amount of time on a 
rulemaking that will certainly be subject to challenge would be a 
difficult one.
    \75\MHSA issued a proposed rule on August 29, 1989, 54 FR 35760; 
the history of the rulemaking is discussed in the proposed rulemaking 
document.
---------------------------------------------------------------------------
    MSHA would need considerable additional resources to 
address these items one at a time, and the experiences with 
asbestos and diesel particulate matter provide examples of how 
complex individual rulemakings can become--and how long it 
takes to get them in place--if there is significant pushback 
from determined opponents. Accordingly, attention turned to the 
possibility of a legislative solution. Legislation that would 
have addressed OSHA's problem was reported out of the Committee 
15 years ago, on July 9, 1992.\76\ The bill was not enacted. A 
decade later, on July 16, 2002, a hearing was held by the 
Subcommittee on Workforce Protections to explore whether a 
consensus could be reached on how to resolve the problem in the 
OSHA context.\77\ Despite the efforts undertaken by the then 
Chairman of the Subcommittee, Charlie Norwood, and by others, 
no consensus was achieved.
---------------------------------------------------------------------------
    \76\H.R. 3160, the ``Comprehensive Occupational Safety and Health 
Reform Act'', Rept. 103-663. See p. 67, discussion of section 405 of 
the bill.
    \77\Reaching a Consensus to Update OSHA's Permissible Exposure 
Levels, Hearing before the Subcommittee on Workforce Protections, July 
16, 2002, Serial No. 107-72.
---------------------------------------------------------------------------
    It is now more than 15 years since the 11th Circuit issued 
its opinion, and the Committee believes it is high time to act 
on this matter with respect to the health of miners. The 
approach taken to updating MSHA's PELs does not necessarily 
have to be the one taken to updating OSHA's PELs, and the 
Committee believes there is no need to await development of an 
approach for the latter to move ahead on the former.
    (4) Limited scope of the MINER Act.
    The mining industry has repeatedly challenged the need for 
legislation to enhance the 2006 MINER Act, which was enacted in 
June 2006 after a month after the tragedy at Darby and 6 months 
after those at Sago and Aracoma Alma.
    The MINER Act was never intended by the Congress to be the 
last word on mine safety and health. Both members of the Senate 
and the House made this clear in their statements. There are 
five reasons why additional action is required.
    In the first place, the MINER Act addressed some issues of 
concern to the Congress on only an interim or incomplete basis. 
For example:
           Enhanced communication and tracking systems. 
        To provide time for fully wireless two-way technology 
        to be developed, the MINER Act did not require it to be 
        installed until June 2009, and provided for further 
        delays if it is not ready. The Congress recognized that 
        developments in this area might require adjustment.
           Underground refuges. The MINER Act required 
        NIOSH to study the capabilities of these chambers and 
        report its results to the Congress.
           Explosion-proof seals. The MINER Act 
        required MSHA to take rulemaking action, and the agency 
        has established interim rules that meet the NIOSH 
        recommendations.
           Conveyor belt technology. There are miles of 
        conveyor belts in underground mines to carry materials 
        to the surface, and the existing rules on the 
        resistance of these belts to flame are about 50 years 
        old. The MINER Act established a task force to examine 
        the problem and it recently reported its 
        recommendations. The MINER Act did not, however, 
        require MSHA to adopt these recommendations or take any 
        other appropriate action.
           ``Belt air''. This is the practice in 
        underground coal mines of using the passageway that 
        brings air to the miners at the face for the conveyor 
        belt system to take coal out of the mine. The MINER Act 
        established a Technical Review Panel to study the 
        matter and it recently released its recommendations. 
        The MINER Act did not, however, require MSHA to adopt 
        these recommendations or to take any other appropriate 
        action.
           Compliance. The MINER Act required the 
        adjustment of some penalties and the addition of others 
        to encourage compliance, but did not upgrade other key 
        components of MSHA's toolkit, including its ability to 
        collect outstanding violations, the definition of a 
        pattern of violations, and MSHA's need for subpoena 
        authority.
    Second, the Sago, Aracoma Alma, and Darby reports issued 
after passage of the MINER Act have raised additional issues:
           Stoppings. To get air to miners working at 
        the ``face'', giant fans blow air through a set of 
        passageways designed for that purpose. The walls of 
        these passageways are known as ``stoppings''. The 
        rescue teams at Sago were required to take the time to 
        replace stoppings blown out by the explosion, cutting 
        off air to where the miners were trapped and extending 
        the time needed to get to the miners who were running 
        out of air.
           Lightning. The MSHA report on the Sago 
        accident, backed by research from Sandia national 
        laboratories, determined that the explosion in that 
        mine was ignited by lightning traveling straight 
        through the earth without any metal conductor and into 
        an abandoned piece of wire cable. Technology to deal 
        with this newly revealed power of lightning has not 
        been developed.
           SCSR reliability. The self-contained self-
        rescuers provide breathing air for escape through toxic 
        fumes. Mine operators were required to make many more 
        available under the MINER Act. No actions were 
        required, however, to strengthen the government's 
        program to randomly survey these SCSRs to check for 
        deficiencies. The miner who survived the Sago tragedy 
        revealed that some of the SCSR units may have been 
        faulty.
    Third, the Congress did not have the benefit of oversight 
activity at the time it acted. Had there been a more active 
oversight program in the 109th or other recent Congresses, the 
Congress might well have proceeded to address some further 
issues like:
           Miner rights have been undermined. Safety 
        and health hazards reported to MSHA by phone have often 
        been ignored in recent years. Whistleblowers are often 
        blacklisted in the industry, and miners and families 
        don't trust MSHA to protect their identities. Those who 
        complain about blacklisting may have to go through the 
        grievance process before their cases can be 
        adjudicated. And the law is not clear that trapped 
        miners or their families can designate miner 
        representatives.
           Black lung is back. NIOSH has confirmed that 
        more miners are coming down with the disease, some of 
        them still relatively young. Worries about current 
        protections are of long standing--some miner operators 
        were convicted of tampering with the measuring 
        instruments used to determine compliance, NIOSH 
        recommended an exposure limit half of that in the 
        statute, and the UMWA pointed out that miners were now 
        working longer shifts than in 1969 and hence needed a 
        lower limit just to stay even with the exposure limit 
        set in 1969. Meanwhile, under the direction of NIOSH, 
        new technology to more accurately and securely measure 
        coal dust exposure has been developed, but it cannot be 
        utilized for compliance purposes unless the law is 
        changed.
           Other health protections have been allowed 
        to slowly erode. Most of the rules protecting miner 
        safety and health consist simply of a ``permissible 
        exposure limit'' or PEL, that cap the amount of a 
        substance to which a miner may be exposed during a 
        shift. Most of these limits were established decades 
        ago. Over the years, NIOSH has recommended that many of 
        the PELs be reduced to reflect its findings that the 
        current limits do not provide adequate protection 
        against serious diseases, including various cancers. In 
        the late 1980s MSHA undertook an effort to update these 
        limits en masse, but court decisions and industry 
        opposition brought the effort to a halt. The agency 
        lacks the capability to update each of the PELs through 
        a separate rulemaking.
           This Administration has delayed action or 
        rolled back specific health protections. Among other 
        actions, this Administration has refused to move 
        forward with a rule to put asbestos exposure standards 
        in this industry on a par with other industries, and it 
        has weakened what was previously uniform set of rules 
        to let workers know of the hazards in the products they 
        are using on the job (hazard communication rule).
    Fourth, the Congress learned this year of some critical 
problems of which it was unaware, as a result of the Crandall 
Canyon tragedy. These included:
           Retreat mining is dangerous and poorly 
        regulated. Crandall Canyon threw light on the risky 
        nature of retreat mining, and the insufficient 
        oversight of retreat mining plans by MSHA.
           MSHA's authority to control rescue efforts 
        is unclear. Agency officials have expressed doubt about 
        their authority to compel operators to provide needed 
        personnel and equipment if they take over a rescue 
        site.
           MSHA does not have its own emergency 
        response plan. The Governor of Utah was highly critical 
        of the lack of advance planning for coordination with 
        state and local authorities at Crandall Canyon.
           The law does not provide a mechanism for 
        independent investigations of multiple-fatality mine 
        accidents. Both the House and the Senate have been 
        forced to initiate our own investigations of the 
        Crandall Canyon accident for this reason.
    And finally, the Crandall Canyon tragedy pointed out that a 
key provision in the MINER Act needs to be strengthened.
           Family and press liaison. The MINER Act 
        specifically required MSHA to be in charge of 
        communicating with families and the press during a 
        rescue in order to ensure that incorrect and misleading 
        information does not get disseminated. The first test 
        of this new authority was at Crandall Canyon, and it 
        failed miserably.
    (5) New resources and research are vital to help solve the 
problems identified by the Committee, but alone they are not 
enough.
    As previously noted, the current Administration's track 
record in carryout out federal mine safety and health law has 
been troubling, and included budget and staffing cuts at MSHA. 
Efforts to reverse this decline began in 2006 after the 
accidents that year revealed one of the consequences of making 
such cuts. The Emergency Supplemental Appropriations Act of 
2006 (PL 109-234) provided an additional $26 million for MSHA 
to strengthen its coal enforcement program by hiring and 
training 170 additional coal mine personnel.\78\ NIOSH received 
a special allocation of $10 million, available for 18 months, 
to focus on the development of new technologies to provide 
miners with better emergency escape devices, refuge chambers, 
and advanced communication and tracking systems.\79\ This year, 
yet more funds are being sought by the Congress in the regular 
appropriations bill--to continue to employ the extra MSHA 
personnel, to provide MSHA with an additional $10 million 
following news reports that MSHA lacked enough personnel to 
carry out its regular quarterly inspections of underground coal 
mines,\80\ and to increase NIOSH funding by $13 million to 
continue its efforts.\81\
---------------------------------------------------------------------------
    \78\U.S. Senate Appropriations Labor, HHS, Education Subcommittee, 
Testimony of Richard Sticker of the U.S. Mine Safety and Health 
Administration, Wednesday, February 28, 2007, http://www.nma.org/pdf/
cong_test/022807_stickler.pdf.
    \79\http://www.cdc.gov/niosh/mining/mineract/
emergencysupplementalappropriation.htm.
    \80\See, e.g., Ken Ward Jr., ``Bush Administration `weak link' Byrd 
says, Charleston Gazette, October 9, 2007. Subsequently, the Committee 
received data that MSHA has a similar problem in the metal and nonmetal 
sector.
    \81\As of mid-November 2007, these increases are proposed only, 
since the appropriations bill containing them has not yet been agreed 
to by the White House.
---------------------------------------------------------------------------
    While the extra funding for inspectors will help reverse 
the decline in the capability of the agency in recent years, it 
alone is not enough to address all of the agency's problems. 
Here are a few examples of why this is the case--
     Outdated personnel and retirement rules limit 
agency use of resources. The loss of experienced personnel 
through retirement makes it hard for the agency to retain its 
expertise, let alone add additional inspectors. The Committee 
understands there is not intense competition for good 
candidates due to an expanding mine industry, and it takes time 
needed to get trained personnel in place. The current personnel 
and retirement rules make it difficult for MSHA to make use of 
senior personnel as they transition.
     Locating mine hazards requires more than MSHA 
inspectors. Miners and their families know where the hazards 
are, but they are reticent to step forward--in part because 
they do not believe MSHA will follow up, and in part because 
they are worried about retaliation.\82\
---------------------------------------------------------------------------
    \82\See, for example, the discussion with Melissa Lee, Chuck 
Knisell, and Tony Oppegard during the Committee's hearing on March 28, 
2007, ``Protecting the Health and Safety of America's Mine Workers''.
---------------------------------------------------------------------------
     Inspectors must be free to enforce the law. Some 
of the reports of the accidents that occurred in 2006 indicate 
that agency inspectors in some offices had come to believe 
their job was to provide compliance assistance, rather than to 
require compliance.
     Some mine operators need more of an incentive to 
comply when the inspector is not present. While the vast 
majority of mine operators comply with the law, a significant 
minority continue to ignore its requirements. While the 
provisions of the MINER Act and MSHA's revision of its 
assessment rules this year should help, the agency still lacks 
effective tools to collect outstanding penalties, to subpoena 
information about mine ownership, to close down mines that fail 
to abate, and other authority needed by inspectors to compel 
responsible action.
     Inspectors can only enforce the rules that are in 
place, and the agency's rulemaking process is slow and broken. 
The discussion of health rules, supra, provides a few examples.
     Inspectors can only enforce the ``law of the 
mine''. Existing safety and health rules have been weakened 
through variances for individual mine owners and the specifics 
of mine plans that determine what actually is required in a 
particular mine. The example of belt air is instructive. The 
Congress actually established a safety rule in the law that 
prohibited its use. Yet over time, exemptions were granted 
under authority given the agency to provide flexibility, and 
eventually these exemptions became the rule.
    The provisions of the S-MINER Act will help address these 
and other problems that make it very difficult to protect 
miners from known safety and health hazards.
    (6) Summary.
    The Chairman of the Committee has succinctly summed up the 
reason why this legislation is necessary:

          ``The legislation we are considering today, the S-
        MINER Act, builds on the work that Congress started 
        last year when it passed the MINER Act of 2006. The S-
        MINER Act represents a comprehensive approach to 
        minimize the health and safety risks facing miners. Our 
        aim is a simple one: We want to do everything we can to 
        ensure that miners are able to return home safely at 
        the end of their shifts.''\83\
---------------------------------------------------------------------------
    \83\Introductory statement of Chairman Miller at markup of the 
bill, October 31, 2007.

    The provisions of the S-MINER Act address three broad 
issues: disaster prevention; improved emergency response; and 
long-term health risks.
    The requirements to boost disaster prevention include:
     Closer scrutiny of retreat mining plans and 
implementation.
     Adopting NIOSH recommendations and MSHA's 
temporary emergency standard for improved seals.
     Ensuring explosion-proof stoppings.
     Adopting technical panel recommendations on 
conveyor belt composition.
     Adopting technical panel recommendations on belt 
air and imposing related restrictions on the use of this 
ventilation practice.
     Providing for research on the risks of lighting 
storms and coal dust.
     Encouraging compliance with the law.
     Strengthening the enforcement of miner rights.
    The requirements to improve emergency response include:
     Clarifying MSHA's authority to control rescue 
efforts.
     Strengthening MSHA's family and press liaisons.
     Requiring MSHA to develop its own emergency 
response plan.
     Establishing a procedure for independent 
investigations of major mine accidents to supplement the 
investigations performed by MSHA.
     Enhancing the capabilities of underground 
communication and tracking systems.
     Providing for the installation of underground 
refuges to protect trapped miners awaiting rescue.
     Ensure the reliability of self-contained self-
rescuers required for escape.
    The requirements to reduce long-term health risks include:
     Revising the decades old rules on exposure to coal 
dust and the methods for determining compliance with the 
exposure limit.
     Requiring MSHA to adopt an updated standard on 
asbestos, and to roll back a recent change in its hazard 
protection standard, to make both consistent with the rules 
applicable in all other industries.
     Establish a procedure to enable MSHA to update 
permissible exposure limits, including a careful examination of 
feasibility where there is credible evidence of a problem.
    In conclusion, the Committee agrees with the following 
statement by the current International President of the United 
Mine Workers of America, Cecil Roberts:

          ``When it wrote the Mine Act, Congress, in its 
        infinite wisdom stated that this Nation's most precious 
        resource is the ``miner.'' This held true then and must 
        hold true today and into the future.''\84\
---------------------------------------------------------------------------
    \84\Testimony before the full committee, March 28, 2007, http://
edlabor.house.gov/testimony/032807CecilRobertstestimony.pdf.
---------------------------------------------------------------------------

