[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
H.R. 5663, MINER SAFETY AND HEALTH ACT OF 2010
=======================================================================
HEARING
before the
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, JULY 13, 2010
__________
Serial No. 111-72
__________
Printed for the use of the Committee on Education and Labor
Available on the Internet:
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice John Kline, Minnesota,
Chairman Senior Republican Member
Donald M. Payne, New Jersey Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey Howard P. ``Buck'' McKeon,
Robert C. ``Bobby'' Scott, Virginia California
Lynn C. Woolsey, California Peter Hoekstra, Michigan
Ruben Hinojosa, Texas Michael N. Castle, Delaware
Carolyn McCarthy, New York Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts Judy Biggert, Illinois
Dennis J. Kucinich, Ohio Todd Russell Platts, Pennsylvania
David Wu, Oregon Joe Wilson, South Carolina
Rush D. Holt, New Jersey Cathy McMorris Rodgers, Washington
Susan A. Davis, California Tom Price, Georgia
Raul M. Grijalva, Arizona Rob Bishop, Utah
Timothy H. Bishop, New York Brett Guthrie, Kentucky
Joe Sestak, Pennsylvania Bill Cassidy, Louisiana
David Loebsack, Iowa Tom McClintock, California
Mazie Hirono, Hawaii Duncan Hunter, California
Jason Altmire, Pennsylvania David P. Roe, Tennessee
Phil Hare, Illinois Glenn Thompson, Pennsylvania
Yvette D. Clarke, New York [Vacant]
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California
Mark Zuckerman, Staff Director
Barrett Karr, Minority Staff Director
C O N T E N T S
----------
Page
Hearing held on July 13, 2010.................................... 1
Statement of Members:
Kline, Hon. John, Senior Republican Member, Committee on
Education and Labor........................................ 5
Prepared statement of.................................... 7
Additional submissions:
Letter, dated July 12, 2010, from the American
Society of Safety Engineers........................ 137
Letter, dated July 13, 2010, from Associated Builders
and Contractors.................................... 144
Letter, dated July 13, 2010, from the Independent
Electrical Contractors............................. 144
Prepared statement of the National Stone, Sand and
Gravel Association................................. 145
McMorris Rodgers, Hon. Cathy, Ranking Minority Member,
Subcommittee on Workforce Protections...................... 9
Miller, Hon. George, Chairman, Committee on Education and
Labor...................................................... 1
Prepared statement of.................................... 3
Additional submissions:
Staff report, ``Scotia Coal Mine Disaster,'' October,
15, 1976, House Education and Labor Committee,
Subcommittee on Labor Standards.................... 29
Letter, dated July 9, 2010, from the American
Industrial Hygiene Association..................... 114
Letter and press release from the Appalachian
Citizens' Law Center, Inc.......................... 117
Letter, dated July 13, 2010, from the Building and
Construction Trades Department, AFL-CIO............ 126
Letter, dated July 11, 2010, from the International
Brotherhood of Boilermakers........................ 128
Letter, dated July 12, 2010, from Interstate Mining
Compact Commission................................. 130
Prepared statement of ORC Worldwide.................. 133
Unpublished disposition, dated March 3, 1997, Peabody
Coal Co. v. the Federal Mine Safety and Health
Review Commission.................................. 136
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 8
Statement of Witnesses:
Grayson, R. Larry, George H., Jr. & Anne B. Deike chair in
mining engineering; professor, energy and mineral
engineering, Pennsylvania State University................. 61
Prepared statement of.................................... 63
Chart: ``Safe Performance Index''........................ 100
Main, Hon. Joseph A., Assistant Secretary of Labor, Mine
Safety and Health Administration, U.S. Department of Labor. 10
Prepared statement of.................................... 12
Michaels, Hon. David, Ph.D., MPH, Assistant Secretary,
Occupational Safety and Health Administration, U.S.
Department of Labor........................................ 21
Prepared statement of.................................... 23
Rhinehart, Lynn, general counsel, AFL-CIO.................... 90
Prepared statement of.................................... 92
Roberts, Cecil E., president, United Mine Workers of America. 75
Prepared statement of.................................... 77
Smith, M. Patricia, Solicitor of Labor, U.S. Department of
Labor...................................................... 17
Prepared statement of.................................... 19
Snare, Jonathan L., on behalf of the Coalition of Workplace
Safety..................................................... 82
Prepared statement of.................................... 84
Stewart, Stanley, coal miner, Upper Big Branch Mine.......... 58
Prepared statement of.................................... 60
Watzman, Bruce, senior vice president, National Mining
Association................................................ 67
Prepared statement of.................................... 69
H.R. 5663, MINER SAFETY AND
HEALTH ACT OF 2010
----------
Tuesday, July 13, 2010
U.S. House of Representatives
Committee on Education and Labor
Washington, DC
----------
The committee met, pursuant to call, at 3:00 p.m., in room
2175, Rayburn House Office Building, Hon. George Miller
[chairman of the committee] presiding.
Present: Representatives Miller, Kildee, Payne, Woolsey,
Tierney, Kucinich, Holt, Loebsack, Altmire, Courtney, Shea-
Porter, Chu, Kline, McMorris Rodgers, Price and Guthrie.
Also Present: Representatives Rahall and Capito.
Staff Present: Aaron Albright, Press Secretary; Andra
Belknap, Press Assistant; Jody Calemine, General Counsel; Lynn
Dondis, Labor Counsel, Subcommittee on Workforce Protections;
Patrick Findlay, Investigative Counsel; Jose Garza, Deputy
General Counsel; Gordon Lafer, Senior Labor Policy Advisor;
Livia Lam, Senior Labor Policy Advisor; Sadie Marshall, Chief
Clerk; Richard Miller, Senior Labor Policy Advisor; Revae
Moran, Detailee, Labor; Alex Nock, Deputy Staff Director; Megan
O'Reilly, Labor Counsel; Robert Presutti, Staff Assistant,
Labor, James Schroll, Junior Legislative Associate, Labor;
Michele Varnhagen, Labor Policy Director; Mark Zuckerman, Staff
Director; Kirk Boyle, Minority General Counsel; Casey Buboltz,
Minority Coalitions and Member Services Coordinator; Ed Gilroy,
Minority Director of Workforce Policy; Angela Jones, Minority
Executive Assistant; Barrett Karr, Minority Staff Director;
Ryan Kearney, Minority Legislative Assistant, Molly McLaughlin
Salmi, Minority Deputy Director of Workforce Policy; Ken
Serafin, Minority Workforce Policy Counsel; Linda Stevens,
Minority Chief Clerk/Assistant to the General Counsel; and
Loren Sweatt, Minority Professional Staff Member.
Chairman Miller. A quorum being present, the committee will
come to order for the purposes of receiving testimony on
legislation that has been introduced dealing with serious flaws
in our Nation's mine safety laws. That would be H.R. 5663.
These flaws became devastatingly obvious on April 5th, when
a massive explosion ripped through the Upper Big Branch Mine in
West Virginia, killing 29 miners. It is simply unacceptable for
mine workers to die or be injured in preventable accidents. And
it is unacceptable for some mine companies to game the mine
laws to avoid protecting their employees. And it is
unacceptable that mine workers across the Nation live in fear
of their jobs if they raise safety issues at work. And it is
unacceptable that mine workers are not given the most updated
safety technology and training to protect their health and
safety.
While it will take much to determine the precise cause of
the Upper Big Branch explosion, we already understand the
disastrous results when mine owners operate on the margins of
safety in order to put more coal on the belt. Further study and
investigation isn't needed to understand the results when
workers' voices are silenced by fear of retaliation for
speaking out on safety problems. And we know the consequences
of safety when a miner operator repeatedly disregards safety to
do everything to avoid tougher oversight. The consequences are
that miners die.
These messages were clear when we traveled to Beckley, West
Virginia, to hear from miners and family members who lost loved
ones on April 5th. The testimony was chilling. What we heard
was how an outlaw mine company valued production over the lives
of human beings. We heard how miners would get sick because
there wasn't enough oxygen. We heard how widespread fear and
intimidation had paralyzed miners from demanding management fix
serious problems. And we learned how a Federal agency lacked
the resources and the legal authority to fix those chronic
problems.
In 2009 Massey's Upper Big Branch Mine was cited 515 times
for serious violations, including 54 orders to evacuate the
mine due to urgent safety concerns. While the mine corrected
unsafe conditions when it was confronted by MSHA inspectors, it
repeatedly slipped back to a pattern of noncompliance. In the
weeks before the explosion, MSHA closed the mine seven times;
six times for failures related to improper mine ventilation.
Despite this pattern of serious violation there was little
MSHA could do to get Massey to turn this operation around. The
millions of dollars in proposed fines over the years didn't
work. Dozens of temporary closure orders didn't work. And it
seems complaints that miners not even getting enough air below
didn't work.
The Upper Big Branch Mine is a perfect example of how
current law is inadequate, especially for those operations that
do everything to flaunt the law.
H.R. 5663, the Miner Safety and Health Act, will fix these
problems that have allowed some mine owners to operate on the
margins of safety without being held accountable. Among other
provisions, the legislation will revamp the broken pattern of
violation sanctions so that our Nation's most dangerous mine
operators improve safety quickly.
Furthermore, responding to serious concerns raised in
Beckley, the Miner Safety and Health Act will empower workers
to speak up about safety concerns, strengthening the
whistleblower protections.
The bill will eliminate incentives for owners to appeal
violations regardless of the merits and ensure that overdue
penalties are paid promptly.
The bill will give MSHA additional powers to shut down the
mine when there is a continuing threat to the health and safety
of miners.
Also, recognizing that some mine operations bide their time
to retaliate against whistleblowers, the bill will ensure that
the underground coal miners are dismissed only if the employer
has just cause.
Finally, the bill will guarantee that basic protections are
available in all workplaces. Workers should have basic work
place protection no matter if they work in a mine, extracting
coal, or in an oil refinery handling explosive chemicals.
In two dozen hearings over the last 3 and a half years,
this committee has not only examined gaps in mine safety but
also the significant shortcomings of the Occupational Safety
and Health Act.
I want to thank Congresswoman Woolsey for leading the
effort to reform the Occupational Safety and Health Act.
Your legislative work on the Workforce Protection
Subcommittee has made a clear case for strong action. That is
why under the legislation, all workers will have strong
whistleblower protections, not just miners. For the second time
in four decades, for the second time in four decades, criminal
and civil penalties will be increased, and those penalties will
be indexed for inflation.
Lastly, employers will have to fix safety problems more
quickly, even pending appeal. Unlike mine safety laws, other
workplaces are allowed to put off fixing many hazards found
while the violation is appealed.
And I would like to thank all the Members of the House,
Senate and the administration who have worked for weeks putting
the legislation together.
And particularly, I want to recognize the leadership of the
United States Senator Robert C. Byrd, who was one of the coal
miners' best allies in Washington. Senator Byrd was personally
involved in making these decisions on this bill up to the last
weeks of his life. Recognizing the importance of Senator Byrd's
legacy to our Nation's miners and workers, my manager's
amendment will change the name of the legislation to the Robert
C. Byrd Miner Safety and Health Act of 2010.
After the 2006 Sago and Aracoma tragedies, Senator Byrd
said, and I quote, ``If we are truly a moral Nation, then those
moral values must be reflected in government agencies that are
charged with protecting the lives of our citizens.''
And I agree.
Finally, this bill responds to the promise I made to
families paying the ultimate price for a job our Nation depends
on. The promise was to do everything in my power to prevent
similar tragedies. I believe that this bill is our best chance
to fulfill the promise made to the families of Aracoma, Sago,
Darby, Crandall Canyon and now Upper Big Branch.
I thank all the witnesses for joining us today and I look
forward to your testimony and your expertise.
And I now recognize Congressman Kline, the senior
Republican on the committee.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman,
Committee on Education and Labor
We meet today to consider urgent legislation to address serious
flaws in our nation's mine safety laws.
These flaws became devastatingly obvious on April 5th when a
massive explosion ripped through Upper Big Branch Mine in West
Virginia, killing 29 miners.
It is simply unacceptable for mine workers to die or be injured in
preventable accidents.
It is unacceptable for mine companies to game the mine laws to
avoid protecting their employees.
It is unacceptable that mine workers across the nation live in fear
of their jobs if they raise safety issues at work.
And it is unacceptable that that mine workers are not given the
most updated safety technology and training to protect their health and
safety.
While it will take months to determine the precise cause of the
Upper Big Branch explosion, we already understand the disastrous
results when a mine owner operates on the margins of safety in order to
put more coal on the belt.
Further study and investigation isn't needed to understand the
result when workers' voices are silenced by fear of retaliation for
speaking out on safety problems.
And, we know the consequences for safety when an operator
repeatedly disregarded safety and do everything to avoid tougher
oversight.
Miners die.
This message was clear when we travelled to Beckley, West Virginia
to hear from miners and family of miners who lost loved ones on April
5th. The testimony was chilling. What we heard was how an outlaw mine
company that valued production over the lives of human beings.
We heard how miners would get sick because there wasn't enough
oxygen.
We heard how widespread fear and intimidation has paralyzed miners
from demanding management fix serious problems. And, we learned how a
federal agency lacked the resources and legal authority to fix these
chronic problems.
In 2009, Massey's Upper Big Branch mine was cited 515 times for
serious violations, including 54 orders to evacuate the mine due to
urgent safety concerns. While the mine corrected unsafe conditions when
confronted by MSHA inspectors, it repeatedly slipped back into a
pattern of non-compliance.
In the weeks before the explosion, MSHA closed the mine seven
times, six times for failures related to improper mine ventilation.
Despite this pattern of serious violations, there was little MSHA could
do to get Massey to turn this operation around. The millions of dollars
in proposed fines over the years didn't work. Dozens of temporary
closure orders didn't work. And, it seems, complaints that miners were
not getting enough air below didn't work either. The Upper Big Branch
mine is the perfect example of how current law is inadequate,
especially for those operations that do everything to flout the law.
H.R. 5663, the Miner Safety and Health Act, will fix these problems
that have allowed some mine owners to operate on the margins of safety
without being held accountable.
Among other provisions, the legislation will revamp the broken
`pattern of violations' sanctions so that our nation's most dangerous
mine operations are able to improve safety quickly.
Furthermore, responding to serious concerns raised in Beckley, the
Miner Safety and Health Act will empower workers to speak up about
safety concerns strengthening whistleblower protections.
The bill will eliminate incentives for owners to appeal violations
regardless of merit and ensure overdue penalties are paid promptly.
The bill will give MSHA additional powers to shut down a mine when
there is a continuing threat to the health and safety of miners.
Also, recognizing that some mine operators may bide their time to
retaliate against whistleblowers, the bill will ensure that underground
coal miners are dismissed if the employer has just cause.
Finally, the bill will guarantee that basic protections are
available in all workplaces.
Workers should have basic workplace protections no matter if they
work in a mine extracting coal or at an oil refinery handling explosive
chemicals.
In two dozen hearings over three-and-a-half years, this committee
has not only examined gaps in mine safety, but also the significant
shortcomings with the Occupational Safety and Health Act.
I want to thank Congresswoman Woolsey for leading the effort to
reform the OSH Act. Your legislative work in the Workforce Protections
Subcommittee has made a clear case for strong action. That is why,
under the legislation, all workers will have to strong whistleblower
protections. Not just miners.
For the second time in four decades, criminal and civil penalties
will be increased and those penalties will be indexed to inflation.
Lastly, employers will have to fix safety problems more quickly,
even pending appeal. Unlike mine safety laws, other workplaces are
allowed to put off fixing many hazards found while the violation is
appealed.
I would like to thank all those members of the House, Senate and
the administration who have worked for weeks putting this legislation
together.
In particular, I want to recognize the leadership of a United
States Senator Robert Byrd who has been one of the coal miner's best
allies in Washington. Senator Byrd was personally involved making
decisions on this bill up to the last week of his life.
Recognizing the importance of Senator Byrd's legacy to our nation's
miners and workers, I intend to change the name of the legislation to
the Robert C. Byrd Miner Safety and Health Act of 2010.
After the 2006 Sago and Aracoma tragedies, Senator Byrd said that
``if we are truly a moral nation * * * [then those] moral values must
be reflected in government agencies that are charged with protecting
the lives of our citizens.''
I agree.
Finally, this bill responds to the promise I made to families
paying the ultimate price for a job our nation depends on. That promise
was to do everything in my power to prevent similar tragedies.
I believe that this bill is our best chance to fulfill the promise
made to the families of Aracoma, Sago, Darby, Crandall Canyon and Upper
Big Branch.
I thank all the witnesses for joining us today and I look forward
to your testimony.
______
Mr. Kline. Thank you, Mr. Chairman.
And good afternoon to all our distinguished witnesses from
inside and outside the Federal Government. This is a far-
reaching piece of legislation, and we value the multiple
perspectives that you all bring.
The April 5th Massey Mine explosion that took the lives of
29 West Virginians was a mining tragedy, the likes of which our
Nation had not seen in four decades. We all share a goal of
preventing such a tragedy from ever happening again.
Over the years, Congress has taken repeated steps to
improve mine safety. Yet, as this loss reminds us, more work
must be done to modernize our laws, toughen penalties on bad
actors, and ensure Federal agencies are fulfilling their
oversight and enforcement responsibilities.
I mention my appreciation for the viewpoints represented
here today, but I would be remiss if I did not acknowledge the
notable absence of the Labor Department's Inspector General. As
the agency's independent watchdog, the IG is in a unique
position to offer unbiased analysis of MSHA's strengths and
weaknesses in enforcing our mine safety laws.
I am disappointed Chairman Miller declined my request to
call the IG to testify and share his perspective on issues
clearly relevant to any serious discussion about mine safety.
In recent months, the IG's office has identified weaknesses
in mine inspector training and retraining, leaving MSHA
personnel without the up-to-date knowledge of health and safety
standards or mining technology needed to perform their
inspection duties. The IG's office also identified a disturbing
failure by MSHA to enforce its ``pattern of violation''
authority under current law, which subjects mines with repeated
safety violations to stricter scrutiny and tougher enforcement.
As outlined in a June 23, 2010, alert memorandum, the IG's
office described an internal MSHA policy that resulted in at
least ten mines being removed from potential POV status for
reasons ``other than appropriate consideration of the health
and safety conditions at those mines.''
I have corresponded with Assistant Secretary Main about
this unacceptable breakdown in enforcement, and I look forward
to continuing that dialogue today as we seek answers about the
agency's enforcement practices and capabilities.
This is a vital discussion that cannot wait, particularly
because this committee appears to be moving quickly toward a
vote. In fact, today we are examining legislation introduced by
the majority as Members left Washington for the Independence
Day work period.
I do appreciate Chairman Miller's apparent urgency. I would
simply urge us to act as quickly as is prudent to make the
necessary changes to the law and its enforcement to protect
miners.
Unfortunately, we do not yet have all the information we
need to identify how best to keep miners safe and crack down on
bad actors. Three investigations in the Upper Big Branch
explosion by MSHA, an independent Federal review commission,
and the State of West Virginia are currently under way.
At Congress's request, the Inspector General is conducting
a review of MSHA policies that led to lax enforcement. The
results, which will include recommendations for reform, are not
expected until September.
This committee requested and was granted extraordinary
authority from the House of Representatives to investigate
underground mine safety in May. An investigation is still
ongoing.
Instead of rushing to legislate without all the facts, I
hope we listen to the experts who are here today and use their
expertise, along with the eventual findings of the
investigations I just mentioned, to enact a bill with a clear
focus on making mines safer, period.
One important way to do that would be to set aside H.R.
5663's misplaced inclusion of OSHA reforms in a bill that ought
to be squarely focused on the safety of miners underground. The
proposed changes to the OSHA act would dramatically reshape
workplace safety policies for virtually every private-sector
employer in America. These provisions will drive up costs and
litigation for employers, all of which--all of which--would
make it more difficult to create jobs at a time when our
economy needs them the most.
And for all these changes proposed under the banner of
workplace safety, the legislation does nothing to help
employers make their workplaces safer. Once again, it is a
punishment-only approach that ignores the importance of
proactive prevention.
Members on both sides of the aisle are anxious to make
mines and miners safer. The bill before us today is a missed
opportunity to learn the lessons from Upper Big Branch and a
clumsy attempt to drive up workplace litigation in the name of
safety. I hope to rectify both of these flaws before the bill
receives a vote in this committee.
Thank you, Mr. Chairman. I yield back.
[The statement of Mr. Kline follows:]
Prepared Statement of Hon. John Kline, Senior Republican Member,
Committee on Education and Labor
Thank you Chairman Miller, and good afternoon to our distinguished
witnesses from inside and outside the federal government. This is a
far-reaching piece of legislation, and we value the multiple
perspectives you bring.
The April 5th Massey mine explosion that took the lives of 29 West
Virginians was a mining tragedy the likes of which our nation had not
seen in four decades. We all share a goal of preventing such a tragedy
from ever happening again.
Over the years, Congress has taken repeated steps to improve mine
safety. Yet as this loss reminds us, more work must be done to
modernize our laws, toughen penalties on bad actors, and ensure federal
agencies are fulfilling their oversight and enforcement
responsibilities.
I mentioned my appreciation for the viewpoints represented here
today, but I would be remiss if I did not acknowledge the notable
absence of the Labor Department's Inspector General. As the agency's
independent watchdog, the IG is in a unique position to offer unbiased
analysis of MSHA's strengths and weaknesses in enforcing our mine
safety laws. I am disappointed Chairman Miller declined my request to
call the IG to testify and share his perspective on issues clearly
relevant to any serious discussion about mine safety.
In recent months, the IG's office has identified weaknesses in mine
inspector training and re-training, leaving MSHA personnel without the
up-to-date knowledge of health and safety standards or mining
technology needed to perform their inspection duties.
The IG's office also identified a disturbing failure by MSHA to
enforce its ``pattern of violation'' authority under current law, which
subjects mines with repeated safety violations to stricter scrutiny and
tougher enforcement.
As outlined in a June 23, 2010 Alert Memorandum, the IG's office
described an internal MSHA policy that resulted in at least 10 mines
being removed from potential POV status for reasons--and I'm quoting--
``other than appropriate consideration of the health and safety
conditions at those mines.''
I have corresponded with Assistant Secretary Main about this
unacceptable breakdown in enforcement, and I look forward to continuing
that dialogue today as we seek answers about the agency's enforcement
practices and capabilities.
This is a vital discussion that cannot wait, particularly because
this committee appears to be moving quickly toward a vote. In fact,
today we are examining legislation introduced by the majority as
Members left Washington for the Independence Day work period. My staff
advises me that a committee vote on this legislation could come as
early as this week.
I do appreciate Chairman Miller's apparent urgency--I would simply
urge us to act as quickly as is prudent to make the necessary changes
to the law and its enforcement to protect miners.
Unfortunately, we do not yet have all the information we need to
identify how best to keep miners safe and crack down on bad actors.
Three investigations into the Upper Big Branch explosion--
by MSHA, an independent federal review commission, and the state of
West Virginia--are currently underway.
At Congress's request, the Inspector General is conducting
a review of MSHA policies that led to lax enforcement. The results,
which will include recommendations for reform, are not expected until
September.
This Committee requested and was granted extraordinary
authority from the House of Representatives to investigate underground
mine safety in May. Our investigation is ongoing.
Instead of rushing to legislate without all the facts, I hope we
listen to the experts who are here today and use their expertise along
with the eventual findings of the investigations I just mentioned to
enact a bill with a clear focus on making mines safer, period.
One important way to do that would be to set aside H.R. 5663's
misplaced inclusion of OSHA reforms in a bill that ought to be squarely
focused on the safety of miners underground.
The proposed changes to the OSH Act would dramatically reshape
workplace safety policies for virtually every private-sector employer
in America. These provisions will drive up costs and litigation for
employers--all of which would make it more difficult to create jobs at
a time when our economy needs them most.
And for all these changes proposed under the banner of workplace
safety, the legislation does nothing to help employers make their
workplaces safer. Once again, it is a punishment-only approach that
ignores the importance of proactive prevention.
Members on both sides of the aisle are anxious to make mines and
miners safer. The bill before us today is a missed opportunity to learn
the lessons from Upper Big Branch, and a clumsy attempt to drive up
workplace litigation in the name of safety. I hope we rectify both of
these flaws before any bill receives a vote in this committee. Thank
you, and I yield back.
______
Chairman Miller. Thank you.
Without objection, we will hear opening statements from the
chair and the ranking member of the subcommittee of
jurisdiction, the Subcommittee on Workforce Protections.
And I will now recognize Congresswoman Woolsey and then
recognize Congresswoman McMorris Rodgers.
Congresswoman Woolsey.
Ms. Woolsey. Thank you, Mr. Chairman, and thank you for
your leadership on miner and worker health and safety. You
mentioned Senator Byrd's support, and I have been made aware
that Senator Byrd, who was involved in the drafting of this
bill, had words said at his funeral, because his family at the
funeral asked that in lieu of flowers, contributions be made to
help the families of the UBB disaster.
So following in Senator Byrd's huge footsteps, H.R. 5663 is
a truly comprehensive bill. It will make lifesaving
improvements to benefit the hardworking men and women, who
often perform the most dangerous work in our Nation. The
Subcommittee on Workforce Protections has made bringing worker
health and safety into the 21st century our very top priority.
So, along with the full committee, we have held several
hearings on health and safety, including two legislative
hearings this year, on H.R. 2067, the Protecting America's
Workers Act, PAWA, which now has about 113 co-sponsors.
And just about three weeks ago, the subcommittee traveled
to Middletown, Connecticut, to explore the causes and solutions
of a February explosion at the Kleen Energy Plant, which killed
six workers and injured at least 50 others. This recent
accident in Middletown, as well as the tragic blast at Upper
Big Branch Mine in West Virginia, and explosions in Washington
State and in the Gulf involving multiple fatalities and
injuries underscores how our Federal health and safety laws
must be strengthened.
This year has been a particularly tragic one for the
American worker. And the sad truth is that these explosions
probably, absolutely could have been prevented had employers
put miners and workers above profits.
Among other important provisions in H.R. 5663, it
strengthens whistleblower laws to protect those workers and to
protect those miners who speak out about unsafe conditions.
Since inspectors cannot be at every single workplace every
minute, we depend on miners and other workers to be vigilant.
Yet when they are, they often lose their jobs or are otherwise
retaliated against. So, Mr. Chairman, I commend you for
inserting these protections in H.R. 5663, which also includes
the provision to provide that miners cannot be fired except for
good cause.
H.R. 5663 also contains other important provisions,
including complete overhaul of the pattern of violation section
in the Miner Act--the Mine Act, to effectively reign in serial
violators. And H.R. 5663 adopts from PAWA updated criminal and
civil penalties, a family involvement provision and abatement
during contest, some of this which is already in the Mine Act,
fortunately.
So, again, Mr. Chairman, thank you for your leadership. I
look forward to hearing from our distinguished panel and these
wonderful witnesses you brought before us today, and to work
with you to pass this very, very important legislation.
I yield back.
Chairman Miller. The gentlelady yields back.
With that, the chair would recognize the ranking member of
the subcommittee, Congresswoman McMorris Rodgers.
Mrs. McMorris Rodgers. Thank you, Mr. Chairman, and thank
you for holding this important hearing today.
I don't think any of us will ever forget the April 5th
explosion at the Upper Big Branch Mine or the attempted
recovery efforts that followed the weeks after. The explosion
left our Nation deeply saddened and with many questions about
the cause and the overall safety of the Upper Big Branch Mine
and mines around the country.
Since then, several investigations have ensued, including
within this committee, looking at the underlying causes of the
explosion and the need for changes to our mine safety
regulations and laws.
I am concerned that the bill we are considering today may
be premature. We have yet to see the findings of any of these
investigations, including by this committee.
Let me be clear, we need to ensure that our mines are safe.
No bad actor should go unpunished, especially when lives are at
stake. But we need to better understand what laws are working
within the current safety structure and which ones are not,
including examining whether the Mine and Safety Health
Administration was fully enforcing the current safety laws to
the best their ability.
I fear that the bill that we are considering today may not
even make our mines safer, but it will negatively impact every
employer in this Nation, making numerous unrelated changes to
OSHA, in fact raising the cost of doing business for every
employer in America. At a time when jobs are scarce and the
economy is struggling, we need to do all we can to encourage
policies that expand on economic recovery and that encourage a
better working relationship between the safety inspectors and
our employers, not one that is going to take scarce resources
away from safety and put it towards litigation.
I would like to thank our witnesses for being here, and
look forward to hearing more from them on what we can do to
ensure that our workplaces are safe, including those that are
underground. And I yield back the balance of my time.
Chairman Miller. I thank the gentlewoman. The gentlewoman
yields back the balance of her time.
Without objection, the committee is joined on the dais
today by two Members of the West Virginia delegation who will
be recognized to ask questions after the Members who are
currently in the room, the sitting members of the committee who
are currently in the room, have an opportunity to ask
questions. And that is Congressman Nick Rahall and
Congresswoman Shelley Moore Capito.
Welcome to the committee, and thank you for your
involvement in this unfortunate event, but we appreciate all of
the help you and your staffs have given this committee.
And with that, I would like to introduce our first panel of
witnesses at this hearing.
Our first will be Mr. Joseph Main, who is the Assistant
Secretary of Labor for the Mine Safety and Health
Administration. He began working in coal mines in 1967 and has
more than 40 years of experience in mine health and safety. He
served as Administrator of the Occupational Health and Safety
Department of the United Mine Workers for 22 years.
Ms. Patricia Smith is the Solicitor of Labor for the
Department of Labor. Previously, Ms. Smith served as the New
York State Commissioner of Labor since March 6, 2007. Prior to
that, Ms. Smith served as Chief of the Labor Bureau of the New
York State Attorney General's Office.
Mr. David Michaels is the Assistant Secretary of
Occupational Safety and Health. And before coming to OSHA in
2009, he was a professor at George Washington University School
of Public Health from 1998 to 2001. Mr. Michaels served as the
Department of Energy's Assistant Secretary for Environmental
Health and Safety.
Welcome to the committee. We look forward to your
testimony. As you know, your written statements will be placed
in the record in their entirety, and you proceed in the manner
in which you are most comfortable.
Most of you all have experience before the committee, but
you know, we have a lighting system here. The green light will
go on when you begin, and a yellow light will give you a
warning when to wrap up, and then a red light when it should
come to an end. But we want you to convey your comments and
important thoughts on this matter that you are most
comfortable. Thank you.
Mr. Main--Secretary Main, excuse me.
STATEMENT OF HON. JOSEPH MAIN, ASSISTANT SECRETARY, MINE SAFETY
AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR
Mr. Main. Mr. Chairman, thank you, ranking member, members
of the committee. I appreciate the invitation to testify on
behalf of the U.S. Department of Labor Mine Safety and Health
Administration today about the Miner Safety and Health Act of
2010.
Secretary Solis and I are dedicated to safeguarding the
health and safety of our Nation's miners, and this bill helps
reform, will help realize that goal, and I hope the
administration's--excuse me, and I offer the administration's
thank you.
Thank you, Mr. Chairman, Congresswoman Woolsey, Congressman
Rahall and your House and Senate colleagues, especially Senator
Harkin, Senator Rockefeller and the late Senator Byrd, for your
work on the bill with critical provisions we have sought.
We are all mindful of the urgency of our efforts. We have
heard the pleas for change from the family members of miners
lost in the Upper Big Branch Mine. I want Eddie Cook, Gary
Quarles, Alice Peters, Steve Morgan, Clay Mullins and Goose
Stewart and the family and friends of all the coal miners to
know that their government is listening. We will make good on
President Obama's promise to act before another horrific mine
accident.
The administration fully endorses the committee's effort to
pass this bill this session. Simply put, this bill will save
lives. The bill is true to the Mine Act principles that mine
operators are responsible for the health and safety of our most
precious resource, the miner. It promotes a culture of safety
and will give MSHA effective new tools to hold to account mine
operators who fail or refuse to meet their obligations.
The most important of these new tools is the revamped
pattern of violation system. As I have said repeatedly, the
current system is broken. As I have said on many occasions, we
need to fix the pattern of violation system. No mine has been
placed on the pattern since Congress enacted the law in 1977.
This legislation eliminates the rule that MSHA base a POV
finding on final orders of the Federal Mine Safety and Review
Commission orders that are issued years after the fact.
This bill requires MSHA to act on current conditions of the
mine and takes a remedial approach, unlike the current punitive
system, for changing conduct of mines where noncompliance
elevates the risk to miners.
The bill also establishes strong protections for miners to
take an active role in their own health and safety. Unlike
miners MSHA is not at a mine on every shift every day. As the
committee learned at the Beckley field hearing, many miners
won't speak up about safety problems for fear of losing their
jobs. Armed with the bill's new training requirements and stiff
penalties for discrimination, we are resolved to changing that
culture of fear.
The bill also fixes the serious problems of advance notice
of inspections. Inspectors cannot make effective inspections
where unscrupulous operators break the law by getting advance
notice of an inspection. They hide dangerous practices with
temporary fixes until the inspectors leave.
The bill increases criminal penalties, requires posting of
the criminal provisions on mine property and gives MSHA
subpoena power to uncover this illegal conduct. MSHA will work
with the Justice Department to stamp out this unconscionable
practice.
The bill's preshift examination provision for underground
coal mines advances the principle that operators take
responsibility for preventing violations and not wait on MSHA
to find the problems. Diligent preshift inspections and a
communication plan to protect miners will lead to fewer
citations and safer mines. The bill advances better technology
for atmospheric monitoring of methane and other dangerous
gases. That will help prevent deadly explosions and will
provide critical information about mine conditions during mine
rescue operations when timely information is a matter of life
and death.
Other important provisions expedited power to revoke mine
plans that do not adequately protect miners and improvements to
our certification process for safety personnel providing
regular recertification and a revocation process for those who
shirk their responsibilities. Solicitor Smith will discuss the
bill's important clarification of what violations are
significant and substantial and its improvements to the
Secretary's investigation and injunctive powers.
Finally, I would like to express the administration's
support for the Protecting America's Workers Act provisions
included in this bill. All workers deserve a safe and healthful
work place.
Again, I would like to thank the committee for moving this
bill forward. I can think of no better way to honor the memory
of Senator Byrd and the 29 miners who perished at the Upper Big
Branch Mine than to enact safeguards to protect miners from
another disaster. This bill is our best chance to accomplish
this goal.
I will be happy to answer any questions that you may have.
Thank you.
[The statement of Mr. Main follows:]
Prepared Statement of Hon. Joseph A. Main, Assistant Secretary of
Labor, Mine Safety and Health Administration, U.S. Department of Labor
Mr. Chairman, Mr. Ranking Member, and Members of the Committee: I
appreciate the opportunity to appear here today on behalf of the U.S.
Department of Labor, Mine Safety and Health Administration (MSHA), and
on behalf of Secretary of Labor Hilda Solis, to discuss the Miner
Safety and Health Act of 2010. Secretary Solis has been a great
supporter of MSHA's mission and a champion of greater protections for
all workers. I am also pleased to join the Solicitor of Labor, Patricia
Smith, and Assistant Secretary David Michaels, who I have worked with
closely these past months. Both are powerful advocates for stronger
safeguards to protect the health and safety of all workers and for
holding employers accountable.
When I took on the mission of leading MSHA as the Assistant
Secretary I did so with a clear purpose in mind--to implement and
enforce the nation's mine safety laws in order to improve health and
safety conditions in the nation's mines and enable miners to go to
work, do their job, and return home to their families each and every
day free of injury, illness or death. That is what my administration is
about.
I must acknowledge why we are here. We would not be discussing
sweeping improvements to the Mine Act if it were not for the 29 miners
who lost their lives at the Upper Big Branch (UBB) Mine. Since the
disaster, I have met with the families of the victims of that tragedy
on several occasions. My prayers go out to the families and their loved
ones. I believe I speak for everyone here when I express my hope that
we will all remember their profound loss as we move forward in making
reforms that will save other mining families, other mining communities,
from experiencing their grief.
We saw in living detail how committed these families are to
protecting their brethren from going through this kind of tragedy again
when they testified at this Committee's field hearing in Beckley. They
bravely told me and this Committee how the mining industry and our mine
safety system had failed them. I want Eddie Cook, Gary Quarles, Alice
Peters, Steve Morgan, Clay Mullins, and Goose Stewart to know that
their pleas for change did not fall on deaf ears.
When the Secretary and I met with the President shortly after the
Upper Big Branch explosion, he made clear his personal commitment and
that of the Administration to honor the victims of this disaster by
ensuring justice is served on their behalf and that an accident of this
magnitude never happens again. He told the nation ``we owe [those who
perished in the UBB disaster] more than prayers. We owe them action. We
owe them accountability. We owe them an assurance that when they go to
work every day, when they enter that dark mine, they are not alone.
They ought to know that behind them there is a company that's doing
what it takes to protect them, and a government that is looking out for
their safety.''
To ensure that justice is done on their behalf, I have directed
MSHA to conduct a thorough and comprehensive investigation into what
caused the explosion on April 5th. I am pleased to report that this
investigation is well underway. MSHA investigators have conducted more
than 100 interviews with Massey employees and MSHA personnel. In
addition, our investigative team has finally been able to reenter the
mine safely and our physical investigation of the mine is ongoing.
This investigation will be the most open and transparent in MSHA's
history. We will be holding a number of public hearings, enabling
unprecedented public participation in the investigation. Moreover, MSHA
is conducting its investigation in a manner designed to avoid any
interference in the Justice Department's criminal investigation.
Today's hearing is a critical step forward in making good on the
President's promise that this Administration would take action to
prevent future mine accidents. The Secretary and I applaud the work of
Congressman Miller, Chairwoman Woolsey, Congressman Rahall and their
Senate colleagues in drafting this bill, as well as the hard work of
their staffs. I personally appreciate the opportunity that all of you
gave me to have worked so closely with you on this legislation. It
closes some critical gaps in the Mine Act and establishes strong new
protections for miners. I am proud to tell you that this Administration
fully endorses the Committee's efforts to move this legislation this
year and we look forward to working with you on this legislation as it
moves through the legislative process.
This bill rests on a solid foundation of principles. Those
principles are:
that every worker is entitled to come home from work
safely at the end of a shift;
that fatalities, injuries and illnesses can be prevented
when employers institute and follow safety plans, prevent hazards, and
protect workers, even in dangerous industries like mining; and,
that the best role MSHA can play is to enforce mine
operators' obligation to take responsibility for the safety and health
of their workers.
The tragic explosion at the Upper Big Branch mine revealed that the
nation's mine safety laws are not serving these principles the way they
should. The Miner Safety and Health Act of 2010 will bring those
principles back to the forefront, and put the health and safety of
miners first.
I believe this bill really will change the culture of safety in the
mining industry. It does not simply fix a particular hazard or practice
that caused the last disaster, as has often been the pattern in mine
safety reform. Instead, it gives MSHA the tools it needs either to make
mine operators live up to their legal and moral responsibility to
provide a safe and healthful workplace for all miners, or to step in
with effective enforcement when operators refuse to live up to this
responsibility and endanger miners.
While Solicitor Smith and I look forward to discussing many aspects
of the bill, I would like to discuss a few particular provisions I
believe will, if enacted, save lives, help prevent mine explosions,
help ensure that miners have a meaningful and protected voice about
their own health and safety at work, and bring problem mine operators
into compliance with the law.
Among the most important provisions of this bill is its replacement
of the Mine Act's pattern of violations (POV) provision. The bill would
make the POV system a meaningful tool in MSHA's arsenal. When I first
appeared before this Committee in February to testify about the backlog
of contested cases pending before the Federal Mine Safety and Health
Review Commission, one of the areas I identified for needed reform was
MSHA's current pattern of violations process. The Mine Act's POV
provision was intended to provide MSHA a powerful tool to deal with
mine operators who demonstrated, through continued significant and
substantial health or safety violations, a disregard for the health and
safety of miners. Instead, the POV provision is an empty vessel--it has
never been successfully implemented against a mine operator in the
history of the Mine Act--and is broken by all accounts, including
MSHA's.
I have been working on POV reform since shortly after my
confirmation. Last winter, and well before the explosion at Upper Big
Branch, MSHA put its planned reform of pattern of violations
regulations on its Spring Regulatory Agenda. This legislation will
expedite that needed reform.
Under current regulations, establishing an operator's pattern of
violations simply takes too long and exposes miners to risk when MSHA
should be acting. MSHA can only act after an operator has a number of
violations that have become final orders of the Commission. Given the
current backlog of Commission cases, MSHA is pursuing pattern violators
years after the violations occurred. The Miner Safety and Health Act of
2010 fixes this problem by eliminating the final order requirement and
directing MSHA to identify mines with a pattern of recurring accidents,
injuries, illnesses or citations or orders for safety or health
violations that indicate an elevated risk to miners. This change will
allow MSHA to use this enhanced enforcement tool looking at more recent
violations and events rather than ones that are years old. The bill
still provides that operators can seek an expedited review of
withdrawal orders issued under the pattern process, but it does not
require cases to work their way through the system before MSHA can act.
I believe this bill will save lives and prevent injuries by enabling
MSHA to act quickly to enforce compliance with the Mine Act at
operations with high levels of violations.
The bill also makes the Mine Act's pattern provisions more remedial
than current law and more focused on forcing a change in the safety
culture of mines that fail to establish a commitment to miner safety
and health. Under this bill, if MSHA determines that a mine has a
pattern of recurring citations, MSHA is authorized to require the
operator to take particular actions tailored to the risks to which
miners have been exposed, including additional training for miners,
establishing a health and safety management program, and designating
certified safety personnel at the mine to address the mine's health and
safety problems. The bill also increases the number of workplace
inspections for mines in pattern status and authorizes MSHA to directly
communicate with a POV mine's workforce about conditions at the mine
and the rights of miners under the Act.
Under the new POV program, MSHA will have an open and transparent
system for choosing mines that need to be put into POV status. The data
that MSHA uses to evaluate the appropriateness of putting a mine on POV
status will be available for the public to review and the criteria will
be direct and comprehensible. I believe many mine operators will take
advantage of this openness and transparency to monitor their own
performance and change their ways before they put their miners into
danger. Those mine operators should know whether their lack of
compliance will necessitate putting them on POV status, before that
happens, and they will be able to improve conditions at their mines
before MSHA must step in to assist in remediating the conditions at the
mine.
I strongly believe that a safe mine requires the active involvement
of miners who are informed about safety and health issues as well as
their rights under the Act to demand a safe workplace. I have met with
many mine operators, and those operators with the strongest safety and
health cultures would agree that the participation and involvement of
miners in safety and health is a key component of their safety records.
However, the powerful testimony at the Committee's Beckley field
hearing underscored that there are operators who fail or refuse to
embrace this view.
Miners that testified at the hearing made clear that that some
miners are often afraid to speak up about conditions at their mines.
Even when miners know of threats to their own safety and the safety of
their fellow miners, they face a significant risk of losing their jobs,
sacrificing pay, or suffering other negative consequences if they come
forward.
No one knows the conditions in the mines better than the miners
themselves. Just as a traffic cop cannot be on every street corner
catching every speeding car, MSHA inspectors cannot be in every mine,
finding every hazard every day of the week. It is absolutely crucial
that miners bring dangerous conditions to mine operators' and MSHA's
attention before those conditions cause injuries, illnesses, or even
fatalities.
This bill establishes important protections for miners when they
exercise their rights under the Mine Act. The Mine Act has long
protected from retaliation miners who come forward to report safety
hazards. We have heard loud and clear, however, that those protections
are simply inadequate and that miners lack faith and belief in the
current system. The Miner Safety and Health Act of 2010 makes dramatic
changes in this area and gives MSHA the tools it needs to protect
miners who come forward. The bill:
Makes explicit the right of all miners to refuse to
perform work they reasonably believe to be unsafe;
Creates a fairer and faster process to get miners their
jobs back if they are discriminated against for coming forward to
complain about safety or health issues;
Eliminates the financial disincentive for miners to report
safety hazards that might result in the mine being shut down so the
hazards can be fixed by guaranteeing miners pay during all safety-
related shut downs. No one should have to choose between a paycheck and
protecting him or herself; and,
Substantially increases penalties for mine operators who
retaliate against miners who report safety hazards.
MSHA will work hard to vigorously enforce these new protections.
Part of this reform is to ensure that miners are aware of their rights.
This bill makes strides in that direction. It requires that miners
receive annual refresher training on their rights, including the right
to report hazardous conditions, receive training, participate in mine
inspections through a representative of miners, and refuse to work in
hazardous conditions.
The bill also includes several important provisions to require mine
operators to find dangerous conditions in their mines before they hurt
or kill miners and to take action to fix them. The Labor Department's
Spring 2010 Regulatory Agenda announced our intention to use new tools
to detect and prevent hazards to workers. Generally, DOL announced its
intent to move towards a broad strategy that requires employers to
understand that the burden is on them to obey the law before they are
visited by DOL. We call this compliance strategy ``Plan/Prevent/
Protect.'' The provision on the pre-shift review of mine conditions
advances this strategy.
The Mine Act mandates operator pre-shift examinations for such
hazards or violations of mandatory health or safety standards as the
Secretary requires. These examinations are a critical component of an
effective safety and health program for underground mines. In the ever-
changing mine environment, it is critical that hazardous conditions and
violations be recognized and abated quickly. The provision in the bill
is designed to ensure that all hazards and violations are communicated
effectively so that they can be abated before anyone is hurt or killed
by them. The result should be a reduced risk of injury, illness and
death and should lead to fewer citations for safety and health
violations during MSHA inspections of underground mines.
The legislation will also help MSHA and SOL enforce the law
successfully after inspectors cite a serious violation by clarifying
the meaning of a significant and substantial (S&S) violation. My
colleague, the Solicitor, will talk about this important provision in
more detail. Let me just say that since the early 1980's, the meaning
of an S&S violation under the Mine Act has been unreasonably restricted
by a Commission interpretation of the law that is not consistent with
Congressional intent or with protecting the safety and health of
miners. The bill corrects this problem by expressly defining an S&S
violation as one with a reasonable possibility of resulting in a
miner's injury, illness or death.
I will share an example of how the Commission's interpretation of
the law restricts MSHA from doing its job. In the recent hearing to put
Massey's Tiller Mine on a pattern of violations, the Secretary needed
to establish that a certain number of Massey's violations were S&S in
order to prevail. Although the Commission judge has not yet issued a
written decision, he announced from the bench that the Secretary did
not prevail. The judge ruled that it is not a ``significant and
substantial'' violation of mine safety regulations to operate a piece
of equipment with an impermissible opening into an enclosed electrical
component in a gassy mine where combustible coal dust could be present.
The judge interpreted the governing caselaw to require MSHA to show
that the equipment have an existing source of electrical sparks within
the enclosed electrical component before the violation could be
considered ``significant and substantial.'' This is clearly wrong,
imposing an inappropriate standard that puts miners at risk and defies
common sense. The Mine Act is intended to protect miners, not expose
them to needless risk before MSHA is allowed to effectively act. It
does no good to penalize an operator with an S&S violation after miners
have died in an explosion. This is an example of why the law needs to
be changed and why Congress needs to ensure that when a mine operator
allows miners to be exposed to serious hazards the law treats it as a
serious violation.
Now I would like to mention a preventive measure the bill adds that
modernizes existing standards. The provision in the bill to expedite
the process of improving atmospheric monitoring in mines will make
operators, MSHA, state agencies and mine emergency teams better
prepared for mine emergencies. Specifically, the provision requires the
National Institute for Occupational Safety and Health to advance the
research in how to better monitor the atmosphere in mines for the
deadly threats of methane and other dangerous gases. The Secretary then
plans to engage in rulemaking in response to NIOSH recommendations. We
anticipate that ultimately we will be able to have real-time monitoring
of a mine's atmosphere during a mine emergency.
In addition, in day-to-day operations, mine operators would know
when their miners are being put in peril as a result of a build up of
dangerous gases. It will then be incumbent upon operators to determine
the cause of the build up and to plan how to effectively fix the
problem. The bottom line is that better atmospheric monitoring will
prevent deadly explosions, fires, injuries, and fatalities and speed
the rescue of miners in the event of emergency.
