Led by an emotional presentation from Senator Robert Byrd (D-W. Va.), and multiple allegations of failure leveled against the Bush Administration and the mining industry, a seemingly bipartisan Senate Appropriations subcommittee, chaired by Senator Arlen Specter (R-Pa.), focused on mine safety on January 23, 2006. From the author’s perspective (a defense attorney and the lobbyist and senior counsel for safety at the industry’s trade association from 1978-1987), the hearing was extraordinary and is an indication of the massive challenges that the industry will face in the days ahead.

The MSHA testimony at the hearing was rendered almost irrelevant by the other witnesses and by the "sparring" between Senator Specter and Acting Assistant Secretary David Dye over Specter’s request that Dye remain in the hearing to respond to questions. Dye’s "too busy" response and early departure drew pointed comments and repeated references from Senator Specter, and barely a comment was made regarding the short disaster response and investigation briefing presented by the MSHA staff. In sharp contrast, the public interest attorney/lobbyist, and Clinton Administration head of MSHA, J. Davitt McAteer, grabbed the attention of the Senate Committee, and likely the press, by continuing his 30-year career of anti-industry and anti-Republican Administration statements.

At the end of hearing, Senator Specter summarized the legislation and actions that would be considered:

Senator Byrd set the tone, following a short introduction by Senator Specter, with these initial comments:

• The federal agency charged with protecting the safety of this country’s miners failed to protect them.

• The leadership in the MSHA Washington office made decisions to cut staff and abandon regulations.

• Why did it take two hours before MSHA was notified (of the Sago disaster)?

• Why did it take 11 hours for rescue teams to begin to enter the mine?

• We demand rapid response.

• We demand new communications & emergency breathing devices.

• We demand a look at regulations on the books and those discontinued.

• What should have been done about the pattern of violations at the Sago Mine?

• Do the sheer number of violations and penalties issued to Sago show they did not impact the company?

• Safety demands aggressive enforcement and leadership.

• Politics should never play a role in mine safety.

Senator Byrd was followed by Senator Harkin (D-Ia.), who noted that his father had been a coal miner who died of black lung disease, and that his nephew is an underground trona miner in Wyoming. He stated that since the trona industry can prevent disasters, the coal industry can, as well. Senator Harkin emphasized that new communication and emergency and rescue technology was needed.

All of the Senators expressed their condolences to the families and friends of the victims, often in very emotional terms. All Senators expressed their concerns about the 208 violations issued to Sago in 2005, but unfortunately no one put them into perspective by pointing out that MSHA conducts frequent and extensive inspections at all coal mines, with some inspections lasting weeks and even months, with an average of 2.2 violations per inspection shift.

The first witnesses were the MSHA Panel (David Dye, Ray McKinney, Bob Friend, and Ed Clair) who testified to the Sago mine disaster time line and their ongoing investigation. They were subjected to a short but intense set of questions and comments by the Senators regarding the Sago mine’s history of violations, penalties, late notification to MSHA, and lack of closure for its violation history. On this final issue, Mr. Dye indicated that the Mine Act permitted closures for areas of the mine, and MSHA had issued 18 orders at Sago, but that the Act did not provide for full mine closures based on cumulative violations. He reminded the Senators that the Administration previously proposed an increase in MSHA fines to a maximum of $220,000 per violation.

Unfortunately, no one from MSHA highlighted its massive closure order powers under current law, powers which do not exist under OSHA, nor that Congress funds mine safety with about $500 per covered employee vs. $3 per employee covered by OSHA (even though OSHA covers industries with far worse safety records than mining). Neither did MSHA emphasize the safety records set by the industry over the last five years.

Mr. Cecil Roberts, UMWA President, stressed that improvements in communications and oxygen availability had been needed for years, as were additional mine rescue teams. Mr. Roberts concluded by stating that Congress did not believe the industry was capable of insuring safety when it passed the 1969 Coal Act, but that the Bush Administration put the industry in charge of the safety agency in 2001.

Mr. Roberts was followed by Mr. Ben Hatfield, President and CEO of International Coal Group (owner of Sago). He stated that the company had been working on improved communications and supplemental oxygen, later testifying that its Illinois mine already was using an improved communication device. He also testified that he did not disagree with increased fines, increased use of closure orders, private interviews of employees by MSHA, and new technology requirements. Mr. Chris Hamilton, West Virginia Coal Association, testified that state legislation was being introduced today to address these issues. Mr. Bruce Watzman, National Mining Association, testified that the industry was creating a technology commission, led by a university professor, to examine new technology. Both Mr. Watzman and Mr. Hamilton stressed the coal industry’s critical role and excellent safety record.

Mr. J. Davitt McAteer, the Clinton Administration Assistant Secretary of Labor for MSHA who was recently appointed by West Virginia’s Governor to conduct a state investigation of Sago, took "center stage" by bringing a personal tracking device and a communication device to the hearing, which he declared effective and available, and asserted could have made a difference in saving lives at Sago. He responded to questions from Senators that the individual tracking device costs $17-20 per person and that the communication system cost about $100,000 for an entire mine.

Mr. McAteer also responded to questions from Senator Byrd regarding what can be done about "habitual violators" of the law, stating that the pattern of violations closure provisions of the Mine Act had limited use "in the last five years." No one reminded him that it also had limited use in his eight years running MSHA and that the safety record of the industry had improved since he left office.

Interestingly, at one point Mr. McAteer expanded his testimony from the coal industry to all metal and non-metal mines, putting the sand, gravel, stone, minerals, and metal industries on notice that they face a new challenge, perhaps similar to the passage of the 1977 Mine Safety Act that put coal and all other mineral extraction industries under MSHA and the US Department of Labor.

In contrast to David Dye, who replied to several questions by referring to an ongoing investigation of unknown length, Mr. McAteer (a veteran of more than 25 years of Congressional mine safety hearings and public interest group lobbying) stated: "We will hold a public hearing on March 1. We will issue a report to the Governor by July 1." Mr. McAteer’s capture of the Senators’ focus, and likely the upcoming press coverage, does not bode well for the US industry, the safest mining industry in the world, which can anticipate further damage to its image.

In particular, the decision by MSHA to hold joint, public investigation hearings on Sago, with McAteer representing West Virginia, will provide him a daily forum to further criticize the industry and President Bush, and seek prosecution of company officials, an agenda he pursued when he ran MSHA. Regardless of Senator Byrd’s admonition that "politics should never play a role in mine safety," it did on this day, and will continue to do so over the next several months. Hopefully, input like that of Bruce Watzman and Chris Hamilton, describing the industry’s excellent safety record while acknowledging that improvements must still be made, will have an effect and prevent unnecessary legislation and overzealous enforcement. If you have any questions or if we can be of assistance, please let me know (202-457-6511).