                     V. Section-By-Section Analysis

    Section 1--Short Title.--This Act may be officially 
referred to by either its full title or its acronym. A table of 
contents is provided.
    Section 2--Sense of Congress.--This section briefly 
explains why Congress has elected to address mining health and 
safety again only one year after it legislated on this topic.
    Section 3--Definitions; References.--This section generally 
provides that key terms and references in this statute refer to 
provisions of the Mine Safety and Health Act of 1977.
    Section 4--Supplementing Emergency Response Plans.--This 
section enhances various requirements of the 2006 MINER Act.
    (a) Post Accident Communications.--Prior to 2006, 
communications between the surface and underground coal mines 
often consisted of only a single unprotected phone line that 
could be severed easily during a fire or explosion. 
Communications were disrupted often during emergencies--just 
when they were needed the most--when fire, explosion or rock 
falls interrupted the phone line. Similarly, in the event of an 
emergency, mines do not have systems that can reliably locate 
where the miners are underground to facilitate rescue. Among 
the most important goals of the MINER Act was to bring modern 
technology into underground mines to address these problems.
    As a short-term fix, the MINER Act requires operators of 
underground coal mines to install a second telephone line in a 
different passageway to provide some redundancy should the 
primary system be interrupted. This requirement is now being 
implemented on a mine by mine basis.
    For a more permanent fix, the MINER Act requires mine 
operators to install more advanced communication systems by 
June 15, 2009--systems that can survive accidents like those in 
2006 and function in a post-accident environment. The MINER Act 
specifically refers to ``wireless two-way'' communication 
systems as a goal, referring to a technology that would not 
require any reliance upon a wire (although it provides for a 
backup should such technology not be available). The National 
Institute for Occupational Safety and Health (NIOSH) has been 
given additional funding to begin tests of systems that could 
meet this requirement and to work with other federal agencies 
that might be able to provide useful assistance. The MINER Act 
does not require mine operators to take any action prior to 
June 15, 2009, other than secondary phone lines, to enhance 
underground communications.
    After the MINER Act was passed, the State of West Virginia 
required mine operators to install systems that would provide 
enhanced communications and tracking capabilities underground 
much more rapidly, but which would not have to be fully 
``wireless two-way systems''. Mine operators in that state 
expressed concern because they recognized these systems would 
probably need to be replaced should fully ``wireless two-way'' 
communication systems be developed and the Federal requirement 
to install them go into effect in June 2009. In addition, the 
tragedy at Crandall Canyon again brought to everybody's 
attention the problem with waiting until mid-2009 to require 
mine operators to promptly adopt more enhanced systems. 
Moreover, based upon its research to date, NIOSH has expressed 
concern that a truly ``wireless two-way'' system might not be 
technologically feasible by June 2009, if ever. The result has 
been to focus considerable attention on whether appropriate 
``gap filler'' systems based on existing technologies can and 
should be installed now in underground coal mines in all 
States.
    NIOSH is continuing to test a variety of systems based upon 
existing technologies and has had encouraging results with many 
of them. As a result, it has developed a roadmap that would 
provide for the installation and gradual upgrade of such ``gap 
filler'' technologies. In fact, the roadmap contemplates that, 
by 2009, mine communication systems based on existing 
technologies will be able to survive the kind of accidents that 
occurred in 2006 and 2007. These systems are based on 
``backbones'' available today. A ``leaky feeder'' backbone, for 
example, consists of a co-axial cable, similar to one 
delivering a TV signal to a home, but from which some of the 
signal can ``leak'' to nearby reception devices. While some of 
the components of this system are still being adjusted to 
provide more cost-effective and efficient performance, 
installing just the leaky feeder backbone now will immediately 
provide miners much better protection than the redundant phone 
line which the MINER Act currently requires; it is not 
expensive to install. Based on information received since the 
S-MINER Act was introduced, including comments from NIOSH, the 
bill has been amended by the committee to permit systems based 
on ``wireless mesh'' backbones to be used for this purpose.
    As introduced, the bill provided that such gap-filler 
systems are to be ``hardened'' to the extent possible (i.e., 
buried in a mine floor) to help ensure their survivability. The 
term ``hardened'' has caused some confusion. Based on technical 
comments from the mine industry and NIOSH, the Committee-
reported version has revised this requirement to make its 
intent more clear. Specifically, the reported bill requires 
these systems to be ``enhanced physically, electronically, or 
redundantly'' to improve their survivability in the event of a 
mine accident.
    Because getting improved communications systems in place is 
so critical to miner safety, the bill would require mine 
operators to amend their emergency response plans to provide 
for the installation of such gap-filler technologies within 120 
days of enactment of the S-MINER Act. As NIOSH certifies new 
components to enhance system performance, mine operators are to 
revise their emergency response plans promptly to incorporate 
the upgrades.
    The approach used in both the MINER Act and S-MINER Act to 
implement emergency response requirements in underground coal 
mines is one that provides appropriate flexibility, but also 
comes with significant risk of delay. The Committee has 
repeatedly expressed its concerns to the Secretary of Labor 
about the slow manner in which mine operators have been coming 
into compliance with the MINER Act; indeed, the most recent 
information received by the Committee shows many mines still 
not in compliance with a number of that law's requirements 
almost 18 months after enactment. In implementing the 
requirements of the S-MINER Act, the Committee expects the 
Department of Labor to closely guard against delays in the 
installation of the required systems.
    While the S-MINER Act would not ban the use of electronic 
communication and tracking systems for non-emergency purposes, 
it would prohibit miner discipline based upon data collected by 
such systems.
    (b) Underground Refuges.--The accident reports on the Sago 
mine disaster in 2006 issued by the Department of Labor and 
others since the enactment of the MINER Act have clarified how 
sealed and equipped underground refuges could have saved the 
lives of miners who had nothing more than wood boards and cloth 
with which to try and protect themselves from toxic fumes while 
they awaited rescue. Moreover, the research required by the 
MINER Act has been completed substantially and confirms the 
life-saving value of such refuges. Unfortunately, the MINER Act 
did not take the next step and require the Department of Labor 
to take action to ensure refuge chambers are installed in 
underground mines, and the testimony of the Assistant Secretary 
for Mine Safety and Health before this Committee suggests there 
is little likelihood that the agency will move forward without 
explicit Congressional instruction.
    As introduced, the bill provided for the installation of 
some underground refuges by December 15, 2007. The bill 
provided that a mine's emergency response plan was to provide 
for underground refuges within one thousand (1,000) feet of the 
nearest working face in each working section, meeting such 
criteria as the Secretary of Labor certifies are as protective 
as the requirements in any state which already requires such 
refuges. The bill ensured that any state which already has such 
requirements in place would not have to take further action at 
this time. The intent of the bill was to bring underground coal 
mines in all states up to par with requirements the Committee 
understood were to go into effect in mid-2007 in the State of 
West Virginia. This requirement has been eliminated from the 
Committee-reported bill.
    The reported bill retains the provision in the introduced 
legislation that requires the Secretary, by June 15, 2008, to 
issue final interim regulations for the installation of refuges 
in the working areas of underground mines that are consistent 
with design criteria recommended by NIOSH. However, the 
reported bill contains a number of modifications recommended by 
NIOSH, the mining industry and miner representatives.
    First, the reported bill ensures that the refuge 
requirement can be met through multiple alternatives--portable 
rescue chambers, refuge shelters carved out of the mine 
workings and sealed with appropriate bulkheads, or by other 
refuge designs that will provide miners with equivalent or 
better protection.
    Second, the reported bill provides for the maintenance of a 
mobile shelter within 500 feet of the nearest working face in 
each working section of an underground coal mine. The Committee 
wants to ensure that miners can reach a shelter quickly after 
an accident, and believes the 1,000 foot distance initially 
contemplated is too far for a miner to travel using a single 
self-contained self-rescuer (SCSR) to reach a safe haven should 
there be toxic fumes, dust, fire or other impediments to 
escape. The Committee recognizes that some in the industry are 
concerned that miners working out by the face would actually 
have to travel back toward it to reach such a shelter; however, 
the Committee does not intend this particular shelter to be a 
substitute for others placed at appropriate intervals 
consistent with NIOSH recommendations.
    The reported bill retains the requirement in the introduced 
bill that underground coal mine emergency response plans are to 
be amended to provide for the installation of underground 
refuges within 60 days following plan approval. The Committee's 
intent is that, following the issuance of the interim 
regulations, each emergency response plan will have to include 
such a requirement the next time it is submitted for MSHA 
approval, a process required every six months on a schedule 
initiated by the MINER Act; and that once in the plan, 
implementation will be prompt. Because of the rulemaking 
process, mine operators will have plenty of notice about this 
requirement; indeed, a review of existing emergency response 
plans reveals that many mine operators have already placed 
orders for refuge chambers in order to implement the existing 
MINER Act requirement for ``breathable air'' supplies for 
trapped miners. While the Committee recognizes that supply 
shortages may develop, it does not expect that the Department 
of Labor will exacerbate the problem by permitting a mine 
operator to elect to wait for a very popular brand or chamber 
design rather than requiring the operator to choose another 
perfectly suitable design that can be timely installed and can 
provide similar protection--which is actually what the 
Department did do with the SCSRs required under the MINER Act.
    (c) Improvements to Seals, Ventilation Controls, and Rock 
Dusting to Limit the Damage From Explosions.--This subsection 
increases the strength of various wall-like structures in 
underground coal mines to enable them to resist explosions and 
also requires the explosive risks of coal dust to be studied 
and appropriate action taken in light of the results.
    Paragraph (c)(1) would repeal Section 10 of the MINER Act, 
which is a free-standing requirement for rules to improve 
minimum standards for mine seals. This repeal is coupled with 
the next paragraph of the bill, which establishes new 
requirements on seals as a permanent part of the Federal Mine 
Safety and Health Act of 1977 (the ``FMSHA.''). The purpose of 
the amendment is to give MSHA a few more months to finalize 
rules for mine seals. Under the 2006 MINER Act, the rules were 
to be finalized by December 31, 2007; under the reported bill, 
MSHA will have until three months after enactment of the S-
MINER Act. The Committee decided to provide this extra time to 
avoid the need for MSHA to act twice to replace the emergency 
temporary rules now in effect. The Committee notes that MSHA's 
existing emergency temporary standard, issued May 22, 2007, 
will remain in effect until February 21, 2008 (nine months 
after issuance, pursuant to section 101(b) of the FMSHA). Given 
the familiarity of the underground coal sector of the mining 
industry with the basic requirements and the seriousness of 
permitting a gap in protection, the Committee presumes that 
MSHA will complete action in time to avoid such a gap and will 
likewise make the rules effective promptly in this sector. In 
the event that the Congress does not move quickly to enact the 
S-MINER Act, MSHA will have to proceed to issue a final rule by 
the end of 2007 under the existing law, in which case the 
repeal will have no practical effect; it is certainly not 
intended by the Committee to invalidate any MSHA rulemaking 
action issued pursuant to the current law.
    Paragraph (c)(2) would add additional requirements to those 
already in the FMSHA concerning the installation of mine seals. 
``Seals'' are structures used to segregate abandoned areas of 
the mine from working areas and need to be able to contain an 
explosion should one occur in the abandoned area. The tragedies 
in 2006 clearly revealed that the ``seals'' used to separate 
abandoned areas of the mine from working areas did not meet the 
``explosion proof'' standard in the Coal Act of 1969.
    First, the bill requires that MSHA inspect all seals under 
construction after the date of enactment of the S-MINER Act 
during at least part of their construction to ensure that the 
mine operator is performing the work properly. While MSHA must 
approve the plans for such construction, inspection during 
construction is necessary to ensure that each is being 
constructed in accordance with their approved design plans. The 
bill does not preclude supplemental examinations by qualified 
personnel on behalf of the mine operator.
    Second, the bill requires MSHA to issue final rules within 
three months of enactment regarding the approval, design, 
construction, inspection, maintenance and monitoring of 
underground coal mine seals that meet the most recent 
recommendations of NIOSH unless otherwise provided in the S-
MINER Act. The original bill would have gone beyond the NIOSH 
recommendations (and MSHA's emergency temporary standard) by 
requiring that all seals be monitored. Based upon information 
from the mining industry, miner representatives and the 
Administration, the reported bill no longer includes such a 
requirement.
    Generally, the reported bill will require the final rules 
to be consistent with the emergency temporary rules issued by 
MSHA in May 2007. The key requirement is that current and 
future seals must be designed and installed to withstand a 
constant total pressure of 240 pounds per square inch, using a 
static structural analysis, or be monitored. The MSHA emergency 
temporary requirement includes a similar requirement, using a 
dynamic pressure analysis; this bill would require that seals 
meet the static pressure test. The Committee understands that, 
notwithstanding the fact that the emergency temporary standard 
has been in effect since May 2007, applies to existing seals 
and is presumably already being enforced by MSHA, some 
operators may be seeking to change the final rule to permit the 
exemption of older seals from these requirements. The Committee 
wishes to emphasize that the age of the seal is irrelevant to 
its safety and the reported bill would make no such exemption.
    The bill would establish some requirements for monitoring 
those seals not meeting the 240 psi standard which are not in 
the MSHA emergency temporary standard, because the Committee 
was dissatisfied with those requirements. These new 
requirements ensure the quick transition to continuous 
monitoring devices used in other countries, which is important 
because the pressure on both sides of seals changes constantly 
due to passing storms and even daily atmospheric pressure 
changes. The distinction made in the emergency temporary 
standard between ingassing and outgassing for purposes of 
monitoring was without foundation. The changes in the S-MINER 
Act ensure adequate sampling behind seals, and for the use of 
boreholes for sampling, while ensuring that sampling and 
borehole pipes are designed to minimize safety hazards 
associated with their use. The changes also establish a safety 
margin for the pressures behind the seals. Again, the final 
requirements in this regard are informed by information 
supplied by the mining industry, the Administration, and miner 
representatives.
    Finally, the bill would also require that action plans for 
sealing and repairing seals spell out specific actions the mine 
operator must take to protect miners during the critical time 
period immediately after sealing or repair takes place. This is 
necessary because it is during this time that methane gas 
behind the seal is building up and going through an explosive 
range before it becomes inert. Once the gas reaches the inert 
level and the seal is fully cured, the new requirements on seal 
integrity or monitoring should keep the risks in check.
    Underground metal and nonmetal mines which naturally emit 
methane also use seals. See section 4(k) for the requirements 
which the reported bill would establish for seals in that 
sector.
    Paragraph (c)(3) would amend the existing requirements of 
the FMSHA to establish new requirements to ensure the integrity 
of ventilation controls. ``Ventilation controls'' refer to 
structures that segregate ventilation channels to preserve the 
flow of air. The term ``stoppings'' is often used to describe 
structures that separate passageways in the working areas of 
the mine and channel ventilation to and from the areas where 
miners are working. Stoppings must be able to resist 
overpressures caused by explosions. If stoppings fail, miners 
and rescue workers do not have the air they need and smoke can 
spread into rescue passageways (as at Aracoma). Tests by NIOSH 
in 2006 revealed that the stoppings now in use in many mines, 
particularly metal stoppings, are much less able to resist 
explosive forces than the traditional concrete block stoppings. 
These results were akin to the findings that seals constructed 
with non-traditional materials like Omega block were not as 
strong as their more traditional counterparts.
    The introduced version of the bill would have required 
various ventilation controls in addition to stoppings to be 
constructed only of concrete blocks laid wet and sealed on one 
side. Based on information from industry, miner representatives 
and the Department of Labor, the provision has been revised to 
focus exclusively on the stoppings, and to permit the use of 
hollow concrete block in certain situations. Specifically, the 
reported bill would require that, no later than one year after 
enactment, the Secretary issue interim final regulations 
requiring that stoppings be constructed of solid concrete 
blocks laid wet and sealed on one side, except that stoppings 
constructed during retreat operations would be permitted to be 
constructed of hollow block. Metal stoppings would not be 
permitted.
    Paragraph (c)(4) would create a study to determine whether 
today's rock dusting practices, which have been in place for 
more than 30 years, adequately address the explosion risks 
presented by coal dust in the mine atmosphere. ``Rock dusting'' 
is an essential tool in limiting in-mine explosions. Coal dust 
can propagate an explosion generated by an ignition and, not 
infrequently, generates secondary explosions if it has not been 
properly limited. Coal dust is made less explosive by removing 
it from areas near ignition sources (e.g., conveyor belts) and 
by treating it with rock dust. Section 304(d) of the FMSHA sets 
forth the current statutory formula for how much rock dust must 
be added to coal dust. The coal dust generated by the longwall 
equipment used in many coal mines today is believed to be finer 
than what was generated in the past, and hence likely to be 
more explosive. If so, this means that miners today may be at 
increased risk if the rock dusting is limited to the 
traditional amounts.
    The bill would require NIOSH to conduct a study of the 
matter and issue recommendations by June 15, 2009 that would 
require the Secretary of Labor to take appropriate action in 
light thereof, including the issuance of an emergency temporary 
standard should the study indicate that the risks to miners are 
significant enough to justify such action.
    (d) Limiting Conveyor Belt Risks.--While the conveyor belt 
fire at the Aracoma Alma mine would not have spread had normal 
safety precautions been taken, the fire nevertheless pointed to 
the fact that conveyor belts do catch fire and such fires are 
dangerous. The belt systems create friction through their 
constant movement, which can ignite the belts themselves. There 
are miles of such belt in underground mines, both coal mines 
and other mines. The current standards for belt flame 
resistance are 52 years old, and were to be updated to meet 
NIOSH recommendations when the rulemaking was halted by the 
current Administration. A practice known as ``belt air'' can 
make matters worse in underground coal mines because it uses 
the passageway normally reserved for the conveyor belt as an 
intake air channel; should a fire begin, the fire is carried 
toward where miners are working. Banned by the 1969 Coal Act, 
belt air was authorized from time to time by MSHA pursuant to 
its authority under section 101(c) of the FMSHA to modify 
existing safety standards where mine operators agreed to 
provide equivalent or better protection and came into more 
widespread use when the current Administration established a 
rule permitting its use.
    The 2006 MINER Act established a Technical Study Panel to 
study and develop recommendations on these two matters. While 
the Panel's final report is not due to be issued until the end 
of 2007, it has already issued its recommendations. The MINER 
Act did not require the Department of Labor to take any action 
based on those recommendations, and the testimony of the 
Assistant Secretary for Mine Safety and Health before this 
Committee suggests there is little likelihood that the agency 
will move forward on its own without explicit Congressional 
instruction.
    Paragraph (d)(1) would require MSHA to issue interim final 
regulations by January 31, 2008 to put new standards for 
conveyor belts into place. While this is a tight timeframe for 
regulatory action, the requirements in question are not complex 
and MSHA had developed an extensive rulemaking record prior to 
halting the rulemaking.
    The bill reported by the Committee ensures that all 
conveyor belts already in use in underground coal mines are 
replaced no later than December 31, 2002 with belts that can 
meet the flame resistance requirements recommended by NIOSH and 
which limit smoke and toxic emissions. The bill further 
requires that any conveyor belt installed in a coal mine after 
the date of enactment is to meet the new requirements.
    The mandate and recommendations of the Technical Review 
Panel were confined to flame resistance. Since it began work, 
however, both the Panel and the Committee has been advised that 
belt fabric is currently available which meets not only the 
NIOSH flame resistance standard but which also can reduce the 
smoke and toxic emissions that actually lead to death in the 
closed environment of underground mines. Accordingly, the 
reported bill requires the use of belt material which can 
simultaneously reduce all three risks. In this sense, the 
reported bill is consistent with the recommendations of the 
Technical Review Panel but expands upon them to provide 
additional protections.
    The timeframe for converting to the new belts has been the 
subject of concern from both the industry and miner 
representatives. Conveyor belts are expensive and, depending 
upon use, can last many years. Moreover, some operators have 
supplies on hand that have not yet been installed. On the other 
hand, the risks of conveyor fires are real. Moreover, the new 
belts cost more than the old belts because of the extra 
protection, and this may well encourage some mine operators to 
use older belts longer than they should in order to save 
replacement costs, leading to a deterioration that could well 
ignite fires. The bill reported by the Committee seeks to 
strike an appropriate balance between these interests in order 
to bring about a timely but not overly costly conversion to the 
safer belt fabric.
    For the requirements the bill would establish for conveyor 
belts used in underground metal and nonmetal mines, see the 
discussion of section 4(k).
    Paragraph (d)(2) would restrict--but not eliminate--the 
practice of using ``belt air'' to ventilate the Nation's 
underground coal mines. Mines which cannot create separate 
intake and conveyor belt entryways because of safety 
considerations (e.g., ground control problems that would risk a 
cave-in if another entry to be created) would be authorized to 
apply for permission to use belt air. Operators of these mines 
would have to seek case-by-case approval of their applications 
by applying for a modification from existing safety standards, 
just as they did for many years. Finally, if MSHA permits a 
mine to use belt air, the mine must follow all the 
recommendations on belt air use that have been established by 
the Technical Review Panel.
    The original bill would have banned belt air entirely, but 
the Committee has found that there are some locations in the 
country where the practice may be needed to mine underground 
coal safely (e.g., Utah, Alabama and some parts of West 
Virginia). As a result, the bill would allow the practice to 
continue in this limited class of situations--provided certain 
processes and safeguards are observed to minimize the risks.
    The modification process under section 101(c) of the Act 
provides for a public notice of an application for belt air use 
and an opportunity for a public hearing upon request. This is 
to ensure that the miners and others who may have information 
relevant to the application can be heard. Court challenges are 
permitted, just as with a standard, since a modification 
creates a new standard for a particular mine.
    All mine operators with existing developments utilizing 
belt air at the time the S-MINER Act is enacted would be able 
to continue doing so for a limited period of time to avoid 
production shutdowns and job losses, but thereafter the 
practice would only be available under the conditions set forth 
in the reported bill.
    (e) Pre-Shift Review of Mine Conditions.--Pre-shift 
examinations are a critical element in ensuring the safety of 
underground coal mines and are required by section 303(d) of 
the FMSHA. The information collected during these important 
examinations, however, serves no protective purpose if the 
information is not conveyed promptly to the workers about to 
enter the mine. The law currently provides only that: ``Upon 
completing his examination, such mine examiner shall report the 
results of his examination to a person designated by the 
operator to receive such reports at a designation station on 
the surface of each mine before other persons enter the 
underground areas of such mine to work in such shift.'' To 
ensure critical information is actually conveyed to the 
incoming shift, the bill would add a requirement to the law to 
require oral communications between those inspecting a mine 
prior to a work shift and those beginning the next shift.
    The introduced bill would have provided for a differently 
structured mechanism to ensure information was conveyed. The 
Committee decided to modify the bill following receipt of 
technical recommendations from the Department of Labor, 
industry and miner representatives.
    (f) Atmospheric Monitoring Systems.--As evidenced by the 
2006 tragedies, fire and excess methane pose significant 
dangers to underground miners. While local codes require most 
homeowners today to have detectors in their homes to detect 
smoke and toxic fumes, and while such devices have been well 
tested in mines, detectors are not required except in those 
cases when the mine operator is using belt air. This poses an 
unjustified risk to the miners. It also means that rescuers do 
not have the information they need to assess underground 
conditions once an incident occurs, potentially halting rescue 
until cruder measurements at the mine mouth reveal it is safe 
to proceed--as was, for example, the case at Sago. Accordingly, 
the bill requires that, no later than May 1, 2008, an operator 
of an underground mine must install atmospheric detection and 
warning systems in all underground areas where miners normally 
work and travel. These systems must provide real-time 
information on carbon monoxide levels and that can, to the 
maximum extent possible, withstand explosions and fires.
    The introduced bill would have required that atmospheric 
detection and warning systems capable of monitoring other 
gases--in particular, methane levels, oxygen levels, air flow, 
smoke and temperature--also be installed. The Committee has 
been advised that the instrumentation for these other systems 
is not yet reliable and could lead to false alarms, which in 
turn might lead miners and mine operators to ignore real 
alarms. The Committee notes that further developments of such 
monitoring systems will be a priority for NIOSH under 
subsection (m) of this section and would strongly encourage 
MSHA to require the implementation of these systems as soon as 
NIOSH certifies their reliability.
    (g) Methane Monitors.--Miners die if they do not know that 
they are exposed to hazardous gases. It is possible that the 
explosion at the Darby mine took place because a miner was 
unaware that the area in which he was using a torch was 
saturated with methane gas due to a leak in a nearby seal. 
Similarly, many miners involved in the 2006 tragedies were 
uncertain whether they needed to don and keep on their self-
rescuers to avoid poisoning by carbon monoxide gas. A similar 
risk can occur in areas of the mine in which oxygen levels are 
too low.
    MSHA's emergency response rule of December 8, 2006 provides 
that mine operators ``provide an MSHA-approved, handheld, 
multi-gas detector that can measure methane, oxygen, and carbon 
monoxide to each group of underground miners, and (also) to 
each person who works alone, such as pumpers, examiners and 
outby miners.'' (30 CFR 75.1714-7) In practice, however, this 
protection is not complete. For example, if a group of miners 
gets one meter, and one or more of the miners must split away 
from the group (as is often the case) to perform work in nearby 
areas that may have very different atmospheric conditions, a 
choice has to be made as to which miner(s) has the meter. 
Accordingly, the bill would expand upon MSHA's regulatory 
action to ensure that, as a matter of law, such multi-gas 
detectors are supplied to ``each miner who is working alone for 
part of a shift.'' The reported bill uses the words ``is 
working alone'', instead of the words ``may be working alone'' 
that were in the original bill, based on technical advice from 
MSHA that this clarification would facilitate enforcement.
    (h) Lightning.--Various explanations have been advanced as 
to the ignition source which set off the spark that ultimately 
led to the horrible tragedy at the Sago mine. MSHA's accident 
report, based on studies by Sandia laboratories, asserts that a 
lightning pulse above the location of the underground mine 
created an electrical charge in a cable in an abandoned area of 
the mine, and that this charge was enough to set off the 
explosive concentration of methane present in that area. There 
have been many documented examples of lightning touching off an 
underground mine explosion by, for example, striking a metal 
conduit pipe extended to the surface; for this reason, mines 
are required to install lightning arrestors. If lightning can 
set off underground explosions in the manner suggested by 
MSHA's accident report, however, then the existing protections 
are inadequate. While removing cabling in sealed areas and more 
carefully enforcing requirements that metal connections between 
abandoned and working areas be severed, more may need to be 
done to ensure that miners who are working underground during 
lightning storms are either protected or withdrawn.
    The introduced bill this year provided that, until further 
research could ensure miners of protection against such 
threats, they should be withdrawn from a mine during a 
lightning storm. However, representatives of both miners and 
the industry assured the Committee that withdrawal from many 
mines was impractical (due to the size of the mine and time 
needed for egress) and posed safety dangers of its own, 
especially if it meant the miners would be brought outside 
during the storm. Accordingly, this provision was stricken from 
the bill reported out by the Committee.
    The bill continues to provide that, no later than one year 
after the date of enactment of this title, the National Academy 
of Sciences shall issue recommendations to the Secretary of 
Labor, with a copy to Congress, on actions that need to be 
taken to strengthen existing requirements in the law or 
regulations to ensure that miners are protected from potential 
damage that could be generated because of lightning strikes 
near a mine by adopting any existing technology to the mining 
environment, and on research needed for improved technology.
    (i) Roof and Rib Support, Barrier Reduction and Pillar 
Extraction, Special Attention to Deep Mining.--This subsection 
was not in the introduced bill, but was added following the 
accident at the Crandall Canyon mine in Utah in which 6 miners 
were trapped and killed along with 3 rescuers. The Committee is 
continuing its own investigation of this accident, but much is 
already clear.
    As underground coal mine operators run out of resources 
they can readily extract from their properties, they have used 
every available method to extract more. Where it can be used, 
longwall mining equipment permits coal extraction without the 
need to leave pillars of coal in place to hold up the roof, and 
the equipment is designed to protect miners from harm. Retreat 
mining is another way to get extra coal. It involves the 
extraction of the coal pillars originally left in place to hold 
up the roof, and it must be performed under a plan specifically 
designed for the situation in a particular mine so miners will 
not be hurt as the roof collapses. Sometimes retreat mining 
also involves reduction of giant ``barriers'' of coal left in 
place to hold up roofs under high mountains.
    The Crandall Canyon accident exposed once again the risky 
nature of retreat mining and the poor oversight of retreat 
mining plans by MSHA. The Committee regards the accident as yet 
another symptom of the inadequacies inherent in the system the 
Congress put in place several decades ago to protect mine 
workers from harm while on the job.
    This subsection of the bill would:
     Require MSHA to more closely review retreat mining 
plans by bringing computer simulations and experts to bear; and 
including an extra layer of review before approving plans for 
deep mines.
     Require MSHA to observe retreat mining operations 
when they begin to ensure they are being performed in 
accordance with the plans and that miners are properly trained.
     Require a through study of ground control science 
and technology.
    Existing section 302 of the FMSHA is entitled ``Roof 
Support'' but actually deals with the ribs as well. Moreover 
the Committee understands it is in the ``roof support'' plan 
that the operator sets forth its retreat mining plans (reducing 
the size of coal barriers and the extraction of coal pillars). 
Accordingly, Section 4(i)(1) of the reported bill re-titles and 
expands this section to cover roof and rib support, barrier 
reduction and pillar extraction, with special attention to deep 
mining.
    Section 302(a) of the FMSHA is amended by requiring the 
Secretary to establish by regulation the appropriate use of 
roof screen in certain areas of the mine--belt entries, 
travelroads, and designated intake and return escapeways. Roof 
screen is an established practice in many mines to ensure that 
heavy chunks of rock do not fall on miners while working in the 
area. According to data supplied to the Committee, between 1995 
and 2001 an average of nearly 650 reported injuries per year 
resulted from roof material falling from between the roof 
bolts, injuries that could have been avoided had screening been 
installed to prevent the loose material from falling. At the 
same time, the Committee recognizes that there may be some 
circumstances where the use of roof screen is inappropriate; 
hence, the bill is clear that the Secretary has appropriate 
discretion to issue a regulation that will not require the use 
of roof screen in inappropriate circumstances even in the 
specific areas identified by the bill. The Secretary has the 
authority, of course, to require roof screening in areas not 
specifically referenced in the reported bill.
    New subsection 302(g) of the FMSHA specifies some minimum 
requirements for the roof screening where it is to be used. The 
Committee understands that NIOSH has determined these are 
appropriate requirements based on years of examining the topic. 
These are minimum requirements and do not preclude the 
Secretary, following rulemaking, from determining that 
additional requirements need to be imposed in some or all 
circumstances.
    New subsection 302(h) requires an operator to have a 
current and approved plan for barrier reduction, pillar 
extraction or both before performing such activities. Paragraph 
(1) requires that MSHA shall only approve the plan if it 
minimizes the risks to miners and complies with any 
requirements that may be specifically adopted by the Secretary.
    In determining whether the plan minimizes the risks to 
miners, the Secretary is to consider appropriate engineering 
analysis, computer simulations, and consultations with experts 
in various agencies. While the Committee is still investigating 
what actually led to the accident at the Crandall Canyon mine, 
public statements and analyses so far by MSHA, the Bureau of 
Mines, NIOSH and various academic experts strongly indicate 
that the potential problem in the retreat mining plan might 
well have been detected had appropriate analysis been done. The 
Committee further believes that a key to better analysis is to 
ensure that available Government expertise in several agencies 
is consulted on individual plans.
    The Committee expects that as analysis of the Crandall 
Canyon mine tragedy continues, and related studies are 
completed, the Secretary may want to adopt specific 
requirements for barrier and pillar extraction plans for 
certain types of mining situations. The bill indicates that 
these requirements may relate to the depth of the mine, geology 
of the mine, mine height and methods, and emergency response 
capabilities, but this list is only suggestive and will serve 
as a reminder for the Secretary, the Committee, those 
performing studies, and the mining community in general as to 
some of the factors that should be explored.
    Paragraph (2) of new subsection 302(h) requires a copy of 
the plan to be provided to the authorized representative of 
miners in advance of submittal to the Secretary, provides an 
opportunity for comment, and requires the Secretary to respond 
to any such comments. The normal process for plan approvals 
does not include such a requirement, and it is being added here 
in order to ensure that those most closely impacted by the 
decision have some opportunity to bring to the attention of the 
Secretary information that could significantly impact the 
analyses performed--e.g., a history of unreported mountain 
bumps, or instructions from a mine operator to ignore 
particular safeguards.
    Paragraph (3) of new subsection 302(h) requires the 
Secretary to establish a special internal review process before 
approving a barrier reduction or pillar extraction plan for 
depths below 1500 feet and in mines with a history of mountain 
bumps. The reported bill provides the Secretary discretion on 
the details of this process, but the Committee expects that it 
will involve a higher level of signoff within MSHA, perhaps a 
signoff from appropriate officials at NIOSH and perhaps some 
independent peer review of the plan by qualified academic or 
other independent experts familiar with mining at such depths 
or under such conditions.
    While the provisions discussed so far focus on ensuring 
that the mine operator's plan for barrier reduction and/or 
pillar extraction is sound, the provisions of new subsection 
302(i) focus on ensuring that the plan is properly implemented. 
The bill would require that the operator give MSHA a week's 
notice before actually beginning retreat mining, or resuming it 
after a hiatus, so that the Secretary can ensure the miners are 
properly trained and that the operator is complying with the 
terms of the plan. The Committee does not intend that 
suspension of activities for a day would normally require a new 
notification in this regard; rather, the Committee expects the 
Secretary to determine when notification is required after a 
suspension of retreat operations so as to fulfill the goals of 
the subsection.
    Miner training for such activities is particularly 
important because pulling the wrong pillar or not understanding 
how to extract a pillar safely can result in death or serious 
injury. The Committee is particularly concerned that language 
barriers may be a problem in some mines. In requiring the 
Secretary to confirm the training of the miners in this regard, 
the Committee is following the lead of the State of Kentucky 
which earlier this year imposed a similar requirement on 
retreat mining in that state.
    The reported bill requires that the Secretary actually 
observe the barrier reduction or pillar extraction operations 
for ``a sufficient period of time to ensure that the mine 
operator is fully complying'' with the plan. While this imposes 
resource requirements on the agency, the Committee believes 
this focused use of the agency's resources is a sound 
investment in catching problems before they occur. The nature 
of these operations is potentially risky, and the agency's 
presence on site to observe plan implementation will contribute 
to better plans and fewer implementation problems.
    Section 4(i)(2) of the reported bill requires the National 
Academy of Sciences, in consultation with NIOSH, to submit 
recommendations to the Congress within a year of enactment of 
the S-MINER Act on how to better deal with ground control 
hazards, including barrier reduction and pillar extraction 
issues. The recommendations are to include particular focus on 
whether existing technologies can be adopted to provide miners 
with better protection during these operations, on future 
research needed, on improving safety in deep mining operations, 
and on improving safety during secondary mining of coal 
resources at any depth. As discussed above, the most available 
coal resources have already been extracted, and the Committee 
believes that in going after what is left that, the country may 
need to revise the technologies and approaches it has used with 
success in extracting the more readily available resources. The 
Committee hopes that additional research along the same lines 
at various universities will be funded by Congress, but 
believes that a National Academy of Sciences study in 
consultation with NIOSH is also important.
    (j) SCSR Inspection Program.--Initial reports on the 
tragedies in 2006 raised a number of questions about the 
reliability of the self-contained self-rescuers (SCSRs) 
maintained by some miner operators. As with other aspects of 
the law, it is the obligation of mine operators to ensure that 
their SCSRs are properly maintained--see, generally, 30 CFR 
7514-3. MSHA's emergency evacuation rule of December 8, 2006, 
added additional requirements in this regard; specifically, 
that mine operators regularly inventory their SCSR supplies, 
file those lists with MSHA and notify the agency promptly of 
any defect, malfunction or performance problem with any unit in 
its inventory. 30 CFR 75.7514-8
    However, as important as it is to make mine operators 
responsible for such actions, the Government also has a 
responsibility for ensuring these devices are, in fact, 
operative. At the present time, NIOSH conducts a random survey 
of all SCSR units in service in mines. While that agency has 
taken steps this year to address identified deficiencies in its 
program, NIOSH has no power to actually select and remove 
specific SCSRs from service for testing. Rather, it depends 
upon operator voluntary compliance, and it is therefore likely 
that some operators will decline to submit units for testing 
that may demonstrate noncompliance with the law's requirements. 
MSHA has the authority to make such requests and ensure that 
the units selected for testing are indeed the units it wants; 
but it has declined to do so. The bill would correct this 
situation and mandate that MSHA make the requests for the units 
that require testing. Once the units are obtained, NIOSH will 
perform the actual testing.
    As introduced, the bill would have required MSHA to pull 5% 
of SCSRs in mine inventories every 6 months and would have 
required mine operators to replace these units. Based upon 
information supplied by MSHA, NIOSH, the mining industry and 
miner representatives, the reported Committee bill takes a more 
modest approach. The reported bill leaves it up to NIOSH to 
determine the specific units and number of units it will sample 
and requires NIOSH to replace the units pulled for sampling. 
NIOSH has advised the Committee that it has revised its 
sampling survey to ensure that it will pull a random sample 
capable of detecting problems, and that it has the resources to 
replace the units drawn for this purpose. However the bill 
further authorizes MSHA to pull additional units for testing 
should NIOSH request them based upon the initial sample, and in 
this case it shall be the obligation of mine operators to 
replace the additional units.
    (k) Application to Underground Metal and Nonmetal Mines.--
The MINER Act was an explicit response to the tragedies of 2006 
and select other problems in underground coal mines. 
Nevertheless, it remains a fact that the worst underground 
tragedy in a U.S. mine was at a non-coal mine. While 
regulations governing operations at these mines do have some 
safeguards to protect miners during an emergency, either by 
escape or refuge, these provisions have not received attention 
in many years.
    As introduced, the S-MINER Act required the Secretary to 
establish an advisory committee to look into the problem and 
set a deadline for the advisory committee to make 
recommendations to the Secretary and the Congress in this 
regard. This provision remains in the reported version as 
paragraph (c) of a new section 206 of the FMSHA. Such 
recommendations are to include any action by the Congress that 
could facilitate the goal of providing underground metal and 
nonmetal miners with the same level of protection as 
underground coal miners.
    However, the Committee decided to move forward and 
specifically require underground metal and nonmetal mines to 
take action on two topics where their situation is directly 
comparable to those of underground coal mines. Those two 
situations are conveyor belts and seals in ``gassy'' mines.
    As discussed in connection with section 4(d)(1) of the 
bill, the bill would require underground coal mine operators to 
switch to a new generation of conveyor belt fabric that is much 
more flame resistant and can also reduce the generation of 
smoke and toxic gases should a belt catch fire. Underground 
metal and nonmetal mines use belts extensively as well. While 
these belts do carry coal, hence reducing the threat of fire 
starting or spreading because of coal dust, they too can catch 
fire from malfunctioning equipment. For example, just last 
year, agency staff reported the following incident:
          A fire involving a conveyor belt occurred in an 
        underground salt mine. Fortunately, there were no 
        injuries from the fire. The fire occurred as a result 
        of a misaligned conveyor belt rubbing against a steel 
        beam of the conveyor structure. The misaligned conveyor 
        belt caused a jam at the take-up pulley. The fire 
        burned approximately 30.5 meters (100 feet) of conveyor 
        belt, but the fire also spread to a transfer conveyor 
        belt. Eight-five meters (280 feet) of the transfer 
        conveyor belt was consumed by the fire. As part of 
        MSHA's investigation, an examination was made of a 
        segment of the misaligned belt recovered from the fire 
        to determine if the belt was under load and tore apart. 
        By visual examination, the tears in the partially 
        burned edge of the segment indicated the belt was under 
        load and burning occurred near the center and the belt 
        tore apart from the center toward the edges. This 
        explanation was confirmed by microscopic examination of 
        a section of the segment; unburned strands of the ply 
        material broken from tension were observed . . . ''\85\
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    \85\Harry C. Verakis, CFEI, CMSP, Mine Safety and Health 
Administration, Technical Support Directorate, reported at the 
International Symposium on Fire Investigation Science and Technology, 
June 25-29, 2006, University of Cincinnati, Ohio, and published in the 
Proceedings of the 2nd International Symposium on Fire Investigations 
Science and Technology by the National Association of Fire 
Investigators, 2006, USA.
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    Accordingly, new subsection 206(a) of the FMSHA, 
established by the reported bill, would require that belts in 
this sector be replaced with the newer fabric on the same 
schedule as belts in underground coal mines. The fact that the 
mandate of the Technical Review Panel established by the MINER 
Act did not authorize that panel to make recommendations beyond 
the coal sector, is not a reason to overlook the problem.
    As discussed in detail in connection with section 4(c)(1) 
of the bill, walls used to seal off areas of an underground 
coal mine that are not regularly ventilated need to be strong 
enough to withstand explosions. This is because methane is 
present in underground coal mines, and despite efforts to 
minimize possible ignition sources, anything missed can set off 
a major explosion. The Committee has determined that exactly 
the same situation is present in some types of underground 
metal and nonmetal mines--those which naturally emit methane 
gas. These mines use seals in the same manner as underground 
coal mines. Accordingly, new subsection 206(b) of the FMSHA, 
established by the reported bill would apply the same rules to 
seals in these mines as in underground coal mines.
    This includes the approval of plans for the design, 
construction, inspection, maintenance and monitoring of seals, 
and the requirement that the Secretary inspect all seals after 
construction on the date of enactment to ensure compliance with 
the approved seal plan. While it has not been MSHA's practice 
to require the underground metal and nonmetal sector to obtain 
pre-approved plans for a particular operation, as it does in 
the underground coal sector, this tradition is not a matter of 
law. Pre-approval of seal plans is vital to ensure that these 
critical mine structures perform correctly.
    The date on which these rules become effective in this 
sector is not necessarily the same date on which they become 
effective in the underground coal sector. Underground metal and 
nonmetal mines are not currently subject to the emergency 
temporary requirements applicable since May of 2007 to seals in 
underground coal mines. For that same reason, the existing 
protections (of the emergency temporary standard) do not become 
ineffective to the metal and nonmetal sector after February 21, 
2008 as they do in the coal sector (after the 9 months for 
which an emergency temporary standard can be effective). 
Nothing in the law nor reported bill compel MSHA to make these 
requirements effective to metal and nonmetal mines by that 
time. The only time requirement in the bill that will impact 
this sector is that concerning the type of monitoring that must 
be used if a mine in this sector elects to monitor a seal 
rather than build one meeting the 240psi static pressure 
standard (monitoring must be continuous monitoring if done more 
than a year after the effective date of the S-MINER Act). While 
this situation leaves the agency flexibility in establishing an 
effective date for this sector, the Committee reminds the 
agency and the industry that MSHA has already determined that 
the risks of failing seals in very similar underground coal 
mines constitute a ``grave danger'' to miners, and the agency 
should move expeditiously to eliminate an equivalent risk in 
certain categories of underground metal and nonmetal mines.
    (l) Approval Center Priorities.--In order for certain 
devices to be used underground, they must be approved by MSHA 
as ``intrinsically safe''--i.e., their components are designed 
so as not to create a risk of igniting explosive gases present 
in the mine atmosphere. There is a considerable backlog at 
MSHA's approval center, which needs to be addressed with 
increased resources. This bill would simply reinforce that, 
consistent with existing policy, priority is given to the 
approval of any self-rescue device that permits the 
replenishment of oxygen without requiring the device user to 
remove the device and to the approval of any communications 
device that would permit mine operators to comply with the 
requirements of the MINER Act for the installation of an 
underground communication device that provides for 
communication between underground and surface personnel via a 
wireless two-way medium. These requirements were in the 
introduced bill and have not been altered.
    (m) Technology and Mine Emergency Health and Safety 
Research Priorities.--The bill provides that in implementing 
its research activities in the 5-year period beginning on the 
date of enactment of this Act, NIOSH give due consideration to 
new technologies and existing technologies that could be 
adapted for use in underground coal or other mines and that 
could facilitate the survival of miners in a mining emergency. 
The bill specifies some examples of the technologies to be 
given this priority attention. These requirements were in the 
introduced bill and have not been altered.
    The Committee wants to emphasize that as important as these 
priorities are, NIOSH has a broad mandate to protect miners 
from health hazards as well as safety hazards. Because the 
safety hazards have received the most attention in recent 
years, the Committee is concerned that NIOSH may not be keeping 
up its activities in the health area. One example is the 
failure of NIOSH to move forward in recent years with its 
project to develop new recommended exposure limits reflecting 
the most recent scientific findings about the hazards of 
exposure to toxic substances. The Committee expects NIOSH to 
reinvigorate its health research efforts and to advise the 
Congress promptly if it lacks the funds to do so.
    Sec. 5. Supplementing Enforcement Authority.
    (a) Authority of inspectors.--This subsection would clarify 
current law to ensure that MSHA inspectors can respond properly 
in the event of an accident. The Committee reported bill would 
amend section 103 of the Act to explicitly prevent interference 
with inspectors during the course of their activities. It would 
thus ensure that operators cannot stall inspectors by putting 
limits on their ability to take photographs or samples, refuse 
to provide transportation into a mine or interfere in the 
investigation of an accident or other incident or during 
recovery. This amendment would be consistent with existing 
interpretations of the law, but making this prohibition 
explicit would facilitate compliance.
    (b) Transition to a new generation of inspectors.--The lack 
of an adequate number of inspectors to perform the required 
number of regular inspections of underground coal mines has 
proved to be a persistent problem. It has required MSHA to 
divert staff from other critical duties. Moreover, these 
inspections may not be as thorough as when performed by those 
who have and keep current the required expertise. While MSHA 
has considerably expanded its hiring efforts since the MINER 
Act was passed, it is barely able to keep up with the 
retirement rate, let alone add new inspectors. In addition, 
training new inspectors takes 18 months even with compressed 
classroom time.
    Accordingly, subsection (b) takes several steps to slow the 
loss of senior experienced personnel while the agency is 
building up its supply of new inspectors. The bill would 
require MSHA to establish a Master Inspection program, to lift 
the personnel ceilings for five years so that new and existing 
personnel could work together for these periods if resources to 
do so are adequate and permit retired inspectors to perform 
such services for MSHA under contract for five years without 
loss of retirement pay. Annual reports to the Congress would be 
required during the five-years that these special waivers are 
in effect to ensure that they are being properly managed.
    (c) Office Of Miner Ombudsman.--The bill would establish a 
new position within the Office of the Inspector General at the 
Department of Labor to protect miner rights, and particularly 
to ensure the integrity of the complaint process. The Ombudsman 
would receive all complaints of operator violations that come 
to the Department and ensure the confidentiality of those 
making these reports. The Ombudsman would use this information 
to ensure that complaints are being timely and properly 
addressed and would be given specific authority to this end. He 
or she would also enjoy whatever general authorities are 
already available to the Office of the Inspector General. The 
Ombudsman would also monitor the agency's compliance with the 
anti-retaliatory requirements of the Miner Act of 2006.
    The Ombudsman position would be filled by a Presidential 
appointee with expertise in mine safety and health. This 
appointee would be authorized to hire necessary staff in 
accordance with money appropriated by Congress.
    The Committee-reported bill contains a number of 
modifications to the bill that was introduced in light of 
comments from the Office of the Inspector General. In addition, 
at the suggestion of Committee members, a provision was added 
to ensure that the Ombudsman make available laminated cards and 
other similar memory aides that miners and their families could 
keep at home with appropriate contact information.
    (d) Pattern of Violations.--The FMSHA provided MSHA with 
the authority to cite mine operators for a pattern of 
violations and impose significant penalties in connection 
therewith. While MSHA has threatened to use this authority on 
several occasions, the Committee understands it may never 
actually issue such a citation, and certainly has not done so 