The bill will also prevent disastrous explosions by updating the
rock dust standards. The bill not only mandates that operators increase
the amount of incombustible dust present in airways--the established
method of suppressing the threat of combustible coal dust--but it also
establishes a framework for operators to better monitor the
explosibility of the dust present in their mines. Just as better
atmospheric monitoring mandated by this bill will give operators the
information they need to plan how to prevent methane and gas
explosions, better monitoring of explosive coal dust will give
operators the information they need to plan how to prevent a build up
of coal dust that results in devastating propagation of explosions.
As I mentioned at the outset, this bill includes important new
tools to allow MSHA to step in and act quickly to protect miners at
risk. The Solicitor will talk about the most important of these--
enhanced power for MSHA to seek an injunction. I would like to
highlight several other provisions. First, the bill gives MSHA the
authority to revoke mine safety plans based on material changes in the
mine conditions or if the original plan was based on inaccurate
information. This means that MSHA does not have to sit on the sidelines
when it sees that conditions in the mine do not match the conditions
described in the mine plans for roof control, ventilation and emergency
response.
In addition, under this bill, MSHA will play an increased role in
ensuring the competence of those personnel in mines whose jobs are so
critical to maintaining a safe workplace that the law requires them to
be certified as qualified. The bill's certification provisions will
allow MSHA and the states to reinstate accountability in mine safety
and health. The bill requires recertification of certified personnel to
ensure their skills are up to date, as well as a means to revoke a
certification if someone in a certified safety position fails to carry
out his or her responsibilities. MSHA will work with states to assure
those who have positions of responsibility that are certified or
qualified are doing their job, and that they lose their certification
if they fail to carry out their responsibilities. MSHA will step in
where gaps exist in state laws and certifications to ensure that those
who perform certified or qualified safety jobs are qualified safety
professionals. I pledge to work closely with my counterparts in the
states to create a seamless certification system.
Another important means of protecting miners at risk is through
adequate and appropriate training. Too often the rush to produce as
much coal as possible means cutting corners when it comes to training
miners properly. If there is a serious accident or fatality, MSHA's
ability to cite violations does not necessarily address the root
problem. The ability to ensure miners have the training they need will
improve working conditions and save lives.
Finally, I would like to comment on a new tool given to the Justice
Department in this bill. The bill will increase criminal penalties for
giving advance notice of an MSHA inspection. I am sure many were
shocked to hear the testimony at the Beckley field hearing about how
common it is for mine operators to have advance notice of MSHA's
inspections. This is a serious problem. MSHA recently took enforcement
action against two Ben Bennett mines in Kentucky, Manalapan Mining
Company's RB #5 Mine and Left Fork Mining Company's Mine #1, when
agency inspectors caught the company tipping off the mine as the
inspectors arrived. At other mines MSHA has attempted to prevent the
advance notice by capturing mine phones to keep mining personnel from
tipping off the underground mining operations. Another example is the
Tiller Mine, a Massey operation in Virginia that MSHA recently tried,
unsuccessfully, to make the first mine ever placed on a pattern of
violations. According to a report in the Washington Post, miners at the
surface routinely alert underground miners that a federal inspector is
headed underground. Clearly, my inspectors cannot conduct effective
inspections if unscrupulous mine operators know that the inspector is
on the way and make quick and short-lived fixes to hazards that put
miners at risk just to avoid enforcement actions. This bill attacks the
problem by making it a serious crime to give advance notice of an MSHA
inspection. Our whole enforcement system relies upon fair and accurate
inspections--this provision will enhance the integrity of that system.
This is also another reason why MSHA needs the power to use subpoenas
provided under this bill. Some mine owners who operate their mines in
violation of health and safety laws when MSHA inspectors are not
present, and use unlawful tactics to get tipped off about pending
inspections, should know that under this bill, we will be able to more
effectively investigate and expose these unsafe and illegal practices
which endanger miners.
My colleague, Assistant Secretary Michaels, will discuss this
significant aspect of the legislation in more detail, but I would like
to express the Administration's strong support for including provisions
from the Protecting America's Workers Act in this bill. All workers,
regardless of where they work--underground in a mine, out in the ocean
on an oil rig, or in a factory on the land--deserve a safe and
healthful workplace.
I had the privilege of working with Senator Robert C. Byrd
throughout my career. Without a doubt, coal miners never had a better
friend than Senator Byrd. He fought with his legendary tenacity to keep
them safe and protect them from black lung disease. I can think of no
better way to honor his memory and the memory of the 29 miners who
perished at the Upper Big Branch mine than to prevent another disaster.
This bill is our best chance to accomplish this goal. I look forward to
working with the Committee as the bill moves forward. I am happy to
answer your questions.
______
Chairman Miller. Thank you.
Solicitor Smith.
STATEMENT OF HON. M. PATRICIA SMITH, SOLICITOR OF LABOR, U.S.
DEPARTMENT OF LABOR
Ms. Smith. Chairman Miller, Ranking Member Kline and the
members of the committee, for more than three decades the
enforcement tools of the Mine Act and the Occupational Safety
Act have played a pivotal role in cutting the number of work-
related deaths, injuries and illnesses.
But as recent tragic events have demonstrated, all tools
need to be periodically sharpened. The tools in the Mine Act
and the OSHAct are no exception.
I would like to focus today on several provisions in H.R.
5633 that will, if enacted, sharpen our enforcement tools and
help make our mines and other workplaces healthier and safer
places to work.
Under the Mine Act, an operator with significant and
substantial violations can be subject to increasingly severe
enforcement actions, including withdrawal orders. Although
Congress did not define significant and substantial in 1977
when it passed the Mine Act, MSHA and the Solicitor's Office
believe the phrase applies to all violations that have a
reasonable possibility of resulting in injury, illness or
death, and excludes only violations that either present no
hazard or violations in which the hazard is speculative or
remote. We believe this interpretation is consistent with the
legislative history of the Mine Act.
Unfortunately, the Federal Mine Health and Safety Review
Commission does not agree and has established a four-part test
for S&S, which in our view has hampered enforcement for many
years. Violations under the commission-imposed standard must
rise nearly to a level of imminent danger before they are
considered S&S. I have given several examples of these cases in
my written testimony. Section 201 of the bill would more
closely reflect what we believe was Congress's original intent
by defining an S&S violation as one in which there is a
reasonable possibility that such a violation could result in
injury, illness or death. We support this streamlined
definition, which we think will provide a clearer standard for
operators, enhance mine health and safety, and reduce
counterproductive litigation over whether a particular
violation is indeed S&S.
Mine safety and effective enforcement will also be enhanced
by the bill's amendment to the Mine Act injunction relief
provision. Section 108(a)(2) of the act authorizes the
Secretary to ask a Federal District Court for appropriate
relief, including a temporary or permanent injunction, if she
believes that the operator of a mine is engaged in, quote, ``a
pattern of violations of mandatory health or safety standards
that constituents a continuing hazard to the health and safety
of miners.''
This provision has provided two difficulties. First, it
requires the Secretary to establish a pattern, a term that
closely echoes the term ``pattern'' in Section 104(e)'s pattern
of violations provision, which as Assistant Secretary Main has
described has proved difficult to apply and to enforce.
Second, it limits the basis for the pattern to violations
of mandatory health and safety standards. Section 203 of the
bill addresses these issues. It replaces the term ``pattern''
with the phrase ``course of conduct,'' and it specifies that
the behavior that would support injunctive relief is not
limited merely to violations of mandatory health and safety
standards, but it includes other things, like violations of
orders.
A third welcome provision in the bill is the provision
expanding the Secretary's authority to issue subpoenas for the
purpose of taking testimony and other evidence. Currently, that
power is only given in conjunction with public hearings.
Section 102 of the bill would authorize the Secretary to issue
subpoenas in conjunction with the performance of any of her
functions. It would also authorize MSHA representatives and
attorneys to question individuals privately, to take an
individual's confidential statement outside the presence of the
operators or attorney if the individual so desires, and to
maintain the confidentiality of that statement to the extent
permitted by law.
The bill also adds two new criminal provisions to the Mine
Act and strengthens both the Mine Act's and OSHAct's current
sanctions for criminal conduct. The bill would amend the Mine
Act so that giving advance notice of MSHA inspections would be
treated with the severity it deserves. Advance notice prevents
MSHA inspectors from being able to observe the mining as it is
actually occurring. The bill would make such conduct, which is
currently treated as a misdemeanor, a felony.
The bill would also provide a brand new criminal provision
making it a felony to retaliate against any person, miner or
nonminer, who reports unsafe conditions to MSHA. Such conduct
would be subject to the fines set forth in the code and would
carry a maximum prison term of ten years. This provision would
encourage miners, their relatives and others to notify the
government of mine safety violations by ensuring them that
retaliation for acting would be met with effective punishment.
Both the Mine Act and the OSHAct already contain some
criminal provisions. However, most of these violations are
treated as misdemeanors. Building on that foundation the bill
would analyze all such violations by individuals, operators,
and employers under a knowing standard and would raise the
maximum penalties for knowing violations fourfold and make
first-time convictions felonies rather than misdemeanors, which
is currently the case.
These charges, especially the prospect of a significant
period of incarceration, we believe would focus management
personnel on their responsibility to keep their mines safe. The
bill would also make other important improvements to the
OSHAct. And I will mention just two of them.
First, it grants rights to accident victims and their
families and other representatives. They must be notified.
Second, the bill would allow OSHA to require prompt abatement
of all serious hazards, even if the employer files a notice of
contents. And Assistant Secretary Michaels' testimony will
explain the importance of that.
So I appreciate the opportunity to testify on this
important legislation. As Secretary Solis said when the bill
was introduced, there is a tremendous need for this legislation
in order to save the lives and health of American workers in
mines and throughout the Nation, and I look forward to your
questions.
[The statement of Ms. Smith follows:]
Prepared Statement of Hon. M. Patricia Smith, Solicitor of Labor,
U.S. Department of Labor
For more than three decades, the enforcement tools in the Mine Act
and the Occupational Safety and Health (OSH) Act have played a pivotal
role in helping cut the number of work-related injuries, illnesses, and
deaths to historic lows. But, as recent tragic events have
demonstrated, all tools need to be recalibrated and sharpened from time
to time if they are to remain useful. The tools in the Mine Act and the
OSH Act are no exception. I would like to focus my comments today on
several provisions in H.R. 5663, the ``Miner Safety and Health Act of
2010,'' that will, if enacted, sharpen our existing enforcement tools
and help make our mines and other workplaces safer and healthier places
to work.
Under the Mine Act (the Act), an operator with ``significant and
substantial'' (S&S) violations can be subject to increasingly severe
enforcement actions, including withdrawal orders. Although Congress did
not define the phrase ``significant and substantial'' in 1977 when it
passed the Mine Act, the Mine Safety and Health Administration (MSHA)
and the Solicitor's Office believe that the phrase applies to all
violations that have a reasonable possibility of resulting in injury,
illness or death, and excludes only those violations that present no
hazard or violations in which the hazard is speculative or remote. We
believe that our interpretation is consistent with the legislative
history of the Act, which makes it clear that the ``S&S'' standard was
designed to cover all but purely technical violations of the Act.
Unfortunately, the Federal Mine Safety and Health Review Commission
does not agree, having established a four-part definition of ``S&S''
that, in our view, has hampered enforcement for many years. In essence,
violations under the Commission-imposed standard must arise nearly to
the level of an imminent danger before they are considered significant
and substantial.
I'd like to give you a few examples. In a 2009 case, an underground
coal mine operator with a gassy mine had coal and coal dust
accumulations up to four inches deep across nearly the entire width of
the belt entry in several locations. The mine also had random piles of
coal dust from six to eight inches deep. However, a Commission
administrative law judge held that the accumulations violation was not
S&S because, at the time of the violation, there were only
``potential'' ignition sources in the area and those potential ignition
sources were no different from ignition sources present in all belt
entries. He also noted that methane levels were low at that time.
Cumberland Coal Resources, LP, 31 FMSHRC 137 (Jan. 2009) (ALJ),
reversed in part on other grounds, 2010 WL 2149801 (May 2010).
In another 2009 case involving an underground coal mine, an
operator failed to hang ventilation curtains, which are used to control
coal mine dust. This was a violation of the operator's ventilation
plan. A Commission administrative law judge acknowledged that coal was
being cut without any ventilation controls in place, that there was no
air movement, and that the air was thick with suspended coal dust. Yet
the judge found that the violation was not S&S because, at the time of
the violation, there were no potential ignition sources and methane
levels were low. The judge also noted that the mine had not experienced
other coal dust ignitions. Sidney Coal Co., 31 FMSHRC 1197 (Oct. 2009)
(ALJ).
And we face the same challenges with other types of violations. For
example, in a 2006 case, the Review Commission found that a violation
of certain ``hands-on'' firefighting training requirements was not S&S
because it was not reasonably likely that the lack of that type of
training would lead to serious injury. The Commission ruled in this
manner even though miners in that mine actually had died fighting a
fire improperly. Jim Walter Resources, Inc., 28 FMSHRC 579 (Aug. 2006).
Section 201 of the bill would more closely reflect what we believe
was Congress' original intent by defining an ``S&S'' violation as one
in which there is a ``reasonable possibility that such violation could
result in injury, illness, or death.'' We support this streamlined
definition, which will provide a clearer standard for operators,
inspectors, and the Commission. This new definition not only will
enhance mine safety and health, it will help reduce counterproductive
litigation over whether a violation is ``significant and substantial.''
Mine safety and health, as well as swift and effective enforcement,
will also be enhanced by the bill's amendment to the Mine Act's
injunctive relief provision. Section 108(a)(2) of the Act [30 U.S.C.
Sec. 818(a)(2)] authorizes the Secretary to ask a federal district
court for appropriate relief, including a temporary or permanent
injunction, if she believes that the operator of a mine is engaged in
``a pattern of violation of * * * mandatory health or safety
standards'' which, in the Secretary's judgment, constitutes a
continuing hazard to the health or safety of miners. This provision has
presented two difficulties. First, it requires the Secretary to
establish ``a pattern''--a term that echoes the term ``pattern'' in
Section 104(e)'s ``pattern of violations'' provision--which has proved
difficult to apply and enforce. Second, it limits the bases for ``a
pattern'' to violations of mandatory health or safety standards.
Section 203 of the bill addresses both of these difficulties.
First, it replaces the term ``pattern'' with the phrase ``course of
conduct,'' which is clearer, simpler, and more reflective of the kind
of operator behavior that the Secretary's injunction authority is
intended to correct. Second, it specifies that the kind of behavior
that will support injunctive relief includes, but is not limited to,
violations of mandatory health or safety standards. We believe that
because the bill broadens the bases on which the Secretary can seek
injunctive relief, it will enhance her ability to obtain such relief
when necessary to protect miners.
A third welcome provision in the bill is the provision expanding
the Secretary's authority to issue subpoenas for the purpose of
obtaining testimony and other evidence. Currently, the Mine Act only
authorizes the Secretary to issue subpoenas in connection with a public
hearing. Section 102 of the bill would authorize the Secretary to issue
subpoenas in connection with the performance of any of her functions
under the Act. Section 102 would give MSHA subpoena power similar to
OSHA's and would greatly enhance MSHA's ability to conduct effective
inspections and investigations. Section 102 also would authorize MSHA
representatives and attorneys to question individuals privately, to
take an individual's confidential statement outside the presence of
operator attorneys if the individual so desires, and to maintain the
confidentiality of a statement to the extent permitted by law.
The bill also adds two new criminal provisions to the Mine Act, and
strengthens both the Mine Act's and the OSH Act's current sanctions for
criminal conduct. The bill would amend the Mine Act so that, for the
first time, giving advance notice of MSHA inspections would be treated
with the severity it deserves. Advance notice prevents MSHA inspectors
from being able to observe mining as it is actually being done. The
bill would make such conduct--currently treated as a misdemeanor--a
felony punishable by fines set forth in title 18, U.S. Code (the
criminal code), and a maximum prison term of five years.
The bill also contains a brand new criminal provision making it a
felony to retaliate against any person--miner or non-miner--who reports
unsafe conditions to MSHA. Such conduct would be subject to the fines
set forth in title 18, U.S. Code, and would carry a maximum prison term
of ten years. This provision goes well beyond traditional civil
whistleblower sanctions that allow the Secretary to penalize those who
discriminate against miners making safety complaints to their
employers. It encourages miners, their relatives, and others to notify
the government of mine safety violations by providing the assurance
that retaliation for such activity will be met with truly effective
punishment.
Both the Mine Act and the OSH Act already contain some criminal
provisions. The Mine Act's current structure sets criminal penalties
for agents who ``knowingly'' violate the Mine Act or mandatory
standards and for operators who willfully violate the Mine Act or
mandatory standards. The OSH Act also allows criminal sanctions for
employers who willfully violate OSHA standards, if those violations
cause a worker's death, but they are treated as misdemeanors. Building
on that foundation, the bill would analyze all such violations by
individuals, operators, and employers under the ``knowing'' standard,
would raise the maximum penalties for such knowing violations fourfold,
and would make even first-time convictions felonies rather than
misdemeanors, as is currently the case. The bill would also allow
criminal sanctions for employers whose knowing violation of an OSHA
standard causes or contributes to serious bodily harm to an employee.
Maximum prison terms would be increased from one year to five years for
first-time convictions of this new OSHA provision, and of the Mine Act
criminal provisions, and increased from five years to ten years for
second and subsequent convictions. For knowing violations of the OSH
Act that cause or contribute to a worker's death, a first conviction is
punishable by up to ten years in prison and subsequent convictions are
punishable by up to twenty years in prison. These changes--especially
the prospect of a significant period of incarceration and a lifetime
felony criminal record--will, in our view, focus those in management
positions on their personal responsibility for ensuring safety in the
mines and other workplaces they control in a way the former penalty
structure did not.
The bill also makes several other important improvements to the OSH
Act. First, it modernizes the Act's whistleblower provisions, bringing
them in line with those of the Mine Act and other safety laws. For the
first time, workers filing OSH Act whistleblower complaints would be
entitled to an administrative hearing and review, instead of having to
wait years to have their cases heard in District Court. And, like
whistleblower complainants under the 18 other statutes administered by
the Department, including the Mine Act, OSH Act whistleblowers would
have the right to pursue their cases on their own behalf if the
Department declines to take them.
The bill also increases OSH Act civil penalties to bring their
value back to their approximate value the last time penalties were
raised in 1990. It also allows future inflation adjustments, correcting
an oversight that has led to OSH Act penalties, unlike virtually all
other Federal civil penalties, continually declining in value. We
believe this provision will go a long way toward restoring the OSH
Act's deterrent effect, and will make it harder for employers to treat
OSHA penalties as simply a cost of doing business. In addition, the
criminal penalties in this bill are based on similar provisions in the
Clean Water Act and the Resource Conservation and Recovery Act, meaning
that killing a person will be treated just as seriously as killing a
lake.
In addition, the bill, for the first time, grants rights to
accident victims and their families or other representatives. It
requires that victims be kept informed of the status of accident
investigations, and any resultant enforcement actions and settlement
negotiations. They will have the right to meet with OSHA before any
citation is issued, to receive a copy of any citation, and to be
notified of any notice of contest. They must also be notified of any
legal proceedings, and will have the right to participate in those
proceedings. They will also have the right to make a statement to the
parties conducting any settlement negotiations, and a similar right to
make a statement to the Commission, which the Commission must consider
in rendering its decision. To assist in exercising these rights, the
Secretary will have to designate a family liaison in each OSHA area
office. We understand that none of these provisions will restore a lost
worker to a grieving family, or restore full use of faculties to an
injured worker. But we believe they are the least we owe these workers
and their families.
Finally, subject to an expedited hearing before the Commission,
this bill will allow OSHA to require prompt abatement of all serious
hazards, even if the employer files a notice of contest. As Assistant
Secretary Michaels' testimony explains in greater detail, this
provision is crucial. Currently, if an employer contests a citation for
any reason, abatement is not required until the Commission fully
resolves the contest, so a dangerous condition can be allowed to exist
through years of legal delays. This bill will prevent this travesty
from recurring.
I appreciate the opportunity to testify on this important
legislation. As Secretary Solis said when this bill was introduced,
there is a tremendous need for this legislation in order to save the
lives and health of American workers, in mines and throughout the
nation. I look forward to working with the Committee on this
legislation as it moves forward and to responding to any questions you
may have.
______
Chairman Miller. Thank you.
Secretary Michaels.
STATEMENT OF HON. DAVID MICHAELS, ASSISTANT SECRETARY,
OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT
OF LABOR
Mr. Michaels. Thank you, Chairman Miller, Ranking Member
Kline, members of the committee.
Every day in this country 14 workers are killed on the job.
Every day we encounter employers who cut corners on the safety
and health of their workers, children who lost parents or
parents who have lost children from workplace injuries. Workers
are fired for voicing health and safety concerns. Companies
subject workers to known hazards while the courts spend years
deciding contested citations, and our Nation's workplace
protection agencies are plagued with outdated laws, tools and
penalties that make it difficult to deter safety and health
violations.
During the time that I have been assistant secretary for
OSHA, 54 workers have been killed in explosions at the Kleen
Energy Power Plant in Connecticut, the Tesoro Refinery in
Washington State, the Upper Big Branch Mine in West Virginia
and on the Deepwater Horizon oil rig. We add their names to the
long list of recent disasters, like the explosion at the BP
refinery in Texas, the Sago and Darby mines in West Virginia
and Kentucky, and the Imperial Sugar Plant in Georgia, where
dozens of works were killed and hundreds more injured.
But only disasters make national headlines. What is not
widely publicized are the more than 5,000 other workers killed
on the job in America each year. These tragedies happen in
every corner of the country, usually one at a time, far from
the evening news and the morning headlines.
Secretary of Labor Hilda Solis's vision for the Department
of Labor is good jobs for everyone. Good jobs are safe jobs,
and we want to do more than make our Nation's workplaces safe.
I, therefore, want to congratulate you, Mr. Chairman, and
all the co-sponsors of the Miner Safety and Health Act for
recognizing not only that the Nation's 350,000 miners
desperately need better protection, but that this Nation's 135
million workers who are covered by OSHA also need better more
up-to-date protection. The Miner Safety and Health Act makes
critical amendments to the Occupational Safety and Health Act,
which has not been significantly updated in 40 years.
This legislation would increase OSHA's civil and criminal
penalties, enhance whistleblower protections and victims rights
and give OSHA the authority to require abatement of serious
hazards, even if and while the employer contests citations
issued for them.
These provisions are strongly supported by the Obama
administration. Safe jobs exist only when employers have
adequate incentives to comply with OSHA's requirements. When
the employer's voluntary efforts are not enough. Swift, certain
and meaningful penalties provide an important incentive to do
the right thing.
However, OSHA's current penalties are not large enough to
provide adequate incentives, especially for large employers. As
a result, unscrupulous employers often consider OSHA penalties
the cost of doing business. It is more effective--more cost
effective to pay the minimal OSHA penalty than to correct the
underlying health and safety problem.
The Miner Safety and Health Act makes much needed increases
in OSHA's civil and criminal penalties. Nothing focuses
attention like the possibility of going to prison. This bill
would make it a felony with up to 10 years in prison when an
employer knowingly violates an OSHA standard which causes or
contributes to the death of any employee.
Good jobs are also jobs where workers' voices are an
essential part of the conversation about creating safe
workplaces. Since OSHA cannot be at every workplace all the
time, we rely heavily on workers to act as our eyes and ears in
identifying hazards. If employees fear that they will lose
their jobs or otherwise be retaliated against for participating
in safety and health activities, they are not likely to do so.
The OSHAct states the worker may not be retaliated against
for reporting injuries, illnesses or unsafe conditions.
Unfortunately, there are serious deficiencies in this law. The
Miner Safety and Health Act doesn't protect workers who refuse
to perform tasks they reasonably believe could result in
serious injury or illness to themselves or to other employees.
The Miner Safety and Health Act would also expand the rights of
workers and victims' families, and establish a family liaison
in each OSHA area office to keep victims informed of the status
of investigations and enforcement actions, and to assist
victims in asserting their rights. This will help our
investigations, since victims and their families are often the
source of useful information.
One of the most significant changes that this legislation
makes to the OSHAct is the provision that requires abatement of
serious, willful, and repeat hazards during the contest period.
Currently, if an employer contests an OSHA citation, that
employer is not obligated to correct the hazard during the
administrative contest period, leaving workers exposed to
serious or deadly hazards for months or even years.
The Miner Safety and Health Act would enable OSHA to issue
failure to abate notices to a workplace with a citation under
contest. It is important to note that this legislation also
safeguards the rights of employers by allowing an accelerated
appeal to the Occupational Safety and Health Review Commission.
Mr. Chairman, in the months that I have been at OSHA, I
have spoken with children, spouses and parents of workers who
have been killed on the job. The one thing they ask for is for
our laws to have the best possible protections to prevent more
workers from leaving their loved ones behind.
We applaud the important work this committee has done in
drafting the Miner Safety and Health Act, and we look forward
to working with you on it. Thank you for inviting me to
testify. I am happy to answer your questions.
[The statement of Mr. Michaels follows:]
Prepared Statement of Hon. David Michaels, Ph.D., MPH, Assistant
Secretary, Occupational Safety and Health Administration, U.S.
Department of Labor
Chairman Miller, Ranking Member Kline, and Members of the
Committee, thank you for the opportunity today to discuss the Miner
Safety and Health Act of 2010, which would bring needed reforms to our
nation's workplace health and safety laws. Every day in this country,
14 workers are killed on the job. Every day we encounter employers who
put profits above the safety of their workers, children who have lost
parents, or parents who have lost children from workplace injuries.
Workers are fired for voicing safety and health concerns, companies
subject workers to known hazards while the courts spend years deciding
contested citations, and our nation's workforce protection agencies are
plagued with outdated laws, tools, and penalties that make it difficult
to deter safety and health violations.
Until 1970, there was no national guarantee that workers throughout
America would be protected from workplace hazards. In that year the
Congress enacted a powerful and far-reaching law--the Occupational
Safety and Health Act of 1970 (OSH Act), which created the Occupational
Safety and Health Administration (OSHA) and provided workers with the
rights they needed to protect their safety and health on the job.
But today, 40 years after the Act was passed, American workers
continue to face unacceptable hazards on the job. And while these
hazards and working conditions have changed significantly, the law has
not been substantially modified in those 40 years.
During the seven months I have been the Assistant Secretary of
OSHA, explosions at the Kleen Energy power plant in Connecticut, the
Tesoro refinery in Washington State, the Upper Big Branch mine in West
Virginia, and on the Deepwater Horizon offshore oil drilling platform
in the Gulf of Mexico have killed 54 workers. We add their names to a
long list of recent disasters, like the explosions at the BP refinery
in Texas, Sago and Darby mines in West Virginia and Kentucky, and the
Imperial Sugar plant in Georgia that killed dozens of workers and
injured hundreds more. But these are only the tragedies that make
national headlines. What is not publicized are the more than 5,000
other workers killed on the job in America each year, the more than 4
million who are injured, and the thousands more who will become ill or
die in later years from present day occupational exposures. Every day
in this country we have a Sago mine disaster, every two days an Upper
Big Branch, and every month the loss of a fully loaded Boeing 747.
These tragedies happen in every corner of the country, usually one at a
time, far from the evening news and the morning headlines.
Secretary Solis' vision for the Department of Labor is ``Good Jobs
for Everyone.'' Good jobs are safe jobs and we must do more to make our
nation's workplaces safer. OSHA has already taken significant steps
toward this goal. In April, the Labor Department released its Spring
regulatory agenda which includes a new enforcement strategy--Plan/
Prevent/Protect--an effort designed to expand and strengthen worker
protections through a new OSHA standard that would require not just the
best employers, but every employer to implement an Injury and Illness
Prevention Program tailored to the actual hazards in that employer's
workplace. Instead of waiting for an OSHA inspection or a workplace
accident to address workplace hazards, employers would be required to
create a plan for identifying and remediating hazards, and then to
implement this plan.
Essentially, through this common sense rule, also known as ``Find
and Fix,'' we will be asking employers to find the safety and health
hazards present in their facilities that might injure or kill workers
and then fix those hazards. Workers, those who are most directly at
risk, would participate in developing and implementing these workplace
safety plans and evaluating their effectiveness in achieving
compliance.
While we believe this enforcement strategy will go a long way
toward eliminating the ``catch me if you can'' mindset prevalent in
corporate America, the workplaces of 2010 are not those of 1970 and the
OSH Act, which has remained stagnant for 40 years, must be brought into
the 21st century to ensure OSHA has the tools and authority to prevent
safety and health violations.
I therefore greatly appreciate the work of this Committee in
proposing legislation that would significantly increase OSHA's ability
to help protect American workers. I want to congratulate you, Mr.
Chairman, Congresswoman Woolsey and other cosponsors of the Miner
Safety and Health Act for recognizing not only that the nation's
350,000 miners desperately need better protections to prevent any more
Sago or Upper Big Branch disasters, but that this nation's 135 million
workers in general industry who are covered by OSHA also need better,
more up-to-date protections. Clearly, whether a worker leaves home in
the morning on his way to a mine or on her way to a refinery or
construction site, every worker needs and deserves equally effective
protections.
Title VII of the Miner Safety and Health Act provides critical
amendments to the OSH Act that would increase OSHA's civil and criminal
penalties, enhance whistleblower protections and victims' rights, and
give OSHA the authority to require abatement of serious hazards even if
and while the employer contests citations issued for them. These
provisions, strongly supported by the Labor Department and endorsed by
the Obama Administration, would enable OSHA to more effectively
accomplish its mission to ``assure safe and healthful working
conditions for working men and women.''
Because OSHA can visit only a limited number of workplaces each
year, we need a stronger OSH Act to leverage our resources to encourage
compliance by employers. We need to make employers who ignore real
hazards to their workers' safety and health think again. Federal OSHA
and state plans combined have just over 2,200 inspectors, which
translates to about one compliance officer for every 60,000 workers.
OSHA needs more modern tools to ensure that employers are safeguarding
the safety and health in our country's almost 9 million workplaces.
Today, my testimony will focus on the Title VII provisions of the
Miner Safety and Health Act, which address significant weaknesses in
current OSHA law, and how this legislation would address those problems
by bringing OSHA into the 21st century.
Safe jobs exist only when employers have adequate incentives to
comply with OSHA's requirements. Those incentives are affected, in
turn, by both the magnitude and the likelihood of penalties. Swift,
certain and meaningful penalties provide an important incentive to ``do
the right thing.'' However, OSHA's current penalties are not large
enough to provide adequate incentives, especially for large employers.
Currently, serious violations--those that pose a substantial
probability of death or serious physical harm to workers--are subject
to a maximum civil penalty of only $7,000. Let me emphasize that--a
violation that causes a ``substantial probability of death--or serious
physical harm'' brings a maximum penalty of only $7,000. Willful and
repeated violations carry a maximum penalty of only $70,000.
Congress has increased the OSH Act's monetary penalties only once
in 40 years despite inflation during that period. Unscrupulous
employers often consider it more cost effective to pay the minimal OSHA
penalty and continue to operate an unsafe workplace than to correct the
underlying health and safety problem. The current penalties do not
provide an adequate deterrent. This is apparent when OSHA penalties are
compared with penalties that other agencies are allowed to assess.
For example, in 2001 a tank full of sulfuric acid exploded at an
oil refinery in Delaware, killing Jeff Davis, a worker at the refinery.
His body literally dissolved in the acid. The OSHA penalty was only
$175,000. Yet, in the same incident, thousands of dead fish and crabs
were discovered, allowing EPA to assess a $10 million penalty for
violating the Clean Water Act. How do we explain to Jeff Davis' wife
Mary, and their five children, that the penalty for killing fish and
crabs is so much higher than the penalty for killing their husband and
father?
Other examples abound. The Department of Agriculture is authorized
to impose a fine of up to $140,000 on milk processors for willful
violations of the Fluid Milk Promotion Act, which include refusal to
pay fees and assessments to help advertise and research fluid milk
products. The Federal Communications Commission can fine a TV or radio
station up to $325,000 when a performer curses on air. The
Environmental Protection Agency can impose a penalty of $270,000 for
violations of the Clean Air Act and a penalty of $1 million for
attempting to tamper with a public water system. Yet, the maximum civil
penalty OSHA may impose when a hard-working man or woman is killed on
the job--even when the death is caused by a willful violation of an
OSHA requirement--is $70,000.
The Miner Safety and Health Act makes much needed increases in both
civil and criminal penalties for every type of violation of the OSH Act
and would increase penalties for willful or repeat violations that
involve a fatality to as much as $250,000. These increases are
necessary to create at least the same deterrent that Congress
originally intended when it passed the OSH Act. Simply put, OSHA
penalties must be increased to provide a real disincentive for
employers not to accept worker injuries and deaths as a cost of doing
business.
Unlike most other Federal enforcement laws, the OSH Act has been
exempt from the Federal Civil Penalties Inflation Adjustment Act, so
there have not even been increases in OSHA penalties for inflation.
This has reduced the real dollar value of OSHA penalties by close to
40%. In order to ensure that the effect of the newly increased
penalties does not degrade in the same way, the Miner Safety and Health
Act also provides for inflation adjustments for civil penalties based
on increases or decreases in the Consumer Price Index (CPI).
Criminal penalties in the OSH Act are also inadequate for deterring
criminal wrongdoing. Under the OSH Act, criminal penalties are limited
to those cases where a willful violation of an OSHA standard results in
the death of a worker and to cases of false statements or
misrepresentations. The maximum period of incarceration upon conviction
for a violation that costs a worker's life is six months in jail,
making these willful crimes a misdemeanor.
The criminal penalty provisions of the OSH Act have not been
updated since the law was enacted and are weaker than virtually every
other safety and health or environmental law. The Clean Air Act, the
Clean Water Act, and the Resource Conservation and Recovery Act all
provide for criminal prosecution for knowing violations of the law, and
for knowing endangerment that places a person in imminent danger of
death or serious bodily harm, with penalties of up to 15 years in jail.
There is no prerequisite in these laws for a death or serious injury to
occur. Other federal laws provide for a 20-year maximum jail sentence
for dealing with counterfeit obligations or money, or mail fraud; and
for a life sentence for operating certain types of criminal financial
enterprises. It defies logic that serious violations of the OSH Act
that result in death or serious bodily injury are treated as lesser
crimes than insider trading, tax crimes, customs violations and anti-
trust violations.
It is clear that nothing focuses attention like the possibility of
going to prison. Unscrupulous employers who knowingly refuse to comply
with safety and health standards as an economic calculus, and cause the
death or serious injury of a worker, will think again if there is a
chance that they will be incarcerated for ignoring their
responsibilities.
The Miner Safety and Health Act would amend the criminal provisions
of the OSH Act, as it would also amend the Federal Mine Safety and
Health Act, to change the burden of proof from ``willfully'' to
``knowingly.'' Specifically, Section 706 states that any employer who
``knowingly'' violates any standard, rule, or order and that violation
caused or contributed to the death of any employee is subject to a fine
and not more than 10 years in prison. Most federal environmental crimes
and most federal regulatory crime use ``knowingly,'' rather than
``willfully.'' This would ease the burden on prosecutors by harmonizing
these worker safety provisions with similar (or comparable or
analogous) crimes.
In the 1980s, we saw in Texas and California that aggressive
criminal law enforcement procedures improved occupational safety and
health. In Texas, the number of trenching fatalities dropped
dramatically when one county adopted a well-publicized criminal
prosecution effort. Los Angeles County California also mounted an
effective criminal prosecution program during those years. In addition,
OSHA continues to work with New York State's prosecutors on similar
prosecutions, even as recently as the Deutsche Bank case. The Committee
has wisely included a provision stating that nothing in the Act shall
preclude a state or local law enforcement agency from conducting
criminal prosecutions in accordance with its own laws.
Good jobs are also jobs where workers' voices are an essential part
of the conversation about creating safe workplaces. As my colleague
Assistant Secretary Joe Main has testified, this Committee heard
powerful testimony from the mining community at its field hearing in
Beckley, West Virginia about how important it is for miners to be able
to come forward and report dangerous conditions in the mine before
tragedy strikes. It is equally important that workers in other
dangerous industries, like oil refineries, chemical plants, and
construction, feel that same security in coming forward.
The OSH Act was one of the first safety and health laws to contain
a provision--11(c)--for protecting employees from discrimination and
retaliation when they report safety and health hazards or exercise
other rights under the OSH Act. Since OSHA cannot be at every workplace
at all times, we rely heavily on workers to act as OSHA's ``eyes and
ears'' in identifying hazards at their workplaces. This protection is
fundamental to OSHA's ability to safeguard the workforce. If employees
fear that they will lose their jobs or otherwise be retaliated against
for actively participating in safety and health activities, they are
not likely to do so.
OSHA's 11(c) provision is now 40 years old and is one of the
weakest whistleblower provisions in any federal law. Last April you
heard from a worker whose discrimination claim was upheld by OSHA, but
because of weaknesses in the law, the case was never carried forward to
litigation. At that hearing, Deputy Assistant Secretary Jordan Barab
testified that he was outraged that in the year 2010, workers in this
country still fear being fired or disciplined for exercising their
rights.
The Miner Safety and Health Act strengthens whistleblower
protections for workers in both mining and general industries. It makes
explicit that a worker may not be retaliated against for reporting
injuries, illnesses or unsafe conditions to employers or to a safety
and health committee, or for refusing to perform a task that the worker
reasonably believes could result in serious injury or illness to the
worker or to other employees.
Additionally, the Act increases the existing 30-day deadline for
filing an 11(c) complaint to 180 days, bringing 11(c) more in line with
most of the other whistleblower statutes enforced by OSHA. Over the
years many complainants who might otherwise have had a strong case of
retaliation have been denied protection simply because they did not
file within the 30-day deadline.
The Miner Safety and Health Act's adoption of the ``contributing
factor'' test for determining when illegal retaliation has occurred is
also a significant improvement in 11(c). The Act would employ this same
test for whistleblower complaints in the mining industry as well,
making both 11(c) and the Federal Mine Safety and Health Act consistent
with other whistleblower statutes enacted since 1989, when the
``contributing factor'' scheme was introduced. This would enhance the
protections afforded to America's workers and improve workplace safety
and health.
The private right to enforce an order is another key element of
whistleblower protections in the Miner Safety and Health Act, and has
been included in most other whistleblower statutes enforced by OSHA. It
is critically important that if an employer fails to comply with an
order providing relief, either DOL or the complainant be able to file a
civil action for enforcement in a U.S. District Court.
The Miner Safety and Health Act also allows complainants or
employers to move their cases to the next stage in the administrative
or judicial process if the reviewing entities do not make prompt
decisions or rulings. For example, the Act would allow complainants to
``kick out'' to a hearing before an Administrative Law Judge (ALJ) if
the Secretary has not issued a decision within 120 days from the case
filing, and to district court if an ALJ or the ARB has not issued a
decision within their 90-day time limits.
These legislative changes in the whistleblower provisions are a
long-overdue response to deficiencies that have become apparent over
the past four decades. In addition, the Miner Safety and Health Act
amends section 17(j) of the OSH Act to include an employer's history of
violations of section 11(c) as a consideration in assessing civil
penalties. This is also a long overdue change that underscores the
importance of preventing the chilling effect of retaliation on workers.
The Miner Safety and Health Act also includes a section that would
expand the rights of workers and victims' families. No one is affected
more by a workplace tragedy than workers and their families, so we
fully recognize and embrace their desire to be involved in the remedial
process. Family members also provide useful information to OSHA
inspectors about the culture and environment of a workplace and the
events leading up to an incident that results in serious injury or
death. The moving testimony of the families of the Upper Big Branch
miners before this Committee in May and Jodi Thomas's testimony on the
Kleen Energy explosion last month demonstrate how much family members
have to offer MSHA and OSHA.
Although it is OSHA's policy to talk to families during the
investigation process and inform them about our citation procedures and
settlements, we have found that some of these policies are not always
applied consistently. The Miner Safety and Health Act would help us in
this area by placing into law, for the first time, the right of a
victim (injured employee or family member) to meet with OSHA, to
receive copies of the citation at no cost, to be informed of any notice
of contest, and to appear and make a statement during settlement
negotiations before an agreement is made to withdraw or modify a
citation.
The Act also requires the Secretary to designate at least one
employee at each OSHA area office to serve as a family liaison, similar
to the program already in existence at MSHA. The OSHA family liaisons
would keep victims informed of the status of investigations,
enforcement actions, and settlement negotiations, and assist victims in
asserting their rights. As we have seen at MSHA, the family liaisons
have effectively enhanced victims' rights and involvement in the
enforcement process. The last thing we want is to repeat situations
when family members, like Miss Tonya Ford who testified before this
Committee in April, find out about the tragic circumstances of their
loved one's death from the media and not from OSHA. In addition to the
helpful fixes in the Act, OSHA is also working administratively to
incorporate suggestions we have received from victims on how to improve
our enforcement process and better involve victims and their families.
One of the most significant changes that the Miner Safety and
Health Act makes to the OSH Act is the provision that requires
abatement of serious, willful, and repeat hazards during the contest
period. Currently, if an employer contests an OSHA citation, that
employer is not obligated to correct the hazard during the
administrative contest period leaving workers exposed to serious or
deadly hazards for months or years after the hazards have been
identified.
The lack of any requirement for employers to abate hazards during
the contest period also seriously undermines the effectiveness of
OSHA's already low penalties. Largely because OSHA is pressured to
negotiate away penalties in order to avoid employer contests and ensure
that hazards are quickly fixed, the average current OSHA penalty is
only around $1,000. The median initial penalty proposed for all
investigations conducted in FY2007 of cases where a worker was killed
was just $5,900. Clearly, OSHA can never put a price on a worker's life
and that is not the purpose of penalties--even in fatality cases. OSHA
must, however, be empowered to send a stronger message in cases where a
life is needlessly lost than the message that a $5,900 penalty sends.
By giving OSHA the authority to require abatement during contest, we
not only ensure that workers are protected immediately but also can
hold employers accountable for keeping a safe and healthful workplace.
We must not forget that the stronger the message OSHA sends, the better
the deterrence and more lives are saved.
The Miner Safety and Health Act would enable OSHA to issue failure
to abate notices to a workplace with a citation under contest, which
would carry a penalty of up to $7,000 for each day the hazard goes
uncorrected. This provision would greatly strengthen the right of
workers in general industry to be protected from the most egregious
workplace hazards.
OSHA believes this protection is critical. Too often hazards remain
uncorrected because of lengthy contest proceedings--periods that can
last a decade or more. A recent OSHA analysis found that between FY
1999 and FY 2009, there were 33 contested cases that had a subsequent
fatality at the same site prior to the issuance of a final order.
This is not the first time that this issue has been before
Congress. During hearings on comprehensive OSHA reform in the 102nd and
103rd Congresses, numerous examples were presented of employees being
hurt or killed while an inspection was under contest. While those
opposing this provision argued that employers would needlessly spend
large sums on abatement for a citation that is later overturned,
business representatives testified that even when there is a contest
most employers abate hazards during the review process.
Additionally, the State of Oregon, which operates its own safety
and health program, requires abatement during contest for serious
violations. This provision was included in Oregon's original statute
and has not been revised since 1977. Although attorneys have objected
in State legislative hearings on due process grounds, there have been
no court challenges of this provision
It is also important to note that the Miner Safety and Health Act
guards the rights of employers by allowing an appeal to the
Occupational Safety and Health Review Commission (OSHRC) regarding the
requirement to abate during contest.
MSHA has long had a similar provision under its current law. It is
now time that we protect general industry workers from known hazards
during contest, that are just as deadly, as we do for miners.
Based on the long experience with this provision under the Mine
Act, the GAO recommended that Congress require protection of workers
during contests. Similarly, various environmental statutes also require
that violations be corrected when they are identified. In weighing the
balance between employee protection and employer contest rights, it
seems clear that employee safety should take precedence.
Mr. Chairman, an essential element of achieving Secretary Solis's
goal of good jobs for everyone is to change the culture of safety in
the American workplace. Under both the OSH Act and the Mine Act,
employers are legally and morally responsible for the safety and health
of their workers. The important reforms in the Miner Safety and Health
Act go far in encouraging employers to accept this responsibility and
giving OSHA and MSHA the tools we need to deal with employers who
refuse.
In the months I have been at OSHA, I have spoken with children,
spouses and parents of workers who have been killed on the job. They do
not care about the specifics of the legislative process or the details
of how one law compares with another. The only thing they want; the
only thing they ask you to do is pass laws that contain the best
possible protections, that prevent any other workers--whether mine
workers, refinery workers, construction workers, or hospital workers--
from losing their lives, from leaving their loved ones behind. We know
we can provide these workers with better protections. We know we can
prevent many of these deaths, injuries and illnesses. In a civilized
society, this level of death and injury on the job is simply too high a
price to pay, especially when we have it within our means to prevent
them.
We applaud the important work this Committee has done in drafting
the Miner Safety and Health Act, and we look forward to working with
you on this legislation as it advances through the legislative process.
Thank you again for the opportunity to testify today. I am happy to
answer your questions.
______
Chairman Miller. Thank you very much.
Thank you, again, all of you, for your testimony.
When I first came to Congress, we had the Scotia Coal Mine
disaster back in March of 1976.
Joe, you and I have been at this about as long as anybody
around here.
And I was taken back this weekend looking at the report on
the Scotia mine. The report said that, from 1970 to 1976, the
Scotia mine had been ordered closed 110 separate times; 39
times for imminent danger conditions. During this same period,
some 855 notices for Federal health and safety violations were
issued against the company. In the period of January 1974 to
February 1976, the mine had been cited for 63 separate
violations of Federal ventilation and methane standards. It was
that explosion that killed 26 miners. And mine inspectors, I
think, were included in that tragedy with the loss of life.
[The House Committee on Education and Labor, Subcommittee
on Labor Standards staff report, ``Scotia Coal Mine Disaster,''
October 15, 1976, is excerpted on the following pages. To see
the original report in its entirety, please access the
following Internet address:]
http://www.access.gpo.gov/congress/house/house06cp111.html
______
[COMMITTEE PRINT]
SCOTIA COAL MINE DISASTER
------
MARCH 9 AND 11, 1976
------
A STAFF REPORT
------
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1976
77&245
COMMITTEE ON EDUCATION AND LABOR
CARL D. PERKINS, Kentucky, Chairman
FRANK THOMPSON, Jr, New Jersey ALBERT H. QUIE, Minnesota
JOHN H. DENT, Pennsylvania JOHN M. ASHBROOK, Ohio
DOMINICK V. DANIELS, New Jersey ALPHONZO BELL, California
JOHN BRADEMAS, Indiana JOHN N. ERLENBORN, Illinois
JAMES G. O'HARA, Michigan PETER A. PEYSER, New York
AUGUSTUS F. HAWKINS, California EDWIN D. ESHLEMAN, Pennsylvania
WILLIAM D. FORD, Michigan PETER A. PEYSER, New York
PATSY T. MINK, Hawaii (on leave) RONALD A. SARASIN, Connecticut
LLOYD MEEDS, Washington JOHN BUCHANAN, Alabama
PHILLIP BURTON, California JAMES M. JEFFORDS, Vermont
JOSEPH M. GAYDOS, Pennsylvania LARRY PRESSLER, South Dakota
WILLIAM ``BILL'' CLAY, Missouri WILLIAM F. GOODLING, Pennsylvania
SHIRLEY CHISHOLM, New York VIRGINIA SMITH, Nebraska
MARIO BIAGGI, New York
IKE ANDREWS, North Carolina
WILLIAM LEHMAN, Florida
JAIME BENITEZ, Puerto Rico
MICHAEL BLOUIN, Iowa
ROBERT CORNELL, Wisconsin
PAUL SIMON, Illinois
EDWARD BEARD, Rhode Island
LEO ZEFERETTI, New York
GEORGE MILLER, California
RONALD MOTTL, Ohio
TIM HALL, Illinois
Subcommittee on Labor Standards
JOHN H. DENT, Pennsylvania, Chairman
DOMINICK V. DANIELS, New Jersey JOHN N. ERLENBORN, Illinois
PHILLIP BURTON, California RONALD A. SARASIN, Connecticut
JOSEPH M. GAYDOS, Pennsylvania JOHN M. ASHBROOK, Ohio
WILLIAM ``BILL'' CLAY, Missouri ALPHONZO BELL, California
MARIO BIAGGI, New York WILLIAM F. GOODLING, Pennsylvania
JAIME BENITEZ, Puerto Rico ALBERT H. QUIE, Minnesota,
LEO ZEFERETTI, New York Ex Officio
GEORGE MILLER, California
ROBERT CORNELL, Wisconsin
PAUL SIMON, Illinois
CARL D. PERKINS, Kentucky,
Ex Officio
(ii)
* * * * *
Introduction and Summary
On March 9, 1976, at 11:35 A.M., dangerous concentrations
of methane gas accumulated in a poorly ventilated section of
the Scotia Coal Mine and was ignited by an unknown source. The
coal mine explosion that resulted killed 15 miners. Again, on
March 11, 1976, at about 11:20 P.M., the same conditions
combined in the same section of the Scotia mine to cause a
second explosion in which another 11 men died. Thus, within a
60-hour period, 26 men lost their lives in the bowels of the
Scotia coal mine, located near Oven Fork, in Eastern Kentucky.
As of this date, the bodies of the 11 men killed in the second
explosion remain entombed in the mine.
Why did Scotia happen? This same question was asked of the
Farmington disaster in 1968 which claimed the lives of 78 coal
miners; the Hyden disaster of 1970 which killed 38 miners; and
the Itmann and Blackville disasters of 1972 in which 14 died.
In 1969, the U.S. Congress responded to the Farmington
disaster by enacting the Federal Coal Mine Health and Safety
Act, which is, perhaps, the strongest such law in the world.
Since the passage of the Federal Coal Mine Health and Safety
Act of 1969, over 1,000 coal miners have died in mine
explosions, roof falls, and other coal mine accidents.
Why did Scotia happen? Since the disaster, the House
Education and Labor Committee, under the direction of Chairman
Carl Perkins and Labor Standards Subcommittee Chairman John H.
Dent, has been searching for answers and insights into the
Scotia tragedy. In conjunction with the Senate Committee on
Labor and Public Welfare, the Committee held three days of
public hearings in Washington, D.C. and Whitesburg, Kentucky.
The Committee heard from Scotia widows, miners, company
officials, outside professionals, and Federal Government
officials. The Committee and its staff reviewed thousands of
pages of testimony, conducted individual interviews, and
analyzed mine inspection reports and other related documents.
In order to inform the full Committee, and the public at-
large, as to what has been learned thus far about the Scotia
disaster, Mr. Perkins and Mr. Dent instructed the staff to
prepare this report. The views contained herein are those of
the majority staff, and do not necessarily represent those of
the Committee.
Why did Scotia happen? While all the causal factors related
to the disaster have yet to be conclusively determined, the
available evidence strongly supports the following conclusions:
1. The Scotia Coal Company, in effect, ignored the
requirements of the Federal Coal Mine Health and Safety
Act, its standards and administrative regulations;
(1)
2. The Mining Enforcement and Safety Administration
(MESA) failed to effectively enforce the Federal Coal
Mine Health and Safety Act at the mine;
3. Ultimate responsibility for the first explosion of
March 9, 1976, rests with the Scotia Coal Company, but
responsibility for the second explosion of March 11,
1976, must, in the staff's opinion, rest with MESA.
The Scotia Coal Mine, near Oven Fork, Kentucky, was known
as one of the most dangerous mines in the United States and the
most gassy mine in Eastern Kentucky. In addition, the Scotia
mine had a long and chronic history of Federal coal mine health
and safety violations. From 1970 to 1976, the Scotia mine had
been ordered closed 110 separate times--39 times for imminent
danger conditions. During this same period, some 855 notices
for Federal health and safety violations had been issued
against the company. In the period January 1974 to February
1976, the mine had been cited for 63 separate violations of
Federal ventilation and methane standards.
In addition, the record contains evidence that:
The Scotia mine's ventilation plan was
regularly violated and, at the time of the first
explosion, Scotia was in violation of its ventilation
plan;
At various times, methane readings taken by
the company officials had registered as high as 9
percent;
The required 20 minute methane monitoring
regulation was repeatedly violated and seldom adhered
to at the Scotia mine;
Required preshift mine inspections for
hazardous ventilation, methane and other conditions
were not regularly conducted at the Scotia mine:
preshift inspection reports were routinely falsified;
and the section of the mine which exploded had not been
inspected prior to the shift in which the first
explosion occurred;
A methane gas feeder which measured at least 5
percent had existed in that section of the mine which
exploded;
The company's safety education and training
program was a sham, and no one, including the company's
safety inspector, could remember the last time a fire
or mine evacuation drill had been conducted at the
Scotia mine. Six of the 15 miners killed in the first
explosion suffocated to death.
From the record, it is clear that the Scotia mine was a bad
mine, a dangerous mine, a mine with a long and chronic history
of health and safety violations. It was a mine which in our
opinion placed production and profit before the safety and
health of its miners. It was a mine which essentially ignored
the law.
* * * * *
Chart A
SCOTIA COAL MINE--SUMMARY OF VIOLATION NOTICES AND CLOSURE ORDERS, MAY 13, 1970 TO MAR. 9, 1976
----------------------------------------------------------------------------------------------------------------
1970 1971 1972 1973 1974 1975 1976
----------------------------------------------------------------------------------------------------------------
Total number of violation notices issued................ 79 94 156 116 103 214 92
Total number of closure orders issued................... 6 23 13 24 18 23 3
Total number of 104(a) closure orders issued (imminent 5 7 4 9 5 9 0
danger)................................................
Total number of violation notices and closure orders.... 85 117 169 140 121 237 95
----------------------------------------------------------------------------------------------------------------
Source: Mine Safety Enforcement Administration, U.S. Department of the Interior.
Chart B
SCOTIA COAL MINE--SUMMARY OF SAFETY AND HEALTH VIOLATIONS, JANUARY 1974
to FEBRUARY 1976
------------------------------------------------------------------------
Total number of--
-----------------------
Category of violation Closure
Violations orders
------------------------------------------------------------------------
Ventilation--30 CFR, pt. 75, subpt. D........... 63 10
Electrical equipment general--30 CFR, pt. 75, 41 1
subpt. F.......................................
Combustible materials and rock dusting--30 CFR, 86 8
pt. 75, subpt. F...............................
Fire protection--30 CFR, pt. 75, subpt. L....... 53 3
Dust standards--30 CFR, pt. 70, subpt. B........ 28 0
Trailing cables and grounding--30 CFR, pt. 75, 10 3
subpts. G and H................................
Miscellaneous--30 CFR, pt. 75, subpt. R......... 71 4
Roof support--30 CFR, pt. 75, subpt. C.......... 23 7
Mandatory safety standards, surface coal mines 28 2
and surface work areas of underground coal
mines--30 CFR, pt. 77..........................
Maps, hoisting and mantrips--30 CFR, pt. 75, 17 1
subpts. M and O................................
-----------------------
Total..................................... 420 39
------------------------------------------------------------------------
Source of data: Senate Subcommittee on Labor--Staff Study.
Chart C
Scotia Coal Mine--Summary of ventilation violations, January
1974&February 1976
Total number of times violation was cited
Description of violation
Not enough air reaching the working face.......................... 26
High methane concentration........................................ 7
Approved ventilation plan not being followed...................... 18
Line brattice out of position..................................... 6
Methane monitor inoperative....................................... 3
Permanent stopping was installed with incombustible material...... 1
Water sprays not provided for the head drive...................... 1
Fans at new returns section not equipped with a pressure gage and
an automatic signal device to give alarm...................... 1
Tests for methane were not being taken at 20-minute intervals..... 1
Permanent brattices had not been constructed...................... 2
Lost coal and coal dust........................................... 1
Source: Mining Enforcement and Safety Administration, U.S.
Department of Interior.
* * * * *
------
Chairman Miller. And the report goes on, and obviously, one
of the responses was the idea of changing the OSHA laws, or the
MSHA laws, and going to a pattern of violation. And now 33
years later, we see essentially the same problem of violations
after violations, citations after citations, dangerous and
hazardous working conditions repeatedly created through the
operation of mines and now culminating with the loss of 29
miners.
I think that makes a rather compelling case. It will make
it for different reasons from different sides of the aisle. I
think that the fact of the matter is, the current law isn't
working, and the pattern of violations that existed then were
exceeded even by the Massey mine here and the closures. I mean,
it was closed--54 times this mine was closed. At what point
does the benefit of the doubt go to the miner?
And I think when we look at the changes that we are seeking
to make, it is about not only empowering the miner, but also
giving the miner, if you will, the edge on a safe workplace.
Right now, the edge is against the miner. The edge clearly
works against the miner because the process is so cumbersome or
so threatening to the miner that the miner never gets a level
playing field to discuss what might be wrong.
As we heard when we were in Beckley, you can lose your job.
You can lose your shift work. You can lose your overtime. You
can lose all sorts of events within the mine. And so we go from
1976 to today, and we are in the same predicament that we were
in 1976. Now, clearly, as we documented last year, there has
been a gaming of the existing system. I don't know if it had
been allowed to operate on the level, whether it would have
been better, but it hasn't, and now the same people who have
been gaming it are suggesting that we shouldn't make any
changes so they can continue to game it, and they will do
something better in lieu of it.
Joe, I would just like your comments. You have watched this
expanding of disasters and violations and closures. I mean,
this is not a record to be proud of as a country.
Mr. Main. I began representing miners when I was about 19
years old and spent a lifetime doing that to improve mine
safety in this country. And I have looked pretty hard where we
are today and where we came over the years. And there are a
number of things that I think are just so compelling that we
have to fix here.
I think that the folks who were in Congress when it passed
the 1977 law would be more than highly disappointed to find out
that 33 years later, not one mine had ever been placed on the
enforcement action of pattern of violations that they sought.
The recent problems we have identified with the pattern of
violation I think pales compared to the bigger problem here in
the computer glitch that occurred in the policy of how mines
are selected for the pattern in terms of a policy by district.
I think those are just small parts of a larger problem.
And I am starting off with the fact that I think the
pattern of violations is one thing that we have to fix in this
legislation, and we have to do it in a way that a Federal
agency will actually implement it, unlike the Federal agencies
over the past 33 years. As a starting point, I think that is
something we have to fix.
Chairman Miller. Thank you.
Secretary Michaels, you in your testimony endorse the
provision that requires employers to correct hazards which
would cause serious bodily injury or death while employers are
contesting the claims from the OSHA review commission. Would
you provide some examples and why this is necessary?
Mr. Michaels. Yes. The way the OSHA law works currently is
that if an employer decides to contest the violation, they
don't have to abate the problem until the contest is over. Now,
most--it is worth noting that most contests are about the
penalty. Employers don't like the penalty; they would like to
contest it.
The second most about the classification, is it willful or
not?
But the third most important is they don't want to abate
the hazard or they don't agree with the abatement. So, in the
period that--in between the end of the contest period,
essentially the adjudication, nothing is done. We had a
situation, for example, in 2007 where OSHA cited a company in
Ohio, Republic Engineered Products, for not providing fall
hazards ranging from 7 feet to 31 feet. And there was a
contest. The employer contested this. Less than a year later,
in February 2008, while this contest was still going on, a
supervisor broke his pelvis when he fell from 13 feet from an
unguarded location.
OSHA felt--you know, we went in and issued new citations
about not protecting people from fall hazards. But the first
violations hadn't been abated yet. And that is the sort of
problem we are trying to deal with here. When we see a problem,
we think it should be fixed immediately.
Now, this bill provides, as I said, protection for
employers. They can ask for an immediate hearing, an
accelerated hearing, in front of the review commission. If they
really don't believe the problem exists, then we can adjudicate
it quickly. But we can't let workers wait for months or even
years unprotected until that contest is over.
Chairman Miller. Thank you.
Mr. Kline.
Mr. Kline. Thank you, Mr. Chairman.
Again, thanks to the witnesses for being here and for their
testimony.
Secretary Main, I wanted to thank you for your prompt
response to my letter. I sent you a letter with some questions
dated July 1st. You responded with a letter dated July 9th. It
is not always that we get that sort of responsiveness from
members of this administration or any other. So thank you very
much.
In your response, picking up on the issue of the pattern of
violation, you expressed a frustration in the letter that I
think I just heard here. You said, plans, I am quoting, ``plans
for a new POV process have been under way for many months prior
to the IG's alert memorandum. I have identified the POV program
as requiring evaluation and modification shortly after taking
office,'' and so forth. And it seems to me that on both sides
of the aisle here there is agreement that the pattern of
violation issue needs to be addressed.
So, again, I just want to thank you for getting back. We
will be staying in touch with you as we go forward.
Solicitor Smith, and in fact, all of you talked about
felonies, the fact that this law now has a lot of felonies. In
virtually every section, there is a new felony. And perhaps
increased penalties should be part of this. But I am a little
bit concerned that we may be overreaching in a couple of places
and get some unintended consequences.
Secretary Main, one of the new felonies is associated with
the advance notice of a mine inspection, as I read it, and
certainly, I think the Chairman's language and our discussions
would recognize that we don't want somebody to send out the
alert and have people cover up before the inspectors get there.
On the other hand, it seems to me the way the language is
now that you might have somebody just arranging for a union
representative to accompany the inspector, arranging for
transportation or something of that nature. I wouldn't think we
would want that to be a felony. Do you see any problem with
that language or just hang them high?
Mr. Main. Well, I think the intent here is to hold
accountable those who give advance notice of an inspection that
would have its purpose to be to provide some ability for the
enforcement action.
Mr. Kline. Exactly. So let me interrupt because I am
running out of time. So we want to be careful in language if we
are going to make a law here and put it in statute that we be
careful that we are going after the person who is doing this
for the purpose of impeding the investigation and not for some
other purpose. We don't want to make everybody a felon.
Mr. Main. I think it is in our interest to make sure that
we have a provision in place that changes the culture that
exists today of advance notice being provided to a mine that
undercuts the ability of the law to be enforced and miners to
be protected.
Mr. Kline. Moving to another subject before I run out of
time, it was mentioned that, for the first time, we are going
to provide a statutory definition of significant and
substantial. And I think Solicitor Smith, in fact, mentioned
that. Eliminate the current four-prong test and so forth.
My question is, have we--and I guess this will probably be
in your domain, again Secretary Main. Have you looked at what
sort of percentage of violations would be S&S under this? I
mean, currently now, according to the number I have here in
front of me, it is about 36 percent of the citations are
designated significant and substantial. And I have heard some,
you know, sort of back-of-the-envelope calculations here that
say we might go upwards of 90 percent. Have you looked at that?
Do you have any idea? And if--if--this number jumps to that
sort of percentage, wouldn't that cause you to lose focus with
your resources and conditions that are supposed to be focused
at these really egregious violations that threaten miner safety
and health? Have you looked at that yet?
Solicitor Smith, do you have the answer to that?
Ms. Smith. We have looked at it and thought about it. I
can't give you any statistics because we are not able to do an
advance. But one of the things that we have been thinking about
quite seriously is an increase in the contest rate. And we
think that there are many provisions in this bill that will
actually decrease the contest rate. I think this definition is
a simpler definition. And one of the reasons we have a high
contest rate now is because we do have a four-part definition
which is complicated and difficult to prove.
The second thing that we believe is that, though we do
believe that probably the number of S&Ss will go up, that we
believe that is actually consistent with the legislative
history of the Mine Act, that they wanted different types of
violations to be S&S. And I can give you one example if you
would like of a type of a case where we think it should be S&S
and it is not S&S right now. And that is a situation in a coal
mine where there are high concentrations of coal dust, where
the ventilation controls, the curtains are not being put in
place. It is a gassy mine with a high concentration of coal
dust. And we believe that that should be an S&S situation. The
commission--ALJ found that because there wasn't any potential
ignition at that moment when the inspector was there and cited
it, that it was not S&S. Yet 5 minutes after that inspector
left or an hour after that inspector left or a month after that
inspector left, there could have easily been an ignition site.
So that is why we believe that that type of a violation should
be S&S.
Mr. Kline. Thank you. I see my time has run out. I just
think that we ought to be careful when we are putting things in
statutes that we don't have an unintended consequence of making
everything but paperwork an S&S violation, and therefore if
everything is bad, then sort of nothing is bad.
I yield back, Mr. Chairman.
Chairman Miller. The gentleman yields back.
Mr. Kildee.
Mr. Kildee. Thank you, Mr. Chairman.
Dr. Michaels, is it true that OSHA can only inspect the
average workplace about once every 137 years?
Mr. Michaels. There are different ways to calculate it, but
OSHA has a relatively small number of inspectors. With our
State partners, a little over 2,000 inspectors for 7 million or
8 million workplaces. So, yes, it takes a long time. If we
tried to go to every workplace, it would take us a very long
time.
Mr. Kildee. That is incredible. But I read it, and I
checked with every one of the staff people up here, and they
said that is the number. Given the lack of inspectors relative
to the number of workplaces, what elements in this legislation
would most help leverage your limited resources?
Mr. Michaels. I think that is a very good question. There
are a couple of them. The first, obviously, is whistleblower
protection. Workers are the eyes and ears of OSHA. They have
more on the line in terms of safety than any of us. They are
the ones whose arms and whose lungs are in danger, so they have
to feel free to raise issues of safety. And if they don't have
adequate whistleblower protection, and frankly, under the
current OSHA law, then they can't raise problems with their
employers without the fear of losing their jobs, and they can't
call OSHA without fear of losing their jobs. So that alone will
have a great impact.
I think increased penalties will also have a important
impact, because the reason we have penalties more than anything
else is deterrence. We obviously want to get the word out to
employers that if you don't fix your problems before OSHA gets
there, you will have to pay a penalty. And the larger--right
now--I don't believe that the fines that we can impose are
adequately large in terms of a deterrence effect. And so both
of those will help us tremendously.
Mr. Kildee. In many instances, OSHA hands over or contracts
with State government to carry on the inspection. How does that
affect your ability to do your job?
Mr. Michaels. Well, we work in cooperation with States; 21
States have programs where they essentially do the OSHA--they
are the OSHA program for those States. And four additional ones
do that only for public-sector workers. We work closely with
them.
The law says that they have to be at least as effective as
Federal OSHA, and it is our job to oversee them. And there are
some problems I know this committee has looked into with our
ability to ensure that they do their job well, and we
appreciate the help you have given us on this so far. But in
those States, they are OSHA, so we have got to help them and
support them and push them into doing as good a job as they can
do.
Mr. Kildee. Doesn't that create a greater burden on you?
You have to trust a bit further away from where these laws are
passed, that they be enforced.
Mr. Michaels. The OSHA law essentially says, if States want
to take on the responsibility, they should do that, and we will
support them in doing that, and that is what we do.
Mr. Kildee. You know, I can recall, just I will very
quickly, I can recall a few years ago near my district, Owosso,
Michigan, a young woman reached into the press. And when you
reach into the press, you are supposed to hit two buttons, and
then you put your hands in and remove. And she had done that,
and both of her hands were totally mashed. And I can recall
that probably changed my 13-year old daughter at that time, her
attitude towards many things in life, how that could be
permitted. That machine had been cited several times, and they
never did anything to repair it. So I lost a little trust at
that time in my OSHA.
And I think that you have to really watch them to make sure
that--this is a Federal law, and if we do give some of the
responsibility to the State, to really watch them very
carefully.
Mr. Michaels. Yes, we agree. In fact, this committee held
hearings on this very question following what was pretty
clearly poor performance of OSHA in Nevada. A number of workers
were killed, construction workers. Nevada didn't--the Nevada
OSHA program did not follow up well. There were hearings held
here. We started an investigation of the Nevada OSHA, which
found some very serious problems which we issued a report
about. We are opening up a lot--we have opened up an office in
Las Vegas to monitor their work much more carefully.
But out of that also came a new program where we are doing
essentially in-depth audits of every State OSHA program,
including Michigan, and we have just gotten the reports back.
We are now reviewing them and will be releasing them soon. And
hopefully that will be effective in helping to make sure that
those State programs are effective as the Federal program.
Mr. Kildee. Thank you very much, Dr. Michaels.
Chairman Miller. Mr. Guthrie.
Mr. Guthrie. Thank you, Mr. Chairman.
Thank you for holding this meeting, and we appreciate it,
on very serious issues that we need to address, and I
appreciate the opportunity to be here.
I want to look at the OSHA, in section 705 and 706. The
bill makes significant changes to the penalty provisions of
OSHAct: 706 would impose Federal criminal sanctions, as we
discussed, on any company officer or director for knowing
violations. And do you believe that this would lead to
businesses to decide to litigate instead of settle, because if
they settle a future action of knowing could be used and
therefore give a backlog of cases to establish the knowing
part?
Mr. Michaels. I am going to defer to the Solicitor of Labor
on this.
Ms. Smith. When it comes to the criminal penalties, those
cases are not litigated in front of OSHA. So what will happen
in those situations is that if OSHA and the Solicitor's Office
find that there are very significant cases, very significant
violations, they will refer them to the U.S. Attorney's Office.
And the U.S. Attorney's Office will then examine them and make
a determination about whether or not there should be a criminal
prosecution in those situations.
Mr. Guthrie. It is serious, I understand. But also any just
settlement for any other violation before it gets to the U.S.
Attorney, the employer may not want to settle and choose to
litigate because settling would prove a knowing and therefore
could be used against them later if somebody decides that they
get this to a criminal court.
Ms. Smith. Whatever finding is made in the civil court is
not binding in the criminal court. So the knowing standard that
the U.S. Attorney will make will be different than a knowing
standard that will happen at the OSHAct at the OSH level.
Mr. Guthrie. You know, companies that have really good
safety programs and safety records, the ones that are really
serious about safety, have safety audit teams. They go in--and
internal audits within their own workers and their own
workforce.
And do you think just the knowing--because maybe make a
list of things we need to improve on and fix and do better, in
terms of their overall program to make it robust and safer.
Most major corporations have these kind of teams that do that.
Does that affect this at all? Would it be less likely to
have these kind of teams because of the establishment of the
``knowing'' standard?
Ms. Smith. I think you need to put that in perspective.
Both the criminal penalties and the ``knowing'' standard
actually come out of the environmental safety standards--the
Clean Air Act, the Clean Water Act, the Resource Recovery Act.
They have those exact same provisions. And, yet, I haven't seen
any press reports that major companies, you know, have cut back
on their environmental programs because of those provisions.
What we are really trying to do with these provisions is
make violations under these safety laws--we will call them the
human safety laws--just as serious as violations under the
environmental safety laws.
And so, again, I think we have to look at those laws that
we have taken them out of. And I, personally, haven't seen any
reports that there are fewer environmental corporate plans
because of these provisions.
Mr. Guthrie. Okay. Thanks. Yeah, we are just trying to
clarify, so thank you for that.
And then, in section 703, it would allow OSHA inspectors to
immediately enact changes to the workplace without OSHA showing
an imminent threat or providing employers with a hearing or a
judicial review of the inspector's allegation.
I understand we discussed trying to show a pattern, but it
does allow them, without showing an imminent threat, it puts
the judgment on the OSHA inspector, who could be unfamiliar
with the workplace and have authority to disrupt business
operations before the objections of the validity of the
citation could be heard.
I understand your concern about the one who continues to
object in order to prevent that from going forward. What about
the good players in this? We are focused on the bad players.
What about the good players who get caught in this?
Mr. Michaels. Well, you know, it is interesting. Oregon has
this already, and we never hear any complaints. And MSHA has
this, as well.
Most employers actually abate immediately. And, as I said
before, most contests are around the level of the fine and,
secondarily, around the classification. Many companies don't
want to be given a willful citation, because that affects their
ability to get, for example, municipal contracts.
The third thing is that--and so we are not talking about a
large number of cases, but we are talking about important ones,
where people really are in danger. And so I am not worried
about the companies that have good programs, because they are
they ones who are going to want to abate immediately. This is
really aimed at those recalcitrant employers, those employers
who don't want to do the right thing and where people could get
hurt.
Mr. Guthrie. Well, I absolutely agree with you on that.
The question is, how do you capture those without putting
the net over people who are trying to do the right thing? I
mean, that is the concern. I understand that. And I agree with
you completely that the recalcitrant employers should be--as,
obviously, we have seen in the mine before.
Well, thank you. And I am about out of time, so I yield
back.
Chairman Miller. The gentleman yields back.
Congresswoman Woolsey?
Ms. Woolsey. Thank you, Mr. Chairman.
Solicitor Smith, you won't be here, I don't believe--at
least you won't be able to respond to panel two. So I am going
to ask you to respond to some of the written testimony that we
will be hearing on the next panel.
Mr. Snare, in his written testimony, when he is talking
about--he claims that the abatement-during-contest provision in
Title VII of the Miner Safety and Health Act will, and I will
quote him, ``eliminate OSHA and the Solicitor's Office's
prosecutorial discretion in handling these contested cases and
eliminate one source of potential leverage they can use to
resolve cases with the requirement to impose immediate
abatement.''
You are the Solicitor's Office. How would you respond to
that?
Ms. Smith. Well, I mean, that may be true in the current
system. What happens is that, if you haven't abated, you could
say, ``Okay, now you will abate now. We will do whatever.''
But, frankly, I think that worker health and safety and having
immediate abatement is far more important than the ability of
the Solicitor's Office to wheel and deal cases.
Ms. Woolsey. He also argues that changes in Title VII will
strain the resources of the Solicitor's Office. How do you see
that working? How will you handle the increased demands of your
office?
Ms. Smith. Well, I have to say, as the Solicitor, I am very
concerned about the resources of my office. And there are a
number of provisions in this bill that I think will counteract
some of those concerns.
First of all, there is a provision that says--for
prejudgment interest. One of the reasons that employers contest
is because they contest the level of the penalties, and they
are hoping that they will get penalties reduced, because there
is time value to money. But by requiring prejudgment interest,
I think you are going to eliminate a certain number of those
cases. To the extent that you have individuals who don't want
to abate, we are going to eliminate, if this bill is passed, a
certain number of those cases.
The interesting thing is, unlike MSHA, where when they
increase the penalties--and there was, as we know, a great
increase, and there is a great backlog. The last time they
increased the penalties in OSHA, there was only a 4 percent
increase in the contest rate.
And my office has already gotten together a work group to,
sort of, deal with the fact that there may be an increase in
the contest rate and how we are going to deal with it
prospectively, as opposed to what unfortunately happened in the
MSHA situation, which was that we didn't plan ahead for those
possibilities and then we, sort of, got caught up with a big
backlog.
So I am not really concerned about the resource level, if
this bill passes, in my office.
Ms. Woolsey. Okay. Thank you very much.
Secretary Michaels, you probably would like to respond to
both of those questions, but I would like to ask you about the
workers' ability to blow the whistle. Why is that important? I
mean, how does that make things safer and improve the health of
our workplaces?
Mr. Michaels. Well, let me give you an example. There have
been press reports that workers on the Deepwater Horizon said--
you know, they saw what was going on there, they said it wasn't
safe. But they said they were scared for their jobs; they
didn't want to say anything.
Just think what would have happened if one of those workers
had, you know, called a government agency and said, ``Look,
there are some decisions being made here that are simply wrong.
Can we stop it now?''
You know, workers are the eyes and ears of every public
health and environmental regulatory agency on the ground where
the hazards are worst. And their voices are necessary to
protect themselves and to protect the rest of us.
OSHA has the weakest anti-retaliatory whistleblower
protection law of any agency. OSHA actually enforces the
whistleblower protection laws for all of the new legislation--
the patient protection bill that has just been passed by
Congress; the financial reform bill that is going to be passed
soon will be given to OSHA to protect workers. And all of those
laws have much stronger provisions than the OSHA Act, because
we were the first one, and it was written very badly 40 years
ago. It was written in a weak way.
And so, we and MSHA need stronger whistleblower protection
laws because workers have to be able to protect themselves.
They have to call us in. They have to be able to tell their
employers, ``Here is a hazard,'' without fear of being fired.
Ms. Woolsey. So, Secretary Main, let's follow up on this
whistleblower issue. At our hearing in Beckley, it was very
clear to me that the workers knew they were working in very
unsafe conditions. So did their families.
How are we going to be able to--we have to pass this, but
what do we need to do then? What are our next steps so that
they know they can count on this protection?
Mr. Main. I think the most important thing we can do is
pass the legislation that puts in place protections and
vehicles to make these improvements.
I was at the hearing in Beckley, West Virginia, as well,
and anyone that walked away from there that didn't understand
the real need to enhance protections for miners, to give them a
voice, probably was on another planet, as the saying goes.
There is a compelling case here to be made, and I just want to
touch on that for a second, in terms of the need.
When you have miners that go to work that leave notes for
their families that they may not come back home from work, I
think that is a very dire situation we have in workplaces in
this country. And we really need to examine how we fix a
problem like that to make sure that the message that the worker
leaves is, ``I will see you when I get home tonight.''
Ms. Woolsey. Yeah.
Mr. Main. In terms of the legislation, there are a number
of pieces that are going to be very helpful to answer the
questions you have raised.
One is making it clear that miners have the right to refuse
unsafe work. I think that is a critical provision that is going
to be in the law; giving miners the right to let their boss
know, let MSHA know that there is an unsafe problem and put the
obligation on the employer--which it is their employer's
responsibility in the first place to make sure that the
workplace is safe for those miners. But it puts an obligation
on the employer to fix it.
It sets protections for miners that if they are retaliated
against for exercising that right with telling the government,
telling their employer, that they have protections that are far
more meaningful than today. I think the message we heard is
that miners do not have faith that the protections that are
contained in the current law really protect them.
Giving miners a fair shot of having a paycheck if they do
complain about a condition and MSHA comes in, does observe it,
does take the enforcement action, does issue an order, instead
of waiting months or years to get a paycheck in those cases.
Having a provision that requires miners to, every year, be
trained on their rights, which is contained in this new
legislation.
I think all of those pieces will help make the world a
better place for miners.
Ms. Woolsey. Okay.
Thank you, Mr. Chairman.
Chairman Miller. The gentlewoman yields back.
Congresswoman McMorris Rodgers?
Mrs. McMorris Rodgers. Thank you, Mr. Chairman.
And thank you all for being here.
We are all committed to making sure that we are taking
steps to have a safe workplace, and especially as it relates to
mine safety and the example of the Upper Big Branch Mine. I
believe that it is important, before we just move ahead with
legislation, that we better understand if anything in this bill
would have actually prevented the mine disaster and what those
complaints were and why MSHA hadn't taken action.
But what concerns me--you know, I think we could get to an
agreement on mine safety and the appropriate response. But also
attached to this bill is a very broad reform of OSHA that is
only going to increase litigation, discourage settlements, and
create disincentives for cooperation between business owners
and OSHA.
And we hear from the proponents that we need swift,
meaningful, serious penalties. And we certainly get those in
this bill, the many new felony offenses, the increased
penalties--first offense, from 6 months to 10 years. It is
increased from 6 months to 10 years. Second offense is
increased from 1 year to 20 years.
And I really believe that a more cooperative approach,
better communication between OSHA and employers will go a long
way towards making our workplace safer. And I believe that we
have seen that in recent years.
So I want to ask the question, what evidence is there to
suggest that this more adversarial approach is actually going
to create a safer workplace? And how is litigation going to
help make the workplace safer? And how are these changes going
to impact small businesses and their ability to succeed,
especially during a very difficult economic environment?
Ms. Smith. Well, I am not sure I can answer all of that,
but let me start out by trying.
When it comes to the OSHA provisions, I think one of the
things that this bill does is it puts the OSHA provisions
basically on par with the MSHA provisions, in the provisions
that it deals with, so that workers in oil refineries can have
the same safety standards as workers in mines have.
And I think that is one of the reasons, for instance, we
had the immediate abatement provision. The immediate abatement
provision has already been in MSHA. It has been in the Mine Act
for many years. We don't, you know, hear a lot of complaints
about immediate abatement, and we think that workers in oil
refineries and other workplaces should have that, sort of, same
safety rights.
When it comes to the increase in penalties, I think Dr.
Michaels talked about OSHA. Penalties haven't been increased in
40 years. And for a serious violation that a worker dies in--
not a willful, but a serious violation--the maximum penalty is
$7,000. And to the extent that you believe that penalties are a
deterrent--and I believe that employers do pay attention, that
most employers want to do the right thing, but sometimes, I
mean, they need a little nudging. And a $7,000 penalty is not a
big nudge.
So I think that what we have seen is that most employers
want to do the right thing, but it is very difficult to get to
the recalcitrant employers. And that is what this bill is
basically dealing with.
Mr. Michaels. And if I could follow up briefly, you know,
we have various provisions in our laws and our policies to
protect small-business people. We reduce our penalties
automatically for small-business people, so, in fact, that
$7,000 penalty becomes quite a bit lower for a small business.
But it is also important to think about fairness beyond
even the question of deterrence. There are so many small
businesses that do the right thing, that make the capital
investment even during rough times to make sure their workers
are safe. We are putting them at a competitive disadvantage if
we are saying to the other employers, the recalcitrant
employers, ``Don't worry, we are not going to do anything until
someone is hurt, and then we will just give you a small fine.''
That is really not fair. We have to level the playing field,
and this bill is a small attempt to do that.
Mrs. McMorris Rodgers. One thing about our current system
is that it protects due process by allowing the employers to
challenge the assessments made by OSHA before requiring the
corrective action. And it is not uncommon for those cited
violations to be overturned or found not valid.
If this legislation were to become law, what would happen
if an employer is required to take a corrective action that is
found to be warrantless? Would they have the ability to recoup
any losses that had been incurred for errors in the
determinations made by the OSHA inspectors?
Mr. Michaels. You know, I don't know the figure of the
percentage of violations that are actually overturned. It is a
very small one. But this system builds in, essentially, an
immediate accelerated review process. So, if the employer has
good reason to think that the abatement requirements that OSHA
is putting forward are not accurate or fair, they can go to the
review commission immediately and essentially stay that. I
think it is quite fair, and I think that does provide the
protection that small employers need.
Ms. Smith. And if I could add to that, even though an
employer has to abate the unsafe condition immediately, that
doesn't mean that they can't appeal the penalty and that they
can't get the penalty reduced. Just because you abate doesn't
mean that you, sort of, have to give up and you can't contest
anything that OSHA has done.
In the MSHA context, where you do have to abate
immediately, you find that employers contest the penalties all
the time. They can also contest the underlying citation, which
would mean, if they win that, that they shouldn't have abated.
In MSHA, it is less than a 2 percent rate where the actual
citation is overturned, so I don't think that that is really a
big problem.
Mrs. McMorris Rodgers. Okay. Time is up. Thank you.
Chairman Miller. Mr. Courtney?
Mr. Courtney. Thank you, Mr. Chairman.
As Congresswoman Woolsey mentioned in her opening comments,
a couple of weeks ago this committee held a hearing in
Middletown, Connecticut, which looked at the natural gas power
plant explosion, the Kleen Energy plant explosion, where,
again, we had testimony from a brother of one of the victims
who described the misgivings that his brother had the day that
they did a natural gas blow through the pipes, which
manufacturers of these turbine engines are now, actually, on
record recommending not be used. They recommend much safer
alternatives.
Yet it was pretty clear that the workers did not feel
empowered to step out and say, you know, ``Why don't we
evacuate the area when this procedure is going on?'' Again,
there were a lot of unrelated extraneous workers who were in
the area, and some of them were killed as a result of that
blast.
And it is clear--because, obviously, this isn't an MSHA
context; it is an OSHA context--that the law contains many gaps
in terms of protecting workers who clearly were experienced in
the work that they were doing but weren't being given the legal
standing to actually step out and challenge whether or not it
was a safe workplace for them to be in. And, obviously, events
proved that these misgivings were, unfortunately, well-founded.
So, again, I think this committee should respond to what we
are hearing at these field hearings as well as today's
testimony about the fact that we need to strengthen these laws,
not to hinder the economy but to just get us to a point where
the mission of OSHA is actually achieved.
I would like to ask the Solicitor about two provisions that
you mentioned in your testimony. Number one is the modification
of the subpoena powers, where, again, your testimony indicated
that what we are trying to do for MSHA is really to put it on
par with the subpoena powers in OSHA.
I was wondering if you could actually just, kind of, maybe
be more specific in terms of how that would actually help the
enforcement of mine safety?
Ms. Smith. First of all, let me tell you that giving the
Secretary subpoena power is very common. Not only does she have
it in OSHA, she has it under the Fair Labor Standards Act, she
has it under the Family Medical Leave Act.
And what that means is that, in an investigation--well,
take the investigation right now. In the investigation, there
are people that you want to talk to who don't necessarily want
to talk to you voluntarily. There are papers that you need.
There are records that you need. And without subpoena power,
the only way that you can do it now in an investigation is in a
public hearing.
If you are not doing an accident investigation, if what is
happening is you are looking into a particular citation or in
the litigation context, you are trying to prove that a citation
was actually substantial and significant, very often you can't
rely upon the kindness of strangers to get your evidence. You
basically need subpoena power.
And so, that is what we are asking for. Again, it is very
common to give the Secretary the subpoena power. She has it
under OSHA, she has it under the Fair Labor Standards Act. And
there is nothing improper with giving the Secretary subpoena
power.
If there is a dispute, if somehow the employer feels that
the Secretary has subpoenaed something that they are not
entitled to, either they do nothing and the Secretary is forced
to go into court and get an order or they go into court and get
an order to quash. So there are plenty of places where any
disputes can be resolved.
Mr. Courtney. And the notion that this provision is somehow
jumping the gun in terms of, you know, not waiting until there
has been, you know, a full set of findings regarding this mine
disaster, I mean, in fact, what we are talking about is really
just creating parity in the law----
Ms. Smith. Creating parity, exactly.
Mr. Courtney [continuing]. And just following existing
precedent that, again, as you point out, extends to wide areas
of administrative law.
The other area that you mentioned in your testimony was on
injunctive relief, in terms of trying to get the standards
clarified. Again, I was wondering if you could help us, sort
of, understand what the problem is right now and how that
change will help, again, the goals here.
Ms. Smith. Well, right now, the injunctive relief
provision, which has never been used, requires that there be a
pattern of violations. And Assistant Secretary Main discussed
the broken pattern of violations provision. And right now, what
we want to do is to clarify it to make sure that we are not
required to get someone on an administrative pattern of
violations before we can get an injunction. That is why we are
asking Congress to change the language to ``course of
conduct,'' which makes clear that we don't have to have an
administrative pattern of violations, something which has never
happened in 30 years.
The second thing is that, right now, it limits the
injunction power to mandatory health and safety standards, but
think of the situation where an operator has a course of
conduct of refusing to abate. That could be an order--or they
have a course of conduct of refusing to withdraw miners when
they are ordered to be withdrawn from the mines. That type of
thing would not fit under the injunction provision right now.
So we are asking that also to be clarified, such that not just
mandatory health and safety, but other things would be subject
to injunctions.
Mr. Courtney. Thank you, Mr. Chairman.
Chairman Miller. The gentleman's time has expired.
Mr. Price?
Mr. Price. Thank you, Mr. Chairman.
Certainly, we all believe that any workplace death is a
tragedy and any injury is unwanted by all of us.
Secretary Michaels, you have talked a number of times
about, quote, ``unscrupulous employers,'' unquote. Do you want
to name any?
Mr. Michaels. We have certainly had our problems with an
oil company with two initials, ``BP.'' We have gone in there
and we have said----
Mr. Price. Anybody else?
Mr. Michaels. No, I don't think we need to go into the
specifics here of any one. But if you would like, I could
certainly get you a list.
Mr. Price. I would love to have that list.
Mr. Michaels. Okay.
Mr. Price. Secretary Main, after the tragedy at the Upper
Big Branch, MSHA took action to shut down a number of mines.
Did you have that authority to shut down the mines before the
tragedy?
Mr. Main. The tools that we used are tools that were used,
actually, at Upper Big Branch, in terms of the issuing of
orders under section 104(d) of the Mine Act, in particular. And
those shutdowns actually involved a short period of time and
targeted areas of the mine where the conditions, we felt,
merited that action.
The problem is none of those shut down a mine to hold the
mine down in terms of what we are talking about with this
legislation. That is what we are hoping to be able to do with
section 108, as the Solicitor of Labor has pointed out.
Mr. Price. But could you have shut those mines down before
the tragedy?
Mr. Main. We did at Upper Big Branch. I mean, there was--at
times, I know there was a 3-day shutdown at Upper Big Branch.
There was one that was a day and a half at Upper Big Branch.
Mr. Price. So, when you see an imminent threat, you are
able to shut a mine down?
Mr. Main. Well, here is the problem, and here is a problem
we run in to. You know, section 104(d) of the act was probably
the most effective tool in bringing to bear the enforcement
provisions of the Mine Act on the mine operator----
Mr. Price. But when you see an imminent danger, you are
able to shut a mine down, correct?
Mr. Main. If you see an imminent danger over an issue,
until that issue is corrected.
Mr. Price. Okay.
Mr. Main. But what we don't have is the----
Mr. Price. I got you. I got you.
Mr. Main. Okay.
Mr. Price. Solicitor Smith, you gave an example to Ranking
Member Kline about this awful problem that was an imminent
danger. If that was indeed the case and you all recognized
that, MSHA recognized that, then you could shut the mine down
right then, couldn't you?
Ms. Smith. No, that wouldn't be considered an imminent
danger.
Mr. Price. And the reason for that is?
Ms. Smith. Because there was no ignition spark.
What we are saying is that, even though it is not an
imminent danger, we think it should be a significant and
substantial violation. An imminent danger is a more
substantial, more serious violation than a substantial and
serious violation under the Mine Act.
Mr. Price. I wanted to talk a little bit about the
``knowing'' requirement, that knowing that something is
happening exposes one to significant liability. I don't know if
you saw the Politico this morning, this article----
Ms. Smith. I have not.
Mr. Price [continuing]. ``Danger on the Hill: Safety
Hazards Abound Across Capitol Complex.'' There is a quote here,
``Workplace safety experts say that if Congress were a private-
sector business it would be at risk for massive fines from
government regulators.''
Solicitor Smith, I am just interested in asking you, who in
the House of Representatives would you deem to be an officer
with liability for knowing the 6,300 violations?
Ms. Smith. Now you are asking me a corporate question. I am
not exactly--I am not well-attuned enough to the corporate laws
of a corporation. I couldn't answer that, let alone could I
answer it about Congress. But I am sure that there is an
appropriate expert out there who would know the answer to who
is a corporate officer----
Mr. Price. Somebody who ran the House maybe? Somebody who
ran the House?
Ms. Smith. Well, maybe one of the lawyers who works for the
House.
Mr. Price. There you go.
But let me get back to MSHA. MSHA has inspectors in
underground mines virtually every day, correct?
Mr. Main. Depending on the mines. We have mines that are
very gassy mines that call for more frequent inspections.
Mr. Price. And they are down there all the time, right?
Mr. Main. Not every mine, no. There are 14,500 mines----
Mr. Price. Right, but they are down in the mines all the
time. If they know that something is a challenge and they don't
do anything about it, are they exposed to the ``knowing'' level
of liability--MSHA, itself?
Ms. Smith. They would not be. They would probably be
exposed to other Federal laws but not that one.
Mr. Price. Well, why not?
Ms. Smith. Because they are not----
Mr. Price. They are the same as anybody else down there,
right?
Ms. Smith. Well, they could be, but they are not an
operator or an agent.
Mr. Price. So they don't have the criminal penalties that
one is exposing the officers and directors of the company to;
is that right?
Ms. Smith. Not under this statute. I am not saying that
they don't have it under other statutes.
Mr. Price. Do they have criminal penalties under other
statutes?
Ms. Smith. I don't know the answer to that. But I don't
know the answer ``yes,'' and I don't know the answer ``no.''
Mr. Price. Okay. Thank you.
I yield back.
Chairman Miller. Ms. Chu?
Ms. Chu. I understand that it can take an inspector an hour
from the time that they arrive to reach the critical areas in
the mines for inspection. Testimony from one of the mine
workers, Jeff Harris, said that once workers knew there was an
inspector around, they would start prepping the area so that it
was up to code.
And in the non-union Massey Mines, when an inspector came,
the code words would go out, ``We have a man on the property,''
and those words would be radioed from the guard gates and
relayed to all working operations in the mine, and word would
spread pretty quickly.
How does the mine safety bill deal with this? I know that
there are severe penalties if there is advance notice, but is
there a way of detecting such advance notice while it is
happening rather than after the fact?
Mr. Main. You know, one of the views of this legislation is
that, for those who were bad actors in the mining industry, it
makes them a better corporate citizen when it comes to mine
health and safety. And I think that was intended in the 1969
Mine Act, the 1977 act, and I think it is the hope of this act
that, when individuals who would contemplate making those kinds
of decisions realize the consequences, they will be less apt to
do that.
And giving advance notice to interfere with the inspection
of a mine that places miners in danger is one of those things
that we fully expect the Mine Act to send that kind of a
message to.
Mine operators who comply with the law every day, that take
care of business--you know, this law was aimed at getting at
the worst of the worst out there that are failing to comply
with the law. But we would hope that the provisions that are
contained in this act will change the thinking of those who
would desire to engage in actions like that.
Ms. Chu. And would there be a way of detecting this advance
notice as it is happening?
Mr. Main. Yes. I think the tools that are in--there are a
lot of these pieces that actually fit together to help support
the overall application of this law. And one of them is giving
miners the opportunity to report unsafe conditions, violations
of the law.
One is the subpoena powers that are contained in the law,
as well, that gives an opportunity for that information to be
gained from those folks that would be engaging in that. And,
you know, just a multitude of other provisions that will help,
hopefully, change the attitude toward folks that would engage
in those practices.
Ms. Chu. Then let me ask about another issue, which is,
once an inspector was known to be in the area, certain actions
would try to cover up the situation. For instance, this same
Jeff Harris, a West Virginia miner, testified that they would
put up ventilation curtains, and then once the inspector left,
they would take them down, and that some workers would point
this out, but the inspectors would reply, ``We need to catch
it.''
It is good to have whistleblower protections, but would it
be worth it to report such things, for miners to report such
things, if it is necessary to catch it in order for some action
to take place?
Mr. Main. Yes, this is a practice that was not only
reported from the Upper Big Branch Mine, but around the same
time of the Upper Big Branch disaster, we made special
inspections at mines in response to complaints about conditions
at these particular mines.
In three of these mines, we actually went to the mine,
captured the phone to prevent a call from being made
underground, to try to determine what the conditions were in
real time. And the agency inspectors were able to do that. And
they found cases, as you had described here, that was described
at the Upper Big Branch Mine where ventilation controls were
not in place, where mine officials were actually on-site,
overseeing the work activities, without these kind of
ventilation controls. Apparently, miners were working in dust,
and the lack of controls to dilute methane from exploding.
We are hopeful that the combination of changes that are put
in this legislation will help curb those, giving a miner a
voice to report them; not having a fear that something could
happen if an operator decides that they are going to try to
engage this these kinds of activities, such as, you know, the
subpoena authority would have to rout out that kind of
information; having greater penalties in terms of criminal
application law for those who engage in knowing conduct like
that.
So I think collectively there are a number of pieces in
this legislation that will help to deter that kind of conduct.
Ms. Chu. And if the worker points this out as the inspector
is there, is that worker protected under the whistleblower
provisions of this law?
Mr. Main. From everything I have read, I think absolutely,
yes.
Ms. Chu. Thank you. I yield back.
Chairman Miller. Mr. Holt?
Mr. Holt. I would be happy to yield my time to Mr. Rahall.
Chairman Miller. Well, under the agreement we had--you were
in the room at the time----
Mr. Holt. Oh, okay.
Chairman Miller [continuing]. You can ask, and then I am
going to Mr. Rahall and Mrs. Capito at that point.
Mr. Holt. Fine. Fine. Okay. Thank you, Mr. Chairman.