in recent years. The Agency has recently indicated its 
intention to establish objective criteria to identify mines 
which may have a pattern of violations; such criteria may help 
it defend decisions to issue citations under this provision 
should it ever do so.
    The bill would make it easier for MSHA to use this 
authority by consolidating the chain of command required in the 
existing regulations to take such action. It would also help to 
ensure that appropriate factors, in particular a violation 
frequency rate, are used to determine whether to issue a 
significant citation. This is intended to alleviate concerns 
that such a tool might inappropriately target frequently 
inspected mine operations.
    A significant new penalty would also be authorized when a 
pattern of violations is found, and miners would have to be 
withdrawn from the entire mine. However, the bill specifically 
provides that the amount actually assessed is based on the 
overall resources of mine operators in order to ensure a change 
in the their future conduct with respect to mine safety and 
health In addition, the bill provides an additional way for 
mine operators to get out of a pattern of violations charge 
when they can provide objective evidence of a change in their 
pattern of conduct.
    (e) Notification of Abatement.--Mining tragedies often 
result from the failure of a mine operator to correct 
conditions that are known to be MSHA violations. This includes 
violations that have actually been identified and cited by 
MSHA, but not corrected as required. Under the present system, 
MSHA may not be aware that a violation it cites has not been 
timely abated, and it is not able to act until it visits the 
mine again and confirms that there has been a ``failure to 
abate.''
    The bill would change this situation. It would require mine 
operators to affirmatively notify MSHA within the time 
specified in the citation that the violations previously 
identified and cited by MSHA have been timely abated. It would 
further require that if this notice is not timely provided, 
MSHA is to issue a withdrawal order to prohibit miners from 
entering the affected area until MSHA can visit the mine to 
determine the situation for itself. If mine operators need more 
time to abate violations, there are procedures for obtaining 
that extra time where it is justified; but the bill will help 
ensure that once these dates are fixed, mine operators will 
take them seriously.
    The reported bill clarifies that, as at present, no 
violation shall be determined to be abated until an authorized 
representative of the Secretary visits the mine site and 
determines that the violation has in fact been fully abated.
    (f) Failure to Timely Pay Penalty Assessments.--Last year, 
the Congress reviewed reports concerning the difficulties MSHA 
faces when it tries to obtain payment of fines (which are the 
subject of final orders under the Act) from some scofflaw mine 
operators. The amounts involved tend to be too small for 
Treasury Department to expend resources collecting. Moreover, 
the mine operator cited may not in fact be the responsible 
financial entity. MSHA indicated its intent to seek relief by 
trying a new tool--court orders under section 108 of the ``Mine 
Act'' to require scofflaw operators to post bonds to cover 
potential violations as a condition of continued operation. 
Section 9 of the MINER Act added a change to section 108 of the 
Act to facilitate such efforts, and we understand MSHA has 
since had some success. The bill would make it easier to 
address this problem by authorizing the Secretary to halt 
production at a mine that does not pay its outstanding 
obligations.
    In addition, the bill would require an operator who wishes 
to contest a citation or proposed penalty assessment to place 
in escrow the amount of the proposed assessment. The money 
would be placed into an interest bearing account with any 
balance, plus accrued interest, returned to the operator after 
payment. This escrow requirement serves as a backup to the 
other approach (halt in production) being taken by the reported 
bill to deal with the problem of delinquent operators.
    (g) Maximum and Minimum Penalties.--While penalty caps 
established by the ``Mine Act'' have been increased over the 
years as a result of the Inflation Adjustment Act, they have 
not been high enough to provide a serious incentive for 
compliance when mining profits are high, and many mine 
operators just regard these penalties as ``traffic tickets'' to 
be paid as a routine cost of doing business.
    The MINER Act responded to this problem by substantially 
increasing the maximum penalties for certain types of 
violations--willful violations of standards and knowingly 
failing or refusing to comply with an abatement, withdrawal or 
other such order issued by MSHA. The MINER Act also added a new 
category of flagrant violations with penalties of up to 
$220,000, and established minimum penalties for imminent danger 
violations ($2,000 for the occurrence, and $4,000 for a failure 
to comply with an associated withdrawal order).
    The bill would supplement the approach taken by the MINER 
Act and apply it to other types of violations. The law 
currently provides a cap of $50,000 on penalties for violations 
of provisions of the Act or a standard and has no minimum. The 
bill would raise the cap to $100,000 and establish a minimum 
penalty of $500. However, should a violation ultimately be 
determined to be a ``significant and substantial'' violation 
(i.e., it could significantly and substantially contribute to 
the cause and effect of a coal or other mine health or safety 
hazard), the cap would be $150,000 and the minimum, $100.
    (h) Factors in Assessing Penalties.--Over the last year, 
the National Mining Association has stated on more than one 
occasion that if a mine operator is not prepared to look after 
the safety and health of the miners, that operator should not 
be allowed to continue in business. This widely endorsed view, 
however, is contradicted by a provision of the existing law 
that in assessing penalties against a mine operator for 
violations, the ``effect upon the operator's ability to 
continue in business'' needs to be considered. The bill would 
strike this requirement of the law.
    The bill would not alter the requirement of the existing 
law that operator size be taken into account in assessing 
penalties. However, the bill would clarify the current law to 
provide that in such instances, the Secretary look at the 
combined size of the operator and any controlling entity. The 
purpose of this change is to ensure that very large and 
profitable corporations do not have their penalties reduced 
simply because they conduct their mining operators through 
limited size production units each of which is registered as a 
``mine operator'' under the Act.
    Finally, the bill would take account of an anomaly pointed 
out by the Government Accountability Office in a report 
released May 16, 2007. For some years, MSHA has utilized a 
complex point system to ensure that in recommending penalty 
assessments, decisions are made in a consistent manner. In 
fact, the agency updated that system this year to ensure, among 
other things, that proposed assessments give more weight to the 
gravity of the violation involved. According to the GAO, 
however, similar practices are not observed in the process of 
settling cases. Further, the Mine Safety and Health Review 
Commission, which is ultimately responsible for final penalty 
assessments under the Act, does not utilize this practice, and 
the judges who work for the commission often provide very 
little information about the basis upon which the final 
assessments are determined. To ensure consistency in penalty 
practices and to ensure appropriate weight is being given to 
the gravity of violations, the bill requires the point system 
used by the Secretary shall also be used in settlements and in 
determinations by the Commission.
    (i) Civil Penalty for Interference or Discrimination.--The 
bill would increase the penalties for those who retaliate 
against miners who report safety and health violations. Such 
violations are particularly onerous, because they discourage 
miners from reporting problems, which could result in a 
tragedy. Testimony by miners, survivors and their 
representatives pointed out that such discouragement is 
widespread in mining communities dependent upon the industry 
for good jobs. The bill takes a first step toward addressing 
these problems by establishing a minimum penalty of $10,000 and 
a maximum of $100,000 for such violations.
    The bill would also provide that the same minimum and 
maximum penalties be applied to violations of the new 
requirement established by section 5(a) of the bill, which 
prohibits interference with mine inspectors in the performance 
of their duties.
    (j) Withdrawal order.--The purpose of the emergency 
response plans established pursuant to the MINER Act was to 
strengthen the ability of all concerned to limit the causes of 
mine disasters and to improve the survival chances of miners 
should they occur. The same is true of the requirements that 
this bill would add to those plans. Accordingly, the reported 
bill provides that should an authorized representative of the 
Secretary determine that a mine operator has failed to fulfill 
any of the relevant requirements of sections 315 or 316 of the 
FMSHA the inspector is to determine the area of the mine at 
risk and issue an order requiring the withdrawal of miners from 
the area. The reported bill maintains the concept of the 
original bill, but based on technical comments from the agency, 
has altered the language to avoid confusion.
    (k) Clarifications of Intent in the 1977 Act.--As with any 
statute that is 30 years old, the FMSHA has a few well-
recognized technical deficiencies. This subsection of the bill 
would correct them.
    Paragraph (k)(1) would amend the definition of ``operator'' 
in section 3 of the FMSHA. The primary focus of the amendment 
is to deal with a problem involving independent contractors who 
actually perform production operations for other entities at a 
particular mine. Mining companies often contract with separate 
business entities to conduct mine operations at specific 
locations, and sometimes these entities are formed just for the 
exclusive purpose of that contract. The amendment would ensure 
that should such an independent contractor go out of business 
without paying assessed penalties, or otherwise fail to comply 
with the law, the contracting party may be held jointly and 
severally liable with the independent contractor for the 
violations of the Act including the responsibility for the 
payment of fines under the Act. Since this section is being 
amended, the bill also makes a few small changes to codify 
long-standing interpretations of the Act.
    Paragraph (k)(2) would amend section 103(b) of the FMSHA to 
provide the Secretary with broad subpoena authority, equivalent 
to that under the Occupational Safety and Health Act and many 
other government statutes. Currently, subpoena authority is 
only available in connection with public hearings held in the 
course of accident investigations. However, wider subpoena 
power is necessary for the Secretary to conduct a broad range 
of activities, for example:
           determine which business entities may be 
        mine operators or controllers of a mine for enforcement 
        purposes (both penalty size and who has to pay); 
        currently this is based largely on self-reporting;
           obtain testimony or records from 3rd parties 
        (e.g., foremen, miners, contractors, other witnesses) 
        against whom no injunction can be obtained under 
        section 108 concerning whistleblowing, accident 
        investigations or other matters; and
           obtain testimony or records from operators 
        without the need to seek injunctive relief under 
        section 108.
    Paragraph (k)(2) would also clarify that data and items of 
physical evidence are among the types of ``information'' that 
can be subpoenaed. The bill would make a conforming amendment 
to section 103(h) of the FMSHA to ensure that operators are 
required to provide the types of ``information'' that may be 
requested by subpoena. Based upon a technical suggestion from 
the agency, the language in the reported bill has been slightly 
adjusted from that in the original bill to ensure clarity. The 
Committee notes that MSHA supports this provision of the 
legislation.
    Paragraph (k)(3) would amend section 104 of the FMSHA to 
clarify that a violation of a specific provision of the Act 
itself can be deemed a ``significant and substantial'' 
violation. This is already the case with violation of a 
standard issued pursuant to the Act. This determination is 
required before a violation can become the basis for the more 
serious sanctions available under these sections. There are 
many critical provisions protecting miner health and safety 
that are specified directly in the Act--for example, the 
prohibition against interference with inspections and the 
requirement of advance notice of an inspection, may represent 
significant and substantial violations of the Mine Act. These 
should be among those violations which can form the basis of 
the enhanced enforcement under section 104(d) and 104(e) of the 
Mine Act. The current language of the Act language is vague and 
has led to a narrower interpretation of ``significant and 
substantial violations'' than is appropriate for the protection 
of miners (e.g., Cypress Emerald Resources v. FMSHRC, 195 F.3d 
42 (1999)). By clarifying the Mine Act in this regard, 
litigation on this point will be curtailed.
    The bill would further amend section 104 to eliminate a 
drafting error in the 1977 Act. The current language seems to 
suggest to some that a 104(d)(1) sanction cannot be imposed 
when there is an imminent danger. This would mean that the most 
grave hazards constituting imminent dangers could not lead to 
the commencement of enhanced enforcement under section 104(d) 
and 104(E). This was never intended to be the case. Eliminating 
this error would ensure that others do not misread this 
provision.
    Paragraph (k)(4) would eliminate some verbiage from section 
105(a) that has recently been the basis of inappropriate 
challenges by some mine operators to MSHA penalties. It was 
never the intent of the Mine Act to void citations or penalties 
if MSHA requires additional time to issue them. Eliminating a 
reference to ``reasonable time'' will ensure others do not 
misread this provision of the Act.
    This section would also make three changes in section 
105(c), the provisions of the statute which protect 
whistleblowers in this industry from retaliation. First, to 
eliminate any doubt, it would ensure that reporting an ``injury 
or illness'' is as protected as reporting ``an alleged danger 
or safety or health violation.'' Second, it would clarify the 
rule for determining when a miner can refuse to work due to 
fear of danger to that miner or other miners, by adopting 
language that has been used for some time in a labor-management 
contract applicable to much of the industry. And finally, the 
bill would ensure that resolution of anti-retaliation cases 
before the Department not be stayed pending resolution of any 
related grievance proceeding.
    The Committee heard miners, survivors and those who 
represent them express considerable reluctance about bringing 
safety and health concerns to the attention of mine operators 
or MSHA because they fear retaliation.\86\
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    \86\See Hearing before the House Education and Labor Committee, 
``The Perspective of the Families at Crandall Canyon'' (October 3, 
2007), http://edworkforce.house.gov/hearing/fc100307.shtml; Hearing 
before the House Education and Labor Committee, ``Protecting the Health 
and Safety of America's Mine Workers, (March 28, 2007), http://
edworkforce.house.gov/hearings/fc-3-2807.
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    This section of the bill would also address two issues 
involving attorneys, by adding two sentences to current law. 
The first sentence would clarify that MSHA counsel would not 
face disbarment for directly contacting certain individuals in 
the course of performing their duties. This is the standard 
rule for Federal counsel under 2002 model rules of the American 
Bar Association, but not all states have adopted this yet, and 
the potential for disbarment can significantly interfere with 
investigation and enforcement activities. The second sentence 
would establish a firm conflict of interest rule that would bar 
attorneys who represent mine operators in a matter from 
simultaneously representing individual miners in the same 
matter. While the inherent conflict of interest seems clear, 
this practice is widespread in the industry and greatly 
complicates accident investigations in particular.
    Paragraph (k)(5) would amend section 110 of the Act to 
address a technical error that was introduced to the text by 
the 2006 MINER Act and subsequent technical amendments. These 
enactments inadvertently placed new authority to issue flagrant 
provisions in the wrong paragraph of the Mine Act. As a result, 
questions have been raised about whether flagrant violations 
can be issued in other than failure to abate cases. MSHA has 
correctly interpreted the intent of the Congress in this regard 
(see 72 FR 13623). Nevertheless, to avoid protracted litigation 
on the point, this technical amendment moves the provision to 
the correct paragraph of the Mine Act.
    This section would also clarify that the liability of 
directors, officers and agents for violations of the Mine Act 
does not change because of the form of the mine operator's 
business. In recent years, many mines have become limited 
liability corporations rather than ``corporations'', but the 
language of the Mine Act was drafted in another era and refers 
only to ``corporate'' directors, officers and agents. The 
amendment is consistent with MSHA's interpretation of the Act 
(71 FR 38902-38905) and would ensure that such officials retain 
the liability they have always had under the Mine Act even 
should their enterprise change form. The amendment also 
clarifies that violations of the requirements of the Act itself 
can be the basis of such liabilities, not just violations of 
standards, and further clarifies that partners and owners are 
also covered.
    (l) Federal Licensing.--This section requires the 
appointment of an advisory committee to study whether the law 
should be amended to provide for Federal licensing of mines, 
mine operators, mine controllers or various mine personnel in 
order to ensure that those engaged in mining activities are not 
frequent violators of safety and health requirements. Some 
states have licensing provisions for certain mine specialists, 
for example, and revoke such licenses should the individuals 
involved be found responsible for violations. The bill requires 
that the advisory committee conduct a review of existing state 
requirements in this regard and their effectiveness, and 
provide its recommendations to Congress within 2 years. Based 
on suggestions from the mining industry, the reported bill also 
charges the advisory committee to conduct a review of state 
registries and determine whether a national registry can be 
established in connection with any Federal licensing 
requirements.
    Sec. 6. Supplementing Rescue, Recovery and Incident 
Investigation Authority.
    The provisions of this section expand upon the work 
initiated by the MINER Act to improve the ability of the Nation 
to respond to mine emergencies. Under the MINER Act, for 
example, mine operators must notify MSHA within 15 minutes of 
the time the operator realizes that the there has been a death, 
injury or entrapment that has a reasonable potential to cause 
death. Moreover, the MINER Act establishes new requirements for 
rescue teams at mines of different sizes.
    (a) Emergency Call Center.--The bill would require that 
MSHA promptly establish a central communications emergency call 
center for mine operations, staffed and operated 24 hours per 
day, 7 days per week by MSHA employees with adequate experience 
and training to handle emergency mine situations. A single 
national phone number shall be provided for this purpose, and 
the Secretary shall ensure that all miners and mine operators 
are issued laminated cards with emergency call center 
information.
    (b) Contact Information.--The bill would require that the 
Emergency Call Center be provided with current contact 
information for all those who may need to be reached during an 
emergency. At the suggestion of the mining industry, the 
reported bill requires the Secretary to consider including the 
information currently collected by the joint government-
industry Mine Emergency Operations database.
    (c) Mine Locations; Repository of Mining Maps.--Paragraph 
(1) of this subsection would require that MSHA's website 
contain the geographic coordinates of all U.S. mines and mine 
impoundments, including abandoned mines, as determined by a 
global positioning system. The primary purpose of this 
requirement is so emergency responders can quickly locate all 
mines, but the reported version of this provision also ensures 
that the map provides the geographic location of mine waste 
impoundments, with links to associated emergency contact 
information and available emergency response plans; currently, 
this information is maintained only through Federal funding of 
a project at a university.
    Paragraph (2) deals with a separate problem brought to the 
attention of the Committee by representatives of the mining 
industry during discussions about the original bill--the need 
to preserve old mine maps. The term ``mine map'' does not refer 
to where the mine entry (or entries) is located; rather, it 
refers to the map of the workings of an underground mine, 
showing in great detail the extent of the passageways and their 
condition at the time the map was created. These maps are 
constantly changing as the mine advances or retreats, and mine 
operators are required to have maps regularly approved by MSHA 
and retained at the mine site. The fact that the most current 
map was not immediately available to rescuers at the site of 
the Aracoma Alma mine when they arrived was the subject of 
significant attention in MSHA's investigation report.
    Mine maps are also important long after mining is 
completed. At the Quecreek mine inundation in Pennsylvania, one 
mine flooded because the miners inadvertently dug into a 
flooded tunnel of a long abandoned mine. Had the map of the old 
mine been readily available, the problem could have been 
avoided. The Department of the Interior has been given some 
authority to collect old mine maps and digitalize them, but the 
Committee believes that MSHA should also have a role in this 
activity.
    Accordingly, the reported bill authorizes the Secretary of 
Labor to obtain copies of historic mine maps and create a 
repository for them. The Secretary has the discretion to 
coordinate with the Secretary of the Interior in this regard. 
Further, to facilitate emergency rescue, the bill would provide 
for the repository to include currently approved mine maps, 
mine emergency response plans, roof plans, ventilation plans, 
and other required plans following approval so these plans can 
be accessed in the case of an emergency by those not directly 
at the mine site or the local area office. A mine's current 
mine map is treated as confidential property under section 
312(b) of the Act, and this requirement would be retained under 
the committee bill.
    (d) Required Notification of Emergencies and Serious 
Incidents.--Mine operators have long been required under 30 CFR 
Part 50 to record various accidents and incidents at the mine 
site. The MINER Act took this one step further and required 
that certain critical events be reported to MSHA by phone 
within 15 minutes. Pursuant to MSHA rulemaking, this 15 minute 
notice requirement was expanded to include every ``accident,'' 
a term defined by the rules to include 12 specific events--
e.g., an unplanned fire in an underground mine not extinguished 
within 10 minutes of discovery or a coal or rock outburst that 
causes withdrawal of miners or which disrupts regular mining 
activity for more than one hour. 30 CFR 50.2(h). The Committee 
bill requires MSHA to be timely notified in a few additional 
instances--what generally could be referred to as ``close 
calls''.
    Specifically, the bill would require mine operators to 
notify MSHA within an hour of the time at which the operator 
realizes that any of the following has occurred:
           a fire not required to be reported more 
        promptly (i.e., within 15 minutes);
           a sudden change in the mine atmospheric 
        conditions in a sealed area;
           a coal or rock outburst that causes the 
        withdrawal of miners (i.e., regardless of how long the 
        miners were withdrawn); or
           any other event that needs to be examined to 
        determine if the working conditions in the mine are 
        safe, as set forth by regulations promulgated by the 
        Secretary.
    The original bill has been significantly modified in this 
regard, and the Committee has crafted this provision narrowly 
to avoid unnecessary calls. At the same time, the events at 
Crandall Canyon have pointed out to the Committee that mine 
operators are currently not required to timely report events 
which, if examined, could have avoided a tragedy. The reported 
bill strikes what the Committee believes is an appropriate 
balance in this regard.
    (e) Enhancing the Capabilities of Mine Rescue Teams.--
    Paragraph (1) of this subsection would amend the FMSHA to 
require MSHA and mine operators to take certain steps to make 
it easier for rescue teams to operate on mine property. These 
actions would implement suggestions from mine rescue team 
members.
    First, in order to avoid delays and confusion at the 
entrance to mine properties, mine rescue team members, support 
personnel and vehicles would receive uniform credentials 
ensuring immediate access to mine property.
    Second, mine operators would be required to have plans in 
place to ensure coordination with local emergency response 
personnel and also to ensure that such personnel receive 
adequate training in how to provide assistance to mine rescue 
teams.
    Third, mine operators would be required to facilitate the 
work of mine rescue teams during an emergency by storing 
necessary equipment (not brought on site by the teams) in 
locations readily accessible to mine rescue teams, by providing 
mine rescue teams with a parking and staging area adequate for 
their needs, and by identifying a space appropriate for 
coordinating emergency communications with the mine rescue 
team. This provision was modified from the original bill to 
recognize that most mine rescue teams carry their equipment 
with them.
    Finally, mine operators would be responsible for 
identifying and maintaining separate spaces for family members, 
community members and press to assemble during an emergency so 
as to facilitate communications with these groups while 
ensuring the efforts of the mine rescue teams are not hindered.
    Paragraph (2) of this subsection would require NIOSH to 
conduct research on advanced drilling and special technologies 
required for safety or rescue in mining more than 1,500 feet in 
depth. The need for such equipment was made abundantly clear to 
the public during the efforts to rescue miners at Crandall 
Canyon. Since this accident, a number of suggestions have been 
put forth concerning technologies that could be adapted toward 
this end. The Committee has been impressed with the results of 
the working group of Federal agencies established under the 
MINER Act to assist NIOSH on some of the problems recognized 
after the Sago disaster, in particular the need for improved 
electronic communications and tracking systems. Accordingly, 
the Committee bill would expand the mandate of this working 
group to address the additional rescue problems revealed by the 
Crandall tragedy.
    (f) Emergency Preparedness Plan.
    Subsection (f) of section 6 was added by the Committee 
following testimony on the tragedy at the Crandall Canyon mine. 
The Governor of Utah and others expressed concern that MSHA was 
not executing a pre-defined emergency response plan during the 
rescue effort, leading to a lack of coordination with state and 
local responders. In addition, the accident occurred at a time 
when many staff were scattered around the country. Others 
present at the rescue scene also expressed concern about the 
challenges posed by the location, including difficulties posed 
by reliance upon cell phones in an area with limited coverage.
    The reported bill requires MSHA to establish and 
disseminate guidelines for rescue operations to address such 
issues in various types of rescue situations. While the 
Committee recognizes that not every problem can be recognized 
and addressed in advance, emergency preparedness plans are 
widely relied upon in this country as a critical part of 
emergency planning, and the Committee expects mine rescue 
efforts to proceed much more smoothly once MSHA develops such a 
plan. The bill requires the Secretary to consult with States, 
rescue teams and other responders in developing guidelines, and 
to update them from time to time based upon experience. 
Although not explicitly required, the Committee expects the 
Secretary to use this opportunity to set forth specific 
guidelines that will elucidate how rescues will operate under 
``J'' or ``K'' orders. The ``J'' and ``K'' refer, respectively, 
to section 103(j) and 103(k) of the FMSHA. The former provides 
MSHA with the authority to take over a mine site during a 
rescue or recovery operation. The latter provides MSHA with the 
authority to approve the actions taken by mine operators who 
are conducting rescue or recovery operations. (See the 
discussion of section 6(g) of the bill, infra, for related 
discussion.)
    As introduced, the bill would have required mine operators 
to make explicit arrangements for ambulances or other emergency 
response vehicles and to address the need for medical 
technicians on mine sites. The committee dropped these 
provisions from the reported bill due to concerns about the 
details, but encourages the Secretary to pay attention to the 
availability of such personnel in developing an emergency 
preparedness plan for MSHA.
    (g) Authority of Secretary During Rescue Operations.
    Subsection 6(g) of the bill strengthens what are referred 
to as ``J'' and ``K'' orders. As noted supra, these refer to 
the provisions of section 103(j) and 103(k) of the FMSHA. The 
former provides MSHA with the authority to take over a mine 
site during a rescue or recovery operation. The latter provides 
MSHA with the authority to approve the actions taken by mine 
operators who are conducting rescue or recovery operations. 
MSHA has not used the J order in many years. As the Assistant 
Secretary of MSHA recently testified before the committee, the 
agency is concerned that if it takes over a mine site, the mine 
operator might not provide critically needed resources or 
equipment--e.g., miners to dig out rubble from collapsed 
tunnels, or drill rigs to dig boreholes that can supply air and 
communications to trapped miners. These are activities not 
performed by mine rescue teams who are specialized experts and 
volunteer to rescue trapped miners once there is some apparent 
access to their location.
    The bill would amend the provisions of section 103(j) of 
the FMSHA to explicitly require an operator to comply with 
requests of the authorized representative of the Secretary in 
connection with rescue or recovery, and also provides that the 
failure to do so shall constitute an egregious violation of the 
Act. Under the MINER Act, the penalty for an egregious 
violation is set at $250,000. In addition, the Committee notes 
that the courts of the United States already have the authority 
to grant injunctive relief to the Secretary should an operator 
fail to comply with an order of the Secretary, pursuant to 
section 108(a)(1)(A) of the FMSHA, and the Committee expects 
the additional language being added to section 103(j) will 
enable MSHA to promptly seek and obtain injunctive relief in 
such cases.
    There are many situations in which the K order will 
continue to be the vehicle of choice for managing rescue or 
recovery operations. The normal practice in such cases is for 
the mine operator, MSHA, and in the case of an organized mine, 
the miner representative, to jointly develop and amend a rescue 
plan, or amendments thereto, and obtain MSHA formal approval.
    In order to eliminate the confusion reported during recent 
rescues, including the kind of confusion reported by McAteer 
and Associates in the Sago mine rescue, the Committee expects 
that as part of the emergency preparedness plan MSHA is 
required to prepare under section 6(f) of the S-MINER Act, it 
will elaborate upon how a rescue is to operate under a ``K'' 
order approach.
    The bill makes one amendment to the provisions of section 
103(k) of the FMSHA to strike the requirement that a 
representative of the Secretary actually be present at the mine 
site in order to issue a ``K'' order. Such orders must often be 
issued by phone in an emergency, and while this practice is 
widely accepted, clarifying the Act ensures that MSHA's 
authority in emergencies will not be challenged by 
uncooperative mine operators, delaying rescue.
    (h) Rescue Communications--The Committee was extremely 
concerned that during the Crandall Canyon rescue--slightly more 
than a year after the Congress explicitly required MSHA to take 
charge of communications with families and the press at mine 
accidents--MSHA completely failed to do just that in the first 
test of its new authority. MSHA simply did not assert its 
control. The result: considerable misinformation was 
disseminated to families and the public. Moreover, in a move 
that punctuated the lack of order and control, MSHA even 
approved an unprecedented trip for some reporters and family 
members into the mine with the mine operator while rescue 
operations were underway and conditions remained extremely 
dangerous.
    It is the Committee's view that MSHA must establish its 
authority in these cases, and section 7 of the MINER Act needs 
to be strengthened so that the right expertise is brought to 
bear in these situations. MSHA officials normally dispatched to 
a mine site to participate in rescue operations are experts in 
mine safety, and do not necessarily have the skills required to 
deal with distraught miner families or the press; moreover, 
they have critical responsibilities at the site that require 
their primary attention. These officials do have the best and 
most accurate information on the situation, but they need 
others to facilitate accurate communication, and to ensure that 
the questions of family members are answered in a timely 
fashion.
    Accordingly, the reported bill would strengthen the 
provisions of Section 7 of the MINER Act and make it a 
permanent part of the FMSHA. The changes to the MINER Act would 
include:
           a requirement that MSHA designate a full-
        time permanent employee of that agency to serve as a 
        family liaison, and at least in accidents involving 
        multiple fatalities, that this liaison act as the 
        primary communicator with the families of trapped 
        miners throughout the rescue operation;
           a requirement that MSHA be responsive to 
        requests from families of miners for information 
        relating to the accident, including the waiver of fees 
        that must otherwise be assessed under the Freedom of 
        Information Act; and
           a requirement that the Secretary designate 
        of a ``highly qualified representative'' with 
        experience in communication be present at mine accident 
        sites, throughout the duration of the rescue efforts, 
        to serve as primary communicator with the press.
    Section 6(h)(3)(B) of the reported bill would also require 
each mine operator to include in his emergency response plan 
the operator's specific plans for assisting the Secretary in 
the implementation of these communication responsibilities. The 
purpose of this requirement is to focus mine operators' 
attention on the role of the Secretary in this regard, and on 
the personnel with whom the operator will come in contact 
during any rescue. The change will ensure that each operator is 
prepared to coordinate with these personnel, and if concerns 
are identified during the emergency response plan review 
process, they can be addressed before a real emergency occurs.
    Finally, section 6(h)(3)(A) of the reported bill would 
address an apparent anomaly in the law that denied miners 
trapped in the Crandall Canyon mine an opportunity to appoint a 
designated representative to represent their interests under 
the FMSHA. The bill provides that when a miner is trapped, a 
family member may execute a designation on his or her behalf. 
At Crandall Canyon, MSHA denied the requests of family members 
to make such designations. While the exact sequence of events 
remains in dispute, the situation revealed a deficiency in the 
law which the reported bill will correct.
    (i) Recovery.--
    This subsection is designed to address definitively two 
additional questions that arose in connection with the 
situation at Crandall Canyon--who decides when rescue efforts 
cease and the effort to recover remains begins and under what 
criteria, and who decides when efforts to recover remains 
should cease and under what criteria.
    The reported bill would in both cases vest this authority 
in the Secretary's representative, clarifying that these are 
not decisions for the mine operator or miner families, although 
the Committee expects the Secretary's representative to consult 
both before making any such decision. In both cases, the 
reported bill would utilize the same criterion for ceasing 
operations: whether continuing would pose a serious danger to 
rescue, recovery or other workers.
    (j) Accident and Incident Investigations.--
    The mining community, state authorities, and the Congress 
are completely dissatisfied with the current framework for 
investigating accidents where there are multiple fatalities. 
The reported bill would provide for independent investigations 
in such cases to supplement and complement the investigations 
being conducted by the Department of Labor.
    Under the present system, two investigations are conducted 
of such accidents and both of them are conducted by MSHA, the 
agency also responsible for protecting miner safety and health. 
The first investigation, known as an ``accident'' 
investigation, is conducted to determine if there is civil and 
criminal liability for the event and often take a year. MSHA 
utilizes staff from around the country to conduct these 
investigations. The procedure varies each time. Witnesses are 
interviewed, sometimes with others present and sometimes 
without, but seldom with the families represented, and never in 
public. The families are not allowed to pose questions to the 
witnesses. And when reports are issued, they do not include 
recommendations for new standards or practices.
    The second investigation, known as an ``internal'' 
investigation, is normally conducted by the office within MSHA 
that establishes requirements for employees to follow in 
implementing the law and regulations (although in the most 
recently initiated internal investigation concerning Crandall 
Canyon, the Department has asked two former employees to take 
charge of the review). The purpose of the internal 
investigation is to determine if employees followed policy in 
the run-up to the accident and during rescue and recovery 
efforts.
    In addition, the Office of the Inspector General in the 
Department of Labor may conduct its own investigation of 
employee conduct to determine if laws and regulations relating 
to employee conduct have been violated (e.g., allegations of 
bribery). The Committee has also been advised that the Chemical 
Safety Board (CSB) may have some jurisdiction to conduct 
investigations of mining accidents and could elect to do so 
where it has some expertise (explosions) and resources. 
However, the CSB has not done so to date. With these limited 
exceptions, there is no statutory mechanism for any body other 
than MSHA to investigate multiple fatality mine accidents or to 
investigate the agency's role in connection therewith.
    The Committee believes a consensus exists in the mining 
community that independent investigations of such accidents are 
necessary and feasible. Miners working in the same mine or for 
the same mine operator or under similar conditions want to know 
whether they are safe, as do their families. Mine operators 
need to know whether to change practices before the same 
problem recurs. The families of those who died want more active 
roles in determining what happened; they simply do not trust 
MSHA to get at the truth in closed mining communities. At the 
same time the mining community respects the expertise vested in 
MSHA and wants to continue to put that expertise to good use in 
investigating mine accidents.
    The Department of Labor has not been helpful in bridging 
the gap between expectations and reality. In recent years, the 
procedures used by MSHA to investigate each accident have been 
different each time, fueling procedural debate at a time when 
the focus should be on getting information. MSHA had begun 
rulemaking to standardize these procedures, but that effort was 
discontinued by the current Administration and we understand it 
is opposed on the grounds that flexibility is preferred. The 
Office of the Solicitor has made it very difficult for this 
Committee to gather the information needed in our own 
investigation of the tragedy at Crandall Canyon. This is true 
for the State of Utah as well, which is conducting its own 
investigation. While the Committee fully respects the authority 
of the Department, these accidents are, unfortunately, 
happening with enough frequency that some standardization of 
procedures for cooperation is clearly required.
    Accordingly, the bill expands existing section 103(b) of 
the FMSHA to spell out MSHA's accident investigation 
responsibilities, to establish a mechanism for the rapid 
appointment of an independent investigation panel in multiple 
fatality cases and to ensure that this legislation does not in 
any way alter whatever authority the CSB might have (and that 
the Inspector General clearly does have) under law to 
investigate mine accidents or the conduct of DOL personnel in 
connection therewith.
    New section 103(b)(1) explicitly sets forth the varied 
purposes of accident investigations by the Secretary--something 
not included in the statute at present. These include:
           an explanation of why an accident or 
        incident occurred;
           a determination of whether civil or criminal 
        requirements were violated;
           a determination of the appropriate citations 
        and penalties to be assessed; and
           any recommendations to avoid any recurrence.
    In addition, the Secretary is to determine whether the 
action or lack thereof by Agency personnel contributed to the 
accident or incident. In other words, this paragraph retains 
and expands upon MSHA's existing investigative 
responsibilities.
    New section 103(b)(2)(A) provides that there shall also be 
an independent investigation of any accident or incident 
involving multiple serious injuries or deaths, to consider why 
it occurred, make recommendations to avoid a recurrence and 
determine whether the action or lack thereof by agency 
personnel contributed to the accident or incident.
    New section 103(b)(2)(B) requires the Secretary to initiate 
rulemaking promptly in order to establish rules and procedures 
for the independent investigations. No such rules and 
procedures needs to be established for MSHA's own 
investigations; however, see the discussion infra of new 
paragraph 103(b)(2)(D). The reported bill requires the 
Secretary in the course of the process to reach out to certain 
interested groups which can shed light on how to approach this 
matter--including family members of miners who perished in the 
last decade, organizations representing miners, mine rescue 
workers, and Federal, state and local prosecutorial 
authorities--and to complete the rulemaking by October 1, 2008.
    New section 103(b)(2)(C) provides that each independent 
investigation team is to be quickly appointed after a 
qualifying accident by the Director of NIOSH. One member is to 
be appointed from NIOSH and is to chair the team. The other 
members include a representative of mine operators with 
familiarity with the type of mining involved, a representative 
of mine workers with similar familiarity, an academic with 
expertise in mining and a representative of the state where the 
incident occurred. The miner representative is to be the 
workers' certified bargaining representative at the mine if 
there is one, and if not, someone appointed by labor 
organizations. The state representative is to be appointed by 
the Governor. The Committee's purpose in specifying the 
composition of these teams is to ensure that their report has 
widespread credibility in the mining community.
    New section 103(b)(2)(D) provides that the rules for the 
operation of the independent teams--the rules to be established 
pursuant to section 103(b)(2)(B) by October 1, 2008--``ensure 
that the Secretary will be able to cooperate fully with the 
independent investigation team and will use the powers of the 
Secretary under this section to help obtain information and 
witnesses required by the independent investigation team.'' In 
essence, this means that by October 1, 2008, after consulting 
with all the interested parties, the Secretary needs to set 
forth a process which enables both the MSHA investigations and 
the independent investigation to move forward simultaneously. 
The rules must also provide for MSHA to use the new subpoena 
authority it is receiving under this bill to facilitate the 
work of the independent investigation team as well as its own 
investigation. The Committee hopes that the extensive 
discussions of such matters which have taken place in the 
context of the investigations of recent mine tragedies, as well 
as the requirement that the Secretary consult widely in 
developing the procedural rules, will facilitate an agreement 
on the details. The Committee expects the Department to keep it 
closely informed on these matters.
    The procedures to be established for the independent panel 
must also meet certain other requirements set forth in new 
section 103(b)(2)(D). The procedures must ensure that witnesses 
are not coerced and conflicts of interest in witness 
representation avoided, and ensure confidentiality if requested 
by any witness. These have proven to be complex sticking points 
in practice, and establishing standardized procedures should 
facilitate further investigations. In this regard, note that 
section 5 (k)(4)(C) of the bill provides that no attorney 
representing a mine operator in a matter under this Act may 
concurrently represent individual miners in the same matter, a 
requirement that includes, but is not limited to, accident 
investigations. The rules are also to permit the independent 
investigation team to conduct public hearings as part of its 
process if it deems them appropriate.
    The rules must also contain provisions that require the 
independent investigation team to issue findings concerning the 
cause of the incident and to make recommendations as to policy, 
regulatory, enforcement or other changes, including statutory 
changes, which in its judgment would best prevent a recurrence 
of such actions or inactions at other mines. The rules shall 
also require the team to make all such findings public 
(including public hearings to inform the mining community of 
these findings) in a timely fashion. A limited exemption is 
provided for findings and recommendations that must be 
temporarily withheld in connection with a criminal referral.
    New section 103(b)(2)(E) requires the Secretary to track 
the implementation of accident and incident recommendations by 
independent investigation teams and provide such information 
annually to Congress. MSHA does not currently do this, and it 
has been suggested that the failure to follow up on past 
accident reports is one of the reasons why the tragedies of 
2006 took place.
    New section 103(b)(3) provides that nothing in this bill in 
any way limits the authority of the CSB to conduct an 
independent investigation of a mining accident or incident, or 
of the Inspector General to conduct an investigation of the 
conduct of DOL personnel in connection with an accident or 
incident. It also requires the Secretary to cooperate with any 
such investigation(s). Although not mentioned explicitly in 
this new section, the Committee wishes to make it clear that 
the bill is not intended to interfere with any other authority 
of the Inspector General.
    Sec. 7. Respirable Dust Standards.
    (a) Respirable Dust; Respirable Silica Dust.--The 1977 
Federal Mine Safety and Health Act established the standards to 
be applicable to respirable coal dust by law. The law specified 
who was responsible for measuring compliance, the instruments 
to be used, and other exposure limit. The law further specified 
that exposure of miners to respirable coal dust was to be 
reduced when respirable silica dust was also present.
    These requirements were a critical part of the 1977 law, 
and were designed to eliminate black lung disease and silicosis 
among the mining population.\87\ Unfortunately, these 
requirements did not eliminate new occurrences, and it has 
become clear that after years of efforts to amend the existing 
rules and to develop new instrumentation permitting real-time 
accurate exposure information for coal dust, MSHA has simply 
failed to protect the safety and health of miners.
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    \87\Indeed, the compensation program for miners who incur black 
lung disease, including the portion paid by the Federal government, was 
a critical part of that law. See Title IV of the FMSHA.
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    Accordingly, 40 years after the Federal Mine Safety and 
Health Act, the bill would have the Congress once again set the 
appropriate standards. The permitted limit for coal dust would 
be cut in half, consistent with the recommendations of the 
National Institute for Occupational Safety and Health (NIOSH), 
and the permitted dose would be adjusted to reflect hours 
actually worked. A separate limit would be established for 
silica, again consistent with the recommendations of NIOSH. The 
bill would require that compliance sampling be done by the 
Federal government, not mine operators as at present, based on 
a long history of fraud and abuse.
    The bill would require the use of the NIOSH developed and 
certified Personal Dust Monitor (PDM) for all coal dust 
sampling (traditional methods will be used for silica dust 
sampling). These devices continuously display current 
exposures, and record them in a form that can be electronically 
downloaded each shift to the operator and MSHA. The bill would 
further require that all underground miners be equipped with 
PDMs, so that they will be able to adjust their work to keep 
their exposure below the applicable limits. While the 
requirement for PDMs will result in an initial expense for coal 
mine operators, the savings due to improved miner health will 
be substantial.
    It should be noted that the bill's specification of a 
silica dust standard is not limited to coal mines; rather, it 
applies to non-coal mines as well, since there is also silica 
exposure in these mines.
    (b) Conforming amendment.--Because the bill would provide 
for an independent silica standard, this amendment strikes 
section 205 of the FMSHA which provided for adjusting the 
amount of respirable coal dust by the amount of respirable 
silica dust.
    (c) Assessment on Program Operations of Cumulative Impact 
of External Requirements Added Since 1977.--The need to make so 
many amendments to MSHA standards by legislation evidences the 
fact that the agency has been very unsuccessful in using its 
rulemaking authority. The bill would require the National 
Academy of Sciences to conduct a study of the various statutes, 
executive orders, and memoranda that have been issued since the 
Mine Act was passed in 1977 to examine the impact they have had 
on the rulemaking authority provided under the law, and to 
quantify to the extent possible the costs these requirements 
have imposed upon miners.
    Sec. 8. Other Health Requirements.
    (a) Air Contaminants.--The 1977 Federal Mine Safety and 
Health Act required MSHA to immediately adopt hundreds of 
existing ``permissible exposure limits'' (PELs) developed by 
various professional organizations so that it would have 
standards to apply to the mines. As with coal dust and silica, 
however, MSHA has been unable to update these PELs per customer 
due to complexities of the regulatory process in the law as 
interpreted by the courts. A comprehensive effort started in 
1983 to update the PELs was halted. As a result, most of the 
PELs are now 40 years out of date. While many mine operators do 
comply with much more recent recommendations of the 
professional organizations, or international standards, MSHA is 
unable to require all mine operators to do so.
    The Committee has not been unaware of this problem. As 
explained in the general discussion of this problem in this 
report, supra, legislation that would have addressed a similar 
problem faced by OSHA was reported out of the Committee 15 
years ago, on July 9, 1992.\88\ The bill was not enacted and 
OSHA reform efforts stalled. A decade later, on July 16, 2002, 
a hearing was held by the Subcommittee on Workforce Protections 
to explore whether a consensus could be reached on how to 
resolve the problem in the OSHA context.\89\ Despite the 
efforts undertaken by Representative Charlie Norwood who was 
Chair of the Subcommittee, and by others, no consensus was 
achieved at that time.
---------------------------------------------------------------------------
    \88\H.R. 3160, the ``Comprehensive Occupational Safety and Health 
Reform Act'', Rept. 103-663. See p. 67, discussion of section 405 of 
the bill.
    \89\Reaching a Consensus to Update OSHA's Permissible Exposure 
Levels, Hearing before the Subcommittee on Workforce Protections, July 
16, 2002, Serial No. 107-72.
---------------------------------------------------------------------------
    The Committee believes the time for action is long overdue. 
The bill reported by the Committee provides that 
notwithstanding the other requirements of section 101 of the 
Federal Mine Safety and Health Act, MSHA is to adopt existing 
``recommended exposure limits'' developed by NIOSH as 
``permissible exposure limits'' that are enforceable under the 
FMSHA. In practice, this in most cases means updating limits 
already adopted by MSHA. MSHA must take this action within 60 
days of enactment of the S-MINER Act, subject to the important 
exception noted in the following paragraph. To avoid allowing 
this problem of dated exposure limits to continuously recur, 
the bill would also require MSHA to continue to update the PELs 
as new NIOSH recommended exposure limits are issued.
    The reported bill further provides that upon petition for 
miners or mine operators ``providing credible evidence that 
feasibility may be an issue for the industry as a whole'', the 
Secretary is to review the feasibility of any PEL before 
placing it into effect and, following notice and comment, make 
necessary adjustments thereto. The bill imposes a one-year 
deadline on this process to ensure such actions do not get 
stalled.
    The Committee understands that applying most of the RELs as 
PELs for the mining industry will not create feasibility 
problems, but the reported bill ensures that MSHA examines the 
issue when there is a question in this regard. The Committee 
intends that this be done through the normal rulemaking 
process. The Committee intends that the feasibility test for 
this purpose be interpreted just like the same language 
applicable under the FMSHA to all other MSHA standards, 
including health standards--the rule must be both economically 
and technologically feasible for the industry as a whole.
    Because the bill seeks to expedite the updating of many 
exposure limits in short order, it provides that MSHA would 
only be required to conduct rulemaking on the question of 
feasibility when presented with credible evidence that 
feasibility (as so defined) is a problem. Just as with any 
other standard, MSHA's decision not to examine feasibility 
would be subject to judicial review, under an ``arbitrary and 
capricious'' standard.
    What MSHA would not have to do in such cases is to make its 
own determination about the science supporting the proposed new 
PEL; the REL developed by NIOSH, established by law as the 
scientific support agency for MSHA, would be adequate where 
just an exposure limit is at issue. Should MSHA wish to develop 
a more specific health protection standard, as it did in the 
case of diesel particulate matter, it would have to meet the 
requirements of section 101(a)(6)(A) of the FMSHA for health 
standards.
    The reported bill also provides that where a REL is not 
sufficiently detailed to serve as a PEL, the Secretary may 
defer implementation of the bill's requirement that it be 
adopted as a PEL, and instead request NIOSH to recommend a 
sufficiently detailed REL to adopt as a PEL.
    The Committee reported bill does not change the authority 
of NIOSH or MSHA in other ways concerning the recommendation or 
adoption of standards. Nor does the bill alter MSHA's 
obligations under other laws, such as the Regulatory 
Flexibility Act, when the agency goes through rulemaking on the 
issue of feasibility. If industry has no credible feasibility 
concerns about adopting a particular REL as a PEL, there would 
be no rulemaking and hence no need for a regulatory flexibility 
analysis. But if the industry has credible feasibility 
concerns, MSHA would have to conduct rulemaking on that 
question, and an RFA analysis would be part of what the agency 
takes into consideration in making its decision under the 
Federal Mine Safety and Health Act.
    (b) Asbestos.--Miners in certain types of mining operations 
are exposed to hazardous asbestos. The current MSHA standard is 
years out of date and not as protective as the current OSHA 
standard applicable to all other workers. A rulemaking action 
to update MSHA's standard has been pending for years without 
final action.
    The bill would require MSHA to promptly adopt the OSHA 
standard. The bill provides, however, that the Secretary is not 
precluded from adopting regulations to address asbestos hazards 
to miners not covered by the OSHA regulations.
    (c) Hazard communication.--A hazard communication rule 
requires those who produce or provide potentially hazardous 
substances to provide certain information to users in the form 
of Material Safety Data Sheets (MSDSs). The practice is now 
universal and considered the first line of defense for worker 
health. However, in June 2002, MSHA amended the MSHA rule to 
significantly weaken it--essentially by allowing the use of 
MSDSs with dated scientific information.
    Section 101(a)(9) of the Federal Mine Safety and Health Act 
provides that: ``No mandatory health or safety standard 
promulgated under this title shall reduce the protection 
afforded miners by an existing mandatory health or safety 
standard.'' That is just what MSHA did in 2002. To remedy this 
problem, the bill would specifically require MSHA to enforce 
the rule that was in place prior to these changes.

                     VI. Explanation of Amendments

    The Committee adopted a substitute amendment to the bill. 
The substitute amendment is described in total in the summary 
of the bill above. The Committee adopted no other amendments.

           VII. Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act, requires a description of the application 
of this bill to the legislative branch. H.R. 2768 would have no 
direct impact on the legislative branch.

                   VIII. Regulatory Impact Statement

    The Committee has determined that H.R. 2768 will have a 
minimal impact on the regulatory burden. In fact, H.R. 2768 
will reduce the Department of Labor's regulatory burden 
significantly by enacting into law a number of matters that 
have been pending on its regulatory agenda for some time.

                     IX. Unfunded Mandate Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement of 
whether the provisions of the reported bill include unfunded 
mandates. This issue is addressed in the CBO letter.

                          X. Earmark Statement

    H.R. 2768 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.


    XII. Statement of Oversight Findings and Recommendations of the 
                               Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee's oversight findings and recommendations are 
reflected in the body of this report.

            XIII. New Budget Authority and CBO Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the House of Representatives and section 308(a) of the 
Congressional Budget Act of 1974 and with respect to 
requirements of 3(c)(3) of rule XIII of the House of 
Representatives and section 402 of the Congressional Budget Act 
of 1974, the Committee has received the following estimate for 
H.R. 2768 from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 15, 2007.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2768, the 
Supplemental Mine Improvement and New Emergency Response Act of 
2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Geoffrey 
Gerhardt.
            Sincerely,
                                         Robert A. Sunshine
                                   (For Peter R. Orszag, Director).
    Enclosure.

H.R. 2768--Supplemental Mine Improvement and New Emergency Response Act 
        of 2007

    Summary: The Supplemental Mine Improvement and New 
Emergency Response Act of 2007, H.R. 2768 would require 
operators of mineral and non-mineral mines to increase worker 
safety measures and improve emergency preparedness. It would 
require the Mine Safety and Health Administration (MSHA) to 
issue new regulations on a variety of mine safety issues, 
including underground refuges, mine ventilation, and 
communication systems. H.R. 2768 also would temporarily suspend 
limits on the number of mine inspectors employed by MSHA, and 
would call for an increase in mine inspection activities. In 
addition, the bill would require the agency to maintain and 
publish detailed maps of active and abandoned mines in the 
United States. The bill would also adjust the minimum and 
maximum civil penalties that MSHA may levy on mine operators.
    Assuming appropriation of the necessary amounts, CBO 
estimates that implementing the bill would cost $14 million in 
2008 and $117 million over the 2008-2012 period. By increasing 
civil penalties, H.R. 2768 would increase federal revenues by 
$14 million in 2009, $68 million over the 2008-2012 period, and 
$157 million over the 2008-2017 period, CBO estimates. Enacting 
H.R. 2768 would not affect direct spending.
    H.R. 2768 contains an intergovernmental mandate as defined 
in the Unfunded Mandates Reform Act (UMRA) because it would 
limit the authority of states to disbar or discipline attorneys 
in some circumstances. CBO estimates, however, that the mandate 
would impose no costs on state, local, or tribal governments.
    H.R. 2768 would impose several mandates, as defined in 
UMRA, on operators of underground mines. Those mandates would 
require operators to install certain systems and devices, 
provide equipment to miners, and comply with other safety 
requirements. Based on information from MSHA and industry 
experts, CBO expects the aggregate cost of the mandates would 
exceed the annual threshold established in UMRA ($131 million 
in 2007, adjusted annually for inflation).
    Estimated cost to the Federal Government: The estimated 
budgetary impact of H.R. 2768 is shown in the following table. 
The costs of this legislation fall within budget function 550 
(health).

----------------------------------------------------------------------------------------------------------------
                                                              By fiscal year, in millions of dollars--
                                                  --------------------------------------------------------------
                                                                                                 2008-    2008-
                                                     2008     2009     2010     2011     2012     2012     2017
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

 Estimated Authorization Level\1\................       19       21       27       27       27      121     n.a.
Estimated Outlays................................       14       23       26       27       27      117     n.a.

                                               CHANGES IN REVENUES

Estimated Revenues...............................        *       14       18       18       18       68      157
----------------------------------------------------------------------------------------------------------------
Notes: n.a. = Not applicable; * = Less than $500,000.
\1\Although fiscal year 2008 is already underway, this estimate assumes final appropriation legislation for 2008
  action would include funding for activities required by H.R. 2768.

    Basis of estimate:

Changes in spending subject to appropriation

    Assuming appropriation of the necessary amounts, CBO 
estimates the total cost to the federal government of 
implementing H.R. 2768 would be $14 million in 2008 and $117 
million over the 2008-2012 period. This estimate assumes that 
the necessary funds would be appropriated early in fiscal year 
2008 and for subsequent years and that outlays would follow 
historical patterns for similar activities.
    Among the provisions contained in the bill, H.R. 2768 
would:
           Require MSHA to establish a mining map 
        repository and post copies of all maps on the internet,
           Require MSHA to inspect all mine seals under 
        construction and a sample of existing seals,
           Mandate the inspection of self-rescue 
        vehicles by the National Institute for Occupational 
        Safety and Health,
           Institute a new mine safety inspector 
        initiative and provide MSHA with conditional authority 
        to hire contractors to perform mine inspections,
           Require MSHA to establish and maintain a 24-
        hour emergency call center,
           Require MSHA to designate at least one 
        employee to serve as a family liaison during events 
        when miners are trapped or injured,
           Require numerous reports on various subjects 
        from MSHA and the National Academy of Sciences, and
           Require the Department of Labor to establish 
        a mine safety advisory committee as well as an office 
        of miner ombudsman to monitor mine safety.
    The largest portion of the bill's cost is attributable to 
the requirement that MSHA maintain a repository for maps of all 
active and abandoned mines in the United States and post 
digitized versions of those maps on the internet. There are 
more than 10,000 active mines in the United States and the 
number of abandoned mines has been estimated at more than half 
a million. Several states and the federal government have 
programs underway to digitize certain mine maps, but the vast 
majority of mining maps have not been digitized. The cost of 
collecting, scanning, electronically posting and storing those 
maps could be substantial. Based on information from MSHA and 
other sources, CBO estimates the cost to MSHA of implementing 
this requirement alone would be more than $50 million over the 
2008-2012 period. Most of the other major provisions would cost 
between $1 million and $3 million per year.