Chairman Miller. So you can use your time now or you can
give it to Mr. Rahall or you can do something else.
Mr. Holt. Thank you.
What I would like to address, then, is the safety
technology and whether we are--I mean, enforcement is one
thing. And, I mean, I think the points that have been raised,
perhaps partly while I was out of the room, are important. But
I would like to find out whether we are putting enough emphasis
on the development of the safety technologies.
Communication, for example, is something that we have been
working on in New Jersey--not a mining State, but good in
telecommunications. And we have been working on non-
interruptible communications that can work in cases of coal
mine collapse and a dirty environment and so forth.
And I am wondering if we need to be building into the
legislation more support for this sort of thing.
Mr. Main. I don't think there is any question that we could
always use more support on technology development. And the
mining industry has, I think, identified whenever the--the
MINER Act was enacted in 2006. And looking at ways that can
prod that, I think, is very beneficial for miners in this
country.
One of the provisions that is in the bill deals with
beefing up the atmospheric monitoring of the conditions of the
mines that would enable information to come very swiftly to the
operational folks at the mine on increases of methane that
could cause explosion; on increases of carbon monoxide--it is
an indication that there may be a fire burning in a mine; on
changes of airflow indicate that ventilation controls are
damaged somewhere--to be able to get miners more quickly out of
the mine.
And I think, by the same token, looking at beefing up the
technologies that are available for use during mine
emergencies. I have been doing mine emergencies for 20-some
years, and one of the things that inhibits our ability to
quickly enter a mine is a lack of knowledge about the mine
environment--the decision to send in mine rescue teams into an
environment that could be explosive and cost them their lives.
And one of the provisions in the legislation calls for more
research to develop technologies that could be in use doing the
post-accident circumstances, where you could more quickly
understand that mine environment and more quickly get into the
mine to rescue miners.
So, yes, I think things like that we need to be looking at
more proactively.
Mr. Holt. Thank you.
Would the other witnesses care to comment on that? No.
Thank you, Mr. Chairman.
Chairman Miller. Thank you.
Mr. Rahall?
Mr. Rahall. Thank you, Mr. Chairman. And I appreciate you
and Ranking Member Kline for allowing me to sit with the
committee this afternoon. And, certainly, I am happy that you
chose to name the pending legislation after our late senior
Senator, Robert Byrd.
Joe, let me preface my questions by saying I understand,
and I am sure we all do, the situation that you inherited upon
taking over as Assistant Secretary and head of MSHA. There was
quite a strain on budgets, as there still are. Perhaps training
was not up to par, and safety was not stressed to the degree
that it is today. And there was a different ideological bent
from above, which is very important, as we all know, whether it
is MSHA or OSHA or MMS, in the case of the oil rig disaster.
And so you have been making quite a few changes, and we all
appreciate that, a different emphasis, et cetera.
You have also commented on Chairman Miller's bill and the
manner in which you feel it will help correct a lot of the
current deficiencies.
The critics of the pending legislation will say that it
unduly penalizes the good actors or that current law is
sufficient; why not enforce current law? That is what the
critics will say of the pending legislation. I believe you have
answered that in a number of different responses already.
But one of the previous questioners on the minority side
asked you if you currently had the power to shut down a mine,
and reference was made specifically to UBB. We all know there
have been various lawsuits filed by the owners of that mine
against you. We know what their strategy is. If it were not a
serious issue, it would really be laughable, but it is a
serious issue.
And the question was asked if you had the power to shut
down UBB specifically. We know that one of the lawsuits is
challenging you on ventilation plans. We know there had been
controversy over the adoption of the ventilation plan just days
before this tragedy struck.
My question is, if the owner knew there were problems with
the ventilation plan and had serious disagreements with MSHA
over the ventilation plan that you adopted or that you
approved, could the owner of the mine, himself, shut the mine
down if he felt it was unsafe due to that ventilation plan?
Mr. Main. I think that, without question, if the operators
of Upper Big Branch thought in their mind that the mine was
dangerous, they could shut that mine down any time they
desired.
Mr. Rahall. They don't need your approval to shut down
their mines?
Mr. Main. They don't need our approval to shut down a mine.
And----
Mr. Rahall. Thank you.
Let me ask you about--well, I believe you have commented on
the whistleblower protection. I will skip all that.
As you know, there have been a lot of questions by the
current families of UBB miners as to who had access to the mine
post-disaster, post-April 5th. They want to know names. They
want to know the full list of who has been in that mine during
the investigative process. And I commend you in the manner in
which you have responded to the families. And you and Kevin
Strickland have had these meetings, along with our State office
of mine inspection and Davitt McAteer.
But my question, and I guess I will get right to the bottom
line: Why can't we make a disaster scene a crime scene, like we
do if there is an accident on the highway or something? We rope
it off. Nobody is allowed to come onto those premises except
the law enforcement personnel, except those who are
investigating the disaster.
That question has been asked a number of times by the
families. Could you comment on that? I know perhaps there are
legal ramifications to it, as well as knowledge of the mine.
But just comment on why we just cannot rope it off like a
normal crime scene.
Mr. Main. I think we are transitioning closer to that,
Congressman, as we move forward. And I think the outgrowth, if
you look back at this investigation, may push us closer to that
kind of a model than we have now.
There has been a historical model where, upon an accident,
an investigation is conducted that usually involves at least
three to four parties, depending on the representation of
mine--the Federal agency, MSHA; the State agency; the mine
operator; and if there is miner representatives,
representatives of the miners. So you always have that group
that is going to be involved in those kind of traditional
investigations.
Upper Big Branch is a bit hybrid from that, given the
involvement of a Justice Department investigation, whatever
they are doing with regard to their dealings with the disaster.
The other thing that I think we all realize is that there
is a lot to maintaining a mine. As we went back in, we had to
have a lot of work done to repair damages, to make
examinations, resources that the mine operator has that is
necessary in the actual investigation of a mine. It is a little
difficult to get around.
I think the concept of the government taking over total
control and not letting anybody in that mine is a challenging
one since the mine operator controls the power center, the
power cables, the ventilation of the mine, the whole nine yards
it takes to keep a mine safely operating.
Mr. Rahall. So MSHA would have to legally just take over
the whole mine in order to prevent a company or any other non-
pertinent players from coming into that mine after the
investigation--I mean, after a tragedy?
Mr. Main. Yeah, I think you are right, but I think there
are some real complications in trying to do that, given the
maintenance, the inspection, the resources it takes to keep a
mine open and that you have to be in the mine correcting and
fixing things.
Mr. Rahall. Thank you, Mr. Chairman.
Chairman Miller. The gentleman's time has expired.
Congresswoman Capito?
Mrs. Capito. Thank you, Mr. Chairman. I would like to thank
you and the ranking member for having the hearing and also for
allowing me to participate.
As all of you know, West Virginia is still mourning the
loss of our 29 miners killed at the Upper Big Branch Mine, and
we are still mourning the passing of our senior Senator, and
wish to thank everybody here who are non-West Virginians, thank
you for your good thoughts and prayers during these difficult
times for us.
I actually represent Sago, and during the Sago Mine
disaster, shortly after that, we did do a mine safety act. And
I think we found, in the process of this unfortunate accident,
that several of the measures that we moved forward in that bill
actually helped us in the inspections or in the rescue efforts
and the timeliness of those. So I was very pleased to see that
some of those measures helped. Unfortunately, we didn't get a
good outcome, but it did help.
I would also like to say, Secretary Main, when you were
here in February, you mentioned several changes that needed to
be made, a lot of which are in the chairman's bill. I would
just like to go over four points that you mentioned: improve
implementation of the Mine Act and mine safety and health;
simplify the contested case process; improve consistency by
MSHA inspectors and supervisors; and create an environment
where fewer cases enter the contest process.
I would like to ask about that because I am concerned--and
this has already been asked before, but I am concerned that,
recently, since that MINER Act, we have had, gosh, 30 percent
more numbers of citations by MSHA, we have many more penalties,
but also the contested case has taken 587 days when, before, it
took 374 days. I know you are familiar with these statistics.
My concern is--I mean, that concerns me. And we have heard
this about a lot of mines, that it is prolong, prolong,
prolong. Is the process that this bill puts forward going to
perpetuate that and make it worse?
And what provisions do you think are being made--I heard
the Solicitor say that she thinks that the standard will be
clearer and it could actually pull down the number of cases.
But I think most people looking at it think it is going to
increase the number of cases. What is your reaction to that?
Mr. Main. I want to take the first part, and I will let
Solicitor of Labor Smith take the second part.
If you look at the pattern of violations--which, a lot of
folks think that a reason that there is a contesting of the
violations is to forestall the application of a potential
pattern of violations, is one of the issues. The legislation
really changes that, to the extent that we will not be looking
at the final orders of the commission to make that
determination. So that is one piece that I think gets, sort of,
removed fairly quickly.
Mrs. Capito. So you don't have to wait until the end to
make the determination; is that correct?
Mr. Main. Pardon?
Mrs. Capito. You don't have to wait until the end to make
the determination?
Mr. Main. That is correct, based on the orders, citations
that are issued.
I think some of the provisions built in that stiffens the
resolution of these cases for the commission, also helps
disincentivize those who would be taking a shot at having a--or
to contest the violation to get a better deal, which is one of
the concerns I have.
If you look at the comments that I made back in February--
and I think this is pretty close to it--that basically all it
took was mailing a letter, costing you 44 cents, to appeal a
penalty that has been assessed to a violation and wait a couple
of years and get maybe a 47 percent break. There are a lot of
provisions, I think, that are designed to undercut that--or to
change that, to disincentivize that.
Mrs. Capito. Okay. Thank you.
Mr. Main. And Solicitor Smith may have some other additions
to that.
Ms. Smith. Well, basically, what this bill did was look at
the incentives for why the contest rate went up so much, the
reasons the contest rate went up so much. It wasn't just
because there were more inspectors and more citations, but the
actual contest rate went up dramatically.
Mrs. Capito. Right.
Ms. Smith. And so, as the Assistant Secretary said, one of
the things was that individuals would contest so that there
wouldn't be a final order for a pattern. And that is one thing
that has been eliminated.
Secondly, to the extent that there was a great delay, there
is the time value of money. So prejudgment interest reduces
that incentive to contest.
Then, as the Assistant Secretary said, you know, there was
a GAO report in 2007 that said the commission would often
dramatically reduce the penalties even when they upheld the
citation.
Mrs. Capito. Right.
Ms. Smith. So that has been eliminated in this bill.
So we think that the, sort of, non-necessary reasons to
contest have been really dealt with and that that will help the
contest rate in the future.
Mrs. Capito. Well, thank you.
I see my time is up, but I would like to ask the chairman
and the ranking member: I have worked on a solitary bill on my
own that incorporates a lot of what you have but then some
other suggestions based off of what Secretary Main suggested in
March. So I would hope maybe we could work through some of
these as you are marking up the bill. I would appreciate that.
Chairman Miller. I would be glad to take look at it. Thank
you.
Mr. Altmire?
Mr. Altmire. Secretary Main, I wanted to focus on the
regions within MSHA. I come from western Pennsylvania. And,
anecdotally, I hear from mining operators and miners alike
throughout western Pennsylvania that there is a difference in
enforcement, which results in a difference in outcomes, safety
records within the different regions of MSHA, western
Pennsylvania comparatively having a pretty good record.
Anecdotally, that is what I hear.
And I wondered, is there truth to that statement that there
is a substantial difference in the safety records within
regions? In your experience, which regions of the country have
the best records of safety? Which ones need improvement? And is
this due to a difference in enforcement within the regional
administrators of MSHA?
Mr. Main. I grew up in southwestern Pennsylvania, and I
probably know a lot of the folks that you have conferred with
in that area.
I think, you know, as a starting point, there are some mine
operators who take a different view about how they run mines
than other mine operators do. And I think, as we all have
looked at statistics and saw a number of mine operators who
seem to chug along every day and comply with the law and have a
good safety management program in place that is unaffected by
the law, and that others seem to have difficulty complying with
the law. And, to me, a lot of that is the management style.
I would have to take a look at the different geographics of
the country to answer your question. It is my hope that the
mine operators in that region are some of the best in the
country, you know, and do operate their mines as safe as they
have the capability of doing.
Mr. Altmire. It is not just the mine operators, because
many mine operators, of course, operate mines within multiple
jurisdictions, multiple regions. But it seems as though there
are certain regions--even though mine operators operate in more
than one region, there are certain regions that have better
safety records than others. What is the reason for that?
Mr. Main. Well, when we announced our plans to do the
follow-up public hearings on the Upper Big Branch disaster, one
of the things that we are going to be doing is holding a public
forum to address one of the issues I think that you have
raised, and that is the concerns that we have heard from the
miners and from mining families about the culture of safety in
that region and to try to do something that changes that
culture to a more positive one.
I think that, you know, there is an expression from miners
and mining families in the area of the Upper Big Branch Mine
that has raised serious concerns about the way that mine safety
in those mines are managed and the fear that miners have and
families have that you may not hear as much or any from some
other regions of the country. That is something that we are
taking a look at, with regard to the Upper Big Branch Mine.
Mr. Altmire. And have you found, Secretary Main, that there
is a correlation, either direct or indirect, between the number
of citations for safety violations that are given out to a mine
operator and the number of incidents that occur?
Mr. Main. In cases, there is some correlation to that.
I think, as a starting point, there are two factors that we
would probably look at the most. That is the number of orders
that a mine gets or receives. That is a sign that things are
more out of control, as the saying goes, than one that would
not be receiving a lot of orders. The second one would be a
mine that has a large number of S&S violations.
And we are trying to provide some parity with that
analysis, in that a mine with 35 miners running an underground
coal mine, let's say, with 35 miners having one or two mining
units, compared to a mine employing 900 miners and 15 mining
units. I mean, we have to be able to look at those comparisons
to make those judgments.
But, all things considered, S&S violations, orders, and
high accident rates would be amongst things that we would look
at to make those determinations.
Mr. Altmire. Thank you.
Secretary Michaels, very quickly, do you think it is
appropriate, as we consider this bill moving forward this week,
to have a distinction between coal mines, underground coal
mines, which present very different challenges to surface metal
mines and non-metal mines?
Mr. Michaels. You know, I am not familiar with the mining
industry because both surface mines and underground mines are
covered by MSHA. I would defer to my colleagues on the panel
here.
Mr. Altmire. Secretary Main?
Mr. Main. Yes. We have jurisdiction over all of the mines
in the country. And I think it is very wise that Congress made
that decision in 1977 to give all miners equal protection under
the law.
There are differences from one coal mine to another. There
are differences from a coal mine to preparation plants. There
are differences from a sand and gravel facility. There are
differences from a cement facility. But all things considered,
the way the law is constructed, there are different standards
that apply to the coal side and the non-coal side to provide
the kind of protections that, you know, we would like to have
in place.
And I think it is important to understand that miners that
work at a sand and gravel facility have a right to as much
protection as a miner does at an underground coal mine. Not to
say that they face the same kind of consequences or conditions,
but all those work sites, on their own, have various hazards
that need to be dealt with. And, you know, some hazards you are
going to find at a sand and gravel facility or at a cement
facility is some of the same ones you are going to find at a
coal mine.
Mr. Altmire. Thank you.
Chairman Miller. Thank you.
Mr. Tierney? No questions?
Well, thank you very much for your time and your expertise
and your testimony. And, obviously, as we digest everything we
are hearing today, we will get back to you. But thank you so
much for all of your cooperation and help in drafting the
legislation and bringing your experience to that. Thank you.
The committee will hear from a second panel, at this point.
We are going to swap out.
Welcome to the committee, and thank you very much for
agreeing to join us this afternoon.
Mr. Stewart and Mr. Grayson, thank you. I know you have
traveled some distance to get here, and we appreciate that very
much.
Let me go through the introductions of this panel for the
audience and members of the committee.
Mr. Stanley ``Goose'' Stewart worked as a coal miner for 34
years and was an employee of the Upper Big Branch Mine in West
Virginia for 15 years. He was close friends with many of those
killed in the explosion at the mine in April. Mr. Stewart was
on his way into the mine when the explosion occurred.
Dr. R. Larry Grayson is a professor of energy and mineral
engineering at Pennsylvania State University. He was the first
associate director of the Office of Mine Safety and Health
Research at the National Institute of Occupational Safety and
Health. He chaired the Mine Safety Technology and Training
Commission, established by the mining industry in 2006.
Mr. Bruce Watzman is the senior vice president of
regulatory affairs of the National Mining Association. He
monitors Federal health and safety policy for the U.S. mining
industry.
Mr. Cecil Roberts, Jr., is the president of the United Mine
Workers of America and has served in this capacity since 1995.
He is a sixth-generation coal miner and serves on the Safety
and Occupational Health Committee of the AFL-CIO.
Mr. Jonathan Snare is a partner in the Morgan Lewis labor
and employment practice. Mr. Snare's practice focuses on labor-
related issues, including occupational safety and health, mine
safety and health, and whistleblower cases. During the Bush
administration, he served as Deputy Solicitor of Labor and
Acting Solicitor of Labor under Secretary Chao.
Ms. Lynn Rhinehart is the general counsel to the AFL-CIO.
She is a former aide to Senator Howard Metzenbaum of the Senate
Labor Committee and a member of the Obama transition team for
the National Labor Relations Board. From 2007 to 2009, she
served as co-chair of the ABA Committee on Occupational Safety
and Health.
Thank you all for joining us. We look forward to your
testimony. Again, your written statements will be included in
the record in their entirety, and you should proceed in the
manner in which you are most comfortable.
Also, if you want to comment on something that you heard
back and forth between the members of the committee and the
witnesses, feel free to do so. That would, obviously, be
helpful to the Members, I think, as we sort through the record
as we go forward with this legislation.
But welcome. And, again, thank you.
Mr. Stewart, we going to begin with you. And welcome back
to the committee.
STATEMENT OF STANLEY STEWART, COAL MINER,
UPPER BIG BRANCH MINE
Mr. Stewart. Thank you, Chairman Miller, for allowing me to
speak here today.
My name is Stanley Stewart. Most people know me as
``Goose.'' I have been a coal miner for 34 years, the last 15
with Performance Coal at the Upper Big Branch Mine in Montcoal,
West Virginia, and I am a Massey employee.
I was underground April 5th when UBB exploded. Luckily for
me and my crew, we were able to escape. I am here to speak for
my 29 brothers who did not make it out.
This tragedy should never have happened in America today.
The April 5th explosion was a 1920s-style explosion, and we
should be beyond that. The only reason 400 men didn't die is
because of the mechanization used in coal mining today.
Something needs to be done to stop outlaw coal companies
who blatantly disregard the laws. Many things were wrong at the
UBB mine. Management regularly violated the law. Some examples:
Concerning advance warning on inspector arrivals, a section
boss would be called from outside and he would be told, ``It's
cloudy outside,'' or, ``There's a man on the property,''
meaning there is an inspector outside, get things right to pass
the inspection.
In 2009 we were made, by Chris Blanchard, the President of
Performance Coal, to cut coal going into our air supply. We
mined this way for over 2,000 feet, and several months later we
were allowed to mine the legal way. On January 4, 1997, an
illegal air change was made during our shift. An overcast was
knocked out, short-circuiting our air, and it caused an
explosion. It wasn't as big as April 5th, but I thought I was a
dead man, and I know it was covered up.
Around 2003 or 2004, there was a bleeder that spewed
methane in the mine. The methane readings were 5 percent at the
power center, and at least 20 percent further back in the mine.
We were made to sit underground for nearly an hour before
management let us leave the mine. When we would move the
longwall to a new face, we were always made to load coal before
all the shields and ventilation were in place, so someone could
call Mr. Blakenship and say we were ``in the coal.''
In the months before the explosion, I worked on Headgate
22. My section foreman consistently got low air readings. He
would complain to upper management. He would be berated, told
to go back to work or he would lose his job, and the air was
never fixed, so he quit. The longwall worried me because of the
constant ventilation problems, and with so much methane being
liberated and no air moving, I knew that area was a ticking
time bomb.
There were at least two fireballs on the drum of the
shearer on the longwall, according to separate reports of
miners working those shifts. That meant methane was building in
the area, proving ventilation problems and possible methane
monitor problems. I have worked the longwall in dust so thick I
couldn't see my hand in front of my face and couldn't breathe
because of improper ventilation. I once asked the assistant
coordinator why we didn't have proper air on the longwall. I
was told, ``It's funny, you are the only one to say anything
about it: My response was, ``That's because everyone is too
afraid to lose their jobs if they say anything.''
In my years of working for Massey, I feel they have taken
coal mining back to the early 1900s using three principles:
fear, intimidation, and propaganda. I know personally that
Massey sends a safety director to the hospital to pressure
miners hurt on the job back to work and have them sit in the
office so their accident doesn't get listed as a ``lost time
accident.'' This bill needs to require truthful reporting
because with a fabricated safety record, MSHA can't target the
right mines for a Pattern of Violation.
In my first few years at Massey I saw more men maimed and
killed than in my 20 years in the union. This is why the UMWA
was formed in 1890, to protect and give miners rights. A coal
mine is the worst place in the world to work without rights,
and at Massey you have very little rights. You knew if you
stood up to them you would be out of a job.
This bill must be passed to give all miners rights. If this
bill is passed, hopefully miners will feel they can stand up to
the Massey empire or other rogue companies and protect
themselves without retaliation. With the current system, a
Pattern of Violations must be fixed so the outlaw companies
must be made to understand that they can't continue to put
miners' lives at risk to turn a profit. It puts teeth in the
law. It makes retaliating against miners that report violations
to MSHA or refuse to work in unsafe conditions subject to a
fine, and by making retaliations subject to a criminal penalty.
Outfits like Massey will always find a way to fire you
regardless of the laws. That is why it is important to have
rights to challenge any unfair firing in an underground coal
mine. With a union you have that right. Without a union, this
bill gives miners protection to fight firings.
This bill must pass to keep companies honest or to make
them pay the price. Partisanship needs to be set aside on this
legislation because human lives are at stake. Twenty-nine
families are suffering from this needless explosion, their
communities are suffering from their deaths, and I myself am
suffering.
In closing, I simply ask you to remember what the
Constitution says: of the people, by the people, and for the
people. People's lives are at stake. It is very serious down in
those mines, and those people need protection. All I ask is
that you do the right thing and help them. Thank you.
Chairman Miller. Thank you very much.
[The statement of Mr. Stewart follows:]
Prepared Statement of Stanley Stewart, Coal Miner,
Upper Big Branch Mine
My name is Stanley Stewart. Most people know me as ``Goose''. I've
been a coal miner for 34 years the last 15 years with performance coal
at the Upper Big Branch (UBB) mine in Montcoal, West Virginia, and am a
Massey employee.
I was underground April 5th when UBB exploded. Luckily for me and
my crew, we were able to escape. I'm here to speak for my 29 brothers
who did not make it out. This tradedy should never have happened in
America today. The April 5th explosion was a 1920s style explosion and
we should be beyond that. The only reason 400 men weren't killed, is
the mechinazation used in coal mining today.
Something needs to be done to stop outlaw coal companies who
blatently disregard the laws. Many things were wrong at Upper Big
Branch such as low air constantly.
Management regulary violated the law concerning advance warning on
inspector arrivals. A section boss underground would be called from
outside and be told, ``it's cloudy outside'' or ``there's a man on the
property'' meaning there is an inspector outside, get things right to
pass inspection.
In 2009, we were made by Chris Blanchard, the president of
performance coal, to cut coal going into our air supply. We mined this
way for 2,000 feet and several months later we were allowed to mine the
legal way.
On January 4, 1997, an illegal air change was made during
our shift. An overcast was knocked out and as a result there was an
explosion. It wasn't as big as April 5th, but I thought I was a dead
man and I know it was covered up.
On July 26, 2009 our crew on the second shift was told by
upper management to change from sweep to split air in headgate 21,
where the long wall is now. We knocked stoppings while crews were still
working, which can short circuit their air supply. This violated MSHA
requirements to evacuate miners when changing the ventilation system,
but upper management made it clear we had to do this job. I'm not sure
if MSHA was aware of the whole situation. But it scared me and when I
got home I wrote it down.
On headgate 22 the tracks were never laid within \1/2\
mile from the mantrip to our section. We had a buggy for emergency
transport that we used to travel from the mantrip to our section but it
got a flat tire. It was not fixed until the inspectors wrote them up
for it. After that we weren't allowed to ride it from the mantrip to
the section so it wouldn't breakdown again.
Around 2003 or 2004 there was a bleeder that spewed
methane in the mine. The methane readings were 5% at the power center
so it was at least 20% further back in the mine. We were made to sit
underground for nearly an hour before management let us leave the mine.
A young man I personally know was working at a Massey mine
as a fireboss and was told by upper management to fix the books to
proper air readings when the section had virtually no air. He was so
angry he quit Massey. I would provide his name privately.
When moving the long wall to a new face we were made to
load coal before all the shields and ventilation were in place so
someone could call Mr. Blakenship to say we were ``in the coal''.
In the months before the explosion on headgate 22, my
section foreman got consistently low air readings and complained to
upper management. He would be berated and told to go back to work or he
would lose his job, and the air was never fixed. He was afraid
something would happen so he quit.
The long wall worried me because of the constant
ventilation problems and with so much methane being liberated and no
air moving I felt that area was a ticking time bomb.
There were at least 2 fireballs on the drum of the shearer
on the long wall according to separate reports of miners working those
shifts. That meant methane was building in that area proving
ventilation problems. The questions I have are how could methane build
to that point where a fireball could start? How could this happen if
the methane dectectors had been working?
I've worked the long wall in dust so thick I couldn't see
my hand in front of my face and I couldn't breathe because of improper
ventilation. I once went to the assistant coordinator and asked why we
didn't have proper air on the long wall face. I was told ``it's funny
you're the only one to say anything about it.'' My response was
``that's because they are too afraid of to lose their jobs to say
anything.''
I've worked on the continuous miner section as a miner
operator and more often than not the dust would be so thick I'd shut
off the machine to let the air clear to see if the job was being done
properly.
In my years of working for massey I feel they have taken coal
mining back to the early 1900s using 3 principles; fear, intimidation
and propaganda. I know personally that Massey sends a safety director
to the hospital to pressure miners hurt on the job to return and sit in
the office so their accident doesn't get listed as a ``lost time
accident''.
I notice that one criteria for the new pattern of violation in HR
5663 is a mine's accident and injury rates. This bill needs to do
something to require truthful reporting because with a fabricated
safety record, MSHA will fail to target the right mines for a pattern
of violation.
In my first few years at Massey I saw more men maimed and killed
than in my 20 years in the union. This is why the UMWA was formed in
1890; to protect and give miners rights. A coal mine is the worst place
in the world to work with no rights and at Massey you have very little
rights. You knew if you stood up to them you'd be out of a job.
I wonder what will happen to me for speaking out now.
New legislation needs to be passed to give all miners some kind of
rights. If this bill is passed, hopefully enough miners will feel they
can stand up to the Massey empire or any other rogue company and
protect themselves without retaliation. There's nothing wrong with
mining coal the right way. I did it for 20 years for Peabody Coal, a
UMWA mine, so I know it can be done.
The current system of pattern of violations (POV) must be
fixed so the outlaw companies must be made to understand they can't
continue to put miner's lives at risk to turn a profit. One big thing
this bill fixes is keeping unsafe mines from contesting violations as a
way to avoid being put on the POV.
It puts teeth in the law by making it a felony and not a
misdemeanor where there is advance notice of an inspection. It makes
retaliating against miners who report violations to msha or refuse to
work in unsafe conditions subject to a fine and it sends a strong
message by making retaliation subject to criminal penalty.
Big outfits like Massey will always find a way to fire you
regardless of the laws. That is why it is important to have rights to
challenge any unfair firing in an underground coal mine. With a union
you have that right. Without a union, this bill gives miners protection
to fight firings that are not based on ``good cause''.
If a miner reports violations and msha shuts down a mine
until its safe, miners get full pay. Today they only get 4 hours pay
and the company doesn't always pay that. In my case I've not been paid
at all when the mine was shut down or we were sent home early for
unsafe conditions.
This bill must pass to keep coal companies honest or to make them
pay the price for their unscrupulous behavior. Partisanship needs to be
set aside on this legislation because human lives are at stake.
29 familes are suffering right now from this needless explosion,
the communities are suffering from their deaths and I myself am
suffering.
In closing, I simply ask all of you to remember what the
constitution says, ``of the people, by the people and for the people.''
People's lives are at stake. It's very serious down in those mines and
those people need protection. All I ask is that you do the right thing
and help them.
Thank you.
______
Chairman Miller. Mr. Grayson.
STATEMENT OF DR. R. LARRY GRAYSON, PROFESSOR OF ENERGY AND
MINERAL ENGINEERING, PENNSYLVANIA STATE UNIVERSITY
Mr. Grayson. Good afternoon, Mr. Chairman and distinguished
members of the committee.
As a former UMWA coal miner myself, mine superintendent,
and manager of mine safety and health research at NIOSH, I
really thank you for the opportunity to discuss provisions in
H.R. 5663.
It is agonizing that we are again at a point where a major
underground coal disaster has shattered the lives of so many
people, and that industry and MSHA just seem to be powerless
from stopping these disasters. We had only one such event
during the period of 1991 through 2000; thus, it appears it can
be done.
The tripartite Mine Safety Technology and Training
Commission, which I chaired in 2006, indicated the key to
achieving this goal includes processes that, number one,
require major hazard-related risk management which must now
involve the screening of mines with high risk for disasters and
serious injuries; second, facilitate the creation of a safety
culture of prevention of hazardous conditions that can lead to
major hazardous events, and, I will add, serious injuries as
well.
It is imperative that these processes must drive adoption
of best practices in building a culture of prevention. The
objective is to ensure that everyone in the organization
involved with the mine, top to bottom, performs the critical
task of their jobs, aimed at removing threatening conditions
with painstaking thoroughness. The same approach must be used
in MSHA.
The Commission noted that industry has to fundamentally
change the management approaches and the work practices taken
to fulfill basic safety requirements. We recognize that simple
regulatory compliance alone is not sufficient to mitigate
significant risk.
Now since 2007, my graduate student and I worked on
developing an effective and straightforward tool to analyze the
risk of underground coal mines. The Safe Performance Index
model contains essentially the same elements discussed in the
new Pattern of Recurring Non Compliance or Accidents provisions
for screening high-risk mines. The accident-related elements
that we used include the no days-lost incidence rate, the non-
fatal days lost incidence rate and adjusted severity measure,
where statutory charged days are added in there.
The citation-related elements we used included the number
of citations for 100 inspection hours, the number of S&S
citations per 100 inspection hours, and the number of
unwarrantable failure and imminent danger withdrawal orders per
1,000 inspection hours. I will give some detailed results on
the SPI modeling of an 82-mine sample in my more extensive
written comments.
The more salient points related to H.R. 5663 are summarized
as follows:
Our sample represents about 18 percent of the producing
mines, and I am convinced that the SPI works very well at
objectively determining high-risk mines. Similar discriminatory
power could be achieved with an appropriate application of the
new Pattern of Recurring Non Compliance or Accidents provisions
of H.R. 5663. I believe the key to success depends on a
judicious weighting of the components delineated in the
subsection on rulemaking, as specified in paragraph (8)(B), to
determine the threshold criteria.
The worst-performing 10 percent of mines in our study were
characterized by different measures. Some had a high injury
rate and a high elevated citation rate, while others had either
a very high injury rate or a very high elevated citation rate.
Four MSHA potential Pattern of Violation mines were on the
list, and one was the longwall mine.
Three of the worst-performing eight mines got there because
of a terrible severity measure. Two of them had good S&S and
order rates. Thus, I reemphasize that the injury experience
must be integrated with the citation experience in considering
mines for pattern status.
Regarding benchmark criteria for the 90-day evaluations, I
suggest that the major hazard-related S&S citations and orders
should immediately have a higher benchmark of the 25th
percentile of the top-performing mines. A pattern mine should
alternatively be permitted to pass the benchmark for citations
if the S&S rate is reduced by 70 percent, provided that
reduction of 70 percent takes the mine's S&S rate to one that
is below the mean for the grouped mines. The target of having
mines in the top 25th percentile set forth in the bill for
reducing the injury rate appears appropriate.
Regarding termination of pattern status, both the S&S rate
and the order rate need to be considered. And the 80 percent
reduction of the rates needs to be coupled with the caveat that
the improved S&S and order rates should both be less than the
mean for group mines. For injuries, the performance benchmark
of the 25th percentile of top-performing mines is a reasonable
challenge for trying to build a culture of prevention.
The goal in this legislation should be to ensure that a
low-performing mine that deserves to be placed on pattern
status should be compelled to build a new safety culture that
focuses day to day on preventing major hazard-related
conditions and lost-time injuries.
I commend the committee for inclusion of several important
provisions: First is the independent investigation of mining
disasters. Second is ensuring that MSHA inspects mines during
normal operations on all shifts. I do recommend that MSHA
inspectors should also perform a major hazard sweep at a mine
at the beginning of a quarterly inspection. Third is allowing
MSHA to invoke justifiable mitigating circumstances for an
identified pattern mine.
In closing, I do believe that the new Pattern of Recurring
Non Compliance or Accidents provisions will be a much-needed
improvement over the current Pattern of Violations process. The
1-year remediation process, coupled with quarterly monitoring
of performance, should inculcate in pattern mines adoption of
practices and processes aimed at building a safety culture of
prevention which is necessary to eliminate mine disasters and
ultimately all fatalities and serious injuries.
This concludes my oral comments. I would be happy to take
questions.
Chairman Miller. Thank you.
[The statement of Mr. Grayson follows:]
Prepared Statement of R. Larry Grayson, George H. Jr. & Anne B. Deike
Chair in Mining Engineering; Professor, Energy & Mineral Engineering,
Pennsylvania State University
Good afternoon Mr. Chairman and other distinguished members of the
Committee. As a former UMWA coal miner, mine superintendent and manager
of mine safety and health research at NIOSH, I very much thank you for
the opportunity to discuss certain provisions in Miner Safety and
Health Act 2010, H.R. 5663.
It is agonizing that we are again at a point where a major
underground coal mine disaster has shattered the lives of so many
people, and that industry and MSHA seem powerless from stopping these
disasters. In pursuing this legislation, our first priority must be to
try to effectively prevent underground coal mine disasters from ever
occurring again. We had only one such event during the period 1991-
2000, thus it appears that it can be done. At the same time, we need to
focus on the goal of preventing all fatalities and all serious
injuries, especially those giving full and partial disabilities.
Eventually we want to reduce lost-time accidents at the vast majority
of mines to zero as well.
In my opinion, and the opinion of the tripartite Mine Safety
Technology & Training Commission, which I chaired in 2006, the key to
achieving these goals are setting up processes that will:
1. Require major hazard-related risk management as the first
priority, which now must involve the screening of mines with high risk
for disasters and serious injuries; and
2. Facilitate the creation of a safety culture founded on
prevention of hazardous conditions that can lead to major-hazard
events, fatalities or serious injuries.
In my opinion, it is imperative that any initiative that focuses on
these processes must also focus on driving adoption of best practices
in building and maintaining a culture of prevention. The objective is
to ensure that everyone in the organization involved with the mine, top
to bottom, performs the critical tasks of their jobs, aimed at removing
threatening conditions, with painstaking thoroughness. The same
approach must be used in MSHA regarding its supervisors and inspectors,
who are the last line of defense in preventing disasters.
In its report, the Mine Safety Technology & Training Commission
stated that ``The commission strongly believes that companies which do
not pursue the outlined approaches aimed at fulfilling fundamental
safety requirements should not be permitted to operate underground coal
mines.'' In our collective minds, and in complete tri-partite
consensus, we urged the underground coal industry to adopt the
approaches we outlined. Our most succinct, relevant closing paragraph
noted the following:
In particular in order to move forward safely and productively, the
commission believes that a number of broad issues framed by our
recommendations deserve serious attention, and should be used to
fundamentally change the management approaches and work practices taken
to fulfill basic safety requirements. First and foremost, risk-based
decision-making must be emphasized, employed, and improved in all
aspects of design, assessment, and management. It is imperative that a
risk-assessment-based approach be used, founded on the establishment of
a value-based culture of prevention that focuses all employees on the
prevention of all accidents and injuries. Importantly, every mine
should employ a sound risk-analysis process, should conduct a risk
analysis, and should develop a management plan to address the hazards
and related contingencies identified by the analysis; simple regulatory
compliance alone is not sufficient to mitigate significant risks.
Next I will focus on a methodology to screen for high-risk mines
that my graduate student and I worked on beginning in 2007, and which
contains essentially the same elements discussed in the new Pattern of
Recurring Non Compliance or Accidents provisions (Section 202,
paragraph (e)(8)) of H.R. 5663. The accident-related elements we used
included:
The no days-lost incidence rate,
The non-fatal days lost incidence rate, and
The severity measure, calculated as the total statutory\1\
days charged plus restricted work days plus lost work days multiplied
by 200,000 and the result divided by the employee hours worked.
---------------------------------------------------------------------------
\1\&Some injuries or illnesses are of such a degree of severity
that a standard time charge of lost workdays has been adopted by MSHA,
called statutory days charged. For a single incident, the charge can
range from 6000 for a fatality or full disability to a lower amount for
a partial disability or loss of a body part.
---------------------------------------------------------------------------
The citation-related elements we used included:
The number of citations per 100 inspection hours,
The number of S&S citations per 100 inspection hours, and
The number of withdrawal orders per 1000 inspection hours.
One of three methods we pursued for safety risk analysis, which was
follow-up work on the risk assessment recommendation made by the Mine
Safety Technology & Training Commission, was to develop an effective
and straight-forward tool that any company could use to analyze the
risk levels of its underground coal mines.
As does paragraph (e)(8) of Section 202 relating to the new Pattern
of Recurring Non Compliance or Accidents provisions, the Safe
Performance Index (SPI) embraces all of the significant inputs for
screening mines for high risk, from both the citation and injury
perspectives. It similarly uses normalized measures. Fatalities and
disabilities were brought into the risk calculation through use of the
Severity Measure, because their serious nature is highlighted better
and has more influence in determining the total risk level of a mine.
In my opinion, we used the SPI methodology to analyze several groups of
mines with robust results in targeting high-risk mines.
In a recent analysis of a sample of 82 underground coal mines, the
top-performing 10% of mines with the highest SPIs were characterized by
low injury rates and low elevated citation rates (see Table 1). The
following points characterize these best or safest-performing mines:
All of them had an non-fatal days lost incidence rate
(NFDL IR) and severity measure (SM/100) much less than the averages for
all mines.
All of them had a significant and substantial citation
rate per 100 inspection hours (SS/100 IH) and withdrawal orders rate
per 1,000 inspection hours (O/1000 IH) much less than the averages for
all mines.
Seven of the eight mines had no orders, including three
longwall mines.
Four pilot mines and four longwall mines were in the list.
Significantly, no mines on the MSHA list of potential
pattern of violations made the list.
TABLE 1.--TOP 10% SPI BESTPERFORMING MINES
----------------------------------------------------------------------------------------------------------------
Mine ID SPI NDL IR NFDL IR SM/100 C/100 IH SS/100 IH O/1000 IH
----------------------------------------------------------------------------------------------------------------
Pilot Mine 3....................... 99.8 0.00 0.00 0.00 0.57 0.00 0.00
Pilot Mine 4....................... 98.0 0.00 0.00 0.00 1.04 1.66 0.00
LW-19.............................. 97.5 5.74 0.00 0.00 0.45 0.49 0.00
LW-25.............................. 96.4 0.32 0.30 0.12 2.09 1.44 0.43
Pilot Mine 12...................... 96.3 3.19 0.00 0.00 2.29 1.87 0.00
LW-26.............................. 96.1 0.26 0.47 1.02 1.60 0.77 0.00
Pilot Mine 14...................... 96.0 9.39 0.00 0.00 0.60 0.72 0.00
LW-14.............................. 95.4 2.10 1.02 0.22 2.23 1.66 0.00
Scaled Averages.................... ......... 3.67 3.67 3.67 3.67 3.67 3.67
----------------------------------------------------------------------------------------------------------------
On the other hand, the worst-performing 10% of mines with the
lowest SPIs were characterized by variable and different measures (see
Table 2). The following points characterize these worst-performing or
high-risk mines:
For three of the mines, a very high rate for withdrawal
orders per 1,000 inspection hours (O/1000 IH) got them on the list.
For three of the mines, a very high rate for severity
measure (SM/100) got them on the list
The remaining two mines had four or five metrics that
significantly exceeded the means for the metrics.
Importantly, four MSHA potential pattern of violation
mines were on the list, one being a longwall mine.
TABLE 2.--BOTTOM 10% SPI POORESTPERFORMING MINES
----------------------------------------------------------------------------------------------------------------
Mine ID SPI NDL IR NFDL IR SM/100 C/100 IH SS/100 IH O/1000 IH
----------------------------------------------------------------------------------------------------------------
MSHA List-20....................... 59.3 3.70 6.77 0.20 8.69 10.00 9.77
MSHA List-6........................ 52.1 14.65 7.06 2.28 6.61 10.42 9.46
MSHA List-18....................... 42.7 1.53 1.40 0.45 5.96 5.42 23.60
LW-22.............................. 41.2 3.74 6.84 5.15 5.42 3.35 17.71
Pilot Mine 29 also LW-3............ 40.1 2.93 2.54 27.14 1.27 1.03 0.40
MSHA List-11 also LW-31............ 33.9 3.89 4.27 1.98 5.92 7.46 23.67
LW-2............................... 32.3 2.92 4.23 29.20 2.14 1.97 0.79
MSHA List-3........................ 0.0 3.46 4.65 37.29 6.57 6.75 5.46
Scaled Averages.................... ......... 3.67 3.67 3.67 3.67 3.67 3.67
----------------------------------------------------------------------------------------------------------------
The sample of 82 underground coal mines represents approximately
18% of such active producing mines. In our SPI calculations we used all
citation and injury data extracted from the MSHA Data Retrieval System,
not just final orders. The rationale was to look at a one-year snapshot
of the risk variations in underground coal mines, and to identify those
with excess risk. I am convinced that the SPI works very well in
objectively determining low-risk mines from high-risk mines. I believe
ultimately that similar discriminatory power could be achieved with an
appropriate application of the provisions of the new Pattern of
Recurring Non Compliance or Accidents provisions (Section 202 paragraph
(e)(8)) of H.R. 5663. In my opinion, the key for success depends on a
judicious weighting of the components delineated in paragraph (8)(B) to
determine the threshold criteria, which will lead to an appropriate
screening of high-risk mines that are dangerous because of a very high
level of serious injuries or a very high level of elevated citations,
or high levels of both. Realizing that weighting factors will likely be
determined through rulemaking, I emphasize, however, that the weighting
factor applied to the Severity Measure, including statutory days
charged for fatalities and disabilities should not be downplayed.
Disabilities and serious injuries to miners have an overwhelming and
inestimable impact on them and their families.
Other very important features of H.R. 5663 concern the remediation
of conditions and/or the injury experience of a mine placed on pattern
status, the benchmark criteria for continuation of the remediation
effort, and the one-year benchmark criteria for termination of pattern
status. Related to these aspects, the Mine Safety Technology & Training
Commission stressed the need for all underground coal mines to build a
culture of prevention that involves all mine personnel from top to
bottom. Our goal in this legislation is to ensure that a mine that
deserves to be placed on pattern status should truly be involved in
building a new safety culture that focuses day-to-day on preventing
major hazard-related conditions and lost-time injuries. It is difficult
to say how long this process could take for a specific mine, but most
excellent-performing mining companies who have built such a culture
will tell you that it is more than a year. However, these companies
generally were not pressed as severely as they would be in pattern
status, and were very deliberative in selecting the tools and practices
they thought would be most effective. A one-year period in pattern
status, in my opinion, would enhance the probability that any mine in
such status would systematically focus its remedial efforts to ensure
that the 90-day benchmarks would be achieved, and another withdrawal
order would not be issued. The cumulative effect of the successive 90-
day evaluations would likely be to inculcate the processes and
practices employed into daily work routines.
Regarding the benchmark criteria for the 90-day evaluations, a
pattern mine should be challenged to have high goals, but I believe
that the first-quarter evaluation is somewhat steep for a mine that has
a `bad' S&S citation record and which was likely chaotic in its
approach to safety. I suggest that the challenge for the initial 90-day
period would be to move the pattern mine to the top-performing 50th
percentile of rates for all S&S citations but to the top-performing
25th percentile of rates for all major hazard-related S&S citations. I
believe that the target for reducing the injury rate is appropriate,
primarily to significantly reduce a high Severity Measure, which would
include statutory charges. Based on the historical evidence of the
potential pattern of violations process, I agree that the pattern mine
should alternatively be permitted to `pass' the benchmark for citations
if the S&S rate is reduced by 70 percent with the caveat that the 70-
percent reduction takes the mine's S&S rate to one that is below the
mean for mines of similar size and type. The following 90-day
evaluations could then seek the 35th percentile for the S&S citation
rate and injury rate, and a 70-percent reduction for the S&S citation
rate, provided the rate is below the mean value for mines of similar
size and type. I again suggest that major hazard-related S&S citations
should have the higher benchmark of the 25th percentile. In the end,
application of these benchmark criteria would logically reflect the
intent that a culture of prevention is being built and that a pattern
mine pursues the types of safety performances achieved by the low-risk
mines.
Regarding termination of pattern status for a mine, as related to
the mine's elevated-citation performance, I examined the eight mines of
the 82 in my database which fell in the bottom 10% of the SPIs. The
worst-performing S&S rate among the eight mines was 10.41 per 100
inspector hours, and an 80% reduction of that would yield a rate of
2.08, which is 57% of the mean rate for all 82 mines. On the other hand
when looking at orders, the worst-performing order rate was 23.67, and
an 80% reduction would yield a rate of 4.73, which would exceed the
mean rate for all mines by 29%. Thus I suggest that both the S&S rate
and the order rate needs to be considered in evaluating the citation
performance, and that the 80% reduction in the S&S and order rates
needs to be coupled with the caveat that the improved S&S rate and
order rate should both be less than the mean of all mines in the mine
size and type category.
One other important issue must be noted here, that three of eight
mines in the bottom 10% of mines in my SPI ranking got there because of
a terrible Severity Measure. Two of them had good S&S and order rates.
In these three cases, the Severity Measure reflected one fatality and
several full and partial disabilities. One mine had a total of 16,098
total lost days, including statutory days plus restricted day and lost
work days. In the other two mines, each of which had total lost days
above 6,000, full disabilities were involved. Thus, I re-emphasize that
the injury experience at mines must be integrated with the citation
experience in considering mines for pattern status.
The 25th percentile mine's O/100 IH rate was 0.37; however, very
significantly 20 of the 21 mines in the upper quartile had zero orders.
In our database, 60 mines of the 82, or 71% of them, had a mean
performance or better. Thus getting zero orders in our database mines
was frequent, at nearly 25%; and doing better than the mean order rate
was highly probable, at approximately 70%.
Switching to the accident experience, my comments will focus on
both the number of lost-time accidents and the Severity Measure as the
25th percentile benchmark is examined. A total of 16 mines among 82,
nearly 20% of them, had no lost-time accidents. Further 24 of 82, over
29%, had one or no lost-time accidents. Among them were 5 of 18 small
mines, 1 of 6 medium-size mines, and 5 of 40 longwall (large) mines.
Specific to the Severity Measure, 22 mines, or nearly 27%, had less
than 10 lost work days, and similar performances were achieved for the
Severity Measure. Thus it appears that the 25th percentile is a
reasonable challenge, particularly since our goal is zero lost-time
accidents as well as zero fatalities and serious injuries. This is a
major point the Mine Safety Technology & Training Commission also
emphasized in its report. Further, with progressive improvement
occurring responsive to the 90-day reviews, achieving the benchmark
level apparently would be facilitated by the monitoring.