Revenues

    Under current law, civil penalties for mine safety 
violations are capped at $60,000 per violation. MSHA also 
assesses a minimum penalty of $100. Under H.R. 2768, both the 
cap and floor would be adjusted for both ``significant and 
substantial'' violations and all other violations. For 
``significant and substantial'' violations, the bill would set 
the minimum penalty at $1,000 and the maximum at $150,000 for 
each violation. For other violations, H.R. 2768 would create a 
minimum of $500 and a maximum of $100,000 for each violation. 
Further, the law would create a new fine for patterns of mine 
health and safety violations with a minimum of $50,000 and a 
maximum of $250,000. Additionally, the bill would adjust the 
minimum and maximum fines for discrimination against an 
individual who files a complaint and for interference with a 
mine inspection to $10,000 and $100,000. Civil penalties are 
recorded in the federal budget as revenues net of offsetting 
effects on income and payroll tax receipts.
    Based on information provided by MSHA on past violations, 
CBO estimates those changes would increase federal revenues by 
$14 million in 2009, by $68 million over the 2008-2012 period, 
and by $157 million over the 2008-2017 period.
    Estimated impact on state, local, and tribal governments: 
States currently have the authority to establish and enforce 
standards of conduct for attorneys practicing in their states. 
H.R. 2768 would prohibit any state bar or state court from 
disbarring or disciplining an attorney under some 
circumstances. The bill would protect attorneys for the 
Department of Labor who contact miners or non-managerial mining 
employees during the course of a safety investigation from 
disciplinary action or disbarment under state law. That 
preemption of state law and disciplinary standards would be an 
intergovernmental mandate as defined in UMRA. However, because 
the preemption would simply limit the application of state 
laws, CBO estimates that the mandate would impose no costs on 
state, local, or tribal governments.
    Estimated impact on the private sector: H.R. 2768 would 
impose several mandates, as defined in UMRA, on operators of 
underground mines. Those mandates include, but are not limited 
to, requirements to:
           Install conveyor belts that meet certain 
        flame resistance requirements by 2012;
           Monitor behind certain mine seals using a 
        continuous motoring device;
           Equip each miner with a personal dust 
        monitor;
           Install an atmospheric monitoring system; 
        and
           Provide a certain post-accident 
        communication and tracking system.
    CBO expects the aggregate cost of the mandates in the bill 
would exceed the annual threshold established in UMRA ($131 
million in 2007, adjusted annually for inflation).

Conveyer belts

    Section 4(d) would require operators of underground coal, 
metal, and nonmetal mines to install conveyor belts by December 
31, 2012 that meet certain flame resistance requirements 
recommended by the National Institute for Occupational Safety 
and Health. Based on information from industry experts, CBO 
expects most belts, if not all, would have to be replaced. 
According to those experts and MSHA, the total length of 
conveyor belts in 4 underground mines (coal, metal, and 
nonmetal mines) is greater than 25 million linear feet and the 
price of the compliant belt would be about 40 percent greater 
than the current price per linear foot (about $46/ft) for 
conveyor belts. Based on those data, and assuming that fewer 
than 20 percent of the belts are replaced on average each year, 
the incremental cost of purchasing belts that comply with the 
new standard would be more than $600 million over the 2008-2012 
period. The cost would also include installation costs for 
belts that would not otherwise be replaced during the five-year 
period.

Continuous monitoring devices

    Section 4(c) would require operators of underground coal 
mines to monitor seals that cannot withstand a constant total 
pressure of 240 pounds per square inch. The monitoring of seals 
would have to be done with continuous monitoring devices. 
According to industry sources, continuous monitoring devices 
are not currently used in underground mines in the United 
States. Those sources also estimate that the devices could cost 
up to $400,000 per system to install based on the cost of such 
systems in Australia. Based on an MSHA estimate that 
approximately 300 underground mines would monitor seals, the 
cost of the mandate could amount to about $120 million.

Personal dust monitors

    Section 7 would require each coal miner in an underground 
mine to be equipped with a personal dust monitor that measures, 
records, and displays in real time the concentration of 
respirable dust. According to industry experts, personal dust 
monitors that meet those specifications cost between $8,000 and 
$12,000. According to data from MSHA, approximately 42,000 
miners are employed in underground coal mines. If one-fourth to 
one-third of the workforce is working underground during a 
shift, the initial cost to supply each worker on a shift with 
personal dust monitors would amount to at least $100 million.

Atmospheric monitoring systems

    Section 4(f) would require operators of an underground mine 
to install atmospheric monitoring systems in all underground 
areas where miners normally work and travel. Currently, MSHA 
only requires an atmospheric monitoring system to be installed 
when belt air is used for ventilation. Based on information 
from MSHA, CBO expects that more than 400 mines would be 
required to install an atmospheric monitoring system at a cost 
of $150,000 per mine. Therefore, the initial cost to the 
industry to comply with the mandate would be greater than $60 
million.

Post-Accident communication systems

    Section 4(a) would require operators of underground coal 
mines to provide for a post-accident communication system that 
is at least as effective as a wireless mesh type or a `leaky 
feeder' communication and tracking system within 120 days of 
the date of enactment. According to industry sources, only 
leaky feeder systems have been approved by MSHA. Based on 
information from MSHA, CBO expects that approximately 500 mines 
would be required to install a system at an average cost of 
$400,000 per mine.

Other mandates

    The bill would impose several other mandates on operators 
of underground mines. It would prohibit the use of certain 
ventilation systems except in the case of safety constraints. 
Based on information from industry experts, CBO expects that 
few mines would have to provide another entry for ventilation 
and, therefore, that the cost would not be significant.
    In addition, the bill would require operators to comply 
with regulations issued by MSHA for seals in underground coal 
mines and expand existing seal requirements to certain seals in 
underground metal and nonmetal mines. Operators also would be 
required to comply with new requirements for refuge chambers, 
ventilation controls, and roof screens. Additional mandates 
would establish standards for respirable dust and other 
chemicals, and require operators to comply with reporting and 
notification requirements. CBO has no basis to determine the 
costs to comply with those mandates.
    Estimate prepared by: Federal spending: Geoffrey Gerhardt; 
Federal revenues: Zachary Epstein; Impact on state, local, and 
tribal governments: Lisa Ramirez-Branum; Impact on the private 
sector: Amy Petz.
    Estimate approved by: Keith J. Fontenot, Deputy Assistant 
Director for Health and Human Resources, Budget Analysis 
Division.

       XIV. Statement of General Performance Goals and Objectives

    In accordance with Clause 3(c) of House rule XIII, the goal 
of H.R. 2768 is to improve the protection of the Nation's 
miners from occupational safety and health hazards.

                 XV. Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress in the 
Constitution to enact the law proposed by H.R. 2768. The 
Committee believes that the amendments made by this bill, which 
amends the Federal Mine Safety and Health Act to provide 
increased protection to miners from occupational safety and 
health hazards, are within Congress' authority under Article I, 
section 8, clause 3 of the Constitution of the United States.

                        XVI. Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison of the 
costs that would be incurred in carrying out H.R. 2768. 
However, clause 3(d)(3)(B) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 402 of the Congressional Budget Act.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

FEDERAL MINE SAFETY AND HEALTH ACT OF 1977

           *       *       *       *       *       *       *


                              definitions

    Sec. 3. For the purpose of this Act, the term--
    (a) * * *

           *       *       *       *       *       *       *

    (d) ``operator'' means any mineral owner, mineral lessee, 
or other person who operates, controls, or supervises a coal or 
other mine [or] and any independent contractor performing 
services or construction at such mine, and no operator may, by 
contract or other agreement, limit any liability under this Act 
through transfer of any responsibilities to another person;

           *       *       *       *       *       *       *


                            TITLE I--GENERAL

                 mandatory safety and health standards

    Sec. 101. (a) * * *

           *       *       *       *       *       *       *

  (f) Notwithstanding the other requirements of this section, 
not later than 30 days of the enactment of the S-MINER Act, the 
National Institute for Occupational Safety and Health shall 
forward to the Secretary its Recommended Exposure Limits (RELs) 
for chemical and other hazards to which miners may be exposed, 
along with the research data and other necessary information. 
Within 30 days of receipt of this information, the Secretary 
shall to adopt such recommended exposure limits as the 
Permissible Exposure Limits (PELs) for application in the 
mining industry. The National Institute of Occupational Safety 
and Health shall annually submit to the Secretary any 
additional or revised recommended exposure limits for all 
chemicals and other hazards to which miners may be exposed, and 
the Secretary shall be obligated to adopt such exposure limits 
as PELs for application in the mining industry within 30 days 
of receipt of such information. Upon petition from miners or 
mine operators providing credible evidence that feasibility may 
be an issue for the industry as a whole, the Secretary may 
review the feasibility of any PEL established pursuant to this 
paragraph before placing it into effect and, following public 
notice and comment, make necessary adjustments thereto, 
provided that the adjusted standard is as protective as is 
feasible, and that the PEL shall go into effect as required by 
the other provisions of this paragraph if such action is not 
completed within one year. Moreover, upon petition from miners 
or mine operators providing credible evidence that a REL issued 
by the National Institute of Occupational Safety and Health 
lacks the specificity required to serve as a PEL pursuant to 
this Act, the Secretary may defer implementation of the 
requirements of this paragraph and shall promptly request 
National Institute of Occupational Safety and Health to 
recommend a sufficiently detailed REL, at which time the 
provisions of this paragraph shall be implemented. Nothing in 
this subsection shall limit the ability of the National 
Institute of Occupational Safety and Health to make such 
recommendations more frequently than 1 time per year, nor limit 
the Secretary from establishing requirements for chemical and 
other substances or health hazards in the mining industry that 
are more comprehensive and protective than those established 
pursuant to this subsection and in accordance with the other 
requirements of this section.
  (g) The health standard for asbestos established by the 
Occupational Safety and Health Administration that is set forth 
in section 1910.1001 of title 29, Code of Federal Regulations, 
or any subsequent revision of that regulation, shall be adopted 
by the Secretary for application in the mining industry not 
later than 30 days of the enactment of the S-MINER Act. Nothing 
in this paragraph shall preclude the Secretary from adopting 
regulations to address asbestos hazards to miners not covered 
by the regulations of the Occupational Safety and Health 
Administration.
  (h) Unless and until there is additional rulemaking pursuant 
to the requirements of this section, the Secretary shall apply 
the provisions of the interim final rule of October 3, 2000, 
concerning hazard communication, in lieu of the final rule of 
June 21, 2002, concerning hazard communication.

           *       *       *       *       *       *       *


             inspections, investigations, and recordkeeping

    Sec. 103. (a) Authorized representatives of the Secretary 
or the Secretary of Health, Education, and Welfare shall make 
frequent inspections and investigations in coal or other mines 
each year for the purpose of (1) obtaining, utilizing, and 
disseminating information relating to health and safety 
conditions, the causes of accidents, and the causes of diseases 
and physical impairments originating in such mines, (2) 
gathering information with respect to mandatory health or 
safety standards, (3) determining whether an imminent danger 
exists, and (4) determining whether there is compliance with 
the mandatory health or safety standards or with any citation, 
order, or decision issued under this title or other 
requirements of this Act. In carrying out the requirements of 
this subsection, no advance notice of an inspection shall be 
provided to any person, except that in carrying out the 
requirements of clauses (1) and (2) of this subsection, the 
Secretary of Health, Education, and Welfare may give advance 
notice of inspections. In carrying out the requirements of 
clauses (3) and (4) of this subsection, the Secretary shall 
make inspections of each underground coal or other mine in its 
entirety at least four times a year, and of each surface coal 
or other mine in its entirety at least two times a year. The 
Secretary shall develop guidelines for additional inspections 
of mines based on criteria including, but not limited to, the 
hazards found in mines subject to this Act, and his experience 
under this Act and other health and safety laws. For the 
purpose of making any inspection or investigation under this 
Act, the Secretary, or the Secretary of Health, Education, and 
Welfare, with respect to fulfilling his responsibilities under 
this Act, or any authorized representative of the Secretary or 
the Secretary of Health, Education, and Welfare, shall have a 
right of entry to, upon, or through any coal or other mine. No 
person shall limit or otherwise prevent the Secretary from 
entry on a coal or other mine, or interfere with the 
Secretary's inspection activities, investigative activities, or 
rescue or recovery activities.
    (b)(1) For all accident and incident investigations under 
this Act, the Secretary shall determine why the accident or 
incident occurred; determine whether civil or criminal 
requirements were violated and, if so, issue citations and 
penalties, and make recommendations to avoid any recurrence. 
The Secretary shall also determine whether the conduct or lack 
thereof by Agency personnel contributed to the accident or 
incident.
  (2)(A) For any accidents or incidents involving multiple 
serious injuries or deaths, or multiple entrapments, there 
shall also be an independent investigation to consider why the 
accident or incident occurred, make recommendations to avoid a 
recurrence, and determine whether the conduct or lack thereof 
by agency personnel contributed to the accident or incident.
  (B) Not later than 30 days after the date of enactment of the 
S-MINER Act, the Secretary shall initiate rulemaking activity 
to establish rules on the procedures that will be used to 
investigate accidents and incidents involving multiple serious 
injuries or deaths, or multiple entrapments, and shall directly 
contact and solicit the participation of
          (i) individuals identified by the Secretary as family 
        members of miners who perished in mining accidents of 
        any type during the preceding 10-year period;
          (ii) organizations representing miners;
          (iii) mine rescue teams;
          (iv) Federal, State, and local investigation and 
        prosecutorial authorities; and
          (v) others whom the Secretary determines may have 
        information relevant to this rulemaking.
Such rulemaking shall be completed by October 1, 2008.
  (C) The rules for the investigation of accidents or incidents 
involving multiple serious injuries or deaths, or multiple 
entrapments, shall provide for the appointment and operations 
of any such independent investigation team in accordance with 
the requirements of this paragraph. An independent 
investigation team shall be appointed by the Director of the 
National Institute for Occupational Safety and Health as soon 
as possible after a qualifying accident or incident. The 
members shall consist of:
          (i) a representative from the National Institute for 
        Occupational Safety and Health who shall serve as the 
        Chairman;
          (ii) a representative of mine operators with 
        familiarity with the type of mining involved;
          (iii) a representative of mine workers with 
        familiarity with the type of mining involved, who shall 
        be the workers' certified bargaining representative at 
        the mine or, if there is no certified representative at 
        the mine, then a workers' representative jointly 
        selected by organized labor organizations:
          (iv) an academic with expertise in mining; and
          (v) a representative of the State in which the 
        accident or incident occurred to be selected by the 
        Governor.
  (D) Such rules shall include procedures to ensure that the 
Secretary will be able to cooperate fully with the independent 
investigation team and will use the powers of the Secretary 
under this section to help obtain information and witnesses 
required by the independent investigation team, procedures to 
ensure witnesses are not coerced and to avoid conflicts of 
interest in witness representation, procedures to ensure 
confidentiality if requested by any witness, and procedures to 
enable the independent investigation team to conduct such 
public hearings as it deems appropriate. Such rules shall also 
require that upon completion of any accident or incident 
investigation of accidents or incidents involving multiple 
serious injuries or deaths, or multiple entrapments, the 
independent investigation team shall--
          (i) issue findings as to the actions or inactions 
        which resulted in the accident or incident;
          (ii) make recommendations as to policy, regulatory, 
        enforcement or other changes, including statutory 
        changes, which in the judgment of the independent 
        investigation team would best prevent a recurrence of 
        such actions or inactions at other mines; and
          (iii) promptly make all such findings and 
        recommendations public (except findings and 
        recommendations that must be temporarily withheld in 
        connection with a criminal referral), including 
        appropriate public hearings to inform the mining 
        community of their respective findings and 
        recommendations.
  (E) As part of the Secretary's annual report to Congress 
pursuant to section 511(a), the Secretary shall report on 
implementation of recommendations issued by any independent 
investigation teams in the preceding 5 years.
[For the purpose of making any investigation of any accident or 
other occurrence relating to health or safety in a coal or 
other mine, the Secretary may, after notice, hold public 
hearings, and may sign and issue subpoenas for the attendance 
and testimony of witnesses and the production of relevant 
papers, books and documents, and administer oaths.]
  (3) For the purpose of enabling the Secretary to perform the 
functions under this Act, the Secretary may, after notice, hold 
public hearings and sign and issue subpoenas for the attendance 
and testimony of witnesses and the production of information, 
including but not limited to relevant data, papers, books, 
documents and items of physical evidence, and administer oaths, 
whether or not in connection with a public hearing. Witnesses 
summoned shall be paid the same fees and mileage that are paid 
witnesses in the courts of the United States. In case of 
contumacy or refusal to obey a subpoena served upon any person 
under this section, the district court of the United States. In 
case of contumacy or refusal to obey a subpoena served upon any 
person under this section, the district court of the United 
States for any district in which such person is found or 
resides or transacts business, upon application by the United 
States and after notice to such person, shall have jurisdiction 
to issue an order requiring such person to appear and give 
testimony before the Secretary or to appear and produce 
[documents] information, including data, papers, books, 
documents, and items of physical evidence before the Secretary, 
or both, and any failure to obey such order of the court may be 
punished by such court as a contempt thereof.
  (4) Nothing in this Act shall be construed to limit the 
authority of the Chemical Safety and Hazard Investigation Board 
to conduct an independent investigation of the accident or 
incident or the events or factors resulting therein, nor with 
the authority of the Office of the Inspector General to conduct 
an investigation of the conduct of DOL personnel in connection 
with an accident or incident or the events or factors resulting 
therein, and the Secretary shall cooperate in full with any 
such investigation. Such investigation shall be in addition to 
any investigation authorized by section 103(b).

           *       *       *       *       *       *       *

    (f) Subject to regulations issued by the Secretary, a 
representative of the operator and a representative authorized 
by his miners shall be given an opportunity to accompany the 
Secretary of his authorized representative during the physical 
inspection of any coal or other mine made pursuant to the 
provisions of subsection (a), for the purpose of aiding such 
inspection and to participate in pre- or post-inspection 
conferences held at the mine, and to participate in any 
accident investigation pursuant to the requirements of this 
Act. Any family member of a miner trapped or otherwise unable 
to execute a designation of a miner representative on his or 
her own behalf may do so on behalf of the miner for any and all 
purposes. Where there is no authorized miner representative, 
the Secretary or his authorized representative shall consult 
with a reasonable number of miners concerning matters of health 
and safety in such mine. Such representative of miners who is 
also an employee of the operator shall suffer no loss of pay 
during the period of his participation in the inspection made 
under this subsection. To the extent that the Secretary or 
authorized representative of the Secretary determines that more 
than one representative from each party would further aid the 
inspection, he can permit each party to have an equal number of 
such additional representatives. However, only one such 
representative of miners who is an employee of the operator 
shall be entitled to suffer no loss of pay during the period of 
such participation under the provisions of this subsection. 
Compliance with this subsection shall not be a jurisdictional 
prerequisite to the enforcement of any provision of this Act.

           *       *       *       *       *       *       *

    (h) In addition to such records as are specifically 
required by this Act, every operator of a coal or other mine 
shall establish and maintain such records, make such reports, 
and provide such [information] data, papers, books, documents, 
and items of physical evidence, as the Secretary or the 
Secretary of Health, Education, and Welfare may reasonably 
require from time to time to enable him to perform his 
functions under this Act. The Secretary or the Secretary of 
Health, Education, and Welfare is authorized to compile, 
analyze, and publish, either in summary or detailed form, such 
reports or information so obtained. Except to the extent 
otherwise specifically provided by this Act, all records, 
information, reports, findings, citations, notices, orders, or 
decisions required or issued pursuant to or under this Act may 
be published from time to time, may be released to any 
interested person, and shall be made available for public 
inspection.

           *       *       *       *       *       *       *

    (j) In the event of any accident or reportable event 
occurring in any coal or other mine, the operator shall notify 
the Secretary thereof and shall take appropriate measures to 
prevent the destruction of any evidence which would assist in 
investigating the cause or causes thereof. For purposes of the 
preceding sentence, the notification of accidents required 
shall be provided by the operator within 15 minutes of the time 
at which the operator realizes that the death of an individual 
at the mine, or an injury or entrapment of an individual at the 
mine which has a reasonable potential to cause death, has 
occurred, or in the case of a reportable event that is not 
required to be reported as an accident, within 1 hour of the 
time at which the operator realizes that the event has 
occurred. In the event of any accident occurring in a coal or 
other mine, where rescue and recovery work is necessary, the 
Secretary or an authorized representative of the Secretary 
shall take whatever action he deems appropriate to protect the 
life of any person, and he may, if he deems it appropriate, 
supervise and direct the rescue and recovery activities in such 
mine. For the purposes of this subsection, a reportable event 
shall include--
          (1) a fire not required to be reported more promptly;
          (2) a sudden change in mine atmospheric conditions in 
        a sealed area;
          (3) a coal or rock outburst that causes the 
        withdrawal of miners; or
          (4) any other event, as determined in regulations 
        promulgated by the Secretary, that needs to be reported 
        within 1 hour in order for the Secretary to determine 
        if the working conditions in the mine are safe.
If the representative of the Secretary supervises and directs 
the rescue and recovery activities in such mine, the operator 
shall comply with the requests of the authorized representative 
of the Secretary to facilitate rescue and recovery activities 
including the provision of all equipment, personnel, and other 
resources required to perform such activities in accordance 
with the schedule and requirements established by the 
representative of the Secretary for this purpose, and failure 
of the operator to comply in this regard shall be considered an 
egregious violation of this Act.
    (k) In the event of any accident occurring in a coal or 
other mine, an authorized representative of the Secretary[, 
when present,] may issue such orders as he deems appropriate to 
insure the safety of any person in the coal or other mine, and 
the operator of such mine shall obtain the approval of such 
representative, in consultation with appropriate State 
representatives, when feasible, of any plan to recover any 
person in such mine or to recover the coal or other mine or 
return affected areas of such mine to normal.
  (l) Rescue efforts for trapped miners shall not cease as long 
as there is any possibility that miners are alive, unless such 
efforts pose a serious danger to rescue or other workers, and 
the decision to cease a rescue shall be made by the Secretary's 
representative. Thereafter, efforts to recover the remains of 
miners shall continue unless such efforts pose a serious danger 
to recovery workers, and the decision to cease such recovery 
efforts shall be made by the Secretary's representative.

                          citations and orders

    Sec. 104. (a) * * *
    (b)(1) An operator issued a citation pursuant to subsection 
(a) shall notify the Secretary that the operator has abated the 
violation involved. If such operator fails to provide such a 
notice to the Secretary within the abatement time as provided 
for in the citation, the Secretary shall issue an order that 
requires the operator (or the agent of the operator) to 
immediately cause all persons, except those persons referred to 
in subsection (c), to be withdrawn from, and to be prohibited 
from entering, such area as the Secretary determines until an 
authorized representative of the Secretary determines that such 
violation has been abated. Notwithstanding any operator notice, 
no violation shall be determined to be abated until an 
authorized representative of the Secretary visits the site and 
determines such violation has been fully abated. [If,]
  (2) If, upon any follow-up inspection of a coal or other 
mine, an authorized representative of the Secretary finds [(1)] 
(A) that a violation described in a citation issued pursuant to 
subsection (a) has not been totally abated within the period of 
time as originally fixed therein or as subsequently extended, 
and [(2)] (B) that the period of time for the abatement should 
not be further extended, he shall determine the extent of the 
area affected by the violation and shall promptly issue an 
order requiring the operator of such mine or his agent to 
immediately cause all persons, except those persons referred to 
in subsection (c), to be withdrawn from, and to be prohibited 
from entering, such area until an authorized representative of 
the Secretary determines that such violation has been abated.

           *       *       *       *       *       *       *

    (d)(1) If, upon any inspection of a coal or other mine, an 
authorized representative of the Secretary finds that there has 
been a violation of any mandatory health or safety standard or 
any provision of this Act, and if he also finds that, [while 
the conditions created by such violation do not cause imminent 
danger,] such violation is of such nature as could 
significantly and substantially contribute to the cause and 
effect of a coal or other mine safety or health hazard, and if 
he finds such violation to be caused by an unwarrantable 
failure of such operator to comply with such mandatory health 
or safety standards or any provision of this Act, he shall 
include such finding in any citation given to the operator 
under this Act. If, during the same inspection or any 
subsequent inspection of such mine within 90 days after the 
issuance of such citation, an authorized representative of the 
Secretary finds another violation of any mandatory health or 
safety standard or any provision of this Act and finds such 
violation to be also caused by an unwarrantable failure of such 
operator to so comply, he shall forthwith issue an order 
requiring the operator to cause all persons in the area 
affected by such violation, except those persons referred to in 
subsection (c) to be withdrawn from, and to be prohibited from 
entering, such area until an authorized representative of the 
Secretary determines that such violation has been abated.

           *       *       *       *       *       *       *

    (e)(1) If an operator has a pattern of violations of 
mandatory health or safety standards or any provision of this 
Act in the coal or other mine which are of such nature as could 
have significantly and substantially contributed to the cause 
and effect of coal or other mine health or safety hazards, he 
shall be given written notice that such pattern exists. In 
determining whether a pattern of violations exists, the 
Secretary shall give due consideration to all relevant 
information, such as the gravity of the violations, operator 
negligence, history of violations, the number of inspection 
shifts the Secretary or her agents have spent at the operation, 
and the frequency of violations per number of inspection days 
spent at the operation. If, upon any inspection within 90 days 
after the issuance of such notice, an authorized representative 
of the Secretary finds any violation of a mandatory health or 
safety standard or any provision of this Act which could 
significantly and substantially contribute to the cause and 
effect of a coal or other mine safety or health hazard, the 
authorized representative shall issue an order requiring the 
operator to cause all persons in the area affected by such 
violation, except those persons referred to in subsection (c), 
to be withdrawn from, and to be prohibited from entering, such 
area until an authorized representative of the Secretary 
determines that such violation has been abated.
    (2) If a withdrawal order with respect to any area in a 
coal or other mine has been issued pursuant to paragraph (1), a 
withdrawal order shall be issued by an authorized 
representative of the Secretary who finds upon any subsequent 
inspection the existence in such mine of any violation of a 
mandatory health or safety standard or any provision of this 
Act which could significantly and substantially contribute to 
the cause and effect of a coal or other mine health or safety 
hazard. The withdrawal order shall remain in effect until an 
authorized representative of the Secretary determines that such 
violation has been abated.
    (3) If, upon an inspection of the entire coal or other 
mine, an authorized representative of the Secretary finds no 
violations of mandatory health or safety standards or any 
provision of this Act that could significantly and 
substantially contribute to the cause and effect of a coal or 
other mine health and safety hazard, the pattern of violations 
that resulted in the issuance of a notice under paragraph (1) 
shall be deemed to be terminated and the provisions of 
paragraphs (1) and (2) shall no longer apply. However, if as a 
result of subsequent violations, the operator reestablishes a 
pattern of violations, paragraphs (1) and (2) shall again be 
applicable to such operator. In addition, if an operator 
subject to paragraphs (1) and (2) demonstrates objective 
evidence that they are correcting the problems that gave rise 
to the pattern of violations, and the violation frequency rate 
for such operator declines significantly for a period of 180 
days, the withdrawal order provisions of paragraphs (1) and (2) 
shall no longer apply.
    (4) The Secretary shall make such rules as he deems 
necessary to establish criteria for determining when a pattern 
of violations of mandatory health or safety standards or any 
provision of this Act exists.

           *       *       *       *       *       *       *


                       procedure for enforcement

    Sec. 105. (a) If, after an inspection or investigation, the 
Secretary issues a citation or order under section 104, he 
shall[, within a reasonable time after the termination of such 
inspection or investigation,] notify the operator by certified 
mail of the civil penalty proposed to be assessed under section 
110(a) for the violation cited and that the operator has 30 
days within which to notify the Secretary that he wishes to 
contest the citation or proposed assessment of penalty. A copy 
of such notification shall be sent by mail to the 
representative of miners in such mine. [If, within 30 days from 
the receipt of the notification issued by the Secretary, the 
operator fails to notify the Secretary that he intends to 
contest the citation or the proposed assessment of penalty, and 
no notice is filed by any miner or representative of miners 
under subsection (d) of this section within such time, the 
citation and the proposed assessment of penalty shall be deemed 
a final order of the Commission and not subject to review by 
any court or agency.] The operator shall, not later than 30 
days from the receipt of the notification of a citation issued 
by the Secretary, notify the Secretary that the operator 
intends to contest the citation or proposed assessment of a 
penalty, and the operator shall place in escrow with the 
Secretary the amount of the proposed assessment. The Secretary 
shall place any escrow submitted by a mine operator for this 
purpose into an interest bearing account and shall release the 
funds to the operator, including interest accrued, upon the 
payment of any final assessment determination. If notification 
and proof of escrow is not provided to the Secretary, the 
citation and the proposed assessment of penalty shall be deemed 
a final order of the Commission and not subject to review by 
any court or agency. In the event that a mine operator refuses 
to comply with a final order of the Commission to pay civil 
monetary penalties and statutory interest, the Secretary shall 
have the authority to issue an order requiring the mine 
operator to cease production under such final orders of the 
Commission have been paid in full. Refusal by the operator or 
his agent to accept certified mail containing a citation and 
proposed assessment of penalty under this subsection shall 
constitute thereof within the meaning of this subsection.
    (b)(1)(A) * * *
    (B) In determining whether to propose a penalty to be 
assessed under section 110(b), the Secretary shall consider the 
operator's history of previous violations, the appropriateness 
of such penalty to [the size of the business of the operator 
charged] the combined size of the business of the operator and 
any controlling entity, whether the operator was negligent, 
[the effect on the operator's ability to continue in business,] 
the gravity of the violation, and the demonstrated good faith 
of the operator charged in attempting to achieve rapid 
compliance after notification of a violation. In settling 
cases, the Secretary shall utilize the same point system as 
that utilized to propose penalties, so as to ensure consistency 
in operator penalty assessments.

           *       *       *       *       *       *       *

    (c)(1) No person shall discharge or in any manner 
discriminate against or cause to be discharged or cause 
discrimination against or otherwise interfere with the exercise 
of the statutory rights of any miner, representative of miners 
or applicant for employment in any coal or other mine subject 
to this Act because such miner, representative of miners or 
applicant for employment has filed or made a complaint under or 
related to this Act, including a complaint notifying the 
operator or the operator's agent, or the representative of the 
miners at the coal or other mine of an alleged danger or safety 
or health violation in a coal or other mine, or an injury or 
illness in a coal or other mine or that may be associated with 
mine employment, or because such miner, representative of 
miners or applicant for employment is the subject of medical 
evaluations and potential transfer under a standard published 
pursuant to section 101 or because such miner, representative 
of miners or applicant for employment has instituted or caused 
to be instituted any proceeding under or related to this Act or 
has testified or is about to testify in any such preoceeding, 
or because of the exercise by such miner, representative of 
miners or applicant for employment on behalf of himself or 
others of any statutory right afforded by this Act. No miner 
shall be required to work under conditions he has reasonable 
grounds to believe to be abnormally and immediately dangerous 
to himself beyond the normal hazards inherent in the operation 
which could reasonably be expected to cause death of serious 
physical harm before such condition or practice can be abated.
    (2) Any miner or applicant for employment or representative 
of miners who believes that he has been discharged, interfered 
with, or otherwise discriminated against by any person in 
violation of this subsection may, within 60 days after such 
violation occurs, file a complaint with the Secretary alleging 
such discrimination. Upon receipt of such complaint, the 
Secretary shall forward a copy of the complaint to the 
respondent and shall cause such investigation to be made as he 
deems appropriate. Such investigation shall commence within 15 
days of the Secretary's receipt of the complaint, and if the 
Secretary finds that such complaint was not frivolously 
brought, the Commission, on an expedited basis upon application 
of the Secretary, shall order the immediate reinstatement of 
the miner pending final order on the complaint. If upon such 
investigation, the Secretary determines that the provisions of 
this subsection have been violated, he shall immediately file a 
complaint with the Commission, with service upon the alleged 
violator and the miner, applicant for employment, or 
representative of miners alleging such discrimination or 
interference and propose an order granting appropriate relief. 
The Commission shall afford an opportunity for a hearing (in 
accordance with section 554 of title 5, United States Code, but 
without regard to subsection (a)(3) of such section) and 
thereafter shall issue an order, based upon findings of fact, 
affirming, modifying, or vacating the Secretary's proposed 
order, or directing other appropriate relief. No investigation 
or hearing authorized by this paragraph may be stayed to await 
resolution of a related grievance proceeding. Such order shall 
become final 30 days after its issuance. The Commission shall 
have authority in such proceedings to require a person 
committing a violation of this subsection to take such 
affirmative action to abate the violation as the Commission 
deems appropriate, including, but not limited to, the rehiring 
or reinstatement of the miner to his former position with back 
pay and interest. The complaining miner, applicant, or 
representative of miners may persent additional evidence on his 
own behalf during any hearing held pursuant to this paragraph.

           *       *       *       *       *       *       *

  (e) Attorneys representing the Secretary are authorized to 
contact any miner or non-managerial employee of a mine operator 
for the purposes of carrying out the Secretary's functions 
under this Act and no attorney representing the Secretary shall 
be disbarred or disciplined by any State bar or State court for 
making such contacts. No attorney representing a mine operator 
in a matter under this Act may concurrently represent 
individual miners in the same matter.

           *       *       *       *       *       *       *


             procedures to counteract dangerous conditions

    Sec.  107. (a) If, upon any inspection or investigation of 
a coal or other mine which is subject to this Act, an 
authorized representative of the Secretary finds that an 
imminent danger exists, such representative shall determine the 
extent of the area of such mine throughout which the danger 
exists, and issue an order requiring the operator of such mine 
to cause all persons, except those referred to in section 
104(c), to be withdrawn from, and to be prohibited from 
entering, such area until an authorized representative of the 
Secretary determines that such imminent danger and the 
conditions or practices which caused such immiment danger no 
longer exist. In addition, in the event of any violation of 
section 315 or section 316, or regulations issued pursuant to 
such sections, such representative shall determine the extent 
of the area of such mine throughout which the danger exists and 
issue an order requiring the operator of such mine to cause all 
persons, except those referred to in section 104(c), to be 
withdrawn from, and to be prohibited from entering, such area 
until an authorized representative of the Secretary determines 
that the violations have been abated. The issuance of an order 
under this subsection shall not preclude the issuance of a 
citation under section 104 or the proposing of a penalty under 
section 110.

           *       *       *       *       *       *       *


                               penalties

    Sec. 110. (a)(1) The operator of a coal or other mine in 
which a violation occurs of a mandatory health or safety 
standard or who violates any other provisions of this Act, 
shall be assessed a civil penalty by the Secretary which 
penalty shall not be [more than $50,000 for each such 
violation.] less than $500 or more than $100,000 for each such 
violation, except that, in the case of a violation of a 
mandatory health or safety standard that could significantly 
and substantially contribute to the cause and effect of a coal 
or other mine health or safety hazard, the penalty shall not be 
less than $1,000 or more than $150,000, for each such 
violation. Each occurrence of a violation of a mandatory health 
or safety standard may constitute a separate offense.

           *       *       *       *       *       *       *

    (b)(1) * * *
  (2) Violations [under] of subsections (a) through (h) of this 
section that are deemed to be flagrant may be assessed a civil 
penalty of not more than $220,000. For purposes of the 
preceding sentence, the term `flagrant' with respect to a 
violation means a reckless or repeated failure to make 
reasonable efforts to eliminate a known violation of a 
mandatory health or safety standard that substantially and 
proximately caused, or reasonably could have been expected to 
cause, death or serious bodily injury.
    (c) [Whenever a corporate operator] Whenever a mine 
operator violates a mandatory health or [safety standard] 
safety standard or requirement of this Act or knowingly 
violates or fails or refuses to comply with any order issued 
under this Act or any order incorporated in a final decision 
issued under this Act, except an order incorporated in a 
decision issued under subsection (a) section 105(c), any 
director, partner, owner, officer, or agent of [such 
corporation] such mine operator who knowingly authorized, 
ordered, or carried out such violation, failure, or refusal 
shall be subject to the same civil penalties, fines, and 
imprisonment that may be imposed upon a person under 
subsections (a) and (d).

           *       *       *       *       *       *       *

  (i)(1) If the Secretary determines that a pattern of 
violations under section 104(e) exists, the Secretary shall 
assess a penalty, in addition to any other penalty authorized 
in this Act for a violation of such section, of not less than 
$50,000 nor more than $250,000. All operators of the mine, 
including any corporate owners, shall be jointly and severally 
liable for such penalty. The amount of the assessment under 
this paragraph shall be designed to ensure a change in the 
future conduct of the operators and corporate owners of such 
mine with respect to mine safety and health, given the overall 
resources of such operators. Notwithstanding subsection (k) or 
section 113, a penalty assessed by the Secretary under this 
paragraph may not be reduced by the Commission.
  (2) In addition to the authority to withdraw miners from an 
area of a coal or other mine pursuant to section 104(e), the 
Secretary shall withdraw all miners from the entire mine when 
any pattern of violations has been determined to exist until 
such time as the Secretary certifies that all identified 
violations have been corrected and the operator has agreed to 
abide by a written plan approved by the Mine Safety and Health 
Administration to ensure that such a pattern of conduct will 
not recur.
    [(i)] (j) The Commission shall have authority to assess all 
civil penalties provided in this Act. In assessing civil 
monetary penalties, the Commission shall consider the 
operator's history of previous violations, the appropriateness 
of such penalty to [the size of the business of the operator 
charged] the combined size of the business of the operator and 
any controlling entity, whether the operator was negligent, 
[the effect on the operator's ability to continue in business,] 
the gravity of the violation, and the demonstrated good faith 
of the person charged in attempting to achieve rapid compliance 
after notification of a violation. In proposing civil penalties 
under this Act, the Secretary may rely upon a summary review of 
the information available to him and shall not be required to 
make findings of fact concerning the above factors. In any 
review requested by a mine operator, or in settling cases, the 
Commission shall utilize the same point system as that 
developed by the Secretary for proposed assessments so as to 
ensure consistency in operator penalty assessments.
    [(j)] (k) Civil penalties owed under this Act shall be paid 
to the Secretary for deposit into the Treasury of the United 
States and shall accrue to the United States and may be 
recovered in a civil action in the name of the United States 
brought in the United States district court for the district 
where the violation occurred or where the operator has its 
principal office. Interest at the rate of 8 percent per annum 
shall be charged against a person on any final order of the 
Commission, or the court. Interest shall begin to accrue 30 
days after the issuance of such order.
    [(k)] (l) No proposed penalty which has been contested 
before the Commission under section 105(a) shall be 
compromised, mitigated, or settled except with the approval of 
the Commission. No penalty assessment which has become a final 
order of the Commission shall be compromised, mitigated, or 
settled except with the approval of the court.
    [(l)] (m) The provisions of this section shall not be 
applicable with respect to title IV of this Act.
  (n) Civil Penalty for Interference or Discrimination.--Any 
operator who is found to be in violation of section 105(c), or 
in violation of section 103(a) (as amended by this Act) shall 
be subject to a civil penalty of not less than $10,000 nor more 
than $100,000 for each occurrence of such violation.

           *       *       *       *       *       *       *


                  mandatory health and safety training

    Sec. 115. (a) * * *

           *       *       *       *       *       *       *

    (e)(1) * * *
  (2)(A) * * *
  (B) Such regulations shall provide for the following:
          (i) * * *

           *       *       *       *       *       *       *

          (v) The provision of uniform credentials to mine 
        rescue team members, support personnel, or vehicles for 
        immediate access to any mine site.
          (vi) The plans required at each mine to ensure 
        coordination with local emergency response personnel 
        and to ensure that such personnel receive adequate 
        training to offer necessary assistance to mine rescue 
        teams in the event such assistance is requested. Such 
        local emergency response personnel shall not perform 
        the duties of any mine rescue team.
          (vii) Requirements to ensure that operators are 
        prepared to facilitate the work of mine rescue teams 
        during an emergency by--
                  (I) storing necessary equipment not brought 
                on site by mine rescue teams in locations 
                readily accessible to mine rescue teams;
                  (II) providing mine rescue teams with a 
                parking and staging area adequate for their 
                needs;
                  (III) identifying a space appropriate for 
                coordinating emergency communications with the 
                mine rescue team; and
                  (IV) identifying and maintaining separate 
                spaces for family members, community members, 
                and press to assemble during an emergency so as 
                to facilitate communications with these groups 
                while ensuring the efforts of the mine rescue 
                teams are not hindered.

           *       *       *       *       *       *       *


SEC. 117. EMERGENCY PREPAREDNESS PLAN.

  Not later than 6 months of the enactment of the S-MINER Act, 
the Secretary shall establish and disseminate guidelines for 
rescue operations that will: (1) establish clear lines of 
authority within the agency for such operations; (2) establish 
clear lines of demarcation so private sector and State 
responders can properly implement their responsibilities; (3) 
be appropriate for rescue in various types of conditions 
reasonably likely to be encountered in the United States, 
including such factors as the depth of the mining, ground 
stability, ground slope, remoteness from major roads, surface 
ownership and access problems, and the availability of 
necessary communications linkages. The Secretary shall consult 
with States, rescue teams and other responders in developing 
such guidelines, and shall update them from time to time based 
upon experience.

SEC. 118. FAMILY LIAISONS REQUIREMENT.

  The Secretary shall--
          (1) designate a full-time permanent employee of the 
        Mine Safety and Health Administration to serve as a 
        Family Liaison, who shall, at least in instances where 
        multiple miners are trapped, severely injured or 
        killed, act as the primary communication with the 
        families of the miners concerning all aspects of the 
        rescue operations, including the location or condition 
        of miners, and assist the families in getting answers 
        to their questions, and otherwise serve as a liaison to 
        the families, and provide for the temporary 
        reassignment of other personnel who may be required to 
        assist the Family Liaison in connection with a 
        particular incident;
          (2) require the Mine Safety and Health Administration 
        to be as responsive as possible to requests from the 
        families of such miners for information relating to the 
        mine accident, and waive any fees required for the 
        production of documents pursuant to 5 U.S.C. 552(a)(3) 
        in connection with a request from a family member, or 
        authorized representative of miners, for documents 
        relating to a mine fatality, notwithstanding any 
        conditions for fee waivers law that may otherwise be 
        imposed by law; and
          (3) designate a highly qualified representative of 
        the Secretary with experience in public communications 
        to be present at mine accident sites where rescues are 
        in progress during the entire duration of such rescues, 
        to serve as the primary communicator with the press and 
        the public concerning all aspects of the rescue 
        operations, including the location or condition of 
        miners.

           *       *       *       *       *       *       *


TITLE II--INTERIM MANDATORY HEALTH STANDARDS

           *       *       *       *       *       *       *


                [dust standard and respiratory equipment

    [Sec. 202. (a) Each operator of a coal mine shall take 
accurate samples of the amount of respirable dust in the mine 
atmosphere to which each miner in the active workings of such 
mine is exposed. Such samples shall be taken by any device 
approved by the Secretary and the Secretary of Health, 
Education, and Welfare and in accordance with such methods, at 
such locations, at such intervals, and in such manner as the 
Secretaries shall prescribe in the Federal Register within 
sixty days from the date of enactment of this Act and from time 
to time thereafter. Such samples shall be transmitted to the 
Secretary in a manner established by him, and analyzed and 
recorded by him in a manner that will assure application of the 
provisions of section 104(i) of this Act when the applicable 
limit on the concentration of respirable dust required to be 
maintained under this section is exceeded. The results of such 
samples shall also be made available to the operator. Each 
operator shall report and certify to the Secretary at such 
intervals as the Secretary may require as to the conditions in 
the active workings of the coal mine including, but not limited 
to, the average number of working hours worked during each 
shift, the quantity and velocity of air regularly reaching the 
working faces, the method of mining, the amount and pressure of 
the water, if any, reaching the working faces, and the number, 
location, and type of sprays, if any, used.
    [(b) Except as otherwise provided in this subsection--
          [(1) Effective on the operative date of this title, 
        each operator shall continuously maintain the average 
        concentration of respirable dust in the mine atmosphere 
        during each shift to which each miner in the active 
        workings of such mine is exposed at or below 3.0 
        milligrams of respirable dust per cubic meter of air.
          [(2) Effective three years after the date of 
        enactment of this Act, each operator shall continuously 
        maintain the average concentration of respirable dust 
        in the mine atmosphere during each shift to which each 
        miner in the active workings of such mine is exposed at 
        or below 2.0 milligrams of respirable dust per cubic 
        meter of air.
          [(3) Any operator who determines that he will be 
        unable, using available technology, to comply with the 
        provisions of paragraph (1) of this subsection, or the 
        provisions of paragraph (2) of this subsection, as 
        appropriate, may file with the Panel, no later than 
        sixty days prior to the effective date of the 
        applicable respirable dust standard established by such 
        paragraphs, an application for a permit for 
        noncompliance. If, in the case of an application for a 
        permit for noncompliance with the 3.0 milligram 
        standard established by paragraph (1) of this 
        subsection, the application satisfies the requirements 
        of subsection (c) of this section, the Panel shall 
        issue a permit for noncompliance to the operator. If, 
        in the case of an application for a permit for 
        noncompliance with the 2.0 milligram standard 
        established by paragraph (2) of this subsection, the 
        application satisfies the requirements of subsection 
        (c) of this section and the Panel determines that the 
        applicant will be unable to comply with such standard, 
        the Panel shall issue to the operator a permit for 
        noncompliance.
          [(4) In any case in which an operator, who has been 
        issued a permit (inluding a renewal permit) for 
        noncompliance under this section, determines, not more 
        than ninety days prior to the expiration date of such 
        permit, that he still is unable to comply with the 
        standard established by paragraph (1) of this 
        subsection or the standard established by paragraph (2) 
        of this subsection, as appropriate, he may file with 
        the Panel an application for renewal of the permit. 
        Upon receipt of such application, the Panel, if it 
        determines, after all interested persons have been 
        notified and given an opportunity for a public hearing 
        under section 5 of this Act, that the application is in 
        compliance with the provisions of subsection (c) of 
        this section, and that the applicant will be unable to 
        comply with such standard, may renew the permit.
          [(5) Any such permit or renewal thereof so issued 
        shall be in effect for a period not to exceed one year 
        and shall entitle the permittee during such period to 
        maintain continuously the average concentration of 
        respirable dust in the mine atmosphere during each 
        shift in the working places of such mine to which the 
        permit applies at a level specified by the Panel, which 
        shall be at the lowest level which the application 
        shows the conditions, techology applicable to such 
        mine, and other available and effective control 
        techniques and methods will permit, but in no event 
        shall such level exceed 4.5 milligrams of dust per 
        cubic meter of air during the period when the 3.0 
        milligram standard is in effect, or 3.0 milligrams of 
        dust per cubic meter of air during the period when the 
        2.0 milligram standard is in effect.
          [(6) No permit or renewal thereof for noncompliance 
        shall entitle any operator to an extension of time 
        beyond eighteen months from the date of enactment of 
        this Act to comply with the 3.0 milligram standard 
        established by paragraph (1) of this subsection, or 
        beyond seventy-two months from the date of enactment of 
        this Act to comply with the 2.0 milligram standard 
        established by paragraph (2) of this subsection.
    [(c) Any application for an initial or renewal permit made 
pursuant ot this section shall contain--
          [(1) a representation by the applicant and the 
        engineer conducting the survey referred to in paragrah 
        (2) of this subsection that the applicant is unable to 
        comply with the standard applicable under subsection 
        (b)(1) or (b)(2) of this section at specified working 
        places because the technology for reducing the 
        concentration of respirable dust at such places is not 
        available, or because of the lack of other effective 
        control techniques or methods, or because of any 
        combination of such reasons;
          [(2) an identification of the working places in such 
        mine for which the permit is requested; the results of 
        an engineering survey by a certified engineer of the 
        respirable dust conditions of each working place of the 
        mine with respect to which such application is filed 
        and the ability to reduce such dust to the level 
        required to be maintained in such place under this 
        section; a description of the ventilation system of the 
        mine and its capacity; the quantity and velocity of air 
        regularly reaching the working faces; the method of 
        mining; the amount and pressure of the water, if any, 
        reaching the working faces; the number, location, and 
        type of sprays, if any; action taken to reduce such 
        dust; and such other information as the Panel may 
        require; and
          [(3) statements by the applicant and the engineer 
        conducting such survey, of the means and methods to be 
        employed to achieve compliance with the applicable 
        standard, the progress made toward achieving 
        compliance, and an estimate of when compliance can be 
        achieved.
    [(d) Beginning six months after the operative date of this 
title and from time to time thereafter, the Secretary of 
Health, Education, and Welfare shall establish, in accordance 
with the provisions of section 101 of this Act, a schedule 
reducing the average concentration of respirable dust in the 
mine atmosphere during each shift to which each miner in the 
active workings is exposed below the levels established in this 
section to a level of personal exposure which will prevent new 
incidences of respiratory disease and the further development 
of such disease in any person. Such schedule shall specify the 
minimum time necessary to achieve such levels taking into 
consideration present and future advancements in technology to 
reach these levels.
    [(e) References to concentrations of respirable dust inthis 
title mean the average concentration of respirable dust 
measured with a device approved by the Secretary and the 
Secretary of Health, Education, and Welfare.
    [(f) For the purpose of this title, the term ``average 
concentration'' means a determination which accurately 
represents the atmospheric conditions with regard to respirable 
dust to which each miner in the active workings of a mine is 
exposed (1) as measured, during the 18 month period following 
the date of enactment of this Act, over a number of continuous 
production shifts to be determined by the Secretary and the 
Secretary of Health, Education, and Welfare, and (2) as 
measured thereafter, over a single shift only, unless the 
Secretary and the Secretary of Health, Education, and Welfare 
find, in accordance with the provisions of section 101 of this 
Act, that such single shift measurement will not, after 
applying valid statistical techniques to such measurement, 
accurately represent such atmospheric conditions during such 
shift.
    [(g) The Secretary shall cause to be made such frequent 
spot inspections as he deems appropriate of the active workings 
of coal mines for the purpose of obtaining compliance with the 
provisions of this title.
    [(h) Respiratory equipment approved by the Secretary and 
the Secretary of Health, Education, and Welfare shall be made 
available to all persons whenever exposed to concentrations of 
respirable dust in excess of the levels required to be 
maintained under this Act. Use of respirators shall not be 
substituted for environmental control measures in the active 
workings. Each operator shall maintain a supply of respiratory 
equipment adequate to deal with occurrences of concentrations 
of respirable dust in the mine atmosphere in excess of the 
levels required to be maintained under this Act.]

SEC. 202. DUST STANDARD AND RESPIRATORY EQUIPMENT.

  (a)(1) Effective on the date of enactment of the S-MINER Act, 
each coal mine operator shall continuously maintain the 
concentration of respirable dust in the mine atmosphere during 
each shift to which each miner in the active workings of such 
mine is exposed at or below a time-weighted average of 1.00 
milligrams of respirable dust per cubic meter of air averaged 
over 10 hours or its dose-equivalent for shorter or longer 
period of time. For purposes of this paragraph, ``a dose-
equivalent'' means the amount of dust that a miner would inhale 
during his work shift as if he were working for 10 hours, and 
the term ``shift'' means portal-to-portal for underground coal 
mines and ``bank to bank'' for other coal mines.
  (2) At regular intervals to be prescribed by the Secretary 
and the Secretary of Health and Human Services, the Secretary 
will take accurate samples of the amount of respirable dust in 
the coal mine atmosphere to which each miner in the active 
workings of such mine is exposed in order to determine 
compliance with the requirements of paragraph (a)(1) of this 
section. In addition, the Secretary shall cause to be made such 
frequent spot inspections as he deems appropriate of the active 
workings of coal mines for the purpose of obtaining compliance 
with the provisions of this title. All samples by the Secretary 
shall be taken by a personal dust monitor that measures, 
records and displays in real time the concentration of 
respirable dust to which the miner wearing the device is 
exposed, and shall include the sampling of areas, occupations 
or persons. For the purposes of determining compliance with the 
exposure limit for respirable dust, only a single sample shall 
be required to determine non-compliance, and there shall be no 
adjustment for measurement error in the measured level of 
respirable dust.
  (3) At intervals established by the Secretary, each operator 
of a coal mine shall take accurate samples of the amount of 
respirable dust in the mine atmosphere to which each miner in 
the active workings of such mine is exposed to identify sources 
of exposure so that the operator can take corrective action and 
assure that the exposure of each mine is below the exposure 
limit. Under the provisions of this Act, all such samples shall 
be taken by a personal dust monitor that measures, records and 
displays the concentration of respirable dust to which the 
miner wearing the device is exposed, and may include samples of 
less than a full shift. The results of such sampling shall be 
transmitted to the Secretary in a manner established by him, 
and recorded by him in a manner that will assure application of 
the provisions of this section of the Act.
  (4) Each miner shall be equipped with a personal dust monitor 
that measures, records and displays in real time the 
concentration of respirable dust to which the miner wearing the 
device is exposed. Each miner shall be permitted to adjust his 
work activities whenever necessary to keep his exposure to 
respirable coal dust, as measured, recorded and displayed by 
such device, at all times at or below the permitted 
concentration.
  (b) Effective on the date of enactment of the S-MINER Act, 
each operator of a coal or other mine shall continuously 
maintain the concentration of respirable silica dust in the 
mine atmosphere during each shift to which each miner in the 
active workings of such mine is exposed at or below a time-
weighted average of 0.05 milligrams of respirable silica dust 
per cubic meter of air averaged over ten hours or its dose-
equivalent for shorter or longer period of time. For the 
purposes of this paragraph, compliance shall be determined by 
the sampling of areas, occupations or persons, only a single 
sample shall be required to determine non-compliance, and there 
shall be no adjustment for measurement error in the measured 
level of respirable silica dust. For the purposes of this 
paragraph, a ``dose-equivalent'' means the amount of dust that 
a miner would inhale during his work shift as if he were 
working for 10 hours, and the term ``shift'' means portal-to-
portal for underground mines and ``bank to bank'' for other 
mines.
  (c) Respiratory equipment approved by the Secretary and the 
Secretary of Health and Human Services shall be made available 
to all persons whenever exposed to concentrations of respirable 
dust or silica in excess of the levels required to be 
maintained under this section. Use of respirators shall not be 
substituted for environmental control measures in the active 
workings. Each operator shall maintain a supply of respiratory 
equipment adequate to deal with occurrences of concentrations 
of respirable dust and silica in the mine atmosphere in excess 
of the levels required to be maintained under this section.
  (d) Each operator shall report and certify to the Secretary 
at such intervals as the Secretary may require as to the 
conditions in the active workings of a coal mine, including, 
the average number of working hours worked during each shift, 
the quantity and velocity of air regularly reaching the working 
faces, the method of mining, the amount and pressure of the 
water, if any, reaching the working faces, and the number, 
location, and type of sprays, if any, used.

           *       *       *       *       *       *       *


                 [dust standard when quartz is present

    [Sec. 205. In coal mining operations where the 
concentration of respirable dust in the mine atmosphere of any 
working place contains more than 5 per centum quartz, the 
Secretary of Health, Education, and Welfare shall prescribe an 
appropriate formula for determining the applicable respirable 
dust standard under this title for such working place and the 
Secretary shall apply such formula in carrying out his duties 
under this title.]

           *       *       *       *       *       *       *


SEC. 207. APPLICATION TO UNDERGROUND METAL AND NONMETAL MINES.

  (a) Conveyor Belts.--The regulations to be issued pursuant to 
section 311(h) concerning conveyor belts shall also provide 
that all conveyor belts in use in underground metal and 
nonmetal mines are to be replaced, on the same schedule, with 
belts that can meet the flame resistance requirements 
recommended by the National Institute for Occupational Safety 
and Health, and which limit smoke and toxic emissions. Any 
conveyor belt installed in an underground metal or nonmetal 
mine after the date of enactment of the S-MINER Act shall meet 
such requirements.
  (b) Seals.--The regulations to be issued pursuant to section 
303(z)(2) concerning the approval, design, construction, 
inspection, maintenance and monitoring of underground coal mine 
seals shall make the same rules applicable to seals in 
underground metal and nonmetal mines which have been classified 
by the Secretary as a category I, III, or V mine pursuant to 
section 57.22003 of title 30, Code of Federal Regulations, 
because they naturally emit defined quantities of methane.
  (c) Advisory Committee.--Promptly after the date of enactment 
of the S-MINER Act The Secretary shall establish an advisory 
committee to provide recommendations as to the need to revise 
the regulations applicable to underground metal and nonmetal 
mines to ensure that miners in such mines are as protected in 
emergency situations as will be underground coal miners 
following the full implementation of the MINER Act, the 
provisions of the S-MINER Act, and related actions by the 
Secretary. The advisory committee shall be established pursuant 
to the Advisory Committee Act, and shall provide 
recommendations to the Secretary and to Congress not later than 
21 months after the date of enactment of this Act, including 
recommendations as to any action by Congress that could 
facilitate the goal of providing equivalent protections to 
miners in underground metal and nonmetal mines.

  TITLE III--INTERIM MANDATORY SAFETY STANDARDS FOR UNDERGROUND COAL 
MINES

           *       *       *       *       *       *       *


   [roof support] roof and rib support, barrier reduction and pillar 
              extraction, special attention to deep mining

    Sec. 302. (a) Each operator shall undertake to carry out on 
a continuing basis a program to improve the roof control system 
of each coal mine and the means and measures to accomplish such 
system. The roof and ribs of all active underground roadways, 
travelways, and working places shall be supported or otherwise 
controlled adequately to protect persons from falls of the roof 
or ribs. The Secretary shall by regulation ensure the 
appropriate use of roof screen in belt entries, travelroads, 
and designated intake and return escapeways in accordance with 
the requirements of subsection (g). A roof control plan and 
revisions thereof suitable to the roof conditions and mining 
system of each coal mine and approved by the Secretary shall be 
adopted and set out in printed form within sixty days after the 
operative date of this title. The plan shall show the type of 
support and spacing approved by the Secretary. Such plan shall 
be reviewed periodically, at least every six months by the 
Secretary, taking into consideration any falls of roof or ribs 
or inadequacy of support of roof or ribs. No person shall 
proceed beyond the last permanent support unless adequate 
temporary support is provided or unless such temporary support 
is not required under the approved roof control plan and the 
absence of such support will not pose a hazard to the miners. A 
copy of the plan shall be furnished the Secretary or his 
authorized representative and shall be available to the miners 
and their representatives.