I would like to commend the Committee for its inclusion of several
important provisions. First, the Mine Safety Technology & Training
Commission also recommended that an independent investigation of mining
disasters should be conducted. Second, it was important to ensure that
MSHA inspects mines during normal operations on shifts other than day
shift; I personally recommend that MSHA inspectors also perform a
major-hazard `sweep' of a mine at the beginning of a quarterly
inspection. Third, the Committee was insightful about allowing MSHA to
invoke justifiable mitigating circumstances for an identified pattern
mine, because sometimes statistics may be deceptive and also because
some accidents occur from fast-changing conditions.
In closing, I do believe that the new Pattern of Recurring Non
Compliance or Accidents provisions will be a much needed improvement
over the current Pattern of Violations process. The one-year
remediation process coupled with quarterly monitoring of performance
should inculcate in pattern mines adoption of practices and processes
aimed at building a safety culture of prevention, which is necessary to
eliminate mine disasters and ultimately all fatalities and serious
injuries.
This concludes my written comments.
______
Chairman Miller. Mr. Watzman.
STATEMENT OF BRUCE WATZMAN, SENIOR VICE PRESIDENT, OFFICE OF
REGULATORY AFFAIRS, NATIONAL MINING ASSOCIATION
Mr. Watzman. Thank you, Mr. Chairman. We appreciate the
opportunity to share our views on H.R. 5663.
As backdrop to today's discussion, it is helpful to note
that U.S. mining operations have decreased fatal and nonfatal
injuries by 72 percent and 64 percent, respectively, over the
last two decades. Eighty-seven percent of all U.S. mines worked
last year without a single lost-time injury. Those trends
sustained our dedication to injury-free mining, and we expect
2010 will close with more than 85 percent of all U.S. mines
operating without a single injury.
The tragedy at the Upper Big Branch mine in April, however,
was an abrupt interruption to the positive trend, and has,
appropriately, caused all of us to reexamine the adequacy of
the industry's current safety and health practices and the
existing statutory and regulatory authorities to achieve that
goal.
While there are many voluntary initiatives, technology
advances, and innovations in miner training and safety
awareness underway in U.S. mines today, today's hearing focuses
on legislation to address the role and the enforcement
authorities of the Mine Safety and Health Administration and
the relevant rules that govern their actions, the actions of
mining operations, and the workforce.
In support of our shared safety and health goals, we have
looked at the proposed legislation within the framework of the
following principles:
Will it improve miner safety and health, our number one
priority?
Does it ensure greater transparency in the regulatory,
investigative, and enforcement process?
Will it build upon, rather than dismantle, the positive
features of the existing law and regulations that have
contributed to improvements?
Does it avoid additional layers of enforcement, penalties,
and other actions that are already provided for under the law
but not fully utilized?
Does it provide penalties that are commensurate with the
severity of the violation?
Will it protect due process rights, and will it maintain a
robust domestic mining industry that meets the needs of the
American people while maximizing the safety and health of its
workforce?
We have used this framework to identify omissions in the
proposal that merit attention, provisions that basically align
with these principles and that the industry could support with
some modification, and provisions that are counter to these
principles. And all of these are discussed in our written
submittal.
Consistent with our principles, NMA supports improvements
in the Nation's mine safety and health laws that target
recalcitrant operators, create fair and uniform procedures for
enforcement, provide transparency in the development and
administration of regulatory requirements, focus resources on
problem areas, and encourage the development and implementation
of performance-improving processes that are outside the bounds
of the current regulatory structure.
We believe that before embarking upon a comprehensive
overhaul of the Miner Act, there should be a clear-eyed
assessment of whether fundamental components of the existing
law are being properly and fully executed.
As Representative Capito touched on, there are many areas
that have been identified by the Assistant Secretary that are
in need of attention. However, we believe that H.R. 5663 fails
to address these fundamentals, raising real-world questions
about its effectiveness. For example, when half the inspectors
are new and the other half are not properly trained, as
documented in the IG's recent report, won't adding more
punitive and complex requirements aimed at mine operators only
put more weight on an unstable foundation? If there is no
strong correlation between S&S violation rates and injury
rates, as documented in several analyses, what does this tell
us about the effective implementation of the existing law? If
injuries, incidents, or near misses arise more from at-risk
behavior than from at-risk conditions, are we properly focusing
the program at effectively allocating safety resources? If
inconsistency in the application of the law is, as the
Assistant Secretary has suggested, an impediment to regulatory
certainty and compliance, won't we be better served by
improving implementation rather than imposing more changes on
inspectors and operators who are currently struggling to attain
clarity, consistency, and credibility in the application of the
safety law and regulations?
Finally, are our shared safety objectives well served by a
full-scale insinuation of MSHA into the complexities of mine
management? We understand the call by members to address
perceived shortcomings in MSHA's statutory and regulatory
structure; indeed, we share many of these concerns with certain
elements of MSHA's authority. However, we do not believe that
sufficient attention has been given to the weaknesses in the
execution of that existing authority. Absent such an
evaluation, we believe the legislation layers harshly punitive
and restrictive provisions over a flawed framework to the
detriment of successful safety and health programs.
Mr. Chairman, we remain ready to work with members of this
committee on actions we should be taking, some of which I have
outlined, just as we did before Congress enacted the Miner Act
of 2006.
Thank you. I would be happy to answer any of your
questions.
Chairman Miller. Thank you.
[The statement of Mr. Watzman follows:]
Prepared Statement of Bruce Watzman, Senior Vice President,
National Mining Association
The National Mining Association (NMA) appreciates the opportunity
to share our views on the Miner Safety and Health Act of 2010 (H.R.
5663), legislation that has been introduced to amend the nation's mine
safety laws.
As backdrop to today's discussion, it is helpful to note that U.S.
mining operations have decreased fatal and non-fatal injuries by 72
percent and 64 percent respectively over the last two decades. Eighty-
seven percent of all U.S. mines operated without a single lost time
injury in 2009. Those trends have sustained our dedication to injury-
free mining, and we expect 2010 to close with more than 85 percent of
all U.S. mines operating without a single injury.
The tragedy at the Upper Big Branch Mine in April was an abrupt
interruption to that positive trend and has appropriately caused all of
us to re-examine the adequacy of the industry's current safety and
health practices and the existing statutory and regulatory authorities
to achieve our goal. While there are many voluntary initiatives,
technology advances and innovations in miner training and safety
awareness underway in U.S. mines, today's hearing focuses on
legislation to address the role and enforcement authorities of the Mine
Safety and Health Administration (MSHA) and the relevant rules that
govern their actions, the actions of mining operations and the
workforce.
In support of our shared health and safety goals, we have looked at
the proposed legislation within the framework of the following
principles:
Will it improve mine safety and health--our number one
priority;
Does it ensure greater transparency in the regulatory,
investigative and enforcement process;
Will it build upon, rather than dismantle, the positive
features of existing laws and regulations that have contributed to mine
safety and health;
Does it avoid additional layers of enforcement, penalties
and other actions that are already provided for under the law, but not
fully utilized;
Does it provide penalties that are commensurate with the
severity of the violation;
Will it protect due process rights; and
Will it maintain a robust domestic mining industry that
meets the needs of the American people while maximizing the health and
safety of its workforce?
We have used this framework to identify omissions in the proposal
that merit attention; provisions that basically align with these
principles and ones the industry could support with some modification;
and provisions that are counter to these principles.
I would like, first, to turn to the omissions, which we believe
could make significant contributions to miner safety and health:
I. Items of Omission
A. Inspection and Enforcement Resources and Allocation
The Committee has received testimony at earlier hearings that
established that: (1) the Mine Safety and Health Administration's
(MSHA) authority under existing law was adequate but often unexercised;
and (2) improvement in the allocation and use of resources would enable
the agency to direct attention to the places where they are most
needed. For the most part, H.R. 5663 bypasses these fundamental issues
and instead adds more punitive and complicated measures on top of an
existing law the agency has not utilized to the fullest extent.
Much attention was been devoted in prior hearings to the backlog of
appeals of enforcement actions and penalties before the Federal Mine
Safety and Health Review Commission (Commission). Yet, as this
Committee has been advised in prior testimony, appeals of enforcement
actions do not compromise the safety of miners because under the Mine
Act, unlike most other laws, mine operators must abate violations
before any hearing is provided or suffer closure of the mine.
The backlog of existing appeals is symptomatic of more fundamental
issues related to implementation of the existing law rather than a
cause for changing the law. Testimony from the Committee's Feb. 23,
2010, hearing identified a convergence of circumstances that have not
only produced an increase in the number of appeals of citations and
penalties, but also point to fundamental weaknesses in the existing
law's implementation. There were substantial areas of agreement among
all who testified at the February hearing on ways to address these
circumstances.
1. Lack of Consistency in the Enforcement of the Law
The Assistant Secretary testified that consistency in the
application of the laws is critical to an effective mine safety program
and requires ongoing training and review. He reported that a
substantial number of highly experienced mine inspectors have retired,
and almost 50 percent of the current inspectors have been hired in the
past four years. Moreover, the Inspector General recently found that 56
percent of the ``journeymen'' (those that have completed entry level
training) inspectors have not completed mandated retraining, and 27
percent do not believe the training provided is adequate for them to
effectively perform their duties. Office of Inspector General, USDOL,
Journeyman Mine Inspectors Do Not Receive Required Periodic Retraining
(March 30, 2010). Specifically, the IG report found that, ``MSHA did
not assure that its journeyman inspectors received required periodic
retraining * * * inspectors may not possess the up-to-date knowledge of
health and safety standards or mining technology needed to perform
their inspection duties.''
Fully trained and experienced inspectors are fundamental to a
credible program. Again, as the Assistant Secretary advised the
Committee, consistency requires effective and ongoing training at all
levels--inspectors, District Managers and conference officers--to
ensure inspectors ``are not issuing citations for conditions where
there is no violation or where there is a lack of evidence to support
the inspector's findings.'' Effective training of inspectors and
managers is also important to assure consistency in the application of
the law, including the characterization of any violation, because the
criteria (e.g., likelihood and severity of possible injury, number of
persons possibly affected, and negligence) are inherently subjective.
Failure to address this critical component of the enforcement
program is a shortcoming of the pending legislation. Inspector training
programs must be improved and the delivery of training must be more
frequent than the current requirement for two weeks training every two
years. An effective understanding of the statutory requirements, as
well an effective understanding of applicable interpretative case law
are essential if the agency's enforcement is to achieve the objectives
miners and mine operators expect. Moreover, this will reduce the number
of citations challenged before the Commission as inspector actions
conform to applicable case law rather than alleging statutory language
needs to be included to justify unwarranted actions.
2. Changes in the Law & Regulations
The significant turnover in MSHA's inspectors also coincided with
substantial changes in the law under the MINER Act. At a time when new
inspectors were coming on board and more than half of the experienced
inspectors were not receiving retraining, they were all faced with an
array of new standards they were expected to enforce. Moreover, the
MINER Act and MSHA regulatory actions changed the civil penalty
assessment system in terms of both the manner and amount of penalties
for different types of citations. As the Assistant Secretary testified
forthrightly, ``[t]hese changes can create a potential for inconsistent
application of the Mine Act.''
3. Suspension and Revision of the Conference Process
MSHA historically held safety and health conferences, when
requested by mine operators, to discuss and resolve disputes over
violations related to inspector findings. These conferences covered
whether a violation existed or the seriousness and potential
consequences of such violations--all factors that impact the level of
the penalty for the violation as well as the consequences for future
citations. The resolution of these matters often would result in no
formal appeal being filed by the operator before the Commission. In
February 2008, MSHA suspended the conference process for most
violations. This had the perverse effect of pushing to the Commission
the resolution of most of the violations and penalties that had been
routinely resolved without any formal appeal. The process reinstated by
MSHA a year later did little to relieve the Commission backlog because
a conference is only provided after a penalty was assessed and after an
operator appeals both the citation and the penalty to the Commission.
As the chair of the Commission testified on Feb. 23, ``[t]he vast
majority of our cases result in settlements.'' Indeed, many of these
settlements involve the very citations and penalties that were
previously resolved in a MSHA conference.
The absence of a timely and meaningful conference process has not
only contributed to and aggravated the backlog of appeals; it also has
robbed the program of a time-proven tool that provided some assurance
against the risk that inherently subjective factors would lead to
arbitrary outcomes. As MSHA found in its rulemaking for the former
conference process, ``the safety and health of miners is improved when,
after an inspection, operators and miners or their representatives are
afforded an ample opportunity to discuss safety and health issues with
the MSHA District Manager or designee.'' 72 Fed. Reg. 13,624 (March 22,
2007).
We were not alone in recognizing the need to reinstate a
transparent, independent conference process to address, prospectively,
the case backlog before the Federal Mine Safety and Health Review
Commission. The Assistant Secretary for MSHA has testified that, ``The
option to hold conferences prior to the operator's contesting the
penalty seems to be the best approach to resolve disputes over
violations early in the process and keep those citations out of the
backlog.''
Some believe this matter can be addressed by MSHA initiating
administrative action to reinstate the conference process. We disagree.
While it is correct that MSHA can reverse this administratively, the
same actions that gave rise to this situation can be repeated in the
absence of statutory conference authority. We believe that the pending
bill should be amended to provide this authority.
B. Inspection Activity and Resource Allocation Decisions
The preceding discussion leads us to raise another fundamental
question. Are we focusing our resources where they are most needed?
Under current law, MSHA must inspect every underground mine four times
a year and every surface mine twice per year. But this mandate does not
translate into four days or two days of inspections annually. Rather,
these inspections often last for weeks, months or year-round for some
mines. Some underground mines, because of their size, not based on
compliance history, experience 3,000-4,000 on-site inspection hours
each year. There must be a better way to deploy the resources to where
they are needed most.
NMA believes it is time to consider a different way of deploying
resources based upon safety performance. Under existing law, mine
operators must immediately report all accidents and report quarterly
all lost time injuries and reportable illnesses directly to MSHA. This
has produced an extraordinary database that can be used to guide
inspection activity and allocate inspection resources based on
documented need and analysis related to safety performance and risks.
It is far more likely that effective inspection activity will be based
on documented need and analysis than on entirely subjective or
ambiguous criteria, let alone on rote compliance with mandates of the
Act.
Some believe that MSHA lacks adequate resources to implement an
effective enforcement program to focus on recalcitrant operators while
still meeting the statutory mandates to inspect each underground mine
four times a year and each surface mine twice yearly. We disagree. MSHA
must be authorized and directed to utilize the information available to
identify problem areas and allocate its inspectorate accordingly. Just
as MSHA was able to identify 57 mines for targeted enforcement in the
days immediately following the Upper Big Branch tragedy, so too must
they utilize this same information to target mines that pose an
immediate hazard to miner safety and health.
Working together we believe a system can and must be developed that
would refocus the number and scope of inspections based on performance
and the adoption of verified and objectively administered performance
goals. H.R. 5633 should be amended to provide MSHA with the authority
to implement such a program.
C. Plan Review
Central to the functioning of an effective safety management
program is the development and administration of a transparent process
that provides for timely consideration of plans necessary to ensure the
safety and health of miners. Unfortunately, MSHA's plan review process
does not meet these goals.
Today, MSHA's technical resources are challenged as operators face
more difficult geologic conditions. As a result, plan consideration has
become more difficult and less timely. MSHA, industry, academia and
others are competing for the small pool of technical expertise required
to assist in the development of mining processes and plans necessary to
maximize resource recovery AND ensure the safety and health of the
workforce. Imposing new punitive measures without addressing this
fundamental need will do little to advance miner safety and health.
At its core, the submission of plans culminates in a quasi-risk
assessment process, the goal of which is multi-faceted. While plans are
structured to comply with regulatory requirements, they are, in the
broader sense, intended to foster a culture of prevention at the mine.
Unfortunately, the lack of a defined process for the consideration of
plans frustrates this objective and jeopardizes miner safety and
health.
H.R. 5663 will exacerbate this problem by expanding MSHA's
authority without addressing the true underlying problem. Despite
characterizations to the contrary, MSHA has the authority to revoke
plans and has not been hesitant to do so. While this authority is cast
in terms of plan revisions resulting from the violation of underlying
standards or the identification of a potentially hazardous condition,
the end result remains the same. The legislation's punitive plan
revocation approach will worsen the plan process to the detriment of
miner safety.
Before we embark upon comprehensive overhaul of the Mine Act, there
should be a clear-eyed assessment of whether fundamental components of
the existing law are being properly and fully executed. The Assistant
Secretary has set forth several areas that need attention: (1) improved
implementation of the Mine Act; (2) simplification of the contested
case process; (3) improved consistency by MSHA inspectors and
supervisors; and (4) creation of an environment where fewer cases enter
the contest process. None of these fundamental needs related to the
implementation of the existing law are advanced by H.R. 5663.
If half the inspectors are new and the other half are not properly
trained, adding more punitive and complex requirements aimed at mine
operators will only put more weight on a unstable foundation. In light
of the information gathered at recent hearings regarding the
substantial turnover in inspectors and the significant shortcomings in
inspector training, maybe it is time to step back and perform an
objective evaluation of: (1) the relationship (or correlation) between
violation rates and injury rates at mines; (2) the source of injuries
in terms of ``at risk'' conditions or ``at risk behaviors''; and (3)
consistency and clarity in the application of the law.
If there is not a strong correlation between significant and
substantial violation rates and injury rates, what does that tell us in
terms of the implementation of the existing law? This question was
examined in 2003 where ICF Incorporated, in a report to the Department
of Labor, entitled Mine Inspection Program Evaluation, stated that,
``[t]he data indicate that the numbers and types of days lost injuries
occurring over the past 5 to 10 years are not well correlated either
quantitatively or qualitatively with the citations issued through
inspection enforcement activities.
If injuries, incidents or near misses are arising more from ``at
risk'' behavior than''--at risk'' conditions, what does that tell us
about the focus of the program and allocation of safety resources? And,
if inconsistency in the application of the law is, as the Assistant
Secretary has suggested, an impediment to regulatory certainty and
compliance, wouldn't we be better served by focusing on improving
implementation than foisting more changes on inspectors and operators
struggling to attain clarity and consistency in the application of
existing law and regulations?
These are areas that should be examined and included as part of a
broad effort to improve mine safety but unfortunately the pending bill
is silent on these aspects.
II. Areas of Conceptual Agreement
The National Mining Industry supports improvements in our nation's
mine safety and health laws that would (1) create fair and uniform
procedures for enforcement; (2) target recalcitrant operators; (3)
provide for transparency in the development and administration of
regulatory requirements; (4) provide flexibility to the government and
mine operators to focus resources on problem areas; and (5) encourage
the development and implementation of processes for improving
performance that are outside the bounds of the current regulatory
structure. While H.R. 5633 does not address all of these components
and, in fact, moves in several areas in a direction that we feel will
be detrimental to miner safety and health, there are selected aspects
of the bill that move in this direction and are ones NMA could support,
if modified.
A. Independent Investigation Authority
The establishment of an independent authority to investigate mine
disasters has been debated for many years. Some have advocated the
creation of a full-time authority along the lines of the Chemical
Safety Board or the National Transportation Safety Board to
investigate, report on and make recommendations for the prevention of
future mining disasters. H.R. 5663 takes a more tailored approach by
vesting this authority with the National Institute for Occupational
Safety and Health, Office of Mine Safety and Health Research. Should
such authority be granted, we support vesting this authority in NIOSH.
We are concerned; however, that the language of the bill goes
beyond what is necessary and will complicate an already difficult
environment. Mine disaster investigations are tedious endeavors. The
work of the investigative teams must be exhaustive and without
reproach. MSHA has proven capable of undertaking such investigations,
and their authority to do so must not be undermined. What has been
called into question is the ability of the agency to examine its own
actions during the period preceding and following the event. We believe
this is the appropriate role for NIOSH.
Rather than duplicating the investigatory activities already
instituted by MSHA, applicable state authorities and other entities,
NIOSH's role should focus solely on MSHA activities.
B. Pattern of Violations
NMA supports reform of the Pattern of Violation system. The current
system is dysfunctional and has not served its intended purpose.
Neither mine operators nor miners are able to navigate the current
system. It lacks transparency, does not provide timely information, and
is not structured to rehabilitate problem mines.
H.R. 5663 represents a step in the right direction to correct the
problems with the current system by looking at the mine's overall
safety performance and not rendering POV determinations solely on the
basis of subjective compliance determinations. We are concerned,
however, that the provision is overly punitive and will not accomplish
the sponsor's goal to rehabilitate problem mines. In his July 6
response to the Inspector General's, June 23, Alert Memorandum, MSHA
Sets Limits on the Number of Potential Pattern of Violation Mines to be
Monitored, the Assistant Secretary stated the need for the, ``* * *
creation of a screening system that will identify mines that
chronically fail to implement proper health and safety controls.'' He
went on to stress the need for the agency to, ``[f]ocus its POV
enhanced inspection resources on those mine operators that have
chronically failed to protect the safety and health of the miners and
that continue to put miners at risk.''
We support the Secretary's goal. We are, however, extremely
concerned that under the pending legislation many of the decisions
regarding implementation of a new POV program are vested with MSHA
rather than proscribed in the legislation. MSHA created the
dysfunctional system that exists today. We cannot afford to repeat that
situation.
We believe a workable system can be developed to properly identify
and rehabilitate problem mines, and we look forward to working with
this committee to develop to correct metrics to accomplish this goal.
C. Modernizing Health and Safety Standards
Title V of H.R. 5663 contains provisions that are, for the most
part, applicable to underground coal mining. These provisions would
update and expand existing requirements related to: (1) communicating
information regarding dangerous conditions throughout the workforce;
(2) updating rock dust standards; (3) examining the application of new
technologies to protect miners; and (4) enhancing miner training.
These subjects are conceptually ones the industry has long
supported to improve miner safety and health, and NMA could support
with slight modification.
III. Areas Where the Pending Legislation Will Not Advance Miner Safety
As noted earlier, NMA supports improvements in our nation's mine
safety and health laws that would (1) create fair and uniform
procedures for enforcement; (2) target recalcitrant operators; (3)
provide for transparency in the development and administration of
regulatory requirements; (4) provide flexibility to the government and
mine operators to focus resources on problem areas; and (5) encourage
the development and implementation of processes for improving
performance that are outside the bounds of the current regulatory
structure. Unfortunately, the majority of the pending legislation is
not ``rehabilitative'' as some have contended. Rather, the bill is
harshly punitive and restrictive, creates new disciplinary authorities
that have little to do with miner safety, and intrudes on management
prerogatives and labor/management practices to the detriment of overall
management of effective safety and health programs.
Turning to those areas that NMA believes do not align with the
principles we have articulated, we note the following:
A. Mine safety progress is threatened by overly punitive
provisions
Rather than affording mine operators the flexibility needed to
structure safety programs to meet individual mine site needs, the bill
will thwart progressive programs that have led to dramatic safety
improvements across U.S. mining. The expansion of potential liability
will have the unintended consequence of causing companies to pare back
their safety programs to the bare regulatory requirements rather than
adopting new techniques, processes and practices that have led to
health and safety improvements in the U.S. and elsewhere.
B. Mine safety would not be advanced by additional MSHA
workforce authority
The bill would inject MSHA, for the first time, into matters that
are reserved for management decision-making and/or the subject of
labor/management negotiation. The expansion of MSHA authority into
hiring and termination decisions, mine site staffing and operational
decisions will not advance mine safety and may expose the agency to
liability considerations, as these actions extend beyond enforcement of
regulatory standards into mine design and operational considerations.
C. Mine safety and health will not be improved by penalty
provisions that are not commensurate with the
severity of the violations
H.R. 5663 would increase financial penalties, establish new
criminal penalties and restrict the ability of mine operators to
contest inappropriate enforcement actions. These stricter enforcement
provisions, which would apply to all mines, will not contribute to
improved health and safety. The MINER Act and the 2006 revisions to the
Part 100 civil penalty regulations exceeded the agency's estimated
impact many times over. Yet the legislation proposes further increases
in penalties, limits operator's ability to contest frivolous
enforcement actions and places undue limitations on operators and on
the Federal Mine Safety and Health Review Commission's authority to
reduce unwarranted enforcement actions.
Further, the dramatic expansion of offenses that are now deemed
``criminal'' and the application of civil and criminal liability to
officers, directors and agents will discourage the implementation of
new ideas and discourage miners from accepting management positions,
quell innovation and create a lack of experienced miner leadership over
time.
Finally the dramatic expansion of pay protection to include
operator decisions that might have resulted in a closure order may
discourage operators from closing down areas of a mine for safety
reasons--to the detriment of miner safety.
D. Misallocation of safety resources will weaken safety
efforts and results
H.R. 5633 will greatly expand the definition of ``significant and
substantial'' violations. The current process for indentifying a
violation as S&S was developed more than 20 years ago by the Federal
Mine Safety and Health Administration under the Carter administration.
The Commission recognized that no differentiation in the severity of
violations led to unfocused safety efforts and set in place today's
definitions. Returning to those old days, when roughly 90 percent of
all citations were deemed ``significant and substantial,'' is a step in
the wrong direction that will destabilize safety efforts and demoralize
much of our work force.
Miners and operators understand the current definition and process
for designating a violation as S&S. Unfortunately, many MSHA-determined
violations are routinely modified by AJL's. Rather than redefining S&S
to validate incorrect designations, the focus should be on ensuring
that inspectors receive the training necessary to correctly identify
violative conditions and their attendant severity. Treating virtually
every citation as S&S will shift attention away from those conditions
and practices that have the highest potential to cause injury or
illness and focus efforts on mere rote conformity with the regulations,
absent any consideration of risk.
E. Transparency is undermined by proposed rulemaking
process
Notice and comment rulemaking is fundamental to the MINER Act and
its predecessor statutes. It serves a dual purpose: 1) It affords
stakeholders the due process required by law by providing a reasoned
forum that allows all interested parties to comment on proposed
regulations; and 2) It helps governmental agencies such as MSHA collect
the best available information so that final regulations are effective
and fair. H.R. 5663 would circumvent this crucial rulemaking process in
key areas--and forgo the advantages it confers--by requiring the
Secretary to issue ``interim final rules'' that are effective upon
issuance, in the absence of stakeholder input.
Conclusion
Today's mine safety and health professionals face challenges far
different from those anticipated when our nation's mine safety laws
were first enacted. More difficult geological conditions, faster mining
cycles and changes in the workforce introduce potential complications
requiring new and innovative responses. Today's challenge is to analyze
why accidents are occurring in this environment, and use that analysis
as a basis for designing programs or techniques to manage the accident-
promoting condition or cause.
Regrettably, the bill before the committee does not respond to many
of these challenges and will not, in our view, accomplish our shared
goal. Trying to force safety improvements through punitive measures
fails to acknowledge the complexities of today's mining environment,
and is not the answer we all seek. Acting on false perceptions of what
is needed now will only create false perceptions of progress, not safer
mines.
We understand the call by members to address perceived shortcoming
in MSHA's statutory and regulatory structure. Indeed, we share the
concerns of others with certain elements of MSHA's authority. We do not
believe, however, that sufficient attention has been given to the weak
foundation upon which MSHA's regulatory authority is built and to the
execution of that authority to warrant such sweeping legislation.
We stand ready to work with the members of the committee on actions
we should be taking--some of which I have outlined--just as we did
before Congress enacted the MINER Act.
______
Chairman Miller. Mr. Roberts.
STATEMENT OF CECIL ROBERTS, PRESIDENT,
UNITED MINE WORKERS OF AMERICA
Mr. Roberts. Mr. Chairman, thank you for this opportunity
to appear again before this committee. I appreciate the
opportunity we have had to work together. Unfortunately, we
have been working on a problem that is at this moment unsolved,
and that is the fatalities we are seeing in the coal fields and
the grief that has come to the families of the coal miners
throughout this country.
Ranking Member Kline, we appreciate this opportunity, and
members of the committee, my fellow West Virginians,
Congressman Rahall and Congresswoman Capito, I applaud your
leadership that you have shown throughout the time of the Upper
Big Branch tragedy, trying to comfort the families of who have
lost loved ones.
I want to thank this committee for naming this legislation
after my dear friend, Senator Byrd. The last appearance he made
in the United States Senate was on Upper Big Branch, and I had
the opportunity and I believe I was the last witness to ever
testify before Senator Byrd, and had the opportunity to go up
and thank him for what he had done for coal miners. And I said
at the time of his death, he was the best friend a coal miner
ever had.
I want to mention one other person here today. I want to
applaud the courage of a coal miner who is testifying here
today, and that is Stanley Stewart. I hope everybody on this
committee understands the courage it takes for someone like
Stanley to come here and testify and tell you what has gone on
in this coal mine and what a difficult position that places him
in. I admire him for what he has done and I have told him that
personally.
I want to say that these miners who lost their lives at
Upper Big Branch, they were employees of Massey Energy, but
they were also our friends. I knew a number of these miners,
played ball with some of them. I knew their parents, and in
some instances I knew their grandparents.
I would just like you to think for a moment. There was a
young man--and it has been mentioned here, but not dwelled upon
very much--named Josh Snapper. You have to work 6 months in a
coal mine to get a miner's certificate in the State of West
Virginia. He had not yet earned a miner's certificate, but he
knew he was working in a dangerous place. And if a 25-year-old
miner who had not yet obtained a miner's certificate knew he
was working in a dangerous place, didn't everybody else know
that? Didn't the CEO of this company know that? Didn't the mine
foreman know that? Didn't everyone know this?
He wrote a letter to his mother. And he had a one-year-old
baby that I had the opportunity to meet at the memorial service
in Beckley. And he said, ``Tell my fiance, tell my baby that I
love them. I love you, Mom.'' Those are the kind of letters we
used to write when we were going to Vietnam and World War I and
World War II and Korea, people going off to the Middle East to
fight. You understand a young man writing those kind of
letters. That is the kind of letters we are supposed to write
going to work? This young man knew that he was in a seriously
dangerous place, and he lost his life there. He knew he might,
and he left a letter behind.
Mr. Chairman, I would just say to you that some think we
are moving too fast here. I have had to revise my testimony
several times as I have appeared in the Senate and in the House
because of the fatalities that continue to occur here. On
Friday, we had the 41st fatality that happened in Illinois.
That is just this past Friday.
So as we ask ourselves, ``Are we moving too fast?'' maybe
we should ask ourselves, ``Are we moving too slowly here?''
because miners are continuing to die in this Nation's coal
mines and we have got to find out why.
I want to point out something if I might; 41 miners have
died this year in the Nation's coal mines, 31 of them in one
place, one company. Now, we can say, ``Gee, that is just
unfortunate that occurred.'' That is not unfortunate. There is
something wrong here when 31 out of 41 fatalities occur at one
company. It is not just 31 out of 41 this year; 54 fatalities
at this one company in 10 years. And this same company comes to
Congress and testifies that they have the safest mines in the
country--God help us if that is true.
We know, and there is no one up on this dais today and no
one sitting here today knows that this is an abnormal
occurrence. There is something drastically wrong at this
company. Forty-one miners have lost their lives this year. We
have failed these miners in this country when that happens, and
we have to do something about that.
I want to tell you what works, and I am going to simplify
this. We have to have good laws. We have to have those laws
obeyed. And we have to have those laws enforced by our
government, whether it is Federal or State. And we have got to
punish those who fail to abide by the law.
I am going to tell you why good laws work. There is a
perfect example of that. We just recently celebrated the 40th
anniversary of the Mine Act. In those 40 years prior to the
passage of the 1969 act, 32,000 coal miners died. How many:
32,000. Forty years after the passage of the act: 3,200. So
those who say laws don't work, the statistics say otherwise.
Now, every time we have ever passed a law or considered a
law, there are those who come here and say this is going to put
us out of business. I invite you to go back and get the
legislative history of the 1969 act, when people came in here
and said if we have to comply with this law there won't be a
coal mine to operate in the United States of America. I suggest
to you that the coal industry has continued to operate, it has
continued to prosper. Good laws, obey those laws.
Now I am going to make a bold statement here. Most of this
industry--and I have said as high as 95 percent--do the right
thing. So we are not writing laws here to destroy an industry;
we are writing laws to try to make those who will not obey the
law comply. That is what we are trying to do. And we have to
give MSHA the tools that they need to enforce the laws, and we
have got to punish those who absolutely refuse, Mr. Chair, just
refuse to comply with these laws. They turn their backs on
them, they ignore them, they say, These laws really don't
pertain to me. And I don't care what Congress writes, I don't
care what Congress says, I am not complying.
Now, you have got to come to grips with that. That is the
truth. Now I know I am getting a little emotional here, but
just do the research on it and see if I am telling you the
truth. You have got to stop the lawbreakers if you want to save
miners' lives.
And with that, I thank you, Mr. Chairman.
Chairman Miller. Thank you.
[The statement of Mr. Robert follows:]
Prepared Statement of Cecil E. Roberts, President,
United Mine Workers of America
Thank you for inviting me to address the Education and Labor
Committee about this important legislation. As President of the United
Mine Workers of America (``UMWA''), I represent the union that has been
an unwavering advocate for miners' health and safety for 120 years. I
am pleased to have this opportunity to speak in support of H.R. 5663.
It addresses some very serious problems that have been highlighted this
year in the coal industry as well as other industries.
This Committee plays a significant role in advancing miners' health
and safety. We are deeply appreciative of the leadership you have shown
in trying to protect and enhance the health and safety of all miners.
Your continued oversight is essential. We share with you the common
goal of wanting to ensure that all miners will go home safely and in
good health after the workers' shifts each and every day.
This Committee knows all too well that the status quo is
inadequate; this year 40 coal miners have died at work--and we are
barely half way through the year! The horrific Upper Big Branch
disaster claimed 29 underground coal miners. But eleven other coal
miners also died--one or two at a time. We can and must do a better job
of protecting our nation's miners.
I have testified before this Committee as well as before Senate
Committees about some of the shortcomings in the existing laws and
about problems MSHA confronts in enforcing the law. H.R. 5663 addresses
many of the issues we have been discussing. I will review some of the
current problems that demand attention, then speak about how the
proposed legislation will address those problems; and I will make a few
suggestions to further improve the proposed legislation.
A fundamental problem MSHA confronts is how to deal with operators
that habitually violate the law. Voicing her apparent frustration on
this very point after yet another miner died, on July 1 Secretary of
Labor Hilda Solis issued a press release in which she stated:
* * * 31 of the 40 coal mine fatalities that have occurred in 2010
have occurred at Massey mines. We have issued citations, closure
orders, stop orders, and fines to get Massey to take its safety
responsibility seriously. Earlier today, the U.S. Attorney in the
Southern District of West Virginia announced four Massey supervisors
will be charged criminally stemming from a MSHA and FBI investigation
into the deaths of two miners at a Massey mine in 2006. But yet again,
today we mourn the tragic loss of another miner whose safety was
entrusted to Massey Energy (emphasis added.)
Clearly, the status quo isn't good enough. MSHA's efforts have
failed to motivate at least some mine operators, like Massey, to do
what is necessary to operate their mines safely each and every day. We
know many operators are performing much better. In fact, of the 40 coal
fatalities in 2010, not one was at a union operation.
Even before the Upper Big Branch disaster in April, we met here to
discuss how the huge and growing backlog at the Federal Mine Safety and
Review Commission (``FMSHRC'') was undermining miners' health and
safety. While more Administrative Law Judges have been hired to deal
with FMSHRC cases since I testified in February, there remains the
problem of operators routinely challenging MSHA citations in an effort
to delay resolution of their outstanding citations and orders--whether
to delay paying the penalties or to avoid the enhanced fines that
attach to repeat violations, or to escape the challenging Pattern of
Violation enforcement tool MSHA has threatened to use. And though
Congress increased fines when it passed the MINER Act of 2006, because
citations and orders are being regularly challenged, that new fine
structure has not served to induce better compliance.
After a citation is fully litigated and there remains no further
issue about an operator's obligation to pay a particular penalty, as it
stands today a mine with unpaid fines can continue its production
notwithstanding a lengthy delinquency. We understand that there is more
than $27 million in unpaid fines resulting from MSHA final orders! One
way to avoid any such delinquencies would be to require all assessed
fines to be placed into an escrow account, as we have previously
suggested.
Consistent with the expectation that all fines shall be paid close
in time to the violation, the proposed legislation provides that when
due process procedures have been exhausted, the operator must promptly
pay its fines. And while MSHA has claimed uncertainty about its
authority to take action against an operator with delinquent fines, the
legislation will give MSHA the ability to temporarily close a mine if
fines are not paid within 180 days. We think that's fair: operators
that work within the legal framework shouldn't have to compete against
those who flaunt the system.
MSHA also has been uncertain about its authority to take immediate
action to shut down a mine when it observes violations the Agency
believes place miners' health and safety at immediate risk. The
proposed legislation addresses this by granting MSHA the authority to
seek injunctive relief when it believes the operation is pursuing a
course of conduct that jeopardizes miners' safety or health. This is
sorely needed.
Another shortcoming with the existing framework concerns the
criminal penalties in the Mine Act. They have been insufficient to
coerce the compliance we need. First, the criminal sanctions only
amount to misdemeanors--a virtual slap on the wrist--even though the
consequences for Mine Act violations can be deadly. We know it can be
difficult for a government agency to convince a prosecutor to pursue a
case for Mine Act misdemeanors. This means that some who could have
been prosecuted under the applicable legal standards likely escaped
criminal prosecution simply because the criminal sanctions now
available to prosecutors are too mild.
More importantly, the top-level people who create and maintain the
corporate policies that put company profits ahead of workers' safety
have been permitted to remain in power and to continue their misguided
practices while their subordinates have to take the blame, including
any criminal liability. We believe that CEOs and corporate Boards of
Directors should be held accountable; they should have to take
responsibility when systemic health and safety problems are evident
within a company. H.R. 5663 would provide these changes: it imposes
criminal penalties for ``knowingly'' taking actions that directly or
indirectly hurt workers, and makes a felony any such conduct, with jail
time increased from a one year maximum to five year maximum for a first
offense and ten years for a second offense, and the fines increased
from a maximum of $250,000 to $1 million, or $2 million for a second
offense. It also makes it easier to prosecute corporate representatives
who knowingly authorize, order, or carry out policies or practices that
contribute to safety and health violations. We fully support these
improvements to the criminal penalties.
Even though the existing law requires MSHA inspections to occur
unannounced, we have all heard stories about the many ways operators
game the system so inspectors will not discover unsafe work practices
or conditions. When this Committee visited Beckley for its hearing with
Upper Big Branch families, you heard reports about the various signals
and codes that were relayed underground (such as, ``we've got a man on
the property'' from Gary Quarles testimony on 5.24.10) before the
inspectors could arrive on a section, allowing managers to direct make-
shift changes to avoid getting cited. And when MSHA took over the
communication stations upon arrival at a couple of operations in
Kentucky during recent blitz inspections, MSHA inspectors discovered
many more violations than had previously been discovered--violations
that likely would have been covered- up and gone undetected if the
special warning codes were allowed to continue. To deal with these
issues, the proposed legislation increases the criminal penalties for
those who give notice, and requires information about the criminal
penalties to be posted at mines so all miners will be on notice that
giving any kind of notice about an MSHA inspection is improper and
constitutes a very serious violation of the Act.
There has been a lot of discussion about the Pattern of Violation
(``POV'') tool that MSHA has long had a right to use, but which has not
been effectively utilized. MSHA has alerted some operators about their
being vulnerable to being put into a Pattern and this has generally
been successful in accomplishing some short-term improvements. This
happens because being put onto a POV is properly perceived as being a
dramatic event that would be hard to ever escape. However, MSHA has
been both too hard and too easy in its prior use of the POV. It is too
hard insofar as if any mine would actually be placed into a POV (as
opposed to just getting a warning notice about the possibility), under
the current scheme it would be nearly impossible for the mine to ever
again operate; once the POV attaches miners must be withdrawn if MSHA
finds any S&S violation. But even the most-attentive operator may not
be able to avoid all violations all the time. For example, barometric
pressure changes can quickly give rise to an S&S violation.
MSHA's current POV protocol is also too easy insofar as after MSHA
issues a POV warning notice the Agency only requires a 30% reduction in
the short run for an operator to be relieved of the extra scrutiny. It
is too easy for an operator to demonstrate short-term improvements
without making the wholesale changes needed to render the mine safe on
a long-term basis. The focus of a POV program should be to capture the
attention of management and miners alike to affect a wholesale cultural
change--to make everyone at the unusually hazardous operation aware of
what may be comprehensive problems, and to make sure they learn and
practice different and safer work practices. The improvements should be
fully integrated so the mine operates more safely going forward on a
long-term basis, not just long enough to get the mine off MSHA's watch
list.
Rather than the punitive POV model now in place, the legislation
seeks to turn the POV into a rehabilitation program. It provides for
MSHA to tailor any remediation to the particular operation: if MSHA
determines that more training would be helpful, it could require that;
if the mine would benefit from a comprehensive health and safety
program, the Agency could mandate that one be designed and implemented.
The legislation also mandates a doubling of the inspections while the
operation remains in POV status, as well as a doubling of the fines
after 180 days if adequate improvements are not accomplished. An
operation would remain in POV status for at least one year, which
should be long enough to ensure that the new practices are actually
working. Finally, MSHA plans to measure a mine's success against
objective benchmarks, properly comparing any operation to other mines
of similar kind and size.
The proposal also would provide more immediacy in MSHA's assessment
of an operation: MSHA would evaluate a mine's safety record for POV
purposes based on contemporaneous citations and orders MSHA inspectors
would be writing, rather than measuring a mine's safety record based on
final orders that now can take years to process. Because contested
citations are now caught up in a very long backlog at the FMSHRC, by
using only final orders for POV purposes (as MSHA now does) the Agency
could be placing a mine on a POV in 2010 based on its unsafe conduct
from 2008, because it could take that long for the underlying orders to
become final. From a safety management point of view this doesn't make
sense. A mine with poor safety practices in 2008 should be placed in
the POV status in 2008--when the added scrutiny is most needed, not
years later when the various legal challenges get resolved. Likewise,
if management at an operation with numerous S&S citations and
withdrawal orders in 2008 recognized it had serious problems with its
safety practices and initiated changes that yielded significant
improvements, under the current scheme that mine might be vulnerable to
a POV in 2010, after its safety practices had improved.
The POV tool is an extreme one and should be available for MSHA to
help put an immediate end to unsafe work practices before miners get
hurt. It is precisely when MSHA inspectors are writing an unusually
large number of citations and orders that a mine should receive the
extra attention POV anticipates, not years later when those citations--
if contested--finally become final orders. And because the overwhelming
percentage of citations and orders that MSHA inspectors write are
upheld even when contested, there is no serious issue about due process
based on a POV process that is prompted by written citations as opposed
to final orders. In FY 2009, only 4-11% of litigated penalties related
to unwarrantable failure and S&S citations ended up being withdrawn or
dismissed. With a POV program re-focused on rehabilitation rather than
punishment, and given the small withdrawal and dismissal rate, it is
fully consistent with the protective purposes of the Mine Act to err on
the side of safety and accept this modest margin of error. The proposed
legislation would make the POV program more remedial and less punitive,
which we support. The goal must be to turn operations with the worst
health and safety records into much safer operations, and to teach the
miners and managers about what is required to operate safely so they
will do so on a long-term basis.
A related issue that also affects the POV program arises from the
current system for accident and injury reporting. Operators are
required to report on all accidents and injuries and to file quarterly
reports with MSHA. However, the reporting process is now badly flawed.
Operators go to extraordinary lengths to dissuade their employees from
ever filing accident reports even when an injury is serious. Some would
rather pay an employee with a broken back to perform light duty than
have him report the injury. While we have heard stories about these
practices for years, former Massey employee Jeff Harris testified about
his personal knowledge of this practice when he addressed the Senate
HELP Committee on April 27, 2010.
To the extent that accident and injury reports constitute a factor
used in measuring an operator's relative safety record for POV status,
all operations should be obligated to report accidents and injuries
pursuant to the same objective standard. This is an area where changes
may be required for H.R. 5663. Only if accident and injury reports are
regularly and reliably filed can we learn about dangerous mining
practices, and about problems with equipment. If reports are not
provided when all accidents occur, the same problems are more likely to
recur. There is no place for subjectivity; rather, all accidents and
injuries should be reported so the mining community can learn from our
collective experiences. Top level mine management should also be
required to sign off on the reports--both to ensure that the personnel
with the power to make changes (when needed) actually know about the
accidents at an operation, and to provide much-needed accountability.
A strength of the proposed legislation concerns the entities from
which MSHA would receive and maintain accident and injury data. As it
stands today, MSHA reports do not relate the health and safety records
of an operator's contractors to the operator itself. Yet, if an
operator would be required to take more responsibility for those
working on its property, that operator would be more attentive to its
contractors' safety records and start demanding better health and
safety performance. A disproportionately high rate of accidents is
attributable to contractors, so this change is warranted. And while any
operator could be demanding better compliance with mine safety laws and
regulations, operators generally have made no effort to exercise this
power. Imposing the legal requirement is appropriate and should effect
better contractor compliance with Mine Act requirements.
Miners continue to be intimidated into working in an unsafe manner,
and this has got to change. As you heard at the Beckley, WV hearing in
May 2010, and as Jeff Harris testified before the Senate HELP Committee
in April 2010, miners have provided testimony about how difficult it is
for them to raise safety concerns at a non-union mine. Even when they
know that their work environment is dangerous, miners are reluctant to
voice safety issues because jobs are scarce--and coal-mining jobs pay
well. The testimony confirmed that a miner working at a non-union
operation has good reason to fear losing his job for complaining about
unsafe conditions. But no miner should have to choose between earning a
good paycheck (while praying he will survive) and working safely. No
worker should feel he is jeopardizing his family's economic security by
raising bona fide work concerns on the job. And no miner should be told
he needs to find another job when he tries to exercise the statutory
right to refuse unsafe work, as coal miner Steve Morgan reported his
21-year old son Adam Morgan was told by his boss at the Upper Big
Branch mine before perishing in the April 5 disaster. In short, the
anti-discrimination protections in the existing law are terribly
important, but they don't go far enough to protect miners. H.R. 5663
addresses this continuing problem by making sure that miners are
specifically trained each year about their safety rights, and
authorizing punitive damages and criminal penalties for retaliation
against miners who blow the whistle on unsafe conditions.
As for accident investigations, the Act requires MSHA to
investigate all serious accidents. However, it now does so with one arm
essentially tied behind its back. This results from the fact that MSHA
investigative interviews are conducted on a volunteer basis. That is,
MSHA identifies who might have helpful information and invites them to
meet with the Agency. Any individual may decline MSHA's invitation.
Likewise any witness can leave the interview at any time. The only
exception lies with the public hearing option, for which MSHA has the
power to subpoena witnesses and documents, but which has rarely been
used. We think MSHA should have the subpoena power for all accident
investigations, not just for a public hearing component of an accident
investigation as is expected to occur as part of the Upper Big Branch
investigation. By providing MSHA with the subpoena power MSHA could
speak with anyone it thinks has relevant information to contribute and
it would give MSHA broader authority to review records. We also think
that granting the Agency subpoena power for inspections would better
protect miners who may wish to speak with MSHA inspectors. The
legislation would make these changes.
In the aftermath of the Upper Big Branch tragedy, we urged MSHA to
conduct a public hearing for its primary investigation for multiple
reasons: only by doing so could it utilize its subpoena power; and we
believe that allowing an open hearing would permit more issues to be
more fully explored, reducing the possibility that some less popular
but still any feasible theories about root causes would be overlooked.
Yet, MSHA chose to conduct this investigation largely behind closed
doors. We think that procedure creates needless problems. And while
MSHA plans to conduct a separate investigation into its own conduct as
it relates to the Upper Big Branch mine, such an internal investigation
could produce issues that bear on the primary investigation. It would
be best if all such issues would be raised, considered, and resolved at
the same time, not sequentially. We also believe that MSHA should not
be the one investigating its own conduct, but an independent
investigation team should perform this analysis. The proposed
legislation addresses this by requiring a parallel and coordinated
investigation to be performed under the direction of NIOSH for all
accidents involving three or more fatalities. The independent team
would include knowledgeable participants from other interested
entities, including employer and worker representatives. We think this
procedure will help assure the mining community, Congress, and the
public at large that the investigation is thorough.
However, the proposed legislation should be adjusted to incorporate
a role for the miners' representative to participate fully in all
accident investigations. For some of the more recent multi-fatal
accident investigations, even though the UMWA was designated as a
miners' representative, the UMWA was excluded from the accident
interviews. The miners' representatives are permitted to join in the
underground investigation, but little more. Without being allowed to
join the interviews, the miners' representative cannot fully represent
the miners at the operation who have selected such a representative.
The Upper Big Branch investigation is another current MSHA accident
investigation in which the UMWA has been excluded from the interviews
even though the Union has been designated as the miners' representative
for miners at that operation. The government has claimed that the on-
going criminal investigation justifies MSHA's closed-door investigation
and the exclusion of the miners' representative. Yet, for another
investigation now taking place--that following the BP explosion in late
April--there is also a parallel criminal investigation. If simultaneous
civil and criminal investigations are feasible in that context we
believe it should also be viable for accident investigations within
MSHA's jurisdiction. We thus urge a change in the legislation to
specifically provide for miners' representatives to fully participate
in all accident investigations. After all, miners who made their
designation have a significant interest in learning what happened, and
they may be returning to work at the same operation. They should have a
seat at the table in the form of their designated representative.
There has also been a recurring problem with the process of
designating a Section 103(f) miners' representative after a disaster
occurs at a non-union operation. The Act does not presently provide for
a family member to designate a miners' representative on behalf of a
miner who is trapped or dies in a mine accident. The proposed
legislation would change this, so that the family member may exercise
the right to designate a miners' representative if the miner is unable
to exercise his right due to a mine accident.
Though we don't yet have official information from the accident
investigation, it is generally believed that inadequate rock dusting
exacerbated the Upper Big Branch explosion. This legislation would
require more protective rock dust standards. To reduce the likelihood
of dangerous coal dust explosions, the Bill also requires the use of
technology to better monitor rock dust compliance.
To the extent the proposed legislation anticipates MSHA rulemaking
and authorizes the Agency to exercise new and expanded
responsibilities, we wish to note that it will require full funding for
these new mandates. I think we can all agree that it would be far
better to support a pro-active MSHA than to fund yet more large-
accident investigations.
Finally, the UMWA is in support of those provisions of the proposed
legislation that would fall within OSHA's jurisdiction.
Thank you for allowing me to speak about H.R. 5663; we look forward
to working with you to pass it into law.
______
Chairman Miller. Mr. Snare.
STATEMENT OF JONATHAN SNARE, PARTNER, MORGAN LEWIS, TESTIFYING
ON BEHALF OF THE COALITION FOR WORKPLACE SAFETY
Mr. Snare. Good afternoon, Chairman Miller, Ranking Member
Kline, and members of the committee. I appreciate the the
opportunity to appear before you at this hearing to address a
number of important issues raised by the proposed H.R. 5663.
And specifically, I am going to be focusing on Title VII, the
amendment to the Occupational Safety and Health Act.
I am testifying today on behalf of the Coalition for
Workplace Safety, which is comprised of associations and
employers who believe in improving workplace safety through
cooperation, assistance, transparency, clarity, and
accountability. My testimony and comments are not intended to
represent the views of my law firm, Morgan Lewis, or any of our
clients.
By way of background, Chairman Miller, as you have
indicated, my legal practice is focused on labor and employment
matters, including workplace safety and health issues. I also
served for a number of years in several positions at the Labor
Department, including the Acting Assistant Secretary for OSHA,
and as the Deputy Solicitor from 2006 to 2009, and the Acting
Solicitor.
The coalition's concern with this proposed legislation is
the dramatic changes to the OSH Act that are focused
exclusively on punishing employers, which at the end of the day
will not result in any actual real-world impact that improves
workplace safety and health. The coalition further believes
that this approach has unintended consequences which may
undermine the underlying intent and goals of this bill.
Penalties alone will not improve workplace safety.
Remember, in many cases, penalties are imposed after the fact
of an injury or fatality. The critical mission of OSHA is to
assist employers to make sure that injuries and fatalities
never occur in the first place. As such, the current focus
should be on efforts to prevent workplace injuries and
fatalities before they occur, not creating new methods of
punishment after the fact.
The coalition is further convinced that this proposed
legislation will create greater cost, litigation, and hamper
job creation. Especially during these challenging economic
circumstances, the adverse impact on the ability of employers
to create jobs is a critical factor and should be of concern to
this committee and Congress. These proposed changes will impose
substantial costs on businesses, particularly small businesses,
which are struggling to create and maintain jobs.
Let me briefly summarize our concerns with this
legislation. The abatement of hazards in section 703 creates a
burdensome new requirement on employers to abate any hazard
subject of a serious willful or repeat violation. The only way
for an employer to suspend abatement while contesting the
citation is to file a legal action with essentially a very high
burden of proof, similar to a temporary injunction. This is
essentially a mini-trial on the merits of the underlying
citation.
The other punitive provisions include the failure to abate,
and a pre-final order interest imposed on employers, again,
before the adjudication of the citation on the merits.
Abatement is more than protecting against a hazard; it is
part of accepting responsibility for the violation. Mandating
abatement before allowing the employer to exhaust their due
process, adjudicative rights, is similar to asking a criminal
or civil defendant to pay a fine or serve a sentence before a
trial is held.
As to the civil penalties in section 705, the increases in
this legislation focus again on a punishment-focused approach,
which in and of itself will not result in any improvement of
workplace safety and health. From the employer's perspective,
how can we not say that this bill is about punishment?
Broadening the scope of a repeat violation in this legislation
and the other new proposed penalties will not result, in our
judgment, in any prevention of workplace injuries or
fatalities. Remember, there is no evidence that higher
penalties, civil or criminal, have any bearing or result on
improved workplace safety and health.
As to the criminal penalties in section 706, the expansion
of these penalties, both by reducing the intent level to
knowing, and creating personal culpability will yield greater
levels of challenges.
First, as to reducing the level of intent from the current
``willful'' to ``knowing'' would upend decades of OSHA law
going back to 1970, introduce tremendous uncertainty, and
further guaranteeing substantial increases in contested cases.
As to the criminal liability on an officer or director is
also equally troublesome. We believe it will impose a witch
hunt to hold corporate officers and directors liable. Expanding
the criminal liability for an officer or director will make any
employer's personnel unduly subject to prosecution and it will
create a great deal of confusion. You saw that confusion in
response to a question by Congressman Price to the Solicitor as
to what it means and who is a corporate officer or director.
The coalition is also concerned about the whistleblower
requirements in section 701. I will refer and incorporate my
comments in the written statement.
To conclude, Mr. Chairman, the proposals in Title VII of
H.R. 5663 would result in significant and dramatic changes to
the OSH Act with the imposition of a more punitive civil and
criminal penalty structure and make it harder for employers to
exercise due process rights. We believe this legislation is
only about the punishment of employers, the vast majority of
whom want to do the right thing with regard to workplace safety
and health. And this bill will do nothing to prevent workplace
and safety injuries and fatalities.
And as recent data made clear, with the lowest level of
recorded injuries and fatalities, the best way to achieve a
continued improvement on workplace safety and health is a
proactive approach, with balance of enforcement and compliance
assistance.
Mr. Chairman, thank you for the opportunity to present
these remarks, and I look forward to answering any questions.
Chairman Miller. Thank you.
[The statement of Mr. Snare follows:]
Prepared Statement of Jonathan L. Snare, on behalf of the
Coalition of Workplace Safety
Good afternoon Chairman Miller, Ranking Member Kline and Members of
the Committee. My name is Jonathan Snare. I am an attorney and I am
currently a partner with the DC office of Morgan Lewis & Bockius LLP
law firm. I appreciate the opportunity to appear before you at this
hearing to address a number of the important issues raised by the Miner
Safety and Health Act (H.R. 5663), and specifically to focus on Title
VII ``Amendments to the Occupational Safety and Health Act.'' I am
testifying today on behalf of the Coalition of Workplace Safety (CWS)
which is comprised of associations and employers who believe in
improving workplace safety through cooperation, assistance,
transparency, clarity and accountability. Members of the CWS include
associations comprising a wide range of employers from small businesses
to large corporations, such as U.S. Chamber of Commerce, National
Association of Manufacturers, Associated Builders and Contractors,
National Association of Home Builders, NFIB, American Foundry Society
to name a few. By way of further background, I am also a member of the
Labor Relations Committee of the U.S. Chamber of Commerce and serve on
its OSHA Subcommittee. My testimony and comments are not intended to
represent the views of Morgan Lewis & Bockius LLP or any of our
clients.
Background
As you may recall, I testified before the Subcommittee on Workforce
Protection on March 16, 2010 on behalf of the U.S. Chamber of Commerce
on many of these same issues. I would like to incorporate my statement
from the hearing into the record here, and I will not repeat in detail
my prior testimony. Instead, I will offer comment on several of the
OSHA provisions in H.R. 5663 of concern to the CWS and its members.
As I mentioned, I am a partner with Morgan Lewis & Bockius LLP, in
the Labor & Employment Practice Group. My practice is focused on
advising clients in the labor and employment field, largely in areas of
workplace safety and health, as well as whistleblower matters,
regulatory issues, wage and hour/FLSA, and other related matters.
Before joining Morgan Lewis in February 2009, I served for over
five years in several positions at the U.S. Department of Labor. Among
those positions, I served as the Deputy Assistant Secretary for the
Occupational Safety and Health Administration (OSHA) from December 2004
through July 2006, as well as serving as the Acting Assistant Secretary
for OSHA for most of that period, from January 2005 through April 2006.
I then served as the Deputy Solicitor of Labor from July 2006 through
January 2009 and I served as the Acting Solicitor of Labor for most of
2007.
Having had the privilege of running two of the Department of
Labor's largest agencies, OSHA and the Solicitor's Office, I once had
the responsibility of overseeing OSHA's critically important mission of
assuring a safe and healthy workplace for every working American, and
of the Solicitor's Office crucial role of providing legal support to
OSHA to assist the agency in implementing the goals of its mission. In
so doing, I believe I developed an understanding and insight on the
many different strategies and tools that OSHA already has available to
implement these important goals.
The concern that the CWS has with this proposed legislation is that
its dramatic changes to the OSH Act are focused exclusively on
punishing employers which, at the end of the day, will not result in an
actual ``real world'' impact that improves workplace safety and health.
The CWS further believes that this approach has unintended consequences
that may undermine the intent of the bill. Penalties alone will not
improve workplace safety--remember, in most cases, penalties are
imposed after the fact of an injury or fatality. The critical mission
of OSHA is to assist employers to make sure these injuries and
fatalities never occur in the first place. As such, our current focus
should be on efforts to prevent workplace injuries and fatalities
before they occur, not on creating new methods of the punishment after
the fact.
The CWS is convinced that Title VII of H.R. 5663 will create
greater cost, litigation and hamper job creation. Especially during
these challenging economic conditions, the adverse impact on the
ability of employers to create jobs is a critical factor and should be
of concern to this Committee and Congress. These proposed changes will
impose substantial costs on businesses, particularly small businesses,
which are struggling to create and retain jobs in this difficult time.
OSHA's wide-ranging mission and structure and why this proposed
legislation will not improve workplace safety and health
The OSH Act tasked OSHA with the difficult mission ``to assure so
far as possible * * * safe and healthful working conditions'' but it
has always been the responsibility of the employers, not OSHA itself,
to ensure safety and health on the jobsite. OSHA has never had the
resources, even when the agency had its largest number of employees, to
inspect the 7 million worksites now within its jurisdiction. When you
take into account that federal OSHA conducts approximately 38,000
inspections it would take the agency over 90 to 100 years to inspect
every worksite (and this timeframe is only slightly changed with the
announced goal of 42,500 inspections in the OSHA FY 2011 budget).
Clearly, enforcement alone will never be able to reach every workplace
or serve as an effective deterrent. OSHA does not have the funds, and
will never have the funds, to hire the staff large enough to reach each
worksite on a regular basis through enforcement.
The only way to leverage OSHA's resources to reach the greatest
number of worksites and have the most positive impact on workplace
safety and health is to assist employers in their efforts to make
workplaces safer. This approach can be achieved by using existing
programs that offer compliance assistance, outreach, and training.
Congress recognized this when it enacted the OSH Act. The Act's first
section, ``the Congressional statement of findings and declaration of
purpose and policy,'' has several paragraphs dedicated to the
importance of OSHA's role in compliance assistance, outreach and
training. This point also was made by the Clinton Administration's OSHA
Assistant Secretary Joe Dear when he launched an aggressive compliance
assistance program.
Since the inception of the OSH Act, America's workplaces are
becoming increasingly safer. Over the last several years the agency has
taken an approach to utilize existing programs to assist employers.
Partially in part to these efforts data from the Bureau of Labor
Statistics from 1994 to 2008 shows the total recordable case rates for
workplaces injuries and illnesses have been cut in half (improved by
53.6 percent), and workplace fatalities are now at their lowest level
ever. Congress should look to ways to continue these improvements
rather than enact changes that would hinder these efforts.
Simply put, while enforcement plays a role, the best approach to
further improving workplace safety and health under this existing
system and structure is a proactive approach that reaches employers
before there is a problem and provides them with the support and
guidance they need to protect their employees. As part of this
approach, workplace safety and health standards and regulations need to
be clear and understandable so employers will be able to understand
their obligations and to implement the necessary steps to be in
compliance. OSHA would be better served if it would focus more of its
existing resources or additional resources it receives from Congress on
providing the type of training, education and compliance assistance
materials to ensure that employers clearly understand what they are
required to do while also maintaining appropriate enforcement.
Additionally, OSHA should also make sure its inspectors (Compliance
Safety and Health Officers, or CSHOs) are properly trained to apply the
OSHA standards and regulations to the actual worksite. Remember, that
unlike MSHA which only has jurisdiction over one industry, OSHA has a
wide ranging jurisdiction over 7 million workplaces in a vast array of
settings in general industry, maritime and construction, and OSHA area
offices often have the close to impossible task of enforcing against
many different types of jobsites in their area with many different
applicable standards and requirements. Often times, misunderstandings
between OSHA and an employer occur because one side or the other has a
different understanding of what exactly is required to be in compliance
with OSHA requirements. That is usually why employers will contest OSHA
citations and this legislation fails to take this factor into account.
Instead, this bill focuses solely imposing more punitive requirements
on employers and making it harder for employers to exercise their due
process rights. It is important to mention in this discussion that most
OSHA citations are either accepted by the employer or settled
My experience in government service, as well as in private law
practice, is that most employers want to do the right thing in terms of
workplace safety and health, as most employers care about their most
valuable resource, their employees. For the vast majority of employers,
workplace safety and health makes sense for business and economic
reasons, as those with safe worksites are often the most productive and
efficient, with the lowest overhead and workers' compensation rates,
and it makes sense because it is the right thing to do.
OSHA already has sufficient available enforcement tools and penalties
to impose sanctions against employers where the circumstances
warrant
The CWS is of the opinion that there are already sufficient
penalties and enforcement tools to take action against those employers.
Under the OSH Act, there are currently five general categories of civil
penalties available to OSHA to impose on employers: Willful; Repeat;
Failure to Abate; Serious; and Other than Serious. Under the current
structure, penalties for willful violations can be imposed up to
$70,000 for each willful violation of an OSHA standard or the General
Duty Clause. While not defined in the statute, a willful violation has
come to mean one where the employer is established to have been aware
of and intentionally violated these requirements or acted with reckless
disregard or plain indifference to workplace safety. OSHA also may
impose a civil penalty of up to $70,000 for each repeat violation,
which is a violation of the same or substantially similar requirement
by the same employer at the same or different facility. For serious
violations, OSHA may impose a civil penalty up to $7000. Additionally,
OSHA has the ability to impose instance by instance penalties (the
egregious policy) under certain circumstances so that the agency could
impose willful violations for each instance of conduct, for example it
could impose a willful penalty for each employee affected. In other
words, the agency already has the prosecutorial authority to impose
penalties in large amounts (sometimes in the multiple of millions of
dollars) in these cases, as we have seen.
The agency also may impose a civil penalty of $7000 per day for a
failure to abate a violation for each day beyond the required abatement
date that the particular condition or hazard remains unabated. Further,
OSHA currently has the authority to shut down an employer's operation
if OSHA believes that there is a serious hazard, which poses an
imminent danger to employees.
As to potential and available criminal sanctions, the OSH Act
provides that an employer may be subject to a criminal fine of up to
$10,000 and six months in jail for the first willful violation
resulting in the death of an employee, and a criminal fine of up to
$500,000 and twelve months in jail for the second willful violation
resulting in an employee fatality. And as I already noted in my
testimony, OSHA did not hesitate during the previous administration to
refer cases that met this criteria to the Department of Justice for
review and consideration for criminal prosecution.
I also want to make clear on behalf of the CWS that it understands
that its members need to fully comply with their workplace safety and
health obligations. As I previously noted, the CWS believes that all
parties have a respective responsibility and that employers should be
held accountable including providing the necessary training, equipment,
resources, and management emphasis on workplace safety. The CWS does
not condone those employers who have intentionally flouted their
obligations to protect their employees and fail to comply with their
workplace safety and health obligations. Those employers--a small
minority of employers--deserve the full range of enforcement sanctions
by OSHA depending on the particular facts of the violation in question.
CWS's specific concerns with the provisions in Title VII of the Miner
Safety and Health Act of 2010 (H.R. 5663)
As I previously mentioned, these proposed changes will simply not
achieve the desired results in terms of improving workplace safety and
health. Further, many provisions of this legislation and these
revisions will result in adverse consequences to OSHA in terms of the
administration of its enforcement, and to the Solicitor's Office, which
is charged with the responsibility of litigating contested cases.
At its core, let me repeat a point I noted at the March 16
hearing--these proposed changes in H.R. 5663 can be best described
under the old adage ``bad facts make bad law.'' This effort to change
the OSH Act with enforcement-only sanctions appears to be driven by the
conduct of the few outlier employers who fail in their workplace safety
and health obligations. These proposed penalty increases and other
sanctions will do nothing to assist employers to understand their
obligations for workplace safety and health, such as the small business
owner who is trying to understand how to comply with applicable
requirements. For example, how will increasing penalties help her
design a more effective workplace safety program when she knows she is
unlikely to see an inspection unless there is an accident or fatality?
Increased penalties and new criminal liabilities will promote an
adversarial relationship between employers and OSHA. As a result,
employers will be more hesitant in proactively engaging OSHA. This
employer is obviously better served with more outreach and compliance
assistance materials than increased penalties. Again, the goal here is
compliance and prevention, not sanction. This approach benefits
employers but more importantly it benefits employees.
Specifically, the CWS has the following concerns with these
provisions of Title VII of H.R. 5663:
Abatement of hazards pending contests of citations (Section 703):
This section creates a new burdensome requirement on employers to abate
any hazard that is the subject of a serious, willful or repeat
violation (exempting only other-than-serious violations). The clear
result of this new requirement will be to reduce or eliminate the
ability of an employer to challenge a citation through the Occupational
Safety and Health Review Commission (OSHRC) administrative process by
requiring this immediate abatement to all of these citations.
Importantly, immediate abatement is already available through the
emergency shutdown mechanism when OSHA identifies an imminent hazard to
employees (Section 13 of the OSH Act) in certain situations.
This proposed mandatory abatement provision would substitute an
employer's ability to suspend abatement while contesting the citation
with a higher burden of proof akin to what is required for securing a
temporary injunction: (i) the employer has to demonstrate a substantial
likelihood of success of its underlying contest of the citation; (ii)
the employer will suffer irreparable harm absent a stay of this
requirement; and (iii) the stay of this requirement will adversely
affect the health and safety of workers. Even more troubling, this
proposal gives OSHA the authority to impose a civil penalty on
employers of $7000 per day if they have not corrected the hazard after
the citation or obtained such a stay through the OSHRC. This punitive
new set of penalties is simply unjustified and an outrageous trampling
of due process rights. Abatement is more than just protecting against a
hazard; it is part of accepting responsibility for the violation.
Mandating abatement before allowing the employer to exhaust their
adjudicative process would be like asking a criminal or civil defendant
to pay a fine or serve a sentence before the trial is held.
I should also point out the potential adverse impact on the
workload of the OSHRC with this proposal, in that employers may be
faced with no choice but to file legal action to stay this requirement,
which is required to have a hearing in 15 days in this legislation,
followed by a decision in 15 days. There is also a process by which a
party objected to the initial decision to appeal to the Commission
itself. The implications to the Commission workload are staggering to
imagine.
There is another provision in this proposed legislation which will
add another burden to employers who chose to exercise their due process
rights of contesting OSHA citations. Section 707 imposes what is termed
``pre-final order interest'' (essentially prejudgment interest),
compounded daily, which begins to accrue on the date an employer
contests any OSHA citation. This additional penalty on employers for
OSHA citations which have not yet been adjudicated by the OSHA Review
Commission appears to be unduly punitive, and will not result in any
improvement of workplace safety and health; the supposed goal of H.R.
5663. The only result of this provision will be to increase the
difficulties for employers who choose to exercise their due process
rights and to contest any citations they believe were incorrectly or
wrongly imposed to the particular situation.
In addition, this provision will eliminate OSHA and the Solicitor's
Office prosecutorial discretion in handling these contested cases and
eliminate one source of potential leverage that OSHA and the
Solicitor's Office can use to resolve cases with the requirement to
impose immediate abatement.
The combined effect of mandatory abatement and the greater
difficulty in getting a stay will be that the OSHA inspector who issues
the citation will have the roles of judge and jury. This is grossly
unjust as many OSHA inspectors are unfamiliar with the industries and
workplaces they are inspecting. They very well may not know the best
workplace procedures and which are actually the safest. Enhancing their
authority as this section is a prescription for overzealous and
improper citations.
In sum, this provision is unduly punitive and makes it much more
difficult for employers, particularly smaller employers who lack
resources, to challenge certain citations, which they may believe in
good faith are incorrect or improperly imposed by the agency in the
first place. The end result of this requirement will not be an
improvement in workplace safety and health. Instead, the only result of
this onerous set of requirements will be to impose more costs and more
burdens on employers at precisely the wrong time in this challenging
economic environment when employers everywhere are struggling to stay
afloat.
Civil Penalties (Section 705): The increases in civil penalties in
Section 705 raise the issues already mentioned about a punishment-
focused approach, which will in and of itself, not result in any
improvement of workplace safety and health. From the employers'
perspective, how can we not say that this bill is about punishment? If
you have any doubt that this new legislation is about punishment of
employers, let me cite the new provision in Section 705 that will give
OSHA the authority to consider an employer's history of OSHA citations
from state plan states as part of the process to determine whether a
federal OSHA violation is a repeat violation or not. This is another
example of a dramatic change to 40 years of OSHA practice for the sole
purpose of punishing employers. When combined with the recent steps
taken by OSHA to increase civil penalties and more aggressive
enforcement, such as through the new SVEP program as well as the new
higher penalty calculations in the OSHA Field Operations Manual,
employers may have no choice but to consider contesting every citation
to avoid these further punitive sanctions.
Even now, employers have difficulty understanding what OSHA
requires in its standards, as well as understanding its potential
liability; these new proposed penalties and other new requirements
(such as the immediate abatement requirement and new criminal
sanctions) will only add to the difficulty for employers to not only
understand what is required of them but to face a dramatic increase in
costs, precisely at a time in our economic life, when employers can ill
afford such sanctions.
Criminal Penalties Section 706): These proposed changes to increase
the criminal sanctions will do nothing positive for workplace safety
and health. Again, these expansions of criminal sanctions--both by
reducing the necessary intent level to ``knowing'' and creating
personal culpability--will yield much greater levels of challenges
instead of improvements in workplace safety.
First, the CWS is concerned by the proposal to change the level of
intent (mental state) necessary for criminal penalties from the current
``willful'' to ``knowing.'' Such a change would upend decades of OSHA
law--dating to the passage of the OSH Act in 1970 and introduce
tremendous uncertainty, further guaranteeing substantial increases in
contested cases. While the ``knowing'' standard is used in
environmental statutes, it has not been the standard for OSHA criminal
culpability. In environmental law, the term ``knowing'' has come to be
associated with a low level of intent, almost akin to a strict
liability standard where the party in question has to know only that a
given activity was taking place, not that there was a violation
occurring or that environmental laws were being broken. As there is no
further definition in the bill of this standard, employers (and OSHA
inspectors) will be left to guess what this means and when it should
apply. This is a prescription for utter confusion and legal challenges
that will be costly to both the employer and the agency.
Further, imposing criminal liability on any ``an officer or
director'' is equally troublesome. The CWS believes this proposal will
result in a witch hunt to hold officers or directors responsible.
Expanding criminal liability to any officer or director will make
corporate personnel unduly subject to prosecution even if they
generally have no involvement in day to day operations. All of these
terms are vague and ambiguous as to who would fall within these
categories. These terms are also vague as to how they would be applied
in the legal process; do they apply only to the corporate entity or
other legal entities such as partnerships? Does this mean that any
limited partner or director would now be subject to potential criminal
prosecution? How would responsibility be determined? None of these
changes will improve workplace safety and health, and actually, this
new requirement, if adopted, could result in adverse impacts as
corporate employees would now fear that any decision they could make on
the jobsite could subject them to prosecution; a safety director or E,
H & S employee could be faced with the reality that every one of their
decisions would be micromanaged, potentially by employees who have
little or no expertise in safety and health. This will create a
chilling effect on these employees trying to simply do their job, or
even taking these jobs. Furthermore, these are the people that should
get those jobs--the ones that care enough and know what should be done,
but do not want to be exposed to criminal liability because of the
actions of an employee they could not control. This could create
uncertainty on the jobsite with a net reduction of workplace safety and
health.
New whistleblower requirements (Section 701): This section will add
new requirements and create additional complicated and costly
procedures for adjudicating whistleblower cases, without any evidence
or justification that the existing protections available to employees
under Section 11(c) of the OSH Act are somehow deficient. The CWS is
also concerned with other proposals in Section 701 which are overly
punitive on employers and will benefit no one, aside from trial
lawyers.
For example, this section completely eliminates any flexibility for
an employer and employees to negotiate employment contracts or
agreements which include an arbitration clause applicable to
whistleblower rights. Arbitration clauses are often used as a mechanism
for resolving disputes which is quicker and less costly than
litigation. This section also includes broad and vague language
prohibiting settlement of any whistleblower claims that contain
``conditions conflicting with the rights'' protected in Section 701
including the restriction on the complainant's right ``to future
employment with employers other than the specific employers named in a
complaint.'' This blanket prohibition on the ability of employers and
whistleblower complainants to enter into settlements that make sense to
them in the context of the particular case at hand will make it more
difficult, at the end of the day, for the parties to settle these
cases. The end result: more litigation and more costs on employers.
Furthermore, this section grants employees a right to bring an
action against their employer in federal court for no reason greater
than the Administrative Law Judge or the review board missing a 90 day
deadline to issue their decisions--deadlines that were predicted to be
routinely missed by whistleblower law expert Lloyd Chin in his
testimony to the Subcommittee on Workforce Protections on April 28.
We also note that the new whistleblower provisions being discussed
today allow employees to recover, against the employer, their
attorneys' fees and costs if they are successful in getting an order
for relief from either the Secretary or a court. Similarly, allowing
small businesses that successfully defend themselves against an OSHA
citation to recover their attorneys' fees has long been one of our key
goals. Bills to permit this have passed the House with bipartisan
support in previous Congresses. While inclusion of this idea would not
cure the problems we see with these whistleblower provisions, we
believe allowing small businesses the same opportunity as employees to
recover attorney's fees is only fair.
The adverse impact of Title VII of H.R. 5663 on the OSHA contested
caseloads and the administration of OSHA litigation
I would also like to reiterate an issue and concern I mentioned in
my testimony on March 16, 2010--the potential impact of these proposed
changes to the OSH Act on the OSHA adjudicatory process. The net result
of these proposals to increase civil and criminal penalties;
dramatically revise the whistleblower structure under the OSH Act; and
require immediate abatement will cause not only employers to contest
citations at higher rates, but will result in delays in the ultimate
resolution of contested enforcement cases, and unduly strain the
resources of OSHA and the Solicitor's Office.
We do not need to look any further than the recent example of MSHA
enforcement of the mine industry after changes to increase the
penalties and other sanctions to get a picture of the potential
difficulties and challenges. Indeed, this Committee held a hearing on
this subject on February 23, 2010 and heard testimony raising these
same concerns. As I mentioned in my testimony at the March 16, 2010
hearing, the increased penalties under the Miner Act, combined with the
aggressive use of existing tools, such as the Pattern of Violation
mechanism, resulted in a dramatic increase in contest cases. For
example, the percentage of contested MSHA violations went from just
over 5 percent in 2005 (the year prior to the Miner Act), jumping to
over 20 percent by 2007, and over 25 percent in 2008 and 2009.
From personal experience I can attest to the challenges these
increases posed for the Solicitor's Office and MSHA. During this same
period, I was the Acting Solicitor and Deputy Solicitor and we devoted
significant time and effort to manage the impact of these higher
contest rates. We had to shift resources within the Solicitor's Office,
and take other often difficult steps, to assist with this dramatic
increase in the workload. Due to the risk of the Pattern of Violations
and the significantly higher penalties, it was much more difficult to
settle cases, further adding to the problem. The MSHRC also faced
problems in that they simply did not have enough ALJs to hear all of
the cases. Funding increases partially solved this problem but it still
remains a huge problem and the resolution of many cases has been
delayed for months, if not years. The current backlog of cases is
16,000 and the caseload docket increased from 2,700 cases in FY 2006 to
more than 14,000 cases in FY 2009.
I think it is important for this Committee to carefully consider
the practical real world impact of any of these proposed changes to the
penalty structure which will have a significant impact on the
administration of the OSHA contested caseload. While the budget
situation at DOL is different now from the time I served, these
proposed changes will still have what I believe to be a significant
impact on the OSHA adjudicatory process, and I believe this Committee
should be aware of the impact of this legislation and should take these
concerns into account when considering this legislation.
Conclusion
The OSHA proposals included in Title VII of the Miner Safety and
Health Act (H.R. 5663) would result in significant and dramatic changes
to the OSH Act, with the imposition of a more punitive civil and
criminal penalty structure, and make it harder for employers to
exercise due process rights to contest citations or defend against
whistleblower complaints, without any beneficial impact on workplace
safety and health. The CWS believes that this legislation is only about
the punishment of employers, the vast majority of whom want to do the
right thing in terms of workplace safety and health, and this bill will
not prevent workplace safety and health injuries and fatalities. There
is nothing in this proposed legislation that will provide any
assistance to employers, and most importantly small businesses, to
improve safety in their workplaces. Rather, this proposed legislation
will result in higher costs and added liabilities on employers,
including small businesses, who are struggling in this challenging
economic time to maintain operations, expand, and trying to retain
jobs. These increased costs will have only a detrimental impact on
these efforts.
The goal here, as I previously noted, is to prevent workplace
fatalities and injuries from occurring, not merely punishing the
employer after they occur. As recent data makes clear, with the lowest
ever recorded level of workplace injuries and fatalities, the best way
to achieve continuous improvements in workplace safety and health is to
utilize a proactive approach with enforcement when appropriate, and
offer outreach, training, and compliance assistance to that vast
majority of employers who want to do the right thing and comply with
their workplace safety and health obligations.
Mr. Chairman, thank you for this opportunity to speak to you on
these important issues, and I would now be happy to respond to any
questions that you and the Committee may have.
______
Chairman Miller. Ms. Rhinehart.
STATEMENT OF LYNN RHINEHART, GENERAL COUNSEL, AMERICAN
FEDERATION OF LABOR, CONGRESS OF INDUSTRIAL ORGANIZATIONS
Ms. Rhinehart. Thank you, Mr. Chairman, Ranking Member
Kline, and members of the committee, both for holding this
hearing and for inviting me to testify here today. We really
appreciate the committee's continued efforts to promote worker
safety and health, including the introduction of the Miner
Safety and Health Act last week.
Clearly, we still have major problems in the mines with
getting mine operators to pay attention to worker safety
problems that need to be addressed. President Roberts and Mr.
Stewart have eloquently spoken to these issues. We fully
support the mine workers on these points. But the problem isn't
limited to mines, and that is the fundamental point that I want
to speak to here today.
Just as the Mine Act needs to be strengthened to get mine
operators to pay attention to safety and put safety before
profits, so does the main law protecting worker safety and
health, the Occupational Safety and Health Act of 1970. The OSH
Act is a good law, it has saved lives, it has prevented
injuries, but it has serious shortcomings and it is woefully
out of date. Other than a civil penalty increase in 1990, the
law has never been updated or strengthened in 40 years since
its passage. It has fallen behind the Mine Act, and it has
fallen behind environmental laws designed to protect us from
harm from contaminated air, from contaminated water, from
unsafe mines. But the OSH Act has fallen far behind.
Now, some would say the law is actually fine and that the
problem that we face is just with a few bad actors out there.
We disagree. This is a systemic problem that needs to be fixed.
We still have more than 5,200 workers dying on the job each
year, an average of 14 workers each and every day. Millions of
workers are injured each year. OSHA has issued thousands of
citations for violations of the OSH Act in connection with
those fatalities that I just referenced. This is not a matter
of just happenstance, things happen; these are violations of
the law that lead to worker fatalities and injuries, and it is
a systemic problem that needs to be addressed.
The average penalty for violating the OSHA law, a serious
violation of the law that carries a substantial risk of death
or serious injury is $965. Even in cases where workers are
killed, the average penalty is about $5,000. This is not enough
to get employers to pay attention to safety and make
investments in safety on the front end. It is too easy to write
penalties like this off as just a cost of doing business.
The criminal penalty provisions in the OSH Act are even
weaker. As you know, the maximum penalty under the law for
willful violations of the law that result in a worker fatality
is just six months in jail, which is a misdemeanor. And it also
carries a $250,000 fine.
The penalties for polluting the environment or harassing
protected wildlife on public lands are higher than the
penalties for violating the OSHA law and killing workers.
Because the penalties are so weak, the Department of Justice
rarely prosecutes cases under the OSH Act. One telling
statistic, the Department of Justice brought four times more
criminal cases last year for violations of the environmental
laws than have been brought in the entire 40-year history of
the OSH Act; four times more cases in 1 year than in 40 years
under the OSH Act because the criminal penalty provisions are
just so weak.
Now we have heard today that the bill is too punitive and
what we need is more compliance assistance and cooperation;
that penalties have nothing to do with promoting safety. But
when OSHA only has enough inspectors to inspect workplaces once
over 137 years, on average--which is the case now--you have to
have strong penalties when violations are found if the system
is to work. Otherwise, the law just does not provide an
adequate incentive for employers to comply with the law and
protect workers. The penalties, in our view, have everything to
do with bringing about greater compliance and prevention of
problems before tragedies occur, and they are just too weak
right now to make that happen.
We have heard today about the importance of strong
whistleblower protections and about making sure that workers
are protected when they speak out about job hazards. The
whistleblower protections in the OSH Act are the weakest of any
of the 17 whistleblower laws enforced by OSHA. They are out of
the mainstream of whistleblower protections passed by Congress
over the past number of years, signed into law by both
Republican and Democratic Presidents.
The details of these weaknesses are contained in my written
statement which is submitted for the record. Suffice it to say,
the whistleblower protections in the OSH Act are woefully out
of date and really do not provide workers with recourse when
they suffer discrimination for raising job hazards or
exercising their rights under the law. They have 30 days to
bring their case forward. They are dependent on the Secretary
of Labor bringing their case. If the Secretary doesn't act,
workers are out of luck; they have no private right of action.
This is completely out of the mainstream of whistleblower
protection laws.
So if we are serious about our commitment to worker safety
and health, and this committee clearly is, and if we are
serious about wanting to prevent deaths and injuries on the
job, we need to strengthen the OSHA law and provide meaningful
penalties that will bring about greater compliance before
fatalities and injuries occur. We need to strengthen
protections against retaliation for workers who raise job
hazards. We need to get employers to correct hazards more
quickly, and not use the litigation process before the OSHA
Review Commission to stall abatement and leave workers at risk.
And that is what the Miner Safety and Health Act would do.
If I may take just 20 seconds to make one more comment
about the concerns that have been expressed here today about
this bill costing employers money, and that not being a good
idea at a time when the economy is really struggling. We are
for jobs, we are all for jobs, we are all for safe jobs. When
you think about the costs here, you need to think about the
costs of workplace fatalities, injuries and illnesses. They are
enormously expensive, not just in human terms--which those
costs are incalculable, you cannot bring a loved one back--but
the financial costs of injuries and illnesses are $50 billion a
year. So we submit that preventing those injuries, preventing
those fatalities and eliminating those costs is actually good
for the bottom line and good for the economy.
So we strongly support this legislation and the OSH Act
provisions in it and urge its prompt adoption. Thank you.
Chairman Miller. Thank you very much. Thank you to all of
you for your testimony.
[The statement of Ms. Rhinehart follows:]
Prepared Statement of Lynn Rhinehart, General Counsel, AFL&CIO
Thank you for the opportunity to testify today in support of H.R.
5663, the Miner Safety and Health Act of 2010. On behalf of the AFL-
CIO, a federation of 56 national and international unions representing
more than 11.5 million working women and men across the United States,
I want to convey our strong support for this legislation and to urge
that it be enacted into law without delay. We appreciate the Committee
holding this hearing, and its steadfast efforts to strengthen the job
safety laws and protect worker safety and health.
Stronger safety and health protections for America's workers--its
miners and other working men and women--are urgently needed. Forty
years after the passage of the Occupational Safety and Health Act and
the Coal Mine Health and Safety Act, the sad fact is that too many
workers are still being killed, injured, and diseased on the job.
Tragedies like the recent blast at Massey's Upper Big Branch mine,
where 29 workers died, the explosions at the Tesoro Refinery in
Washington State and the Kleen Energy plant in Connecticut, which
claimed 13 more lives, and the recent explosion on the BP/Transocean
Deepwater Horizon oil rig in April, which killed 11 workers, are vivid
and painful illustrations of the need for stronger measures to protect
workers' lives. But these fatalities are just the tip of the iceberg.
In 2008, more than 5,200 workers were killed on the job by job
hazards--an average of 14 workers each and every day. Millions of
workers suffered injuries. The devastation and hardship these
fatalities and injuries cause to workers and their families are
incalculable. The direct cost of these injuries to employers in terms
of medical and lost wage payments is more than $52 billion each year.
When indirect costs such as lost productivity are added in, the annual
costs skyrocket to $156-312 billion.\1\ Clearly, more needs to be done
to reduce this toll and bring about greater attention to worker safety
and health.
---------------------------------------------------------------------------
\1\&AFL-CIO, Death on the Job: The Toll of Neglect (April 2010)
(citing data from Liberty Mutual Insurance).
---------------------------------------------------------------------------
In his testimony, United Mine Workers of America President Cecil
Roberts has described why the improvements in H.R. 5663 are needed to
bring about stronger safety and health protections for our nation's
miners. The AFL-CIO strongly supports these measures and the reforms
sought by the Mine Workers. My testimony will focus on the provisions
of H.R. 5663 that amend the Occupational Safety and Health Act of 1970
(OSH Act), our nation's primary worker safety law.
There is no question that the OSH Act has made a tremendous
difference in bringing greater attention to workplace safety and in
preventing countless fatalities, injuries, and illnesses. But since its
passage 40 years ago, the law has never been significantly updated or
strengthened, and as a result, the law is woefully out of date. The OSH
Act's penalties are weak compared to other laws, the government's
enforcement tools are limited, and protections for workers who raise
job safety concerns are inadequate and far weaker than the anti-
retaliation provisions of numerous other laws. The law simply does not
provide a sufficient deterrent against employers who would cut corners
on safety and put workers in harm's way.
H.R. 5663 would address several major shortcomings in the OSH Act
by (1) strengthening both the civil and criminal penalty provisions in
the law, (2) improving anti-discrimination protections for workers who
raise job safety concerns or otherwise exercise their rights under the
OSH Act, (3) requiring employers to fix hazards to ensure that workers
are protected while litigation over citations is pending, and (4)
giving victims and family members more rights to participate in the
enforcement process. These provisions, which are drawn from the
Protecting America's Workers Act (PAWA), H.R. 2067--legislation that
has been introduced in the last several Congresses and has already been
the subject of numerous Congressional hearings--will greatly improve
worker protections by updating and strengthening key provisions of the
law. PAWA contains other important measures to address shortcomings in
the OSH Act and improve worker safety and health, such as extending
OSHA coverage to millions of state and local public employees who are
not (and have never been) covered by the law, and enhancing worker and
union rights in the enforcement process. We continue to support the
additional measures contained in PAWA, and we urge their adoption.
I will now address each of the four major OSH Act provisions in
H.R. 5663.
1. Stronger Civil and Criminal Penalties for Violations of the Law
The OSH Act gives employers the responsibility to comply with
health and safety standards and protect workers from harm. Because
OSHA's inspection and enforcement resources are so limited, the system
largely relies on employers taking their responsibilities seriously and
complying on their own. Unlike the Mine Act, there are no mandatory
inspections under the OSH Act, even for the most dangerous industries
or workplaces. At current funding levels, federal OSHA only has enough
inspectors to inspect each of the nation's 8 million workplaces once
every 137 years.
Given how infrequently inspections occur, in order to provide a
strong incentive for employers to comply with the law and deter
violations, it is essential that there be strong enforcement when
workplaces are inspected and violations are found. But that is simply
not the case. Current OSHA penalties are too low to deter violations.
The average penalty for a serious violation of the law--defined as a
violation that poses a substantial probability of death or serious
physical harm to workers--was just $965 in FY 2009. The statute
authorizes up to $7,000 for these violations.
Even in cases of worker fatalities, the median initial total
penalty in FY 2009 was a paltry $6,750, with the median penalty after
settlement just $5,000. Many of these are fatalities caused by well-
recognized hazards: trench cave-ins, failure to lock-out dangerous
equipment, and lack of machine guarding. To cite just a few examples:
In January 2009, Andrew Keller was killed in a trench
cave-in in Freyburg, Ohio. Keller was 22 years old. The company,
Tumbusch Construction, was cited for three serious violations and
penalized $6,300. The penalties were later reduced to $4,500. Six
months later, in June 2009, OSHA found similar violations at another
jobsite of Tumbusch Construction. This time the company was cited for
both serious and willful violations with a total of $53,800 in
penalties proposed. The company has contested the violations.
A July 2009 fatality case in Batesville, Texas, where one
worker was killed and two workers injured when natural gas was ignited
during oxygen/acetylene cutting on a natural gas pipeline. The
employer--L&J Roustabout, Inc.--was cited for three serious violations
with $3,000 in penalties. The case was settled for $1,500.
In August 2009, Andrea Taylor, age 28, was killed on the
job at Affordable Electric in Lamar, South Carolina. South Carolina
OSHA cited the company for five serious violations of electrical and
lock-out standards with a proposed penalty of $6,600. In an October
2009 settlement, three of the violations were dropped and the penalties
were reduced to $1,400.
In August 2009, at SMC, Inc. in Odessa, Texas, a worker
was caught in the shaft of a milling machine and killed. The company
was cited for one serious violation. The $2,500 proposed penalty was
reduced at settlement to $2,000.
These are not meaningful penalties--they are a slap on the wrist.
Penalties of this sort are clearly not sufficient to change employer
behavior, improve workplace conditions, or deter future violations.
The OSH Act's civil penalties were last increased by Congress in
1990 (the only time they have ever been raised). Unlike all other
federal enforcement agencies (except the IRS), the OSH Act is exempt
from the Federal Civil Penalties Inflation Adjustment Act, so there
have not even been increases in OSHA penalties for inflation, which has
reduced the real dollar value of OSHA penalties by about 40 percent.
For OSHA penalties to have the same value as they did in 1990, they
would have to be increased to $11,600 for a serious violation and to
$116,000 for a willful violation of the law.
H.R. 5663 would strengthen the civil penalty provisions in the OSH
Act in several ways. First, the bill would increase civil penalties to
account for inflation since the last increase, and would index
penalties to inflation in the future. Second, the legislation would add
a mandatory minimum penalty of $20,000 ($10,000 for employers of 25 or
fewer employees) for violations that involve a fatality, and authorize
penalties of up to $50,000 for these violations. These provisions would
merely update the OSH Act's civil penalty provisions for inflation and
ensure that at least a minimum penalty is assessed when the violation
leads to a worker fatality. Third, the legislation would make clear
that an employer's history of violations in states with state OSHA
plans would be considered by the Secretary of Labor in deciding whether
to issue a citation for a ``repeat'' violation, which carries higher
penalties. These are modest measures, but they are much needed and long
overdue.
Criminal Penalties
The criminal penalty provisions of the OSH Act are exceedingly
narrow and weak. Under the OSH Act, criminal penalties for violations
of the law are limited to cases where a willful violation results in a
worker's death, and even then, the maximum jail term is six months--a
misdemeanor. (The Act also authorizes prosecutions for false statements
and for giving advance notice of an OSHA inspection, with a maximum six
month jail term for each).
By contrast, both the Coal Mine Health and Safety Act and
environmental laws authorize prosecutions with more significant
penalties for knowing violations of the law, and they do not require
that a fatality or other harm occur as a precondition of prosecution.
The environmental laws also authorize prosecutions for ``knowing
endangerment''--knowing violations of the law that put others at
imminent danger of death or serious harm--which carry far greater
penalties (15 years) than does the OSH Act (6 months for willful
violations that cause a fatality). Compare, e.g., 42 U.S.C. 6928(e) and
(f) (knowing endangerment under the Clean Air Act) and 33 U.S.C.
1319(c)(3) and (6) (knowing endangerment under the Clean Water Act)
with 29 U.S.C. 666(e) (OSH Act). The six month maximum penalty under
the OSH Act for willful violations that result in a worker fatality are
even weaker than the one-year maximum penalty under the Wild Free-
Roaming Horses and Burros Act for maliciously harassing a wild horse or
burro on public lands. 16 U.S.C. 1338. My point here is not in any way
to denigrate strong criminal enforcement provisions for violations of
wildlife and environmental protection laws, but rather to say that the
weakness of the OSH Act's penalties when compared to these laws sends a
terrible message about the value the law places on workers' lives, and
undermines strong and credible enforcement of the job safety law.
Because the OSH Act's criminal penalty provisions are so weak, very
few cases are prosecuted by the Department of Justice. Given its
limited resources, DOJ understandably focuses on prosecuting felonies
with meaningful sanctions, not misdemeanors. As best as we can tell
from available records, in the 40 years since the passage of the OSH
Act, only 79 cases have been prosecuted under the OSH Act, with
defendants serving a total of 89 months in jail. By comparison, in FY
2009 alone, there were 387 criminal enforcement cases initiated under
federal environmental laws and 200 defendants charged, resulting in 76
years of jail time and $96 million in penalties. In other words, there
were more prosecutions, penalties, and jail time in one year for
violations of environmental laws than have occurred for violations of
the OSH Act in OSHA's entire 40-year history.
To illustrate this disparity between the criminal provisions of the
OSH Act and environmental laws, take the prosecution of BP after an
explosion at its Texas City, Texas oil refinery in 2005. That explosion
killed 15 workers and injured 170 others. OSHA issued citations and
civil penalties against BP, and settled for $21 million. (OSHA recently
announced the largest fine in OSHA's history against BP for the
company's failure to abate hazards as promised in the earlier
settlement).\2\ The Justice Department prosecuted BP, and BP pleaded
guilty and agreed to a $50 million fine, not to violations of the OSH
Act but for violations of the Clean Air Act. The OSH Act and its
misdemeanor penalty was simply not part of the equation.