           *       *       *       *       *       *       *

  (g) Where screening is required, at least forty percent of 
the width of the exposed roof shall be screened. Screening to 
meet the requirements of this section must have a load bearing 
capacity at least equivalent to a load of 2.5 tones between 
bolts on a 4 foot pattern.
  (h)(1) An operator shall be required to have a current and 
approved barrier reduction or pillar extraction plan, or both, 
before performing such activities. The Secretary shall only 
approve a barrier reduction or pillar extraction plan if it 
provides adequate protection and minimizes the risks for miners 
engaged in the activity, reflecting appropriate engineering 
analysis, computer simulations, and consultations with 
technical experts in the agency, in the National Institute for 
Occupational Safety and Health, and in the Bureau of Land 
Management for any mines leasing Federal coal resources, and 
only if the plan complies with any specific requirements that 
may be adopted by the Secretary for barrier reduction or pillar 
extraction activities including requirements related to the 
depth of the mine, geology of the mine, mine height and 
methods, and emergency response capabilities.
  (2) A copy of a proposed barrier reduction or pillar 
extraction plan, or both, shall be provided to the authorized 
representative of miners at least 10 days prior to submission 
to the Secretary for approval. The authorized representative of 
miners may provide comments to the Secretary who shall respond 
thereto.
  (3) The Secretary shall establish a special internal review 
process for operator plans to protect miners from the risks 
addressed by this section when working at depths of more than 
1500 feet and in other mines with a history of mountain bumps.
  (i) Not later than 1 week before the commencement of any 
barrier reduction or pillar extraction operations, the mine 
operator shall notify the appropriate representative of the 
Secretary of his intention to begin or resume barrier reduction 
or pillar extraction. The Secretary shall document such 
notification in writing, and shall, before barrier reduction or 
pillar extraction operations begin, take action to ensure that 
every person who will be participating in such operations is 
trained in the operator's barrier reduction and/or and pillar 
extraction plan. The Secretary shall observe the barrier 
reduction or pillar extraction operations for a sufficient 
period of time to ensure that the mine operator is fully 
complying with the barrier reduction or pillar extraction plan. 
The Secretary may preclude the commencement of such operations 
or halt such operations at any time the safety of miners comes 
into question.

                              ventilation

    Sec. 303. (a) * * *

           *       *       *       *       *       *       *

    (c)(1) * * *

           *       *       *       *       *       *       *

  (4) Not later than 1 year after the date of enactment of the 
S-MINER Act, the Secretary shall publish interim final 
regulations to enhance the survivability of underground mine 
ventilation controls. The Secretary shall require that 
stoppings be constructed using solid concrete blocks laid wet 
and sealed with an appropriate bonding agent on at least the 
side subjected to the velocity of the intake air coursing 
through the entry, except that in the case of stoppings 
constructed during barrier reduction and pillar removal 
operations, such stoppings may be constructed using hollow 
block and an appropriate bonding agent.
    (d)(1) * * *

           *       *       *       *       *       *       *

  (3) Not later than 90 days after the date of enactment of the 
S-MINER Act, all mine operators shall be required to implement 
a communication program at each of such operators' facilities 
to ensure that each person entering the operation is made aware 
at the start of that person's shift of the current conditions 
of the mine in general and of that person's specific worksite 
in particular. In an effort to facilitate these communications, 
all agents of the operator who are responsible for ensuring the 
safe and healthful working conditions at the mine, including 
mine foremen, assistant mine foremen, and mine examiners, 
shall, upon exiting the mine or workplace, communicate with 
those replacing them on duty to verbally update them on the 
conditions they observed during their shift, including any 
conditions that are abnormal or hazardous. Prior to entering 
the mine or other workplace the on-coming agent of the operator 
shall meet with all members of the crew they are responsible 
for and inform them of the general conditions at the operation 
and in their specific work area. This process shall be 
completed prior to the start of each shift at the operation and 
recorded in a book designated for that purpose and available 
for inspection by all interested parties. In the event the 
operation is idle prior to the start of any shift the agent of 
the operator shall meet with the individual or individuals who 
were responsible for examining the mine to obtain the necessary 
information.

           *       *       *       *       *       *       *

    (h)(1) * * *
  (2) Each miner who is working alone for part of a shift shall 
be equipped with a multi-gas detector that measures current 
levels of methane, oxygen, and carbon monoxide.
    [(2)] (3) If at any time the air at any working place, when 
tested at a point not less than twelve inches from the roof, 
face, or rib, contains 1.0 volume per centum or more of 
methane, changes or adjustments shall be made at once in the 
ventilation in such mine so that such air shall contain less 
than 1.0 volume per centum of methane. While such changes or 
adjustments are underway and until they have been achieved, 
power to electric face equipment located in such place shall be 
cut off, no other work shall be permitted in such place, and 
due precautions shall be carried out under the direction of the 
operator or his agent so as not to endanger other areas of the 
mine. If at any time such air contains 1.5 volume per centum or 
more of methane, all persons, except those referred to in 
section 104(d) of this Act, shall be withdrawn from the area of 
the mine endangered thereby to a safe area, and all electric 
power shall be cut off from the endangered area of the mine, 
until the air in such working place shall contain less than 1.0 
volume per centum of methane.

           *       *       *       *       *       *       *

    (y)(1) * * *

           *       *       *       *       *       *       *

  (3) Not later than June 20, 2008, the Secretary shall revise 
the regulations prescribed pursuant to this section to require, 
in any coal mine, regardless of the date on which it was 
opened, that belt haulage entries not be used to ventilate 
active working places. The Secretary may agree to a 
modification of this requirement, pursuant to the procedures of 
section 101(c), if and only if--
          (A) the mine operator establishes to the satisfaction 
        of the Secretary that significant safety constraints 
        require such usage; and
          (B) the mine operator agrees to comply with criteria 
        established by the Secretary which shall, at a minimum, 
        include the conditions recommended by the Technical 
        Study Panel established under section 514.
  (4) Plans that have been approved by the Secretary prior to 
the date of enactment of the S-MINER Act that permit the use of 
belt-air to ventilate active working places in a mine are 
permitted to remain in use to complete current mining up until 
the date of issuance of the regulation required pursuant to 
paragraph (3).
    (z)(1) * * *

           *       *       *       *       *       *       *

  (4)(A) The Secretary shall inspect all seals under 
construction after the date of enactment of the S-MINER Act, 
during at least part of their construction, to ensure the mine 
operator is complying with the approved seal plan, and shall 
develop an inspection protocol for this purpose.
  (B) Not later than 3 months of the date of enactment of the 
S-MINER Act, the Secretary shall issue final rules regarding 
approval, design, construction, inspection, maintenance and 
monitoring of underground coal mine seals which shall meet the 
requirements of this paragraph. Except as otherwise provided by 
this paragraph, these regulations shall implement the most 
recent recommendations of the National Institute of 
Occupational Safety and Health concerning seal design, 
construction, inspection, maintenance and monitoring. The 
regulations shall also provide that all seals in a mine shall 
be monitored if they are not designed or installed to withstand 
a constant total pressure of 240 pounds per square inch, using 
a static structural analysis. Monitoring of seals shall be done 
by continuous monitoring devices within one year of the date of 
enactment of this Act, and prior thereto by qualified personnel 
at such intervals as the Secretary determines are adequate to 
ensure safety. The Secretary shall require mine operators to 
utilize a tamper-resistant method to retain records of all such 
monitoring and ensure they are available for examination and 
verification by the agency. Monitoring of seals shall be done 
both by--
          (i) sampling through at least 1 seal in each bank of 
        seals; and
          (ii) for new seals, unless infeasible due to property 
        rights, sampling through a sufficient number of 
        boreholes from the surface to the sealed areas 
        underground to effectively determine the gas 
        concentrations within the area.
  (C) In addition, the regulations shall provide that--
          (i) seal sampling pipes shall be composed of 
        materials that minimize the risk of transmitting any 
        electrical charge, and no conductive materials may be 
        used to line boreholes within three feet of the 
        surface;
          (ii) an action plan for sealing and repair be 
        established that will, among any other requirements, 
        include specific actions the mine operator will take to 
        protect miners during the critical time period 
        immediately after sealing or repair takes place, and 
        which shall be reviewed by personnel from the Mine 
        Safety and Health Administration who have the required 
        expertise prior to approval; and
          (iii) methane pressures behind any seal required to 
        be monitored shall be maintained in such a manner as 
        ensure that normal pressure variations that can be 
        reasonably anticipated in the area of the seal do not 
        bring the methane-air mixture into an appropriate 
        safety range surrounding the known explosive range of 
        such mixtures.

                 combustible materials and rock dusting

    Sec. 304. (a) * * *

           *       *       *       *       *       *       *

    (d) Where rock dust is required to be applied, it shall be 
distributed upon the top, floor, and sides of all underground 
areas of a coal mine and maintained in such quantities that the 
incombustible content of the combined coal dust, rock dust, and 
other dust shall be not less than 65 per centum, but the 
incombustible content in the return aircourses shall be no less 
than 80 per centum. Where methane is present in any ventilating 
current, the per centum of incombustible content of such 
combined dusts shall be increased 1.0 and 0.4 per centum for 
each 0.1 per centum of methane where 65 and 80 per centum, 
respectively, of incombustibles are required. Not later than 
June 15, 2009, the National Institute for Occupational Safety 
and Health shall issue recommendations as to whether changes to 
these requirements are necessary to ensure an equivalent level 
of protection in light of any changes to the size and 
composition of coal dust since these requirements were 
established, and the Secretary of Labor shall take appropriate 
action, including the issuance of an emergency temporary 
standard if warranted, to respond to these recommendations.

           *       *       *       *       *       *       *

    Sec. 311. (a) * * *

           *       *       *       *       *       *       *

    (h) On and after the operative date of this title, all 
conveyors belts acquired for use underground shall meet the 
requirements to be established by the Secretary for flame-
resistant conveyor belts. Not later than January 31, 2008, the 
Secretary shall publish interim final regulations to ensure 
that all conveyor belts in use in underground coal mines are 
replaced no later than December 31, 2012, with belts that can 
meet the flame resistance requirements recommended by the 
National Institute for Occupational Safety and Health, and 
which limit smoke and toxic emissions. Any conveyor belt 
installed in a coal mine after the date of enactment of the S-
MINER Act shall meet such requirements.

           *       *       *       *       *       *       *


              communications and emergency response plans

    Sec. 316. (a) * * *
  (b) Accident Preparedness and Response.--
          (1) * * *
          (2) Response and preparedness plan.--
                  (A) * * *

           *       *       *       *       *       *       *

                  (E) Plan content-general requirements.--To be 
                approved under subparagraph (C), an accident 
                response plan shall include the following:
                          (i) * * *

           *       *       *       *       *       *       *

                          (vi) Not later than June 15, 2008, 
                        the Secretary shall issue interim final 
                        regulations, consistent with the design 
                        criteria recommended by National 
                        Institute for Occupational Safety and 
                        Health in its report pursuant to 
                        section 13(b)(1) of the MINER Act, and 
                        subject to the requirements of the next 
                        sentence, requiring each emergency 
                        response plan to provide for the 
                        installation of portable rescue 
                        chambers meeting National Institute for 
                        Occupational Safety and Health design 
                        criteria, or refuge shelters carved out 
                        of the mine workings and sealed with 
                        bulkheads meeting National Institute 
                        for Occupational Safety and Health 
                        design criteria, or other refuge 
                        designs recommended by National 
                        Institute for Occupational Safety and 
                        Health that provide miners with 
                        equivalent or better protection, in the 
                        working areas of underground coal mines 
                        within 60 days following plan approval. 
                        In addition, a plan shall provide for 
                        the maintenance of a mobile emergency 
                        shelter within 500 feet of the nearest 
                        working face in each working section of 
                        an underground coal mine. The plan 
                        shall also set forth the operator's 
                        plans for assisting the Secretary in 
                        the implementation of section 118.
                  (F) Plan content-specific requirements.--
                          (i) * * *
                          (ii) Post accident communications.--
                        [Not later than]
                                  (I) Not later than 120 days 
                                after the enactment of the S-
                                MINER Act, a plan shall, to be 
                                in approved status, provide for 
                                a post accident communication 
                                system between underground and 
                                surface personnel, and for an 
                                electronic tracking system 
                                permitting surface personnel to 
                                determine the location of any 
                                persons trapped underground, 
                                that utilizes a system at least 
                                as effective as a ``leaky 
                                feeder'' or wireless mesh type 
                                communication and tracking 
                                system currently in use in the 
                                industry. These systems shall 
                                be enhanced physically, 
                                electronically, or redundantly, 
                                to improve their survivability 
                                in the event of a mine 
                                disaster. In addition, to be in 
                                approved status, an emergency 
                                response plan must be revised 
                                promptly to incorporate new 
                                technology which the National 
                                Institute for Occupational 
                                Safety and Health certifies can 
                                be added to the existing system 
                                to improve its ability to 
                                facilitate post-accident 
                                communication with or tracking 
                                of miners. No miner shall be 
                                disciplined based on 
                                information obtained from an 
                                electronic communications and 
                                tracking system.
                                  (II) Not later than 3 years 
                                after the date of enactment of 
                                the Mine Improvement and New 
                                Emergency Response Act of 2006, 
                                a plan shall, to be approved, 
                                provide for post accident 
                                communication between 
                                underground and surface 
                                personnel via a wireless two-
                                way medium, and provide for an 
                                electronic tracking system 
                                permitting surface personnel to 
                                determine the location of any 
                                persons trapped underground or 
                                set forth within the plan the 
                                reasons such provisions can not 
                                be adopted. Where such plan 
                                sets forth the reasons such 
                                provisions can not be adopted, 
                                the plan shall also set forth 
                                the operator's alternative 
                                means of compliance. Such 
                                alternative shall approximate, 
                                as closely as possible, the 
                                degree of functional utility 
                                and safety protection provided 
                                by the wireless two-way medium 
                                and tracking system referred to 
                                in this subpart.

           *       *       *       *       *       *       *


                             miscellaneous

    Sec. 317. (a) * * *

           *       *       *       *       *       *       *

  (u) Not later than May 1, 2008, an operator of an underground 
mine shall install atmospheric monitoring systems in all 
underground areas where miners normally work and travel that 
provide real-time information regarding carbon monoxide levels, 
and that can, to the maximum extent possible, withstand 
explosions and fires.

           *       *       *       *       *       *       *


TITLE V--ADMINISTRATION

           *       *       *       *       *       *       *


                  inspectors; qualifications: training

    Sec. 505. [The Secretary] (a) The Secretary may, subject to 
the civil service laws, appoint such employees as he deems 
requisite for the administration of this Act and prescribe 
their duties. Persons appointed as authorized representatives 
of the Secretary shall be qualified by practical experience in 
mining or by experience as a practical mining engineer or by 
education: Provided, however, That, to the maximum extent 
feasible, in the selection of persons for appointment as mine 
inspectors, no person shall be so selected unless he has the 
basic qualification of at least five years practical mining 
experience and in assigning mine inspectors to the inspection 
and investigation of individual mines, due consideration shall 
be given to the extent possible to their previous experience in 
the particular type of mining operation where such inspections 
are to be made. Persons appointed to assist such 
representatives in the taking of samples of respirable dust for 
the purpose of enforcing title II of this Act shall be 
qualified by training, experience, or education. The provisions 
of section 201 of the Revenue and Expenditure Control Act of 
1968 (82 Stat. 251, 270) shall not apply with respect to the 
appointment of such authorized representatives of the Secretary 
or to persons appointed to assist such representatives and to 
carry out the provisions of this Act, and, in applying the 
provisions of such section to other agencies under the 
Secretary and to other agencies of the Government, such 
appointed persons shall not be taken into account. Such persons 
shall be adequately trained by the Secretary. The Secretary 
shall develop programs with educational institutions and 
operators designed to enable persons to qualify for positions 
in the administration of this Act. In selecting persons and 
training and retraining persons to carry out the provisions of 
this Act, the Secretary shall work with appropriate educational 
institutions, operators, and representatives of miners in 
developing and maintaining adequate programs for the training 
and continuing education of persons, particularly inspectors, 
and where appropriate, the Secretary shall cooperate with such 
institutions in carrying out the provisions of this section by 
providing financial and technical assistance to such 
institutions.
  (b) Within 270 days of the enactment of the S-MINER Act, the 
Secretary shall establish a Master Inspector program to ensure 
that the most experienced and skilled employees in the Nation 
have the incentive, in terms of responsibilities and pay, to 
serve as mine safety and health inspectors in this Nation's 
mines.
  (c) In order to ensure that the Secretary has adequate time 
to provide that a sufficient number of qualified and properly 
trained inspectors of the Mine Safety and Health Administration 
are in place before any inspectors employed as of the date of 
enactment of the S-MINER Act retire, any ceilings on the number 
of personnel that may be employed by the Administration with 
respect to mine inspectors are abolished for the 5-year period 
beginning on the date of enactment of such Act.
  (d) In the event that, notwithstanding the actions taken by 
the Secretary to hire and train qualified inspectors, the 
Secretary is temporarily unable, at any time during the 5-year 
period beginning on the date of enactment of the S-MINER Act, 
to employ the number of inspectors required to staff all 
district offices devoted to coal mines at the offices' highest 
historical levels without transferring personnel from 
supervisory or plan review activities or diminishing current 
inspection resources devoted to other types of mines, the 
Administration is authorized to hire retired inspectors on a 
contractual basis to conduct mine inspections, and the 
retirement benefits of such retired inspectors shall not be 
reduced as a result of such temporary contractual employment.
  (e) During the 5-year period beginning on the date of 
enactment of the S-MINER Act, the Secretary shall issue a 
special report to the appropriate committees of Congress each 
year, or at such more frequent intervals as the Secretary or 
any such committee may consider appropriate, providing 
information about the actions being taken under this section, 
the size and training of the inspector workforce at the Mine 
Safety and Health Administration, the level of enforcement 
activities, and the number of requests by individual operators 
of mines for compliance assistance.

           *       *       *       *       *       *       *


SEC. 516. OFFICE OF MINER OMBUDSMAN.

  (a) Establishment of Miner Ombudsman.--There shall be 
established, within the Office of the Inspector General of the 
Department of Labor, the position of Miner Ombudsman. The 
President, by and with the advice and consent of the Senate, 
shall appoint an individual with expertise in mine safety and 
health to serve as the Miner Ombudsman. The Ombudsman shall 
have authority to hire such personnel as are required to 
administer his duties in accordance with applicable law, 
provided they meet any general requirements for employment 
within the Office of the Inspector General.
  (b) Duties.--The Miner Ombudsman shall--
          (1) recommend to the Secretary appropriate practices 
        to ensure the confidentiality of the identity of 
        miners, and the families or personal representatives of 
        the miners, who contact mine operators, authorized 
        representatives of the miners, the Mine Safety and 
        Health Administration, the Department of Labor, or 
        others with information about mine accidents, 
        incidents, injuries, illnesses, possible violations of 
        mandatory health or safety standard violations or plans 
        or other mine safety and health concerns;
          (2) establish a toll-free telephone number and 
        appropriate Internet website to permit individuals to 
        confidentially report mine accidents, incidents, 
        injuries, illnesses, possible violations of mandatory 
        health or safety standard violations or plans or other 
        mine safety and health concerns, and provide plastic 
        wallet cards, refrigerator magnets, or similar devices 
        to all mine operators, which mine operators shall 
        distribute to all current and new miners, with contact 
        information for such confidential reports, and also 
        provide supplies of these devices to miner communities;
          (3) collect and forward information concerning 
        accidents, incidents, injuries, illnesses, possible 
        violations of mandatory health or safety standard 
        violations or plans or other mine safety and health 
        concerns to the appropriate officials of the Mine 
        Safety and Health Administration for investigation, or 
        to appropriate officials within the Office of Inspector 
        General for investigation or audit, or both, while 
        establishing practices to protect the confidentiality 
        of the identify of those who provide such information 
        to the Ombudsman; and
          (4) monitor the Secretary of Labor's efforts to 
        promptly act upon complaints filed by miners under 
        section 105(c) of the Act or pursuant to other programs 
        administered by the Department to protect 
        whistleblowers, and report to Congress any 
        recommendations that would enhance such rights or 
        protections.
  (c) Authority.--All complaints of operator violations of any 
section of this Act or regulations prescribed under this Act 
that are reported to the Secretary shall be forwarded to the 
Ombudsman for logging and appropriate action, except that this 
requirement shall be implemented in such a way as to avoid 
interference in any way with the ability of the Assistant 
Secretary for Mine Safety and Health to take prompt actions 
that may be required in such situations. This shall include 
complaints submitted in writing, via any phone system, or 
orally, along with all relevant information available regarding 
the complainant. All such information shall be retained in a 
confidential manner pursuant to the Privacy Act of 1974. The 
Ombudsman shall use such information to monitor the actions 
taken to ensure that miners' complaints are addressed in a 
timely manner and in compliance with the appropriate statutes 
and regulations. The Ombudsman shall refer to appropriate 
personnel within the Office of the Inspector General for 
further review any case which he determines was not handled in 
such fashion.
  (d) Authorization of Appropriations.--There are hereby 
authorized to be appropriated to the Ombudsman such sums as may 
be required for the implementation of his duties out of the 
sums otherwise made available to the Mine Safety and Health 
Administration for its activities.
                              ----------                              


      SECTION 22 OF THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

         national institute for occupational safety and health

    Sec. 22. (a) * * *

           *       *       *       *       *       *       *

  (h) Office of Mine Safety and Health.--
          (1) * * *

           *       *       *       *       *       *       *

          (5) Interagency working group.--
                  (A) Establishment.--The Director of the 
                Institute, in carrying out paragraph (3)(D) 
                shall establish an interagency working group to 
                share technology and technological research and 
                developments that could be utilized to enhance 
                mine safety and accident response including 
                advanced drilling technologies, and any special 
                technologies required for safety or rescue in 
                mining more than 1,500 feet in depth.

           *       *       *       *       *       *       *

                              ----------                              


MINER ACT

           *       *       *       *       *       *       *


[SEC. 7. REQUIREMENT CONCERNING FAMILY LIAISONS.

  [The Secretary of Labor shall establish a policy that--
          [(1) requires the temporary assignment of an 
        individual Department of Labor official to be a liaison 
        between the Department and the families of victims of 
        mine tragedies involving multiple deaths;
          [(2) requires the Mine Safety and Health 
        Administration to be as responsive as possible to 
        requests from the families of mine accident victims for 
        information relating to mine accidents; and
          [(3) requires that in such accidents, that the Mine 
        Safety and Health Administration shall serve as the 
        primary communicator with the operator, miners' 
        families, the press and the public.]

SEC. [8] 7. PENALTIES.

  (a) * * *

           *       *       *       *       *       *       *


SEC. [9] 8. FINE COLLECTIONS.

  Section 108(a)(1)(A) of the Federal Mine Safety and Health 
Act of 1977 (30 U.S.C. 818(a)(1)(A)) is amended by inserting 
before the comma, the following: ``, or fails or refuses to 
comply with any order or decision, including a civil penalty 
assessment order, that is issued under this Act''.

           *       *       *       *       *       *       *


[SEC. 10. SEALING OF ABANDONED AREAS.

  [Not later than 18 months after the issuance by the Mine 
Safety and Health Administration of a final report on the Sago 
Mine accident or the date of enactment of the Mine Improvement 
and New Emergency Response Act of 2006, whichever occurs 
earlier, the Secretary of Labor shall finalize mandatory heath 
and safety standards relating to the sealing of abandoned areas 
in underground coal mines. Such health and safety standards 
shall provide for an increase in the 20 psi standard currently 
set forth in section 75.335(a)(2) of title 30, Code of Federal 
Regulations.]

SEC. [11] 9. TECHNICAL STUDY PANEL.

  Title V of the Federal Mine Safety and Health Act of 1977 (30 
U.S.C. 951 et seq.) is amended by adding at the end the 
following:

``SEC. 514. TECHNICAL STUDY PANEL.

  ``(a) * * *

           *       *       *       *       *       *       *


SEC. [12] 10. SCHOLARSHIPS.

  Title V of the Federal Mine Safety and Health Act of 1977 (30 
U.S.C. 951 et seq.), as amended by section 11, is further 
amended by adding at the end the following:

``SEC. 515. SCHOLARSHIPS.

  ``(a) * * *

           *       *       *       *       *       *       *


SEC. [13] 11. RESEARCH CONCERNING REFUGE ALTERNATIVES.

  (a) * * *

           *       *       *       *       *       *       *


SEC. [14] 12. BROOKWOOD-SAGO MINE SAFETY GRANTS.

  (a) * * *

           *       *       *       *       *       *       *


                     XIII. Committee Correspondence

    None.

                      MINORITY VIEWS ON H.R. 2768

                              INTRODUCTION

    Committee Republicans strongly believe that all miners 
should work in a culture of workplace safety which ensures that 
each miner goes home to his or her family at the end of his or 
her shift. Sadly, last year, on too many days too many miners 
at Sago, Aracoma, Darby and other of our nation's mines did not 
make it home from work. The more recent tragedy of Crandall 
Canyon, Utah in August 2007, in which six miners were trapped 
by a collapse and three other individuals lost their lives in 
rescue efforts, continues to demonstrate the inherent danger of 
mining.
    In the wake of the Sago, Aracoma, and Darby tragedies, 
Committee Republicans (and the majority of Committee Democrats) 
demonstrated their commitment to improving mine safety by 
strongly supporting enactment of the Mine Improvement and New 
Emergency Response (MINER) Act in the 109th Congress.\1\ 
Committee Republicans in the 110th Congress are equally 
committed to ensuring that this law is fully and robustly 
implemented.
---------------------------------------------------------------------------
    \1\S. 2803, the Mine Improvement New Emergency Response Act, 
enacted as Public Law No. 109-236.
---------------------------------------------------------------------------
    The MINER Act mandated wholesale changes to mine safety 
practices. The results of this technology-forcing act have been 
swift, despite suggestions from the Majority that the change 
has not been fast enough. Indeed, injury rate data for 2006 
from the Bureau of Labor Statistics demonstrates that great 
progress in the area of mine safety has been made:
          Mining experienced the lowest incidence rate in 2006 
        among goods-producing industry sectors--3.5 cases per 
        100 full-time workers. In comparison, while higher than 
        the rate for mining, rates for agriculture, forestry, 
        fishing and hunting (6.0 cases), construction (5.9 
        cases), and manufacturing (6.0 cases) were not 
        significantly different from one another.\2\
---------------------------------------------------------------------------
    \2\Bureau of Labor Statistics Industry Injury and Illness Data--
2006.
---------------------------------------------------------------------------
    This injury rate data, though not inclusive of the fatality 
rate, indicates that miners and mine operators are not 
complacent about safety. Equally clear is that these 
improvements in mine safety could not have been made without 
the cooperation of all interested parties. Since passage of the 
MINER Act, organized labor, mine management, and the federal 
agency that regulates mining, the Mine Safety and Health 
Administration (MSHA), have worked together to significantly 
improve mine safety.
    H.R. 2768 represents a step backwards in mine safety 
efforts, and actually threatens to undermine the goals embodied 
in--and achieved by--the MINER Act. For this reason, Committee 
Republicans were united in their opposition to this 
legislation, and urge that it be rejected by the House of 
Representatives.

                       BACKGROUND: THE MINER ACT

    Last year, in response to fatal mine tragedies in West 
Virginia and Kentucky, Congress passed and President Bush 
signed into law the MINER Act. The MINER Act was the first 
significant mine safety reform legislation to be enacted in 
over a generation. The law's requirements included changes 
specifically designed to address deficiencies in mine practices 
that were highlighted by the Sago, Aracoma, and Darby mine 
accidents.
    The MINER Act was crafted to improve mine safety by 
increasing the responsibilities of both mine operators and 
MSHA. Under the MINER Act, mine operators are required to:
           Call MSHA within 15 minutes of a mine 
        accident that could cause death, injury or entrapment 
        in order for a rescue team to be deployed in a timely 
        manner;
           Adopt an emergency response plan that 
        contains post-accident communications and tracking 
        systems, post-accident breathable air, lifelines, 
        training, and local coordination;
           Install post-accident, flame-resistant 
        directional lifelines; and
           Increase the frequency of emergency 
        evacuation drills.
    Among its provisions, the MINER Act required MSHA to revise 
its penalties, increase fines in egregious cases to $220,000, 
undertake studies regarding mining practices, and to work to 
improve the technology for communications underground. Congress 
set a very aggressive time-frame for MSHA to complete these 
requirements. Congress also increased funding for the two 
primary federal agencies that oversee the mining industry: MSHA 
and the National Institute for Occupational Safety and Health 
(NIOSH).
    More specifically, under the MINER Act, MSHA has the 
responsibility to approve mines' emergency response plans. MSHA 
indicates that it had completed its review and approval of 
these plans as of March 2007.
    In addition, the law directed MSHA to undertake a wide 
range of regulatory changes and technical studies. MSHA's 
responsibilities under the MINER Act include directives to:
           Revise the penalty structure of the Federal 
        Mine Safety and Health Act of 1977;\3\
---------------------------------------------------------------------------
    \3\See Federal Mine Safety and Health Act, P.L. 91-173 (December 
30, 1969), codified at 30 U.S.C. Sec. 801 et seq. The legislation was 
originally known as the Federal Coal Mine Health and Safety Act of 
1969, but in 1977 was amended and its name changed to the Federal Mine 
Safety and Health Act of 1977.
---------------------------------------------------------------------------
           Certify post-accident communications and 
        tracking systems;
           Develop regulations addressing post-accident 
        breathable air for individuals trapped underground;
           Certify composition and new training 
        requirements for coal mine rescue teams; Establish a 
        liaison office to be the primary communicators with 
        families of victims, mine operators, the press, and the 
        public;
           Increase the standard governing seals on 
        mines to a more strength resistant level; Establish a 
        belt air technical study panel; and
           Present a report to Congress outlining how 
        the agency will update its regulations based on the 
        various studies.