---------------------------------------------------------------------------
\2\&Steven Greenhouse, ``BP to Challenge Fine for Refinery Blast'',
N.Y. Times, (October 31, 2009)
---------------------------------------------------------------------------
H.R. 5663 would begin to correct this disparity and bring the OSH
Act's criminal provisions more in line with other laws. It is important
to point out that even as amended by H.R. 5663, the OSH Act's
provisions would still be narrower and weaker than the Mine Act and
environmental laws. Under H.R. 5663, criminal violations of the OSH Act
would be made a felony, instead of a misdemeanor, and maximum jail
terms would be increased to 10 years. Criminal prosecution would be
authorized for knowing violations that lead to serious bodily harm, in
addition to those that lead to deaths. Corporate officers and directors
could be held personally criminally liable for violations, as is the
case under the Mine Act and the environmental laws. These provisions
would begin to make the criminal provisions of the OSH Act a more
meaningful deterrent to violations that cause death or serious harm.
These reforms are sorely needed and are long overdue.
2. Improved Anti-Retaliation Protections
There is universal agreement about the importance of workers being
involved in addressing safety and health hazards at the workplace.
Workers see first-hand the hazards posed by their jobs and their
workplaces, and they are an important source of ideas for addressing
these hazards. But in order for workers to feel secure in bringing
hazards to their employer's attention, they must have confidence that
they will not lose their jobs or face other types of retaliation for
doing so. All too often, fear of retaliation for ``rocking the boat''
leads workers to stay quiet about job hazards, sometimes with tragic
results, as we saw with the Massey mine explosion in April.\3\
---------------------------------------------------------------------------
\3\&Dan Barry, et al., ``2 Mines Show How Safety Practices Vary
Widely'', N.Y. Times (April 22, 2010). See also Peter Kilborn, ``In
Aftermath of Deadly Fire, a Poor Town Struggles Back,'' N.Y. Times
(Nov. 25, 1991) (workers at the Imperial Food chicken processing plant,
where 25 workers died in a fire, did not raise safety complaints
because they feared losing their jobs).
---------------------------------------------------------------------------
Unfortunately, the anti-retaliation protections under the OSH Act
for workers who raise job safety concerns or exercise their other
rights under the law are woefully inadequate and fall far short of the
protections offered under many other anti-retaliation laws--including,
ironically enough, laws enforced by OSHA. The U.S. Government
Accountability Office (GAO) surveyed seventeen whistleblower statutes
enforced by OSHA and found that the OSH Act contains much weaker
whistleblower provisions than these other federal laws.\4\
---------------------------------------------------------------------------
\4\&Government Accountability Office, Whistleblower Protection
Program: Better Data and Improved Oversight Would Help Ensure Program
Quality and Consistency 50-65 (Jan. 2009).
---------------------------------------------------------------------------
Four weaknesses are particularly problematic: (1) the OSH Act's
short statute of limitations for filing whistleblower complaints (30
days); (2) the absence of preliminary reinstatement while cases are
proceeding through the system; (3) the lack of an administrative
process for hearing cases; and (4) the absence of a private right of
action for workers to pursue their own cases before the agency or in
federal court in situations where the Secretary of Labor fails or
chooses not to act, which all too often is the case.\5\ These statutory
shortcomings leave workers with little or no recourse when they face
retaliation for reporting hazards or injuries or exercising their other
rights under the law. This undermines the OSH Act's encouragement of
full and active worker involvement in workplace safety and health.
---------------------------------------------------------------------------
\5\&According to data provided by OSHA, in FY 2009, federal OSHA
received 1,280 section 11(c) discrimination complaints, and completed
action on 1,173 cases. Only 15 of these cases were recommended for
litigation and another 246 settled. Eight hundred thirty-four of these
cases were dismissed by the agency, of which 104 were appealed by
complainants to the OSHA National Office. Of these 10 were remanded
back to the regions for rehearing. Of the cases that are found
meritorious by investigators, few are actually litigated by the
Solicitor of Labor (SOL). In FY 2009, four of the 15 case recommended
for litigation went to court. Since FY 1996, only 32 lawsuits were
filed out of 467 cases referred by OSHA to SOL for litigation.
---------------------------------------------------------------------------
H.R. 5663 would correct these shortcomings and bring the OSH Act's
anti-retaliation provisions into the mainstream of other whistleblower
laws. The bill extends the statute of limitations for filing complaints
from 30 days to 180 days, putting the OSH Act on par with the Surface
Transportation Act and other major anti-retaliation laws. The bill
establishes an administrative process for handling retaliation cases,
similar to other whistleblower laws, so that the Secretary of Labor is
not required to go to court to pursue these cases but can handle them
administratively. The bill establishes timeframes for processing cases,
and gives workers the right to pursue their cases before an
administrative law judge or court if the Secretary of Labor delays
action or chooses not to pursue the case. The bill makes clear that the
anti-retaliation protections apply to the reporting of an injury or
illness, which is important given the chronic underreporting problem
and the prevalence of employer practices and policies to discourage
reporting.\6\ And, H.R. 5663 codifies workers' right to refuse
hazardous work, a long-established right that was upheld by the U.S.
Supreme Court decades ago. Whirlpool Corp. v. Marshall, 445 U.S. 1
(1980).
---------------------------------------------------------------------------
\6\&See GAO, Workplace Safety and Health: Enhancing OSHA's Records
Audit Process Could Improve the Accuracy of Worker Injury and Illness
Data (Oct. 2009).
---------------------------------------------------------------------------
Workers who raise safety and health concerns or report injuries
should be protected against retaliation for doing so. H.R. 5663 will
update and strengthen the anti-retaliation provisions in the OSH Act
and bring these protections up to par with other anti-retaliation laws.
Again, this is a much-needed change that is long overdue.
3. Abatement of Hazards During Litigation
Under the OSH Act, when OSHA issues a citation to an employer, OSHA
sets a date by which the employer must correct the violation, i.e.,
correct the problem that led to the citation. The vast majority of
employers fix the problem and do not challenge OSHA's citation. But if
the employer does challenge the citation, the abatement period is
tolled while the case is pending, which can take years. In the
meantime, unless the employer decides to correct the problem on its
own, workers continue to be exposed to the hazard, putting them at risk
of harm.
Under the Mine Act, mine operators are required to abate violations
even if they challenge the citation itself. The same is true under the
state OSHA program in the state of Oregon. To our knowledge, these
provisions have worked smoothly, and employers have been able to comply
with these requirements without significant hardship.
H.R. 5663 would incorporate this abatement requirement into the OSH
Act. Except for violations that are designated ``other than serious,''
the period for abating the hazard would begin to run upon issuance of
the citation, and would not be tolled in situations where an employer
decided to challenge the citation before the Occupational Safety and
Health Review Commission. This provision will better assure that
workers are protected from hazards while litigation is ongoing.
The legislation provides a safety valve for those situations where
employers believe the abatement requirement would cause great hardship.
H.R. 5663 establishes an expedited procedure through which employers
may seek a stay of the abatement requirement before the Review
Commission. The Commission is authorized to stay the abatement
requirement in those instances where employers are able to demonstrate
a substantial likelihood that they will succeed in challenging the
citation, that worker health and safety will not suffer in the interim,
and that the employer will suffer irreparable harm absent a stay. These
factors are comparable to the factors for obtaining a stay under the
Federal Rules of Civil Procedure. They provide a fair and expedited
process for employers to have their day in court, while ensuring that
workers are protected from possible harm.
Amending the OSH Act to require employers to abate hazards during
litigation is a significant improvement over the current law. This
provision will enhance worker protections while providing employers due
process to seek a stay in appropriate circumstances. We strongly
support this provision and urge its adoption.
4. Victims and Family Members Rights
H.R. 5663 enhances the right of victims and family members to
participate in the OSHA enforcement process. Victims and family members
would have the right to meet with OSHA investigators, receive copies of
any citations, and to be heard before any settlement is reached. We
believe these measures are important and appropriate. Victims and
family members have a keen interest in the OSHA proceedings surrounding
workplace injuries and fatalities, and they deserve information and the
right to be heard.
Conclusion
The improvements to the OSH Act in H.R. 5663 are urgently needed to
strengthen the job safety law and protect workers from harm. The bill
will help deter violations of the law, bring about greater compliance,
and better protect workers who expose job hazards and exercise their
rights. We urge the Committee and the Congress to approve the
legislation without delay. Again, thank you for the opportunity to
testify today. I would be happy to respond to any questions.
FEDERAL OSHA AND STATE OSHA PLAN INSPECTION/ENFORCEMENT ACTIVITY, FY
2009
------------------------------------------------------------------------
Federal OSHA State plan OSHA
------------------------------------------------------------------------
Inspections......................... 39,057 61,310
Safety.......................... 33,256 48,221
Health.......................... 5,801 13,089
Complaints...................... 6,675 8,612
Programmed...................... 24,336 39,676
Construction.................... 23,952 26,245
Maritime........................ 338 47
Manufacturing................... 7,312 9,998
Other........................... 7,455 25,020
Employees Covered by Inspections.... 1,332,583 3,011,179
Average Case Hours/Inspection:
Safety.......................... 18.5 16.1
Health.......................... 34.8 27.0
Violations--Total................... 87,491 129,289
Willful......................... 395 171
Repeat.......................... 2,750 2,046
Serious......................... 67,439 55,090
Unclassified.................... 10 14
Other........................... 16,697 71,456
FTA............................. 200 512
Penalties--Total ($)................ 94,981,842 59,778,046
Willful......................... 13,537,230 3,466,130
Repeat.......................... 10,644,022 3,594,205
Serious......................... 65,072,944 43,018,854
Unclassified.................... 128,000 131,500
Other........................... 3,907,648 7,390,658
FTA............................. 1,691,998 2,176,699
Average Penalty/Violation ($)....... 1,086 462
Willful......................... 34,271 20,270
Repeat.......................... 3,871 1,757
Serious......................... 965 781
Unclassified.................... 12,800 9,393
Other........................... 234 103
FTA............................. 8,460 4,251
Percent Inspections with Citations 7.1% 13.1%
Contested..........................
------------------------------------------------------------------------
Source: OSHA IMIS Inspection Reports, FY 20097,i1,s50,9,9,9,9,9,9
Alabama............................. 20 298,010
Alaska.............................. 5 21,900
Arizona............................. 17 164,995
Arkansas............................ 15 166,675
California.......................... 160 1,640,385
Colorado............................ 11 278,400
Connecticut......................... 8 42,475
Delaware............................ 3 42,040
Florida............................. 81 643,166
Georgia............................. 43 376,205
Hawaii.............................. 6 28,625
Idaho............................... 5 54,350
Illinois............................ 52 129,315
Indiana............................. 42 172,913
Iowa................................ 21 246,900
Kansas.............................. 12 178,550
Kentucky............................ 31 125,275
Louisiana........................... 48 99,215
Maine............................... 6 14,160
Maryland............................ 20 90,676
Massachusetts....................... 23 148,200
Michigan............................ 28 142,090
Minnesota........................... 14 260,600
Mississippi......................... 14 106,360
Missouri............................ 20 117,125
Montana............................. 5 13,000
Nebraska............................ 16 312,737
Nevada.............................. 11 93,100
New Hampshire....................... 3 3,500
New Jersey.......................... 39 201,567
New Mexico.......................... 6 23,200
New York............................ 53 625,632
North Carolina...................... 54 171,245
North Dakota........................ 4 27,962
Ohio................................ 39 134,895
Oklahoma............................ 25 281,150
Oregon.............................. 25 79,250
Pennsylvania........................ 43 262,315
Rhode Island........................ 4 7,900
South Carolina...................... 17 13,745
South Dakota........................ 3 7,605
Tennessee........................... 42 195,920
Texas............................... 167 1,562,851
Utah................................ 14 21,600
Vermont............................. 2 5,250
Virginia............................ 36 678,652
Washington.......................... 32 77,625
West Virginia....................... 10 242,880
Wisconsin........................... 23 110,045
Wyoming............................. 8 33,156
-----------------------------------
National Median State Plan States. ................ ................
National Median Federal States.... ................ ................
-----------------------------------
Total or National Average\4\.... 1,450 11,118,267
\1\OSHA IMIS Fatality Inspection Reports, FY 2009. Report was
issued on January 7, 2010.
\2\Median initial and median current penalties on FY 2009
fatality investigations provided by OSHA on April 14, 2010.
\3\Under the OSHAct, states may operate their own OSHA programs.
Connecticut, Illinois, New Jersey and New York have state programs
covering state and local employees only. Twenty-one states and one
territory have state OSHA programs covering both public-and private-
sector workers.
\4\National average is per fatality investigation for all
federal OSHA and state OSHA plan states combined. Federal OSHA average
is $8,152 per fatality investigation; state plan OSHA states average
is $7,032 per fatality investigation.
COMPARISON OF ANTIRETALIATION PROVISIONS
----------------------------------------------------------------------------------------------------------------
Right to get
Statute Statute of Preliminary hearing before
limitations reinstatement ALJ or court
----------------------------------------------------------------------------------------------------------------
Federal Railroad Safety Act (amended 2007)................... 180 days Yes Yes
Consumer Product Safety Improvement Act (2008)............... 180 days Yes Yes
Surface Transportation Assistance Act (1982, amended 2007)... 180 days Yes Yes
Aviation Investment And Reform Act (2000).................... 90 days Yes Yes
Sarbanes-Oxley (2002)........................................ 90 days Yes Yes
Patient Protection and Affordable Care Act (2010)............ 180 days Yes Yes
Clean Air Act (1977)......................................... 30 days Yes Yes
Mine Safety and Health Act (1977)............................ 60 days Yes Yes
OSH Act (1970)............................................... 30 days No No
----------------------------------------------------------------------------------------------------------------
______
Chairman Miller. Mr. Stewart, again, thank you. Mr. Roberts
referred to your courage.
I made the statement at the end of the hearing in Beckley
that this is an official oversight hearing, this is a
continuation of our investigation, and that people ought to
understand that any actions of intimidation are an action
against obstructing the official duties of this congressional
committee. But thank you very much for being here.
I was always mystified when I first started working in my
home town. I grew up in a refinery town, and there used to be a
big clock out in front, or a big calendar, and there were
always accident-free days. When I got inside the refinery over
a number of years, working there in the summer and after school
and different times, I was always amazed when you would see
people get just crushed, and the next day I would look at the
clock to see if it was up there that we lost a day here. And I
would say, ``What happened to that guy?'' And they would say,
``He is here, he is on site.'' They had him show up. They got
him to the county hospital, and he is back on site, but he
isn't on our team anymore because he can't walk or whatever.
So I always thought that was a little bit misleading, but I
always look at it when I visit the different refineries, and
they are still doing it. But thank you for being here.
It just amazes me, there is nothing corporations fear more
than shareholders with power or workers with power. They just
can't get over the idea that maybe--they keep talking about
their obligation to the shareholders and their care for their
workers, and yet they just don't want them to have any power,
not even to be able to stop an unsafe workplace.
Mr. Grayson, let me ask you a question here. As I look
through your data and your Safe Performance Index, when I look
at the longwall mines, and I think there were 40 longwall
mines, is this the universe of longwall mines? Are there more?
Mr. Grayson. Yes, sir, that is correct. There were 40
longwall mines that were active. There are two others in--and
one that was not yet active.
Chairman Miller. So of the active ones in 2009, a quarter
of them essentially had no withdrawal orders at all during that
calendar year.
Mr. Grayson. That is approximately correct, yes, about a
quarter.
Chairman Miller. And when you get down to number 22, before
you get to six withdrawal orders.
Mr. Grayson. Number 22.
Chairman Miller. I think it is 23. Shoal Creek, is it? You
get down to Shoal Creek, which I think had five, and the next
one has six. And then you get down to the bottom of this 40,
and you get 56 withdrawal orders in one calendar year, and that
is the Massey mine. So one thing, apparently it is possible to
operate a mine without a withdrawal order.
Mr. Grayson. Oh, yeah.
Chairman Miller. A quarter of them are doing that, and we
are dealing with a substantially small number.
Mr. Grayson. Of all the 82 mines, 20 of 21 did not have an
order of the top 25 percent. Of the top 25 percent mines, 21 of
them out of 84 is what it was because there were two duplicate
mines, but 20 out of 21 had no orders.
Chairman Miller. And your Safe Performance Index is
designed to provide intensity levels as to the seriousness of
these various incidents; is that correct? I am oversimplifying,
I am sorry.
Mr. Grayson. Yes. The two highest weighting factors are on
severity measure, which includes the statutory charges for
fatalities and disabilities. But the highest weight also goes
to the orders.
Chairman Miller. And you think that would help us, as
opposed to the current Patterns of Violation, exactly how?
[The information follows:]
Mr. Grayson. Well, on there, we are getting to the root of
the problem that everyone has alluded to. And that is, it is a
very serious thing to take away the opportunities for
fatalities as well. So focusing on a mine that has high injury
rates and/or high days that are lost is imperative to take care
of that part of the safety culture. And then the other part of
it is, of course--is the orders, which are the most severe, if
you will, of the conditions that are being found and cited. And
then S&S would follow after that.
Chairman Miller. And so you think that would give a more
accurate picture of what is going on in the mines overall.
Mr. Grayson. Yes, sir. I think we need both of those.
Chairman Miller. Thank you.
Mr. Watzman, you said that you are concerned about this, or
you oppose the provisions in this mine where operators pay
miners their full wages if an operator closes an unsafe mine
area in anticipation of a forthcoming MSHA closure order.
Mr. Watzman. Our concern there, Mr. Chairman, is that it
will detract from operators taking preemptive action to address
safety conditions in the mine.
Chairman Miller. You have a list of operators that would
not close an unsafe area if they had to pay the workers in that
area?
Mr. Watzman. No. I think operators would close an unsafe
area of the mine. In fact, they do that today.
Chairman Miller. So then which is it? This is a problem or
it isn't?
Mr. Watzman. It is a problem, Mr. Chairman.
Chairman Miller. For what operators?
Mr. Watzman. You have to look at the totality of the
legislation. I don't think the current staff----
Chairman Miller. Well, let's look at this provision for a
second. Is it a problem or isn't it a problem.
Mr. Watzman. I am going to speak to this provision if I
could.
The current law sets limits on the period of time under
which a miner must be paid when there is a safety violation
when there is an order issued. It is defined in the statute.
The legislation that you have introduced and is before the
committee creates an open-ended situation where the operator
doesn't always control the outcome of that situation. The
operator has to work with the Federal Mine Safety and Health
Administration to have that order lifted, and there are no
controls we have over the actions of the Mine Safety and Health
Administration. So during the pendency of our discussions with
the agency, we have to continue to pay miners in perpetuity,
and that is a problem for us.
Chairman Miller. And the operator has the ability in a
large mine to continue to mine coal, because that area may be
closed, but not prevent the operation of the mine; but the
worker who has been exposed to an unsafe work area, he just
subsidizes that with his loss of wages.
Mr. Watzman. Well, that is not always the case, Mr.
Chairman. It depends on how the order is written. The order may
apply to a particular area of a mine or it may apply to its
entirety.
Chairman Miller. I understand that. I am making the point
that the operator may not necessarily--the damage to the miner
may be more severe than the damage to the operator here, but
the miner may not have created the unsafe working condition.
Mr. Watzman. Well, I agree with you, but what we want to do
is prevent the damage from either one----
Chairman Miller. I would still like a list where that is a
problem, where they might not close an unsafe area because they
might have to pay workers. I would like to see the names of the
individuals.
Mr. Kline.
Mr. Kline. Thank you, Mr. Chairman. Thanks again to our
witnesses.
Mr. Stewart, I thank you. You gave very compelling
testimony in West Virginia and you are here again today. You
certainly outlined an unacceptable and untenable situation.
That brings me to Mr. Roberts' quote when he was talking
about the 41 fatalities. I believe you said, sir, that ``we
have got to find out why,'' and I couldn't agree with you more.
We have at least three investigations going on, and we do have
to find out why.
Now, Professor Grayson, I want to thank you for your
research in the development of the Safe Performance Index. I
think that is very, very helpful to us. And I hope anything
that goes forward as we continue to work with this legislation
will include that. It really is very, very impressive work.
Mr. Watzman, I am going to sort of turn to you and Mr.
Snare here for just a minute about section 403--I know I have
to kind of dig around in here--403, the Underground Coal Miner
Employment Standard. It says, ``In general, an operator of an
underground coal mine may not discharge or constructively
discharge a miner who is paid on an hourly basis and employed
in an underground coal mine without reasonable job-related
grounds based on a failure to satisfactorily''--and so forth,
that section of the bill.
This does appear to create a brand new employment standard,
not for all mine workers, but just for underground coal
operations. And that sort of raises the obvious question of why
this provision singles out underground coal miners from
protection while excluding all other workers in the mine
industry.
But it really bothers me a little bit that this provision
nullifies the at-will employment doctrine that is an important
component of all of our Federal labor laws.
Do you have any comments about these provisions and what
this may mean for mine operators?
Mr. Watzman. Mr. Kline, we share your concern as to the
impact this has on the at-will employment doctrine. Quite
honestly, we don't know why this is here. We don't see the
necessity for creating a special category of protection for
underground coal miners as opposed to the rest of the
workforce. This is one that we hope over time to be able to
have further discussion with the authors of the bill to
understand the necessity, the need for this, and hopefully work
with them to try to come to a resolution once we better
understand the need.
Mr. Kline. Okay. Thank you.
I had a follow-on question for Mr. Snare, but instead I am
going to pick up on the Politico article that ran this morning,
``Danger on the Hill,'' the one Dr. Price referred to. And the
article says, ``Workplace safety experts say that if Congress
were a private sector business it would be at risk for a
massive fine from government regulators.''
My question is, under 5663, the language that we are
looking at here, does it appear to you that OSHA would have the
ability to shut down the entire congressional complex in order
to achieve abatement if it were to apply to Congress?
Mr. Snare. Well, Congressman Kline, I think your question
really illustrates the problems and concerns generally that we
have raised with this particular bill. I mean, what is the way
that is going to force Congress to address these particular
issues? There were 6,300 hazards--I saw the same article--a
quarter of which were involving life-threatening or potential
fatalities. What is the best way at the end of the day to
resolve those hazards and make the job site safer? It is to
work in a cooperative spirit in some kind of way to set up a
mechanism by which to resolve it cooperatively, or to come in
with litigation, issue an immediate abatement order and
essentially then put the onus to somehow try to shut down
Congress.
You heard the questions from Congressman Price to Solicitor
Smith as to who they are going to go after in terms of an
officer or director. There are all sorts of problems with this.
And again, it is a recipe for confusion in my judgment.
Mr. Kline. Thank you. I am sure that there are probably
millions of Americans who would applaud shutting down the
entire complex, and maybe some of us on some given days. But it
does raise sort of an interesting question if you look at this
in the context of other businesses, you can shut down an entire
complex over this.
Mr. Chairman, I know we are running out of time and we have
some members who would still like to ask questions, so I will
yield back the balance of my time.
I am sorry, did you have a comment.
Ms. Rhinehart. I was just hoping that I could just make a
comment in response to both of your points.
Mr. Kline. Absolutely.
Ms. Rhinehart. The first, in regard to the just cause
provision that the legislation puts in place for underground
coal miners and the fact that that changes the at-will
employment situation, that is right. And Congress does that all
the time when Congress decides that there is an important
public policy reason behind that, when it decides that workers
need be to protected in a different way than the at-will
standard. So that is not unusual that Congress makes a
determination----
Mr. Kline. That doesn't necessarily mean it is right for
this. That was my question to Mr. Snare.
Ms. Rhinehart. I wouldn't say it is right, but it is
certainly not unprecedented. Congress does that all the time.
And in terms of OSHA shutting down Congress, the point in
the legislation is to require employers to fix hazards, not to
have OSHA shut down businesses. The point is on fixing the
hazards. So the legislation applies----
Mr. Kline. Well, thank you. If I can just interrupt for a
minute. There is a provision, though, for shutting them down.
So I realize that it is somewhat of an absurd example that was
brought forth in Politico, but it does underscore the point
that you can shut down a complex, and shutting down Congress is
kind of another issue. I yield back.
Chairman Miller. Ms. Woolsey.
Ms. Woolsey. So some of you will be pleased to know that
the enlarged PAWA bill actually covers all public employees, so
that would be the step before including congressional offices.
While congressional offices are covered by national labor
relations and all other wage and hour laws now, so we can go
the next step, and we will one of these days.
Mr. Snare, tell me, who is the coalition? What is it made
of? Who are these people, by name, who actually believe--
believe--that during bad economic times that our workers are
expendable, that we don't need to protect them from hazards and
death and poor working conditions? And also, part of it is that
these workers, the coalition, do they believe that a 1900s-type
of operation of mines is the way to take care of workers? I
mean, who are these people? Can you give us a list of them?
Mr. Snare. I am happy to, Congresswoman Woolsey, and also
raise an issue with the premise of your question.
The Coalition for Workplace Safety--you can go to our Web
site--is not mysterious. There is a wide variety of trade
associations representing small businesses, large businesses.
Examples would include the Chamber of Commerce, Associated
Builders and Contractors, the Retail Industry Leaders
Association. I could name you--there are probably 30 or 40, and
I would be happy to supplement the list representing almost
every business in America, both large and small. It is not just
large corporations; it would probably be single
proprietorships. And again, to the premise of your question as
to how they regard workers, the Coalition for Workplace
Safety----
Ms. Woolsey. Okay, fine. But do they know that you come
here in front of us and say that during tough economic
challenges, that you don't have to take care of your workers?
Mr. Snare. That is not what I said, Congresswoman, either
in my oral statement or in my written statement.
Ms. Woolsey. Well, you did. You said that if we do it
right, that workers are going to lose their jobs.
Mr. Snare. We are merely raising the issue of the costs for
impact, Congresswoman.
Ms. Woolsey. Mr. Roberts, I have a question for you. For
all of my understanding of things, why isn't every single miner
a member of your union?
Mr. Roberts. I would be glad to support that legislation.
Ms. Woolsey. What are the operators doing that keep them
from having--is something happening that keeps them from being
able to unionize?
Mr. Roberts. I would, just by way of example, use the Upper
Big Branch mine, if I might. Those miners had three attempts to
join a union there. The first vote that was held there was a
tied vote, and unions lose on all ties. But not only is the CEO
of this company a violator of every health and safety law
imaginable--and every environmental law, by the way, he has had
some of the worst environmental situations in the history of
mining--he is also a very willful violator of the labor laws in
this country.
At the first vote at Upper Big Branch that ended up in a
tie, he made it clear to those workers, your choice here is not
whether you are union or not, your choice here is if you vote
for the union, I am shutting this mine down. So he gave the
workers a choice of having a job or not having a job. And we
see that frequently, but very much so with this particular
company that has had such a terrible health and safety record.
Ms. Woolsey. So, Mr. Stewart, ``Goose,'' I would like you
to speak to this question of mine.
Mr. Stewart. Okay. I was there during those organizing
drives. And Mr. Roberts is correct. The CEO, Mr. Blankenship--
he practically lived at that mine--had closed-door meetings
with the employers--the union does not have that right. He
would have diagrams and he would explain, here you get all
these things from Massey, over here you get nothing from the
union. He would make it look like they were going to starve if
they voted a union in.
Plus they would give out extraordinary bonuses. They would
take his men on trips to Dollywood, Busch Gardens, other
places. I never participated, I want to make that clear. And he
would threaten to shut the mine down. I would try to tell those
guys, ``He can't shut this mine down, that is not up to him,''
but they believed these things. And he would hammer into them
day after day. And he would get enough of them convinced--
because they would look up to him like a father figure is what
I thought--and they would say, ``Oh, he is right, he wouldn't
lie to me.'' So he would sway enough votes to stop them from
voting in the UMWA. So that is part of how an organizing drive
works in the world of Massey.
Ms. Woolsey. I have used all my time. May I ask one more
question?
Chairman Miller. Finish your question.
Ms. Woolsey. All right, just quickly. So following the
accident, do the workers still believe Mr. Blakenship is the
good father?
Mr. Stewart. No, ma'am, I personally don't think so; at
least a lot of them that did before don't. But I know for a
fact, since the accident, they still blatantly flaunt the laws.
I know of one boy personally, he has already quit a Massey
mine and went to a UMWA mine--there happens to be jobs
available now. That hasn't always been the case. You either
worked for them if you had a job or you didn't work. And so
they abused that fear part. Yet this boy was getting low air
ratings on the section in which he was working--same thing we
got at UBB all the time--and he was told to put it in the fire
boss book as correct, and he refused to do it. So he quit. He
was able to secure another job.
But things like that, that is just another example of how
they just blatantly flaunt the law.
Ms. Woolsey. Thank you so much for your honesty with us.
Chairman Miller. Mr. Guthrie.
Mr. Guthrie. Thank you, Mr. Chairman. I will be real brief,
and then I am going to yield real quick.
I think Ms. Rhinehart said $965 is the top fine for a
fatality. And I agree, I think we need to look at that. But I
also don't think that it was implied that businesses calculate
$965 versus the life of somebody working when you put them in
unsafe positions based on a low fine. I don't think businesses
go out every day and try to put people into bad positions.
The other one is, Mr. Roberts, you said if you want to stop
the lawbreakers--which is true, you just listed a whole set of
laws that Massey, you said, has violated--which I am taking
your word for it--and there are also 31 or 41 fatalities. So
the questions we are really asking and we are trying to sort
out here is, we have this incident that happened, it is a
tragedy, where laws are on the books not enforced; and if not,
let's enforce those, because not only did this law look at this
mine, it also expands other things at OSHA.
But I am going to yield to my friend from West Virginia
because we are almost out of time.
Mrs. Capito. Thank you.
I would like to ask Mr. Grayson, in your testimony, you
talked about we need to facilitate the creation of a safety
culture of prevention of hazardous conditions. A safety culture
being across the board, not just the operator, but the miners
themselves, the enforcement, MSHA and others that enforce the
laws.
From what you have heard today, we have had a lot of
emphasis on Patterns of Violations and addressing how to create
this culture of safety. In your opinion, does this bill
adequately address the other issues; for instance, individual
miner training of MSHA inspectors, and all the things that
there have been some questions about that you probably use as
your risk assessment as well?
Mr. Grayson. Honestly, I can't address that one, especially
about the training MSHA inspectors. That is an internal
problem, obviously, that they have to solve, and I think they
probably will solve it, but that is kind of a distinct issue.
And the culture it is looking at is building a culture of
safety, but it is a preventive-type culture. And I do see this
process of remediation, once you have been identified as a
high-risk mine, building that kind of a culture over a period
of four quarters, those valuation points.
Mrs. Capito. Thank you.
Mr. Roberts, Mr. Rahall asked an interesting question in
the last panel about the inspection site of an explosion
turning into like a police scene and excluding anybody except
the inspectors who are on the team to actually do the
investigations.
Now, you actually went into the Upper Big Branch mine. I
would like to know, A, what you learned and your impression of
what he posited out there? But the other thing, it has been
kind of the topic of conversation in West Virginia, who should
be participating in these inspections, who should be allowed
in? What is your opinion on that?
Mr. Roberts. Well, I think you have two possibilities to
look at there, Congresswoman Capito. One is what the
current law says, and whether or not we would want to go to
something similar to what Congressman Rahall is suggesting.
The current law allows for the miners themselves to
determine a representative. And it is over and above whether it
is a union mine or non-union mine. The miners at Upper Big
Branch after this explosion designated the UMWA to be their
representative. The law allows us as their representative to be
a full participant in this investigation, or at least we think
the law says that, which clearly allows us to go underground
with the Federal and State inspectors and do everything and
anything that they are doing.
I was listed, by the way--it is one of the things that Mr.
Blakenship failed to mention in his attack on allowing me to go
underground. I would mention that I have had 39 years'
experience in this business, been in probably as many coal
mines as just about anybody has. So to suggest that Cecil
Roberts shouldn't go in this mine, I was listed as one of the
representatives when that was given to MSHA, so I could be up
there every day if I wanted to and go into this mine every day
with the Federal and State inspectors.
And by the way, it was his idea to allow, as he called--I
forget how he termed it--for others to go in this mine, he
wanted to go. And then at the last minute his public relations
people decided it was better to say we shouldn't allow anybody
in the mine. He didn't go. Even his own people thought he was
coming the day I was there.
So the law currently says that representative miners
clearly can be a full participant in the investigation, which I
took advantage of that. Whether or not we could ever get to the
point where we could make this MSHA making the mine over, I
think they actually have, I believe, the authority to do that
if they elected to do it. But the problem they have is obvious,
that they would have to bring people in there to run the
ventilation, they would have to bring people in there to make
sure the electricity was on--I am talking about the government
would. That inhibits going to a police state. And that is the
problem with that approach.
Mrs. Capito. Well, I think the bottom line for you and for
me and everybody in this room is we want the answers, we want
accurate answers to address this problem. So thank you very
much.
Mr. Guthrie. Thank you, I yield back.
Chairman Miller. Mr. Holt.
Mr. Holt. Thank you, Mr. Chairman. And thank you again for
holding these hearings.
Professor Grayson and Counsel Rhinehart, you have presented
a very effective use of statistics. And Mr. Roberts, you bring
the history of mining and mine regulation alive.
Thank you for excellent testimony. And your powerful story
about the young yet not yet certified miner is a story everyone
in this country should hear.
As someone who grew up in West Virginia and was raised
with, from my earliest memory, admiration for the courage and
the work ethic of miners, I have to tell you, Mr. Stewart,
Goose, you are an embodiment of courage. Thank you for what you
do, but especially thank you for what you have done today. Not
easy, I am sure.
With that, let me yield any remaining time to my colleague
from West Virginia, Mr. Rahall.
Mr. Rahall. I thank the gentleman for yielding.
Let me just follow up and commend Mr. Stewart, as well, for
your courage and taking the time, being with us today.
In your testimony, you said it so well. You said, ``This
bill must pass to keep coal companies honest or to make them
pay the price for their unscrupulous behavior.'' Here is the
most important line: ``Partisanship needs to be set aside on
this legislation because human lives are at stake.''
You said that, Goose. Thank you for saying that. Because it
is often a fear in this contentious election year that these
efforts may morph into a political exercise, those harshly
against it, knowing that they have the party of ``no'' in the
other body to stop whatever may pass this body. And I hope that
is not the case. We owe more to the miners who perished at UBB
than to use this issue as any political talking point.
So I hope, Mr. Watzman, Mr. Roberts, UMWA and NMA will
remain engaged with this committee, remain engaged with the
staff of this committee who worked so long and hard on this
bill, who have been on the scene, who were on the scene the
morning after UBB happened, who have the knowledge, the
expertise, have been around in the agencies and been around
this Hill for decades. Let's put it that way.
I hope you will remain engaged with them, resist the
inertia that too often comes in election years to retreat into
partisan corners, or each Member offer their own proposal,
pitting one Member's proposal against another. I hope we don't
get into that. And I hope you will agree that you will help us
do that work together.
I am not saying every point in this bill, every part of
this bill is perfect. I am not saying that at all. But I do
think it is the vehicle that we need to be engaged with. And I
would hope all parties would allow us that opportunity.
Let me ask a specific question and allow both of you, since
I mentioned your names, to comment on my initial point. But
anyway, I appreciate the concern, especially you, Mr. Watzman,
have about the good actor operates and not being penalized by
the provisions of this particular bill.
But my question is, what about the good actors who are
penalized when bad actors break the law, cut corners, and are
allowed to get away with it?
I heard it this past weekend. I was at a mine site in my
district this past weekend where safety violations are few and
far between, and they are inspected by the same inspectors as
the other guy where the disaster occurred, just down the road
from the UBB.
So should we just be turning a blind eye to those bad
actors who allow miners to die for the sake of their own
competitive advantage in the market?
Mr. Watzman. Thank you, Congressman. And I think the short
answer is absolutely not. We should not be turning a blind eye
to that. The law should be enforced, and it should be enforced
to its fullest extent. We shouldn't condone the actions of
anybody who is intentionally violating the law.
It is a very strong law. The agency has the tools, and we
encourage them to use those tools. Mine safety should not
create a competitive advantage for one operator as opposed to
another. That is something that we have never talked and argued
for, nor will we ever. Mine safety should come first and
foremost.
And to your earlier point, let me assure you that we will
be engaged. We have met with your staff, we have met with the
committee staff. I think we have had good, open, honest
discussions about the legislation. My statement identifies
areas where we think there are areas of agreement with some
wordsmithing around the edges.
I mean, the pattern-of-violation system, as it currently
exists, does not work for anybody. It doesn't work for the
miners, it doesn't work for the mine operators, it doesn't work
for the agency. It is not transparent. No one understands it.
No one knows how you work your way through it, how you get off
it.
So there are areas where we think that there can be
agreement. And we pledge to work with you and the other members
of this committee to reach that agreement.
Mr. Rahall. Thank you.
Cecil?
Mr. Roberts. Well, you have our commitment, Congressman, to
work to find acceptable resolution to any problems that might
exist here.
But to answer your question about these operators who are
cutting corners and putting their miners at risk, selling their
coal cheaper into the marketplace, one of two things will
happen here: Either the operators who are investing heavily in
health and safety and protecting their workers and spending
money on mine rescue and safety programs are going to have to
quit spending that money to compete with these people over
here, or we are going to raise these people up.
That is the choice that Congress faces here today, in my
opinion: We are either going to have to bring these people up
to this standard here, or everybody is going to fall right
here. Because you can't ask people to try to stay in business,
they won't be able to, so as long as more and more people are
allowed to compete on this basis.
Mr. Rahall. Mr. Snare, let me ask you one quick last
question. Should any worker in the United States of America
today have to put their life in jeopardy to earn a livelihood?
Mr. Snare. No, Congressman.
Mr. Rahall. Thank you.
Chairman Miller. Mr. Altmire?
Mr. Altmire. Thank you, Mr. Chairman.
Mr. Watzman, I talked during the first panel, you may have
heard, about the regional enforcement with regard to MSHA. And
I was wondering, in your experience, do you see a difference in
the strength of enforcement among different regions?
Mr. Watzman. I don't think it is so much a question of the
strength of enforcement. It is a difference in terms of
application of the standards and how a particular inspector
within a region or a field office supervisor or a district
manager interprets the regulatory requirements, as opposed to
those same individuals in a different region. I mean, you see
variability across the MSHA districts, where one will have a
very high S&S rate for the operations under their purview, and
another one will have an S&S rate that is significantly lower.
So I think it is more an interpretive question. Many of
these regulations are subjective. I mean, we don't work in a
black-and-white environment; much of it is gradients of gray.
And it is the interpretation of the individual as to whether or
not a violative condition exists.
Mr. Altmire. Thank you.
Professor Grayson, in your work with the commission that
you chaired, what were your findings on that?
Mr. Grayson. We had 72 recommendations altogether, but the
heart of entire document was that we need to build a culture of
prevention and do everything right from top to bottom.
Everybody in critical tasks must perform them well. Just like
Mr. Stewart is saying. I mean, it has to be done.
Once you do that, your S&S citations, your order rates,
your injuries all go down, and the productivity can be
maintained.
Mr. Altmire. Did you find--you talked earlier about the top
performing mines.
Mr. Grayson. That was not part of that commission. All we
did is look at the----
Mr. Altmire. Well, I understand that. But in your
experience, is there a regional cluster of top-performing
mines? Is there a disparity that exists?
Mr. Grayson. I did not try to regionalize that. But, from
the analysis I did do, it looked like--without doing the
statistics on it, it looked like the western mines tended to be
performing better in general, I mean, the top level.
Mr. Altmire. Uh-huh. And was the reverse true anywhere in
the country, where there was a region that had more work to do
than others?
Mr. Grayson. As I recall, it probably was southern West
Virginia, eastern Kentucky.
Mr. Altmire. And I would ask Professor Grayson and then Mr.
Watzman and any other panel members who may want to comment, do
you believe that there is a relationship between profits and
safety, so that if you are more or less safe as a mine, that
that is going to inversely affect your profits?
Mr. Grayson. I have done a research study in the past and
did not use profits but rather productivity, so tons per
employee hour. And what we found in that study--and it was a
pretty good-sized study--there was a direct negative
correlation for higher productivity and lower severity measure
in the large mines and very large mines. It wouldn't wash out
statistically in medium-sized mines, 50 to 100. And in the
small mines, as the productivity went up, the severity measure
also went up. So, the more production, the less safe.
Mr. Altmire. Mr. Watzman?
Mr. Watzman. Well, I think the age-old saying goes that a
safe mine is a productive mine, and that is shown time and time
again. Safety violations unfortunately have the potential to
lead to accidents, which leads to shutdowns of the operation,
whether it is the operation in its entirety or a particular
portion of the mine. So I think that there is a general
understanding that a productive mine is a safe mine.
Mr. Altmire. Mr. Roberts, did you want to comment?
Mr. Roberts. I would tend to agree--well, in fact, I
wouldn't tend to agree--I absolutely agree that you can look at
some of the most profitable companies in this country, like
CONSOL, for example, in your area. They have some of the most
profitable coal mines in the United States of America. They
invest heavily in health and safety. They have invested heavily
in mine rescue teams. They have invested heavily in making
their mines safe. And they are one of the most profitable
companies in the country.
Mr. Altmire. All right.
Anyone else on the panel? Ms. Rhinehart?
Ms. Rhinehart. I would just add that, in terms of the
workplaces that are covered by the Occupational Safety and
Health Act, that the same is true, that the good companies that
invest in safety have lower injury, illness, and fatality
records and lower costs related to those injuries and
fatalities relative to other workplaces. And so it is a good
investment.
Mr. Snare. Congressman, I can also, just again, just echo
Ms. Rhinehart's comments. And during my tenure at the Labor
Department, it was our understanding at the sites that I would
visit, employers that I would visit, those who made the
necessary investments in safety and health were also more
productive.
The key is, how do you get to that point, and what are the
best methodologies? Is it providing the necessary assistance so
an employer understands their obligation? That is part of the
debate we are having today.
But, again, I think the bottom-line premise to your
question is, you know, a safe workplace is going to be a
productive workplace, generally.
Mr. Altmire. Professor Grayson?
Mr. Grayson. Yeah, one last comment, and that is relating
to the study I described to you. The small mines, so 50 or
fewer employees, tend not to have a resident safety person.
They have someone who travels around. Whereas large mines have
maybe multiple safety people. They tend to have inferior
equipment rather than new equipment. They can't afford that, as
well, either. And they tend to work in tougher conditions, and
there is a general cultural difference, too, in those small
mines from the large mines. Not all of them, but----
Mr. Altmire. Thank you.
Thank you, Mr. Chairman.
Chairman Miller. Thank you.
Mr. Kline?
Mr. Kline. No questions. I just want to thank the
witnesses.
Chairman Miller. Thank you.
I want to thank you very much for coming here, but I would
like to make a couple of--oh, excuse me. Mr. Holt?
Mr. Holt. Thank you, Mr. Chairman.
I would like to ask Mr. Roberts, considering the
importance--I mean, it is statistically clear that organized
union mines are different in the numbers. I am wondering
whether you think the whistleblower provisions of this
legislation are good enough, considering that some mines, many
miners are working in nonunionized conditions.
Mr. Roberts. Well, I am reminded of what Eleanor Roosevelt
said in the 1930s after visiting a coal mine--she was in
Wheeling, West Virginia, and went across the river to Ohio and
went in a coal mine in the 1930s. She came out, and she said,
``There are only two ways to protect miners in this country,
and that is legislation or unionization. It is one of the two
or both in combination.''
I think that the whistleblower protections in this is a
bold step forward by this Congress if they pass this
legislation, and I think it goes a long ways. But there is
still--there is a culture that exists also in certain parts,
particularly southern West Virginia and in eastern Kentucky,
that no one can protect you from Don Blankenship, the CEO of
Massey.
Now, that is their fear. You may keep your job at a
protector mine, but mines have finite lives, some 2 years, some
10 years, some 20 years. But once that mine works out, even if
you keep your job there, are you going to be hired by Massey at
the next mine? The fear is you won't be, and that is the end of
your career.
Mr. Holt. Thank you, Mr. Chairman.
Chairman Miller. Thank you.
Just on that point, Cecil, I think people say, well, why
isn't this in this law? I mean, I appreciate the doctrine ``at
will.'' I don't know where the doctrine came from, but the fact
of the matter is, if the doctrine ``at will'' puts you in
danger, you may want to think about changing that doctrine.
And, Mr. Stewart, in your testimony, you said, ``I worked
along wall in dust so thick I couldn't see my hand in front of
my face. I couldn't breathe because of the improper
ventilation. I once went to the assistant coordinator and asked
him why we didn't have proper air on the long wall face. I was
told, `It is funny, you are the only one to say anything about
it.' My response was, `That is because they are too afraid to
lose their jobs to say anything.'&''
Later in your testimony, you tell us that, ``big outfits
like Massey will always find way to fire you, regardless of the
laws. That is why it is important to have the rights to
challenge an unfair firing in an underground coal mine. With
the union, you have that right. Without a union, the bills give
the miners protection to fight firings that are not based on
good cause.''
So if the employers have it their way, you couldn't be
fired in their mine for raising safety issues, but you could be
fired for no reason. It is just a question of the time lag
here. Nobody fires you on the spot.
Mr. Stewart. Right.
Chairman Miller. They just catch up with you later. Another
day, another week, another circumstance, a different part of
the mine, you are gone. And everybody knows why you are gone.
Mr. Stewart. Exactly. And they use what they call ``writing
a man up,'' for little or nothing or things they normally
wouldn't write. They write you up a couple times, they got
their paperwork, and then the next time he is gone. And if he
tries to fight it, they say, ``Look, this man has been written
up, he has not been performing properly, poor work
performance,'' and he is gone, you know, regardless.
I mean, I seen them fire a guy--they went to the section,
Chris Blanchard, in fact, and asked him questions. One question
was how many buggies he had loaded. He was a miner operator,
and a good one. The boy said he didn't know how many. I ran a
miner; I never knew how many buggies I loaded. I don't try to
count them. You are concentrating on your job. Anyway, he fired
him, said ``lack of interest in his job.''
Chairman Miller. That is quite possible.
But let me just say this. And I don't want Members to get
too far away from what took place in Beckley. When you
testified, you stunned not only the members of this committee
and people who are pretty darn familiar with coal mining as to
the discussions about retaliation and intimidation and about
warning that the inspectors were coming on to the property.
But I just wanted for the record, again, recall for the
members of the committee that your testimony was corroborated
by Eddie Cook, who was the uncle of Adam Morgan; by Gary
Quarles, who was the father of Gary Wayne Quarles; of Alice
Peters, who was the mother-in-law of Edward Dean Jones; of
Steve Morgan, who was the father of Adam Morgan; and Clay
Mullins, who was the brother of Rex Mullins--all who died in
this accident, all who testified about the problems of
intimidation and the fear in their relatives that died here
about raising these safety issues with an outfit like Massey.
And so we ought not to forget that. The idea that somehow
it is sacrosanct that Massey can fire anybody for no reason at
all, that somehow that protects these miners, their families,
is just blown away by this testimony. And I think it is
important that we understand that.
And, Mr. Grayson, I want to thank you for your index. We
looked at it very carefully. And we hope to some extent this
legislation mirrors what you are trying to do and trying to
point out.
Because with all due respect to the culture--I have been
involved with British Petroleum for many, many years. When I
was chair of the Resources Committee, my service on the
Resources Committee--Mr. Rahall knows about this--I have had
more executives come into my office over the many years telling
me how they are going to change the culture, and then something
blows up, somebody gets killed, a spill happens, all over the
United States of America.
They can't change the culture because they really don't
have any benchmarks. They don't know what is going on in that
place. And plus, they have a problem: All they want to do is
cut costs. Three independent commissions.
And so this idea that good actors--you know, it wasn't
very, very long, not long at all, before the CEO of a major oil
company, who is out there in deepwater, said, ``We don't
operate that way.'' I said, ``Well, you had better
differentiate yourself, because you are about to pay the
price.'' And sure as hell, that is going on.
And so, with what this country saw unfold, they now want to
know what is the safety factor, what is the culture, if you
will.
Now, those operators are all telling us how BP operates,
and it is not consistent, it is not consistent on costs, it is
not consistent on reporting, it is not consistent on worker
protection. They have brought me their posters and said,
``Well, anybody can pull the switch at any time to shut this
place down.'' Well, apparently they couldn't right before the
BP accident, because they were afraid of losing their job, and
jobs are hard to come by.