       MSHA ACTIVITY RELATING TO IMPLEMENTATION OF THE MINER ACT

    Following enactment of the MINER Act, MSHA aggressively 
began implementation of the new statute. To date, each 
statutory deadline required by the MINER Act has been met by 
MSHA.
    Throughout the implementation of the MINER Act, MSHA has 
provided a detailed accounting of its progress. More 
specifically, on October 24, 2006, MSHA issued a Program Policy 
Letter entitled ``Implementation of Section 2 of the Mine 
Improvement and New Emergency Response Act of 2006,'' which 
outlines the requirements for emergency response plans. On 
December 8, 2006, MSHA issued its final rule entitled 
``Emergency Mine Evacuation,'' which detailed requirements 
under mines' Emergency Response Plans (ERPs) (the ``ERP 
rule''). On February 8, 2007, MSHA issued a Public Information 
Bulletin (PIB), ``Options for Providing Post-Accident 
Breathable Air to Underground Coal Miners.''
    Due in large part to MSHA's efforts, the implementation 
record of the MINER Act is demonstrated by a host of completed 
MSHA actions:
     The MINER Act required all coal mines to submit 
emergency response plans to MSHA; all plans were submitted by 
the statutory deadline of August 14, 2006.
     The MINER Act required more Self-Contained Self-
Rescuer (SCSR) devices for each miner to be contained in every 
underground coal mine. This requirement was fully implemented 
by December 8, 2006, according to MSHA's ERP rule.\4\
---------------------------------------------------------------------------
    \4\Currently, a manufacturing backlog of approximately 90,000 SCSRs 
exists. A mine is deemed to be in compliance with the rule if the mine 
operator can demonstrate that necessary SCSRs are on order.
---------------------------------------------------------------------------
     The MINER Act required fire-resistant evacuation 
life lines in all underground coal mines within three years. 
This requirement was implemented by December 8, 2006, pursuant 
to the Emergency Mine Evacuation Rule.
     The MINER Act mandated additional safety training 
and training on the use of SCSRs at underground coal mines. 
This requirement was implemented by Dec. 8, 2006, pursuant to 
the Emergency Mine Evacuation Rule. The Committee further 
understands that MSHA plans to issue additional guidance in 
this area.
     The MINER Act required all mine operators to 
contact MSHA within 15 minutes of an accident. This requirement 
has been in place since March 9, 2006 and was finalized by 
December 8, 2006, pursuant to the Emergency Mine Evacuation 
Rule.
     The MINER Act required redundant\5\ underground-
to-surface communications systems in underground coal mines. 
MSHA has approved a total of 12 such systems, including three 
new devices.
---------------------------------------------------------------------------
    \5\Redundant communication entails multiple systems; in the event 
one fails as the result of an accident, others might still be active.
---------------------------------------------------------------------------
     The MINER Act required emergency supplies of 
breathable air for coal miners trapped underground for up to 96 
hours. As noted above, MSHA's February 8, 2007 PIB provided 
guidance to mine operators concerning acceptable quantities and 
delivery methods in underground coal mines.
     MSHA has trained 14 officials to serve as Family 
Liaisons, as required under the MINER Act. A Program Policy 
Letter has been issued and the 14 designated family liaison 
personnel completed their initial training sessions with the 
National Transportation Safety Board and the Red Cross in 
December 2006.
     On March 22, 2007, MSHA published in the Federal 
Register a final rule on civil penalties, revising the agency's 
civil penalty assessment regulations and implementing 
procedures regarding the civil penalty provisions of the MINER 
Act.
    In short, MSHA has an exemplary record with respect to its 
implementation of the MINER Act, having met all of its 
statutory deadlines to date. It is against this regulatory 
backdrop and 16 months of accomplishment that the Committee 
considered H.R. 2768.

                            REPUBLICAN VIEWS

The record on H.R. 2768 is unbalanced and lacking in evidence to 
        support legislation
    Thus far, in the first session of the 110th Congress, the 
Committee has held four hearings on mining, generally--but only 
one legislative hearing (in the Workforce Protections 
Subcommittee) specifically devoted to H.R. 2768.\6\ As a 
result, unfortunately, the hearing and information-gathering 
process for H.R. 2768 was wholly inadequate, and largely 
excluded significant stakeholders' perspectives.
---------------------------------------------------------------------------
    \6\See Committee on Education and Labor Hearing, ``Protecting the 
Health and Safety of America's Mine Workers,'' (March 28, 2007); 
Committee on Education and Labor Hearing, ``Evaluating the 
Effectiveness of MSHA's Mine Safety and Health Programs,'' (May 16, 
2007); Subcommittee on Workforce Protections Hearing, ``The S-MINER Act 
(H.R. 2768) and the Miner Safety Enhancement Act (H.R. 2769),'' (July 
26, 2007); Committee on Education and Labor Hearing, ``Mine Safety: The 
Perspective of the Families at Crandall Canyon'' (October 3, 2007).
---------------------------------------------------------------------------
    Less than 25 percent of the mining industry is currently 
unionized. Despite this fact, and despite having had ample 
opportunity to be heard on mining issues before the Committee 
at previous mine safety hearings, three of the four panel 
members at the sole legislative hearing on H.R. 2768 
represented union interests. At the same time, representatives 
of the mining industry were wholly excluded from the witness 
panel. It was for this reason during the legislative hearing on 
July 26, 2007, Ranking Republican Joe Wilson moved to seat as a 
witness a representative of the National Mining Association. 
This motion was rejected on a party-line vote. Moreover, no 
representative of the metal/non-metal industry was allowed an 
opportunity to address the Committee regarding provisions of 
H.R. 2768, despite the fact that the bill would significantly 
impact that segment of the mining industry.
    Indeed, the only witness at the July 26 hearing who was not 
affiliated with organized labor, a representative of MSHA, 
testified as to no less than 16 areas of the bill which were 
less protective than current law. That the Committee would 
proceed to consider significant new regulation on so flimsy and 
lopsided a record deeply troubles Committee Republicans.
MSHA has addressed concerns of the MINER Act's opponents
    During last year's debate on the MINER Act, then-Senior 
Democrat Member of the Committee on Education and the Workforce 
George Miller outlined his reasons for opposing the 
legislation:

          Unfortunately, the bill sent from the Senate fails to 
        make the reforms that go to the very heart of what 
        happened in the Sago mine disaster. It fails in three 
        significant ways. It does not guarantee that miners 
        trapped underground will have enough air to survive an 
        accident like Sago. It does not give miners prompt 
        access to wireless communications and electronic 
        tracking devices so they can communicate with their 
        rescuers instead of having to bang on pipes and bang on 
        rocks like miners did hundreds of years ago.
          It does not guarantee that the emergency oxygen units 
        like the ones that Randal McCloy, the only Sago 
        survivor, told us in some cases were defective, and 
        would be tested at random by the Federal Government to 
        ensure that they work properly.\7\
---------------------------------------------------------------------------
    \7\See Congressional Record, p. H3453, June 7, 2006.

    In the sixteen months since passage of the MINER Act, each 
of the concerns raised by Representative George Miller and 
other opponents of the MINER Act have been addressed by MSHA.
    Most notably, MSHA's implementation of breathable air 
provisions of the MINER Act now require 96 hours of breathable 
air--twice the supply that Representative Miller had argued was 
necessary. Indeed, when questioned about the reasoning behind a 
96-hour requirement, MSHA's Administrator, Richard Stickler, 
responded:

        We did research on the disasters that have occurred in 
        the past to determine how long it took rescue teams to 
        locate miners. We also looked at situations such as, 
        when you have a fire or explosion; particularly, how 
        long does it take for the mine atmosphere to stabilize 
        enough that you can get accurate measurements to safely 
        send rescue teams in the mine. And we thought that the 
        96 hours would provide that.\8\
---------------------------------------------------------------------------
    \8\See Transcript of Committee on Education and Labor Hearing, 
``Evaluating the Effectiveness of MSHA's Mine Safety and Health 
Programs'' (May 16, 2007) (available in the offices of the Committee).

    With respect to wireless communications and tracking 
devices, the technology which MINER Act opponents would have 
insisted upon was not available at the time the law was 
enacted, nor is it even available today. In the months since 
enactment of the MINER Act, considerable progress has been made 
by MSHA, NIOSH, and the private sector to achieve wireless 
technology. Unfortunately, not all commercial technology can 
simply be taken and placed within the highly specific and 
unique atmosphere of a mine; indeed, all electronic equipment 
to be used in mines must meet rigorous standards set by MSHA to 
ensure it does not ignite naturally-occurring methane within 
mine environments. As such, while significant progress has been 
made to address Mr. Miller's concerns regarding wireless 
communication, the laws of physics cannot be altered by 
legislative fiat. Nonetheless, experts are focusing on the 
communications issues and all parties involved remain committed 
to implementing wireless communication.
    Finally, through implementation of the MINER Act, concerns 
with the random testing of self-contained self-rescuers (SCSRs) 
have been addressed. A random testing program existed before 
the passage of the MINER Act and has been reevaluated because 
of the issues highlighted in the Sago accident. As NIOSH has 
noted in adopting an LTFE (Long Term Field Evaluation) sampling 
plan: ``The LTFE sampling plan will utilize an MSHA-generated 
and maintained inventory of SCSRs used by the mining industry. 
The MSHA list represents an inventory of SCSRs from each mine 
collected into a single master listing of all SCSRs. The list 
will be randomly sorted to select respirators for the LTFE 
program.''\9\
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    \9\The LTFE effectively doubles the number tested in previous 
years. See Long-Term Field Evaluation Program Concept, NIOSH Docket 
Number NIOSH-101.
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    In short, and despite assertions to the contrary, where, as 
in the MINER Act, MSHA has been given clear guidelines, the 
agency has sought to find the most protective, thoughtful 
solution. The evidence suggests that MSHA has been widely 
successful in doing so.

H.R. 2768 as Reported by the Committee fails as a matter of mine safety 
        policy

    The final S-MINER bill reported by the Committee to the 
House is the product of two separate pieces of legislation.\10\ 
At markup, Chairman Miller offered an amendment in the nature 
of a substitute, which joined both of these pieces of 
legislation along with changes to the original text of the 
introduced bills. It also added entirely new provisions not 
found in either of the introduced bills.
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    \10\See H.R. 2768, the ``Supplemental Mine Improvement and New 
Emergency Response Act'' & H.R. 2769, the ``Mine Health and Safety 
Enhancement Act.''
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    In far too many instances, the Miller Substitute seeks to 
undo the progress toward improved safety achieved during the 
last 16 months by MSHA, NIOSH, or industry by imposing 
conflicting provisions and new requirements for rulemaking. The 
result, unfortunately, will be delays in implementing 
potentially lifesaving improvements to current mining 
practices. Put more simply, the premise that this bill will 
speed the implementation of mine safety technology wholly fails 
to acknowledge the work that has already been done; and in 
doing so actually impedes that progress. The failure of H.R. 
2768 in this regard is highlighted in a number of examples:
    Mine Seals. The Miller Substitute modifies MINER Act 
requirements relating to mine seals,\11\ and instead outlines a 
new seal monitoring protocol. Under H.R. 2768, all seals will 
need to be monitored, perhaps by boreholes, even those 
constructed prior to the legislation. Given that these seals 
were not engineered to be monitored by boreholes, these 
provisions create the potential for an explosive oxygen-methane 
mix. Moreover, these provisions threaten to undermine the 
rulemaking mandated by the MINER Act that preceded the bill; 
MSHA indicates that the results of this rulemaking will be in 
place by February 2008.
---------------------------------------------------------------------------
    \11\A seal is a partition built in a mine to prevent accessing 
areas that have been ``mined out'' or are no longer working areas of a 
mine.
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    Belt Air. With respect to belt air,\12\ the S-MINER Act 
purports to lessen the restriction on the use of belt air by 
allowing mine operators to petition the Secretary for a 
modification to allow them to use belt air. This restores a 
flawed ``petition for modification'' process, which was 
eliminated because it was rare for modifications not to be 
granted. Under current law, MSHA allows for the use of belt air 
with specified safety requirements, such as enhanced 
atmospheric monitoring. Moreover, H.R. 2768 precludes MSHA from 
reporting to Congress on the results of the belt air study 
currently underway and what changes it proposes to make based 
on the study panel's recommendations, as required by the MINER 
Act. This provision is fundamentally flawed, and appears to be 
intended to achieve legislatively what organized labor could 
not convince a court to do--overturn MSHA's belt-air 
regulation.\13\
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    \12\The use of belt air is the practice of ventilating a mine down 
a belt entry. The Mine Act prohibits the use of belt air on mines 
opened after passage of the Act; mines operating before the passage of 
the Act can utilize belt air with certain conditions in place. The 
mining industry believes that the use of belt air lowers the 
concentration of methane at the mine face, reduces the level of dust 
miners are exposed to, and can lower the temperature of the working 
environment. The Clinton Administration allowed the use of belt air by 
providing individual waivers for mines.
    \13\See International Union, United Mine Workers of America v. 
MSHA, 407 F.3d 1250 (DC Cir. 2005).
---------------------------------------------------------------------------
    Refuge Chambers. Currently, NIOSH is actively engaged in a 
study of the appropriate uses of refuge chamber\14\ technology 
in underground mines. The MINER Act required MSHA to report to 
Congress what regulatory actions would be taken based on 
NIOSH's study. Instead of waiting to receive that study--and 
then legislating based on evidence--the Democrat Majority has 
chosen to legislate based on supposition, in the process 
curtailing stakeholder input through rulemaking, and mandating 
prescriptive provisions for the use of rescue chambers. This 
inflexible approach does not account for varying mine 
conditions that could prevent a chamber's use or necessitate 
more sophisticated alternatives.
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    \14\A refuge chamber could be a stand-alone structure or protected 
area of a mine in which miners could seek shelter in the event of an 
emergency.
---------------------------------------------------------------------------
    Communications. MSHA remains committed to the improvement 
and utilization of wireless communications technology. The S-
MINER bill threatens to undermine these efforts. Testimony 
before the Committee by Mr. Kevin Stricklin, Administrator for 
Coal Mine Safety and Health at MSHA, and a letter opposing the 
legislation by MSHA's Assistant Secretary Stickler, enunciated 
concern regarding the communications provisions of H.R. 2768:

          Given all the work being done by NIOSH, MSHA, and the 
        private sector to develop a wireless system, it is 
        premature to mandate the ``leaky feeder'' system 
        nation-wide now. Mandating the use of the ``leaky 
        feeder'' or other hard wire systems may reduce the 
        incentives for industry to develop and deploy wireless 
        systems that will provide greater protection to miners. 
        Furthermore, if and when a truly wireless system is 
        developed, it will make the ``leaky feeder'' system 
        obsolete. This requirement would result in significant 
        costs for a system which would essentially become 
        obsolete relatively soon because miner operators are 
        required to have a truly wireless system in place by 
        June 2009.\15\
---------------------------------------------------------------------------
    \15\See Letter from Assistant Secretary for Mine Safety and Health 
Richard Stickler dated October 29, 2007.

    H.R. 2768 compounds the concern raised by Mr. Stickler by 
requiring mine operators to adopt new communications technology 
once it is certified by NIOSH, irrespective of whether this 
technology has been approved by MSHA for ``intrinsic safety.'' 
This creates not only a conflict in the law, but a potentially 
serious safety concern. Placing technology in a mine which has 
not been deemed intrinsically safe has the potential to result 
in the utilization of equipment that might, for example, ignite 
naturally-occurring methane and cause an explosion--exactly the 
type of occurrence mine safety regulations are intended to 
prevent.
    Notification. The two-tiered notification system in the 
event of an accident mandated under H.R. 2768 would result in a 
conflict between the S-MINER Act and current law. Current MSHA 
regulations require a mine operator to call MSHA within 15 
minutes of a reportable incident or face up to a $60,000 fine. 
The S-MINER Act alters those provisions such that one set of 
reportable incidents would now be subject to a 15 minute 
notification requirement, while another set of reportable 
incidents would be subject to a new one hour limit contained in 
the legislation. MSHA's current standard is more protective and 
clear-cut, suggesting this provision is, at best, unnecessary 
and at worst lessens protection to miners in some instances.
    Ventilation. On the issue of ventilation controls, MSHA 
could not have been clearer when it noted, ``the first problem 
with this provision [in the S-Miner Act] is the impracticality 
of a one-size-fits-all rule without input from stakeholders'' 
and that ``other geologic conditions necessitate other types of 
ventilation controls.''\16\ As a policy matter, Committee 
Republicans are concerned that micromanaging and legislating 
the details of highly technical regulations may prevent 
improved ventilation control technology from being implemented 
when it becomes available. Moreover, voiding the rulemaking 
process prevents labor, industry, safety and engineering 
experts from providing data that can assist MSHA in developing 
a scientifically sound rule, and eliminates the public scrutiny 
that is a necessary part of a sound policymaking process.
---------------------------------------------------------------------------
    \16\Id.
---------------------------------------------------------------------------
    MSHA Investigatory Processes. While there continues to be 
no evidence that MSHA is incapable of investigating a mine 
accident or performing an internal review of its actions 
surrounding an accident, H.R. 2768 provides for at least two 
``independent'' investigations, including one conducted by 
NIOSH, whenever a multiple fatality mining accident occurs. 
H.R. 2768 further allows the Chemical Safety Board to conduct 
an investigation of events, notwithstanding the agency's lack 
of jurisdiction or expertise. Current law and practice provide 
for extensive investigation in the event of a mining accident, 
including an examination by MSHA of its own internal actions. 
MSHA, with sound policy reasons, has objected to additional 
investigations because they could ``undercut and jeopardize the 
MSHA enforcement effort. If two government-sanctioned reports 
reached different conclusions, it could result in a situation 
where the Department of Justice is unable to prosecute the 
offenders.''\17\ Finally, nothing in the record suggests that 
involving the Chemical Safety Board, which has no expertise in 
mining, is advisable, prudent, or necessary.
---------------------------------------------------------------------------
    \17\Id.
---------------------------------------------------------------------------
    Recommended Exposure Limits. As noted above, H.R. 2769, the 
``Miner Health Enhancement Act,'' was revised and incorporated 
into H.R. 2768 by way of the Miller substitute amendment. 
Fundamentally, these provisions are nothing less than an 
attempt to eviscerate the regulatory process. H.R. 2768 
requires MSHA to adopt recommended exposure limits (RELs) 
established by NIOSH, regardless of the fact that these RELs 
are not subject to the same economic and technologic 
feasibility requirements that a permissible exposure limit 
(PEL) adopted by MSHA would be. Testimony before the Committee 
by Michael Wright, Director of Health, Safety and Environment 
for the United Steelworkers, highlights this fundamental flaw:

          Many of the NIOSH RELs were adopted without a 
        consideration of technological feasibility, 
        particularly in mining. It would be nice to set 
        standards solely on the basis of health effects, but up 
        until now the laws governing OSHA, MSHA and hazardous 
        air pollutants under EPA have always recognized that 
        standards must be not only protective, but must be 
        feasible as well. Therefore, we would suggest a slight 
        modification of H.R. 2769 which would give MSHA the 
        discretion (but not the requirement) to modify the PEL 
        through notice and comment rulemaking if the Agency 
        determines that the NIOSH REL may be infeasible in 
        mining.\18\
---------------------------------------------------------------------------
    \18\Subcommittee on Workforce Protections Hearing, ``The S-MINER 
Act (H.R. 2768) and the Miner Safety Enhancement Act (H.R. 2769)'' 
(July 26, 2007).

    Rather than adopting an approach which ensures that MSHA 
examine RELs for mining feasibility, H.R. 2768 requires miners 
or mine operators to petition the Secretary to review the 
feasibility of any REL or established PEL. This provision 
completely upends and discounts MSHA's statutory role in the 
rulemaking process.
    Crandall Canyon. Committee Republicans recognize that the 
tragic events of Crandall Canyon present new and different 
challenges for mine safety. For that reason, Republicans 
supported an amendment offered by Workforce Protections 
Subcommittee Ranking Member Joe Wilson which sought to address 
these issues (described more fully below). The Majority, in 
contrast, simply added legislative language to its substitute 
which did not receive scrutiny during the legislative process 
and which, in too many instances, represents examples of 
inflexible rulemaking which could lessen safety. H.R. 2768 
prescribes extensive regulation for roof screening and support, 
and requires a mine to adopt an approved barrier reduction or 
pillar extraction plan before performing either action. By 
adopting highly prescriptive mandates, and substituting their 
own judgment for that of true mine safety experts, the Majority 
threatens to undermine the use of specialized or more 
protective mine safety technology.

H.R. 2768 is unnecessary, undermines the progress of last year's MINER 
        Act, and could diminish miner safety

    Despite numerous hearings in this Congress, the evidence 
before the Committee falls far short of establishing the need 
to alter fundamental provisions of the MINER Act or otherwise 
make wholesale changes to the law. Indeed, in light of the 
conclusions reached by MSHA regarding last year's mining 
accidents, the MINER Act appears to have struck the appropriate 
balance for improving mining safety. Finally, it bears note 
that nothing heard at any hearing suggests that that the S-
MINER Act would have done anything to prevent the subsequent 
and tragic Crandall Canyon disaster. It is for all of these 
reasons that Committee Republicans reject H.R. 2768 as 
fundamentally flawed and unnecessary.
    H.R. 2768 does little to improve miner safety and health. 
Indeed, in many instances, provisions of the bill are so 
prescriptive as to cement into law archaic practices rather 
than foster innovative solutions. In doing so, the bill could 
have the perverse effect of actually diminishing miner safety. 
We find this prospect extremely troubling.
    Committee Republicans are not alone in this view, nor do 
they arrive at it in a vacuum. Mine experts themselves have 
indicated that the flawed bill lessens mine safety by weakening 
current regulatory protections. On July 25, 2007, twelve 
professors of mining engineering urged Congress to allow the 
complete implementation of the MINER Act before considering new 
legislation:

          Unfortunately, mine safety and health experts 
        dispersed throughout the mining industry are not being 
        afforded the opportunity to entrench the necessary 
        safety culture in their mines. They must ultimately 
        ensure that many of the MINER Act provisions will be 
        institutionalized in practice at their mines. Thus far, 
        they have been fully occupied with the nuts-and-bolts 
        of complying with the act and have not had adequate 
        time to coordinate and address this next, very 
        important step. It is imperative that every employee at 
        a mine does his/her job thoroughly and then effectively 
        addresses existing or potential risks. Safety 
        professionals at mines as well as federal and state 
        inspectors are the driving forces to inculcate such a 
        culture of prevention, but this inculcation process 
        requires significant time for penetration into the work 
        environment.
          While there may be other safety and health issues 
        that should be addressed in the future, in our opinion 
        now is not the right time to pursue as much as is 
        proposed in the pending bill. The intense work load on 
        mine management, including safety professionals, and 
        ultimately the miners who have to do the downstream 
        MINER Act-related work is too great at this time to 
        contemplate further legislation. Another option to 
        consider would be to bring together miners, mine 
        operators and other stakeholders in a partnership mode 
        to assess the effectiveness of the MINER Act once it is 
        fully implemented and all required studies are 
        completed. At that time, all of us who are dedicated to 
        improving mining safety can make an informed judgment 
        on the need for and content of any additional 
        legislation aimed at addressing any unresolved 
        problems.\19\
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    \19\Letter to Chairman Miller and Senior Republican Member McKeon 
dated July 25, 2007 from Robert L. Ferriter et al. (attached hereto as 
Appendix A).
---------------------------------------------------------------------------

                    AMENDMENTS OFFERED IN COMMITTEE

    During consideration of H.R. 2768 in Committee, Republicans 
offered several amendments to improve the legislation and 
direct its focus toward necessary reforms.
    Kline Amendment. Health, Employment, Labor, and Pensions 
Subcommittee Ranking Republican Kline offered an amendment to 
the underlying bill which would have affirmatively provided 
that a mine operator could lawfully make use of its miners' 
experience by way of employer/employee safety teams. 
Unfortunately, too often today, provisions within Depression-
era labor laws designed to avoid the early-20th century problem 
of ``company unions'' have been used to thwart employers 
(particularly non-union employers, who constitute 75 percent of 
the industry) from meaningfully including their workers in 
cooperative mine safety efforts. The Kline Amendment would have 
provided that non-union employers could lawfully include their 
employees in cooperative efforts relating to workplace safety 
and employment conditions. Its merits notwithstanding, this 
common-sense, pro-miner amendment was rejected on a party line 
vote of 15 to 25, with all Democrats voting against.
    Wilson Amendment. Workforce Protections Subcommittee 
Ranking Republican Joe Wilson offered an amendment in the 
nature of a substitute to the underlying bill. The Wilson 
Substitute addressed specific policy concerns raised by the 
recent Crandall Canyon accident, while leaving intact the 
underlying framework of the MINER Act. The amendment would have 
responded to testimony heard in the Senate's hearings on the 
Crandall Canyon incident which made clear that MSHA needs to 
establish a formal dialogue with the Bureau of Land Management 
(BLM) about any safety concerns BLM observes during the 
inspection of a federal coal lease. The amendment also required 
two studies of issues highlighted by conditions in Crandall 
Canyon: mining in deep mines and pillar removal or ``retreat 
mining.'' Finally, the Wilson Substitute, based on a model 
established by the National Transportation Safety Board, would 
have ensured that MSHA alone was the official conduit of all 
information relating to a mine accident. The Wilson Substitute 
focused mine safety reform efforts where they are most needed, 
rather than undoing a year and a half of progress. That 
notwithstanding, the amendment was rejected 17 to 26, with all 
Democrats voting against.
    McKeon Amendment. Committee Senior Republican Member McKeon 
offered an amendment to remove provisions contained within H.R. 
2768 dealing with issues which were already effectively 
addressed in the MINER Act, and which provisions could have, in 
fact, undermined ongoing implementation of that law, resulting 
in diminished mine safety. Specifically, the McKeon Amendment 
would have stricken S-MINER provisions relating to the required 
use of refuge chambers; self-contained self-rescuer testing; 
wireless communications; mine seals; and the use of belt air. 
In each instance, ongoing studies or regulatory activity being 
undertaken by MSHA as a result of the MINER Act would be 
undermined by these S-MINER provisions. Nevertheless, the 
McKeon amendment was rejected 17 to 26, with all Committee 
Democrats voting against.

                               CONCLUSION

    As set forth above, H.R. 2768 does little more than 
effectively gut the MINER Act, extend regulatory timeframes for 
compliance on important issues that have been examined over the 
last sixteen months, and eviscerate any number of robust 
rulemaking processes. The legislation has the potential to 
reduce mine safety by cementing current practices into law and 
creating a ``one-size fits all'' model that fails to take into 
account varying mine conditions. The bill muddles current 
mining regulations and, ultimately, fails to meet any 
reasonable test of good public policy. Above all, H.R. 2768 
dictates complicated and technical safety regulations by way of 
Congressional fiat, with untold and unintended consequences for 
mine operators, miners, and their loved ones.
    H.R. 2768 in too many instances exhibits a dangerous 
hubris, and predicates itself on the notion that Members of 
Congress are better suited to dictate the metes and bounds of 
mine safety regulation than those experts tasked and trained 
under law to do so. Despite the call from the mining community, 
the federal agency tasked with mine safety and oversight, and 
in some instances, organized labor itself, the Majority has 
chosen to ignore these stakeholders and replace themselves as 
experts. Sadly, it is miners and their families who bear the 
risk and ultimate consequence of this legislative arrogance.
    For all of these reasons, we respectfully oppose H.R. 2768 
and urge its rejection by the full House of Representatives.
                                   Howard P. McKeon.
                                   Thomas E. Petri.
                                   Peter Hoekstra.
                                   Mark E. Souder.
                                   Vernon J. Ehlers.
                                   Judy Biggert.
                                   Todd Russell Platts.
                                   Ric Keller.
                                   Joe Wilson.
                                   John Kline.
                                   Cathy McMorris Rodgers.
                                   Kenny Marchant.
                                   Tom Price.
                                   Charles W. Boustany, Jr.
                                   Virginia Foxx.
                                   Rob Bishop.
                                   David Davis.
                                   Timothy Walberg.
                                   Dean Heller.