And so, it is easy to talk about, ``Well, we are just going
to improve the culture.'' These laws on the books, they didn't
improve the culture of Mr. Massey's operation, Mr.
Blankenship's operation at Massey. But yet we know when you
change the laws, you can change behavior. Look at driving under
the influence, look at seatbelts. Education, combined with
rational penalties, penalties that people are fearful of,
behavior changes.
So I think we have a good beginning with this draft of this
legislation. And I want to thank you for your testimony. But
these are critical issues, and these are critical issues that
reflect a very complex and an inherently dangerous place. There
is a reason why we address coal mines in this area.
But we look forward to continuing to work with you as we
craft this legislation. We would like to move it soon. But we
are certainly open--I have read all of your testimony before
coming to this hearing, and I have a lot of underlines and a
lot of questions. So we will pour through that.
Without objection, Members will have 14 days to submit
additional material and questions for the hearing record, which
I think I have another one on intimidation.
Thank you. The committee stands adjourned.
[Additional submissions of Mr. Miller follow:]
July 9, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, 2181 Rayburn House Office Building,
Washington, DC.
Dear Chairman Miller: The American Industrial Hygiene Association
(AIHA) would like to take this opportunity to provide comments on your
legislation, HR 5663, known as the ``Miner Safety and Health Act of
2010. AIHA commends you and the cosponsors of this legislation for your
continued interest in the health and safety of miners and workers in
other workplaces, an issue that impacts every family in America. We are
aware that any legislation amending the Mine Safety and Health Act and
the Occupational Safety and Health Act will undergo considerable
discussion. It is our hope that our comments will assist in these
efforts.
AIHA is the premier association serving the needs of professionals
involved in occupational and environmental health and safety. We
represent members practicing industrial hygiene in industry,
government, labor, academic institutions, and independent
organizations. AIHA and our members are committed to protecting and
improving worker health and safety, and the health, safety and well-
being of everyone in our communities. One of AIHA's goals is to bring
``sound science'' and the benefit of our collective professional
experience as practicing industrial hygienists to the public policy
process directed at improving regulatory protections for worker health
and safety.
It is unfortunate that one of the reasons for introduction of this
legislation is the tragedy that occurred at the Upper Big Branch coal
mine where 29 workers lost their lives. It is just as tragic that 11
workers were lost in the Deepwater Horizon oil rig explosion in the
Gulf of Mexico and that just over 5,000 worker deaths are reported each
year in the United States. The number of worker fatalities shows us the
need to put our full attention and resources behind efforts to protect
each and every worker.
AIHA is aware that the major focus of HR 5663 is to amend the Mine
Safety and Health Act and provide major reform in response to serious
health and safety concerns raised by miners and their families. As you
stated ``these reforms would provide stronger oversight to ensure that
employers comply with the law, empower workers to speak up about safety
concerns and give the Department of Labor the tools it needs to ensure
that all workers go home safely at the end of the day''.
While AIHA is supportive of your efforts to reform the Mine Safety
and Health (MSH) Act, we are also pleased you have included within HR
5663 some of the major reform measures proposed for the Occupational
Safety and Health (OSH) Act. Many of these reforms were found in HR
2067, the Protecting America's Worker Act. Introduction of HR 5663 is
another in a long line of legislative measures that attempts to provide
the Mine Safety and Health Administration (MSHA) and the Occupational
Safety and Health Administration (OSHA) with a fresh look at various
issues.
With this in mind, AIHA would like to provide the following
comments:
Reforms to the Mine Safety and Health Act
The responsibilities of AIHA members fall predominately under the
rules and regulations of the Occupational Safety and Health Act, yet we
have numerous members who work within the context of mine worker safety
and health. In addition, AIHA members work to protect the safety and
health of all workers, so our interest in proposals to reform the Mine
Safety and Health Act is of importance.
In reviewing the mine reform provisions of HR 5663, AIHA offers our
support for the following reforms to miner health and safety:
Making Mines with Serious and Repeated Violations Safe--
Criteria for `pattern of violations' sanctions should be revamped to
ensure that the nation's most dangerous mine operations improve safety
dramatically.
Ensuring Irresponsible Operators are Held Accountable--
Maximum criminal and civil penalties should be increased and operators
should be required to pay penalties in a timely manner.
Giving MSHA Better Enforcement Tools--MSHA should be given
the authority to subpoena documents and solicit testimony. The agency
should be allowed to seek a court order to close a mine when there is a
continuing threat to the health and safety of miners. MSHA should
require more training of miners in unsafe mines.
Protecting Miners Who Speak out on Unsafe Conditions--
Protections for workers who speak out about unsafe conditions should be
strengthened and should guarantee that miners wouldn't lose pay for
safety-related closures. Miners should be provided protection from
dismissal unless the employer has just cause. Miners should also
receive protections allowing them to speak freely during
investigations.
Updating Mine Safety Standards to Prevent Explosions:
Outdated standards need to be updated and new standards on issues such
as combustible dust need to be considered. New monitoring technology
needs to be promoted.
Increasing MSHA's Accountability--MSHA must assure
independent investigation of the most serious accidents, require that
mine personnel are well qualified, and ensure that inspections are
comprehensive and well targeted.
Title VII--HR 5663 Amendments to the Occupational Safety and Health Act
Over the course of the last fifteen years there have been numerous
attempts to amend the Occupational Safety and Health Act. Other than a
very few minor amendments, nearly every attempt ended in failure
because of the inability of labor, industry and other stakeholders to
reach an agreement on the kind of changes necessary and how best to
make those changes. The result has been the continuation of an agency
agenda that has become nearly impossible to complete. A lack of
adequate funding, a shortage of personnel and a standard-setting
process that many believe is ``broken'' has resulted in a view by most
employees and employers, as well as occupational safety and health
professionals, of an agency that was losing its focus in an attempt to
protect workers. It is our hope that the proposed changes in HR 5663
will alter this view.
Inclusion of several reform proposals in HR 5663 is another in a
long line of legislative measures that attempts to provide the agency
with a fresh look at various issues. With this in mind, AIHA would like
to provide several comments on the provisions of HR 5663 that would
amend the Occupational Safety and Health Act.
section 701. enhanced protection from retaliation
AIHA supports efforts to provide whistleblower protections to
employees reporting any injury, illness, or unsafe condition to the
employer. For those employees who report such conditions, employees
should not face retaliation nor should an employee be required to
perform any employer work if the employee has a reasonable apprehension
that performing such duties would result in serious injury to, or
serious impairment of the health of the employee or other employees.
section 703. correction of serious, willful, or repeated violations
pending contest and procedures for a stay
AIHA supports efforts to protect workers by requiring correction of
a hazard during such time that a citation for a serious, willful, or
repeated violation has been filed yet is being contested by the
employer.
However, for those employers who file a notice of contest of the
citation and request a stay of correction of the hazard, AIHA supports
language that would provide the employer with the means to demonstrate
likelihood of success on its contest to the citation, the employer will
suffer irreparable harm absent a stay, or a stay will adversely affect
the health and safety of workers.
section 705. civil penalties
section 706. criminal penalties
There continues to be much debate on whether or not civil and
criminal penalties are adequate to deter health and safety violations.
While most employers are ``doing the right thing'' with investment in
healthy and safe workplaces, there are still too many who avoid this
investment in their workers because they feel the investment is not
worth the cost. It is these employers who must be educated about the
benefits of providing a safe and healthy workplace, and if education
does not affect their decision-making behavior, they must be held
accountable for making decisions that injure, kill, or sicken workers.
For many, the minimal penalties for health and safety violations
are a small price to pay and do not affect their decision making. It's
just a small cost of doing business.
Over the course of the last ten years, there have been numerous
bipartisan legislative proposals to amend the OSH Act to increase the
penalty provisions, both civil and criminal, for those who violate OSHA
rules and regulations that result in serious injury or a workplace
fatality. While these proposals have not made their way into law, it
goes without saying that the sponsors of these measures all had the
same goal--to assure the health and safety of every worker.
In a position statement and white paper first adopted by AIHA more
than ten years ago, AIHA stated that ``OSHA penalties, including
criminal penalties, are woefully inadequate and should be at least as
stringent as penalties for violations of environmental laws.'' AIHA's
position on this issue has not changed over the years.
Amending the OSH Act to address the issue of civil and criminal
penalties is long overdue. AIHA supports increasing the penalties for
both civil and criminal penalties.
Civil Penalties. AIHA supports the increase in civil penalties as
outlined in HR 5663.
In addition, AIHA supports language in HR 5663 that considers the
employer's history of violations and would provide for additional
monetary increases in civil penalties if a willful or repeated
violation caused or contributed to the death of an employee.
Criminal Penalties. Under the ``Protecting America's Worker Act''
(PAWA, HR 2067), an employer could not be convicted under the criminal
law unless that employer has acted ``willfully'' and such willful act
caused the death or serious injury to a worker. This would require
proof that an employer knew not only that its actions were wrong, but
that they were unlawful as well. This ``willful'' standard is not a
familiar one in the criminal law context and the norm is to require a
``knowing'' standard of proof in which an actor knows that his or her
conduct was wrong. Under this standard, employers cannot escape
liability by claiming that they did not know what the law required.
Note: under either standard a prosecutor would still have to prove that
an actor is guilty beyond a reasonable doubt.
AIHA is pleased that proposed language in HR 5663 would change a
``willful'' act to ``any employer who knowingly violates''. AIHA
supports this change.
Another proposed change in HR 5663 as compared to PAWA would alter
the definition of an employer who would be subject to criminal
penalties from ``any responsible corporate officer'' to new language
stating ``any officer or director''. Under current law, only a
corporation or sole proprietor can be liable for criminal penalties.
The language in HR 5663 broadens this definition so high-level
officials (individuals) who act criminally can be prosecuted. This
change clarifies that the criminal penalties can reach up to the higher
levels of a company, providing that an officer or director who has
engaged in criminal conduct that causes the death or serious injury to
a worker can be prosecuted.
Finally, AIHA supports language that would increase a criminal
penalty violation from a misdemeanor, resulting in minimal penalties,
to a felony.
Consistent and substantial penalties are one of society's primary
means to deliver some measure of justice and improve conditions that
affect public health and worker health and safety. However,
criminalizing willful violations through changes in the regulations
must be carefully considered and applied. The standard of evidence for
willful violations will have to be higher than it is today and OSHA and
MSHA inspectors will need increased training and skill development to
meet the level of evidence required.
AIHA supports OSHA's efforts to ensure compliance officers achieve
professional certification as CIHs and CSPs. A similar effort is needed
of MSHA inspectors. Establishing criminal violations needs to be based
on the weight of evidence collected and evaluated by health and safety
professionals using a variety of information sources, both quantitative
and qualitative. It is essential that the regulatory process provide
for carefully considering the complex conditions affecting risks in the
workplace and the determination of risk at a given point in time.
Conclusion
AIHA applauds your efforts and sincerely hopes you will be
successful in your endeavor to advance the cause of worker health and
safety. We hope the input we have provided will be of benefit to you
during the upcoming discussions and debate on MSHA and OSHA and the
efforts to protect workers.
AIHA offers our full assistance to Congress, OSHA, MSHA, and others
to deliver the standards, regulations, compliance assistance and
enforcement necessary to help achieve our mutual goal to provide
workers and communities a healthy and safe environment and the
prevention of occupational disease and injury.
Should you require additional information about AIHA or if we can
be of any further assistance to you, please contact me.
Sincerely,
Michael T. Brandt, DrPH, CIH, PMP,
AIHA President
______
Appalachian Citizens' Law Center, Inc.,
Whitesburg, KY.
Hon. George Miller, Chairman,
Committee on Education and Labor, 2181 Rayburn House Office Building,
Washington, DC.
Dear Chairman Miller: We are writing regarding the Miner Safety and
Health Act of 2010. As attorneys at the Appalachian Citizens' Law
Center we regularly advise and represent miners in the eastern Kentucky
area on safety and health matters, including complaints of
discrimination in retaliation for making safety complaints. We also
represent miners on claims for black lung benefits. The proposed bill
contains many substantial improvements to the present law. We
overwhelmingly support the bill. However, there are a few areas where
we would like to see improvements. In this letter we will specifically
explain our support for certain provisions of the bill and ask for a
few additional changes.
Independent Accident Investigations
Section 101(b)(2) of the bill requires an independent investigation
of all mine accidents involving the death of three or more miners,
conducted by team appointed by the Secretary of Health and Human
Services and chaired by a NIOSH representative. The provision does not
require public hearings; it leaves that decision to the hearing panel.
For many years MSHA has had the authority to hold public hearings but
it has not used that authority. We support this section and would like
to see the panel directed to hold a hearing unless there is a
compelling reason not to hold a public hearing.
Subpoena Authority
Section 102 explicitly grants to the Secretary power to issue
subpoenas for the attendance and testimony of witnesses and the
production of information. This provision is overdue as subpoena power
is currently only available if a public hearing is called. For far too
long accident investigations have been seriously hindered because
investigators must rely upon voluntary interviews.
Designation of Miner Representative
We support extending the right to designate a miners'
representative to relatives of trapped miners and to miners unable to
work due to a mine accident. This is a sensible provision that protects
the right to designate a miners' representative for miners that are
trapped or injured. Miners in the most vulnerable situations shouldn't
have to relinquish any of their rights under the Act because they are
involved in a mine accident.
We also believe that Section 103 should require each mine to have
non-management representatives of miners and that a miners'
representative must travel with MSHA inspectors during each inspection.
Upon being designated as the miners' representative, the individual
miner should receive one hour additional training in miner's rights
from MSHA.
Conflict of Interest in the Representation of Miners
We support amending current Section 103(a) to prohibit an attorney
from representing or purporting to represent both an operator and any
other individual during an inspection, investigation or litigation,
unless the individual knowingly and voluntarily waives all actual
conflicts of interest resulting from the representation. Too often an
attorney will purport to represent both the operator and hourly miners
without clear indication that the hourly miners have waived any
conflict of interest that may exist. The result is miners can be
advised and directed based upon the best interest of the operator
rather than upon their own individual interest. Allowing this scenario
to continue only invites miner intimidation during inspections,
investigations and litigation under the Act.
Pattern of Recurring Noncompliance or Accidents
We support the overhaul of the Pattern of Violations provision in
the Mine Act. In response to the Scotia Mine Disaster in Letcher
County, Kentucky, which killed 23 miners and 3 mine inspectors in 1976,
Congress sought to address chronic and repeat violators and prevent
operators from continually piling up citations for dangerous
conditions. The result was section 104(e) of the Mine Act which
substantially increased the penalties for any operator that has a
``pattern of violations.''&\1\ The Legislative history reveals that
Congress believed the ``pattern of violations'' provision would be a
strong enforcement tool to go after the worst violators:
Section [104(e)] provides a new sanction which requires the
issuance of a withdrawal order to an operator who has an established
pattern of health and safety violations which are of such a nature as
could significantly and substantially contribute to the cause and
effect of mine health and safety hazards. The need for such a provision
was forcefully demonstrated during the investigation by the
Subcommittee on Labor of the Scotia mine disaster. * * * That
investigation showed that the Scotia mine, as well as other mines, had
an inspection history of recurrent violations, some of which were
tragically related to the disasters, which the existing enforcement
scheme was unable to address. The Committee's intention is to provide
an effective enforcement tool to protect miners when the operator
demonstrates his disregard for the health and safety of miners through
an established pattern of violations.\2\
They also believed it would send a strong signal:
The Committee believes that this additional sequence and closure
sanction is necessary to deal with continuing violations of the Act's
standards. The Committee views the [104(e)(1)] notice as indicating to
both the mine operator and the Secretary that there exists at that mine
a serious safety and health management problem, one which permits
continued violations of safety and health standards. The existence of
such a pattern, should signal to both the operator and the Secretary
that there is a need to restore the mine to effective safe and
healthful conditions and that the mere abatement of violations as they
are cited is insufficient.\3\ (emphasis added).
Finally, they felt the provision provided flexibility, so a rigid
standard wouldn't constrain the agency's use of the provision:
It is the Committee's intention to grant the Secretary in Section
[104(e)(4)] broad discretion in establishing criteria for determining
when a pattern of violations exists. * * * The Committee intends that
the criteria make clear that a pattern may be established by violations
of different standards, as well as by violations of a particular
standards. Moreover * * * pattern does not necessarily mean a
prescribed number of violations of predetermined standards. * * * As
experience with this provision increases, the Secretary may find it
necessary to modify the criteria, and the Committee intends that the
Secretary continually evaluate the criteria, for this purpose.
Yet, thirty-three (33) years and more than a dozen mine disasters
later, MSHA apparently has never issued a ``pattern of violations''
under the Mine Act. Thus, we support the proposed changes to the
``Pattern'' provision. We believe that requiring a remediation plan,
quarterly benchmarks, added inspections, training, and reporting is a
logical and fair framework for both holding chronic violators
accountable and significantly improving health and safety conditions in
these problem mines.
Injunctive Authority
We support allowing the Secretary to seek injunctive relief for ``a
course of conduct that in the judgment of the Secretary constitutes a
continuing hazard to the health or safety of miners, including
violations of this Act or of mandatory health and safety standards or
regulations under this Act.'' This provision can be used to stop an
operator from allowing conditions to continuously deteriorate and close
a mine before a mine disaster occurs. For example, the proposed
provision might prevent a mine disaster like the one at Scotia, where
the mine operated with continuing hazards that eventually led to two
explosions and 26 deaths. Under the proposed provision, an injunction
could be sought and granted in such a case, and miners could be
withdrawn from the mine.
Civil Penalties
We support the increased civil penalties, including increased
penalties for ``Pattern'' violators and for retaliation. These
increases will help discourage repeated violations and discourage
retaliation against miners that engage in protected activity. As the
Senate Committee noted in 1977, ``the civil penalty is one of the most
effective mechanisms for insuring lasting and meaningful compliance
with the law. * * * To be successful in the objective of including
effective and meaningful compliance, a penalty should be of an amount
which is sufficient to make it more economical for an operator to
comply with the Act's requirements than it is to pay the penalties
assessed and continue to operate while not in compliance.''&\4\
Criminal Penalties
We support the increases in current criminal penalties in Section
303. For far too long, no genuine deterrent was available for those
that knowingly engage in conduct that results in serious safety or
health violations and endangers miners. Additionally, we welcome the
new criminal penalty in 303(b) for those who retaliate against
informants as a significant deterrent against such actions. In turn,
this will empower miners to raise safety and health issues at their
mines with a decreased fear of reprisal.
However, we implore that in addition to representatives of the
Secretary and law enforcement officers, it should also be illegal in
303(b) to retaliate against a person for providing information to a
State agency charged with administering State laws relating to coal
mine health and safety. This prevents, for example, the inconsistency
of criminalizing retaliation against a miner for providing information
to a federal mining inspector but not to a state mining inspector.
Finally, we fully support the criminal penalties in Section 303 (c)(1)
for giving an advance notice of an inspection. Our office often hears
from miners about companies that avoid citations on the working section
because they receive advance notice that an inspector is on the mine
property and are then able to stop production and/or rectify illegal
conditions before the inspector arrives.
Withdrawal Orders Following Failure to Pay
We emphatically support proposed Section 110(l)(2), which allows
the Secretary to issue a withdrawal order to mines that do not pay
their civil penalties within 180 days. As the Senate Committee noted in
1977, ``to be effective and to induce compliance, civil penalties, once
proposed, must be assessed and collected with reasonable promptness and
efficiency.''&\5\
Our office produced a study in 2006 detailing the staggering number
of unpaid fines in Kentucky.\6\ We found:
In a review of underground coal mines in Kentucky, MSHA has allowed
mines to operate unimpeded for years while accumulating millions of
dollars in unpaid fines. Of Kentucky's 297 underground coal mines that
MSHA lists in some stage of activity, or not ``abandoned,'' ninety-
seven, or approximately one-third, have years in which they paid little
to none of the fines MSHA imposed. In the years reviewed since 1995,
these mines have over 18,000 unpaid citations (over 8,000 of which were
``significant and substantial'') totaling over $4.1 million in unpaid
fines. Fourteen mines have paid only 10 to 35 percent of MSHA's
penalties. Thirty mines have paid less than 10 percent of the fines due
and the remaining fifty-three mines have paid nothing.
Proposed Section 110(l)(2) would put an end to what has been
essentially a voluntary system of fine payment and collection. No
longer would undercapitalized operations be allowed to operate for
years and eventually close without ever paying any of their delinquent
fines. These operations have boldly ignored the law and rendered
meaningless one of the most important enforcement tools for ensuring
the safety of America's miners.
Protection from Retaliation
Section 401 amends Section 105(c), adding to current protections
for miners from retaliation. We enthusiastically support many of the
additional protections including more time in which to file a
complaint, a more sensible burden of proof for the miner, and logically
allowing a miner to recoup his costs and expenses if he prevails in his
claim. Too often, miners are unaware of the current statutory filing
period and it expires before they file their claim.\7\ A 180-day filing
period is reasonable and would prevent the dismissal of otherwise valid
discrimination claims.
However, we are concerned that the proposed Section 105(c) as
written would not protect miners from retaliation in cases where an
operator mistakenly believes that the miner filed a complaint or
engaged in protected activity. The Federal Mine Safety and Health
Review Commission (``Commission'') has long held that adverse action
taken against a miner because of the mistaken suspicion or belief that
the miner had engaged in protected activity nonetheless violates
Sec. 105(c). Moses v. Whitley Development Corporation, 4 FMSHRC 1475
(1982). This protection should continue in any new mine safety
legislation.
We support the proposed Section 105(c)(B), which would codify long-
standing Commission precedent that protects a miner from discharge or
other forms of discrimination for refusing to perform a job assignment
that the miner reasonably and in good faith believes to be unsafe.
Gilbert v. Federal Mine Safety & Health Review Commission, 866 F.2d
1433 (D.C. Cir. 1989); Simpson v. Federal Mine Safety & Health Review
Commission, 842 F.2d 453 (D.C. Cir. 1988); Secretary of Labor on behalf
of Robinette v. United Castle Coal Co., supra; Secretary of Labor on
behalf of Dunmire & Estle v. Northern Coal Co., 4 FMSHRC 126 (1982).
The Commission has previously explained the meaning and purpose of
the good faith requirement as follows:
``Good faith belief simply means honest belief that a hazard
exists. The basic purpose of this requirement is to remove from the
Act's protection work refusals involving fraud or other forms of
deception [such as] lying about the existence of an alleged hazard,
deliberately causing one, or otherwise acting in bad fath * * *''
Robinette at 810.
The burden of proving good faith rests with the complaining miner.
However, the miner need not demonstrate an absence of bad faith.
Gilbert v. Federal Mine Safety & Health Review Commission, supra;
Secretary of Labor on behalf of Bush v. Union Carbide Corp., 5 FMSHRC
993 (1983). In considering whether a miner's fear was reasonable, the
perception of a safety hazard must be viewed from the miner's
perspective at the time of the work refusal. Secretary of Labor on
behalf of Pratt v. River Hurricane Coal Co., 5 FMSHRC 1529 (1983); Haro
v. Magma Copper Co., 4 FMSHRC 1935 (1982).
To be accorded the protection of the Act, the miner need not
objectively prove that an actual hazard existed. Secretary of Labor on
behalf of Hogan & Ventura v. Emerald Mines Corp., 8 FMSHRC 1066 (1986);
Secretary of Labor on behalf of Cooley v. Ottawa Silica Co., 6 FMSHRC
516 (1984); Liggett Industries, Inc. v. Federal Mine Safety & Health
Review Commission, 923 F.2d 150 (10th Cir. 1991). Nor must the miner
prove a violation of a mandatory safety standard. Secretary of Labor on
behalf of Robinette v. United Castle Coal Co., supra. In fact, the
Commission has stressed that the miner's perception of a safety hazard
need only be a reasonable one:
``[T]he `reasonable person' standard * * * lends itself to the
interpretation that there is only one reasonable perception of any
given hazard -that of the `reasonable person'. But the reasonable
person is never there. Clearly reasonable minds can differ,
particularly in a mine setting where conditions for observation and
reaction will not be clinically aseptic.'' Robinette at 812, n.15.
When reasonably possible, a miner refusing unsafe work should
ordinarily communicate, or at least attempt to communicate, to some
representative of the operator, his belief in the safety or health
hazard at issue. Simpson v. Federal Mine Safety & Health Review
Commission, supra; Gilbert v. Federal Mine Safety & Health Review
Commission, supra; Secretary of Labor on behalf of Dunmire & Estle v.
Northern Coal Co., supra.\8\
The Commission has emphasized that it's ``purpose is promoting
safety, and [it] will evaluate communication issues in a common sense,
not legalistic, manner. Simple, brief communication will suffice * *
*'' Secretary of Labor on behalf of Dunmire & Estle at 134. According
to the Commission, the key to evaluating communication issues is what
the ``plain meaning of [the words] would convey to any reasonable
miner''. Id.\9\
Pre-Shift Review of Mine Conditions
We support amending Section 303(d) of the Act to direct
implementation of a program to ensure that every miner entering the
mine is made aware of the current conditions of the mine, including
hazardous conditions, health or safety violations, and the general
conditions of the miner's assigned working area. Our office hears
complaints from miners that hazardous conditions are too frequently not
communicated to the oncoming shift of miners entering the mine. We also
support the verbal communication requirement to the oncoming agent
(e.g. mine foremen or mine examiners) of the mine's condition,
including hazardous conditions or violations of the Act. Although this
should be standard practice at every mine, miners still lose their
lives due to a lack of communication, between shifts, of hazardous
conditions in the mine.
Technology Related to Respirable Dust
Section 504 of the bill requires the Secretary to promulgate
regulations within two years, requiring operators ``to provide coal
miners with the maximum feasible protection from respirable dust,
including coal and silica dust, through environmental controls.'' We
are concerned that this section is vague and unenforceable. The words
``maximum feasible'' are subject to a fact-intensive determination. We
prefer an objective standard.
Black lung is not a disease of the past; it continues to be a
serious problem for miners. It causes disability and death. The disease
is also latent and progressive. The harmful dust is minute and may be
invisible. Consequently younger miners may not believe that are
endangering their health when they work in excessive dust. Black lung
is also preventable--if the excessive respirable dust is eliminated the
disease will be eliminated. X-ray surveillance is showing an increase
in simple coal workers' pneumoconiosis and in progressive massive
fibrosis. In 1995 NIOSH issued a Recommended Standard advising the
respirable dust limits in coal mines be reduced to 1 mg/cubic meter.
This bill should require nothing less than the 1995 Recommended
Standard. We suggest that the language be changed and that within one
year after enactment the Secretary be required to promulgate final
regulations that require operators to reduce respirable dust to no more
than 1 mg/cubic meter and to further require that operators provide
coal miners with the maximum feasible protection from respirable dust.
Refresher Training on Miner Rights and Responsibilities
Section 505 adds an hour of miners' rights training to the yearly
refresher training already required. This is certainly welcomed and
long overdue. Congress envisioned a robust program to train the
nation's miners in the duties of their occupations, which includes
thorough training of miners as to their statutory rights. But, the
present program has systemic shortcomings.\10\ The result is that a
large number of miners do not have a thorough understanding of their
statutory rights and as a consequence they are unable to exercise such
rights.
Training miners as to their statutory rights is an integral part of
the Mine Act's requirements for health and safety training. For
example, for new underground miners:
Such training shall include instruction in the statutory rights of
miners and their representatives under this Act, use of the self-rescue
device and use of respiratory devices, hazard recognition, escapeways,
walk around training, emergency procedures, basic ventilation, basic
roof control, electrical hazards, first aid, and the health and safety
aspects of the task to which he will be assigned.\11\ (emphasis added).
Similarly, for new surface miners, Such training shall include
instruction in the statutory rights of miners and their representatives
under this Act, use of the self-rescue device where appropriate and use
of respiratory devices where appropriate, hazard recognition, emergency
procedures, electrical hazards, first aid, walk around training and the
health and safety aspects of the task to which he will be assigned.\12\
(emphasis added).
However, the Mine Act did not require miners' rights training
during miners' annual refresher training. Thus, MSHA requires statutory
rights training primarily only for new miners. This obviously presents
a problem, because even if new miners received the most dynamic
statutory rights training, such knowledge fades over time. A miner may
not need to exercise his or her statutory rights until several years
into a mining career. At that juncture, if such miners have had
relevant training only at the outset of their careers, they often do
not know their statutory rights well and cannot protect themselves. An
obvious solution to this dilemma is to require statutory rights
training in annual refresher training. Thankfully, the proposed
amendment to Section 115(a)(3) cures this significant failure to
require any follow-up miners' rights training by requiring it during
annual refresher training.
In passing the Mine Act, Congress realized that miners must play a
crucial role in maintaining a safe and healthy workplace:
If our national mine safety and health program is to be truly
effective, miners will have to play an active part in the enforcement
of the Act. The Committee is cognizant that if miners are to be
encouraged to be active in matters of safety and health, they must be
protected against any possible discrimination which they might suffer
as a result of their participation.\13\
Because miners know the day-to-day work conditions as well as or
better than anyone, obviously they should be encouraged to insist on
maintaining a safe and healthy workplace. They are in a unique position
to monitor workplace conditions when inspectors are absent. However, in
our experience many miners do not know that they can, under the law,
voice concerns about workplace health and safety, refuse to perform
unsafe work, review and give input to many aspects of an operator's
plans for mining, or speak with MSHA inspectors and investigators
without retaliation. Many miners do not realize that they may designate
a representative to perform numerous functions under the Mine Act, and
that such a representative need not necessarily be affiliated with a
labor union.
We also applaud the proposed change in the methods by which miners
receive statutory rights training. Operators and management personnel
should not be permitted to provide any of the required statutory rights
training to miners. There is simply too great a conflict of interest to
permit mine operators to conduct statutory rights training. Operators
have incentive to downplay the expansiveness and importance of these
rights, the key role which Congress envisioned miners playing in
regulation of the workplace, and the particulars of how miners can most
effectively and fairly exercise such rights in the face of operator
obstinacy and wrongdoing. Instead, miners should receive statutory
rights training only from trainers who are independent of mine
operators and Section 505 provides this necessary independence.
The additional training is necessary to inform miners of their
statutory rights under the Act, which include, but are not limited to:
Protection against discrimination for exercising any rights under
the Mine Act How-to's of naming a miners' representative for the
various functions a representative can serve under the Mine Act and its
implementing regulations
Participation in inspections Reporting and notifying inspectors of
violations and imminent dangers, and requesting inspections
Pay for being idled by withdrawal order Contesting enforcement
actions Participation in investigations where dangerous conditions
cannot be corrected with existing technology
Review of imminent danger orders Participation in cases before
Federal Mine Safety Health Review Commission that affect the miner
Part 48 training rights, including:
Training during working hours
Pay while receiving training
Receiving training records from operator
Protection from discrimination and loss of pay for lack of
training
Review of all types of Part 48 training plans
Free examinations to ascertain exposure to toxic materials or
harmful agents Request of Department of Health and Human Services to
study/research substance in mine environment for toxicity, or whether
physical agents/equipment within mine are dangerous
Availability of chest x-rays free of charge, including explanation
of intervals when such x-rays are to be made available
Transfer to less dusty atmosphere upon black lung diagnosis Review
and comment upon/objection to proposed standards, including legal
challenges to proposed standards
Request to modify application of a certain safety standard at a
mine, and participation in MSHA's decision when operator requests such
a modification
Right to access information (recordings, findings, reports,
citations, notices, orders, etc.) within MSHA and Department of Health
and Human Resources
Observation of operator's monitoring of miner's exposure to toxics
and other harmful agents, and access to records of exposure and
information about operator abatement in cases of overexposure
Access to operator's accident records and reports Notice of MSHA
proposed civil penalty levied against operator Operator posting of MSHA
orders, citations, notices, etc., as well as receipt of same by miners'
representative
Review of roof control plan and instruction in revision to such
plan Review of mine map illustrating roof falls Notification of and
instruction on escape from area where ground failure prevents travel
out of the section through the tailgate side of a longwall section
Review of records of examinations and reports (pre-shift
examinations, weekly examinations for hazardous conditions, weekly
ventilation examinations, daily reports of mine foremen and assistant
mine foremen)
Review of records of electrical examinations and maps showing
stationary electrical installations
Review of underground mine maps
Operator's notification of submission of new ventilation plan or
revision to existing ventilation plan, review of existing ventilation
plan, comment upon proposed ventilation plan and any proposed
revisions, and instruction from operator on ventilation plan's
provisions
Review of records of examination of main mine fan Review of records
of examination of methane monitors Review of records of torque/tension
tests for roof bolts Review of records of tests of ATRS roof support/
structural capacity Special instruction when rehabilitating areas with
unsupported roof Operator posting of escapeway maps and notification of
changes to escapeways Participation in escapeway drills Posting and
explanation of procedures to follow when mining into inaccessible areas
Review of records of diesel equipment fire suppression systems, fuel
transportation units, and underground fuel storage facilities, as well
as records of maintenance of diesel equipment and training records of
those operating diesel equipment
Review and comment upon emergency response plans Any other rights
set forth in either statute or regulation
This additional training will highlight to miners that they are
expected to exercise their statutory rights. A more informed and
empowered miner workforce would decrease the odds that conditions in a
mine could deteriorate to the point that a mine disaster could occur.
Authority to Mandate Additional Training
We support amending Section 115 of the Act to allow the Secretary
to order additional training if a serious or fatal accident has
occurred at the mine, the mine's accident and injury rates, citations
or withdrawal orders are above average and if it would benefit the
health and safety of miners at the mine. This is a common sense
provision that allows training to be mandated when safety or health
deficiencies have been proven at the mine.
Black Lung Medical Reports
Section 603 is a needed addition to the black lung benefits claims
practice. Coal mine operators who are named as the responsible operator
on a black lung claim (and the operator's insurance carrier) by law are
allowed to require the miner to submit to two pulmonary evaluations
performed by doctors of the operator's choosing. Such evaluations
typically consist of obtaining a patient history, conducting a physical
examination, and obtaining a pulmonary function test, an x-ray and an
arterial blood gas test. In some cases operators defending against a
claim have sent miners to be evaluated and have either not obtained a
written report from the examining physician (after no doubt being
informed verbally and deciding for litigation reasons not to have the
report submitted in writing) or have obtained a report but not provided
the complete report to the miner. The miner should be informed as to
the complete results of the evaluation and the diagnoses and
conclusions of the examining physician.
Thank you for your consideration of our comments. If we can answer
any questions or provide further information please contact us. We
truly appreciate your efforts on behalf of working and disabled miners
and their families.
Sincerely,
Stephen A. Sanders, Deputy Director,
Appalachian Citizens' Law Center.
endnotes
\1\&30 U.S.C. Sec. 814(e).
\2\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
\3\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
\4\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
\5\&S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
\6\&We have attached a copy of the study to this letter. See ``U.S.
is Reducing Safety Penalties for Mine Flaws,'' The New York Times,
March 2, 2006, pg. A1.
\7\&For example, a 180 day filing period would avoid a situation
like in Fulmer v. Mettiki Coal Corp, where the miner's claim was
dismissed although he asserted that he visited MSHA within 60 days, but
was not informed of the time limit for filing. Disturbingly in this
case, further appointments with MSHA were rescheduled until Fulmer was
finally asked if his discrimination investigation could be ``put off
until after hunting season and the holidays.'' See http://
www.fmshrc.gov/decisions/alj/yk2007-52.pdf.
\8\&The Commission has stated that ``[i]f possible, the
communication should ordinarily be made before the work refusal, but
depending on circumstances, may also be made reasonably soon after the
refusal''. Northern Coal Co. at 133.
\9\&Even where it is reasonably possible for the miner to
communicate his safety concerns to the operator, unusual circumstances
-such as futility -may excuse a failure to communicate. Northern Coal
Co. at 133; Simpson at 459-460.
\10\&The portion of our letter regarding miners' rights training
was a part of a Petition for Rulemaking submitted to MSHA in 2008. We
asked MSHA to increase the frequency and quality of miners' rights
training as they are able under their rulemaking authority. MSHA denied
the Petition in full. For example, in response to a request that all
miners be provided with a copy of MSHA's ``A Guide To Miners' Rights
and Responsibilities Under the Federal Mine Safety and Health Act of
1977,'' the agency stated that the handbook ``is available to miners on
MSHA's website.'' April 8, 2008 Letter from Acting Assistant Secretary,
Richard E. Stickler. Anyone who had ever viewed MSHA's complicated
website would understand that this was essentially non-responsive. As
of today's letter, access to information on miners' rights isn't noted
on MSHA's homepage, despite the inclusion of over 130 other topic
headings.
\11\&30 U.S.C. Sec. 825(a)(1).
\12\&30 U.S.C. Sec. 825(a)(2).
\13\&S. Rep. No. 95-181, 95Cong. 1st Sess. 36 (1977)
______
FOR IMMEDIATE RELEASE: January 26, 2006.
MSHA Fails to Collect Millions in Fines
scores of kentucky underground coal mines ignore civil penalties
By Wes Addington
David G. Dye, the acting administrator of the Mine Safety and
Health Administration (MSHA), testified before the U.S. Senate
Subcommittee on Labor, Health and Human Services, and Education on
Monday, January 23, 2005. Dye subsequently walked out of the hearing
despite Sen. Arlen Specter's request for him to stay to listen to
additional testimony and answer follow-up questions.
---------------------------------------------------------------------------
Wes Addington is an attorney at the Appalachian Citizens Law
Center's Mine Safety Project in Prestonsburg, Kentucky, and an Equal
Justice Works Fellow.
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During the hearing, Dye noted that from 2000 to 2005, total
citations and orders at coal mines increased by 18 percent and
``significant and substantial'' citations and orders increased by 11
percent. A ``significant and substantial'' violation is one that is
reasonably likely to result in a serious injury. MSHA issued a press
release following the hearing trumpeting Dye's comments about ``MSHA's
aggressive enforcement record.''
However, issuing citations is only half of the enforcement
procedure under federal law. The system of penalty assessment and
collection is the other half. Federal regulations instruct that any
mine that violates a mandatory health or safety regulation ``shall be
assessed a civil penalty.'' The regulations further explain that the
purpose of these fines is not as punishment, but ``to maximize the
incentives for mine operators to prevent and correct hazardous
conditions.'' Additionally, a purpose of the civil penalty regulations
is ``to assure the prompt and efficient processing and collection of
penalties.''
In a review of underground coal mines in Kentucky, MSHA has allowed
mines to operate unimpeded for years while accumulating millions of
dollars in unpaid fines. Of Kentucky's 297 underground coal mines that
MSHA lists in some stage of activity, or not ``abandoned,'' ninety-
seven, or approximately one-third, have years in which they paid little
to none of the fines MSHA imposed.* In the years reviewed since 1995,
these mines have over 18,000 unpaid citations (over 8,000 of which were
``significant and substantial'') totaling over $4.1 million in unpaid
fines. Fourteen mines have paid only 10 to 35 percent of MSHA's
penalties. Thirty mines have paid less than 10 percent of the fines due
and the remaining fifty-three mines have paid nothing.
[A1] In order to tout an ``aggressive enforcement record,'' MSHA
must collect fines on unpaid citations. Congress has long agreed. In
their 1977 report leading to the passage of the current Federal Mine
Safety and Health Act, the United States Senate ``firmly believe[d]
that the civil penalty is one of the most effective mechanisms for
insuring lasting and meaningful compliance [A2][A3][A4][A5] with the
law.'' The Senate was ``disturbed'' by the lax enforcement of the civil
penalty system and concluded that ``the assessment and [collection of]
civil penalties * * * have resulted in penalties which are much too
low, and paid much too long after the underlying violation to
effectively induce meaningful operator compliance.''
Unfortunately, nearly thirty years after the Senate's report and
the 1977 Act, the payment of fines assessed by MSHA is still
essentially voluntary. Otherwise, Kentucky coal mines would not be
allowed to operate year after year, accumulating hundreds of unpaid
``significant and substantial'' citations. This problem is compounded
because Kentucky mine safety regulators do not currently levy fines in
conjunction with citations issued at the state level.
The Senate was correct. In order ``to effectively induce
compliance, the penalty must be paid by the operator in reasonably
close time proximity to the occurrence of the underlying violation.''
Allowing penalty assessments to remain unpaid for over a decade is not
reasonable. It's unacceptable.
MSHA's failure to enforce their penalties for safety violations not
only endangers coal miners, but their own personnel. MSHA inspectors
not only have to inspect the nation's safest mines, but also the
nation's most dangerous ones. It's a thankless job. Every day,
inspectors travel underground to spot unsafe conditions and issue
citations and orders, and in turn, save miners' lives. Yet, after all
of the work and risk from inspectors in each district office, MSHA
Headquarters in Arlington, Va., allows thousands of citations to go
unpaid. It's a slap in the face to coal miners and coal mine
inspectors, not an ``aggressive enforcement record.''
Because of the sheer volume of unpaid citations I
encountered, only Kentucky underground coal mines that are currently
listed as ``active,'' ``temporarily idled,'' ``intermittent,''
currently ``non-producing,'' or ``new mine'' were reviewed. There are
also over 300 surface or ``strip'' mines and 150 coal facilities in
Kentucky currently in these five stages that were not reviewed.
Over 12,000 Kentucky mines are currently listed as abandoned and
were not reviewed. Some of these mines are truly abandoned but others
could reopen at anytime. For example, an underground mine that has
never paid any civil penalties, was operating in 2005, changed
ownership, and is currently listed as abandoned.
This review did not take into account other states' coal mines, nor
any of the non-coal mines that MSHA regulates in their metal/non-metal
division. Currently there are 141 non-coal mines operating in Kentucky.
The review's sample only included mines that had a year or years in
which they paid little or none of MSHA's fines. Thus, this is not an
exhaustive review of unpaid citations in Kentucky's underground mines.
Finally, MSHA's online Data Retrieval System only lists citations since
1995.
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Prepared Statement of ORC Worldwide
ORC Worldwide is a global human resources consulting firm whose
Washington, DC office has for nearly 40 years provided a broad array of
specialized occupational safety and health services to businesses and
other organizations. Currently, approximately 120 leading global
corporations in more than 20 industry sectors are members of ORC's
Occupational Safety and Health (OSH) networks. The focus of these
networks is to help ORC members achieve safety and health excellence by
promoting effective occupational safety and health programs,
benchmarking and sharing best practices, and creating new strategies
and tools to improve safety and health performance. ORC is also an
industry voice on national and global safety and health policy issues.
The activities of ORC's OSH networks are based on the premise that
providing safe and healthful working conditions is the mutual concern
of employers, workers and government agencies and that cooperation and
collaboration among these key stakeholders is essential to finding
solutions to safety and health issues.
It should be noted that companies that are members of ORC's OSH
networks have provided information, opinion and advice to ORC in the
development of its positions contained herein; however, these comments
are solely those of ORC and may differ from the views and comments of
individual member companies. ORC's comments below are exclusively
focused on the provisions of Title VII of HR 5663 and do not extend to
the other provisions of the legislation.
General Comments on Title VII of HR 5663
ORC has closely followed the content and progress of the various
OSHA reform efforts that have been introduced in Congress over the past
few decades, culminating in this most recent bill in the House of
Representatives, HR 5663. ORC is mindful that with the exception of a
one-time increase in the civil penalty maximums in 1991, the
Occupational Safety and Health (OSH) Act of 1970 has not been
significantly amended in the nearly 40 years since its original
enactment. As ORC observed in its White Paper issued in November 2008,
entitled Breaking the Cycle: New Approaches to Establishing National
Workplace Safety and Health Policy, ``the almost 40 year old Act has
been remarkably durable in its breadth, adaptability and overall
effectiveness as a framework for protecting workers.''
On the other hand, ORC also noted in its White Paper that ``for the
21st Century workplace, [the Act] has become in several significant
ways an outdated model for protecting today's workers from occupational
safety and health hazards.'' HR 5663, like its predecessors, would do
little to modernize the basic framework of the OSH Act to meet the
safety and health challenges of the 21st Century workplace and
workforce. In addition, ideally, ORC would have liked to have seen
Congress go beyond focusing primarily on the enforcement-related
provisions of the Act and also seek to provide OSHA with additional
incentives, tools and resources to assist the vast majority of
employers that are earnestly interested in protecting their workers but
that may lack the capacity and competencies to do so effectively.
However, despite the limited focus and scope of HR 5663, ORC has
concluded that with a few modifications suggested below, the proposed
amendments to the OSH Act have the potential to afford improved
protections to at least those workers facing the most challenging
workplace conditions in situations where their employers may be
resistant to providing the most essential protections and meeting even
the most basic compliance obligations. There are, unfortunately, still
too many employers that do not sufficiently appreciate the legal
necessity, the moral obligation or the business benefits of assuring a
safe and healthful workplace--for those businesses, strong enforcement
and assurances of worker rights may be necessary to incentivize
compliance.
Comments on Selected Provisions of Title VII
ORC's has the following comments on specific provisions of Title
VII:
1. Section 701. Enhanced Protections From Retaliation. The current
employee protections from retaliation contained in the OSH Act have not
been updated since the passage of the OSH Act in 1970 and contain
administrative impediments that limit their effective application. ORC
understands the need to update these provisions to be consistent with
improvements contained in more recent ``whistleblower'' statutes.
The new provision, which would protect an employee from retaliation
for, among other things, ``refusing to perform the employee's duties if
the employee has a reasonable apprehension that performing such duties
would result in serious injury to, or serious impairment of the health
of, the employee or other employees,'' is a significant change from the
current state of the law, which allows employees to refuse work when
faced with an imminent danger of death or serious injury. While the new
provision may certainly be appropriate in most instances, ORC notes
that the provision's broader scope may also present the opportunity for
potentially unwarranted claims. It is our hope that, as this section is
implemented, oversight will be provided to ensure the suitable use of
this protection.
2. Section 702. Victims' Rights. In recent years, OSHA has
gradually provided, through its administrative procedures, injured
workers and family members of injured and deceased workers increasing
access to compliance activities associated with the injury or fatality.
This section of the bill would provide victims enhanced rights of
participation in OSHA inspection and citation modification activities
as well as proceedings before the Occupational Safety and Health Review
Commission (Review Commission). ORC respects the appropriateness of a
role for victims in these forums and for the most part, the bill
appears to balance the desirability of involvement and input by the
victims both with the legal and procedural rights of the actual parties
to the proceedings and with the importance of not unduly delaying or
otherwise interfering with the resolution of the matter. However, one
new provision in the current bill--proposed section 9A(e)(2)--does
cause some concern, namely that it may be construed to require the
Review Commission to afford evidentiary status (``due consideration'')
to ``information'' provided by a victim to the Review Commission,
without the parties to the proceeding having the opportunity to provide
appropriate rebuttal. It should be made clear that such a construction
is not intended and that information provided by a victim may not be
relied on as evidence.
3. Section 703. Correction of Serious, Willful, or Repeated
Violations Pending Contest and Procedures for a Stay. This provision
raises the most concerns for ORC and its members. It would require the
period set in a citation for the abatement of any violation alleged to
be serious, willful or repeated to commence upon the receipt of the
citation by the employer and would disallow the suspension of the time
set for abatement, triggered under the current OSH Act by the filing of
a notice of contest, until the final resolution of the contested
violation. The bill would follow procedures similar to those applied
under the Federal Mine Safety and Health Act and allow an employer
cited for a serious, willful or repeated violation to file a motion for
a stay of the abatement period with the Review Commission, which would
review the stay motion on an expedited basis, applying criteria similar
to those necessary to obtain preliminary injunctive relief in other
legal proceedings. Specifically, the Review Commission would consider
whether the employer has a substantial likelihood of success on the
merits of the contested citation; whether the employer will suffer
irreparable harm absent a stay; and whether a stay will adversely
affect the health and safety of workers.
ORC believes that at a bare minimum where an employer is contesting
the appropriateness of the proposed date set for abatement or is
denying the existence of any violation at all, the burden of getting a
stay pending contest should be eased. Specifically, there is no reason
to require a showing of ``irreparable harm'' to the employer,
especially if employees are not being exposed to the alleged hazard
through some alternative or interim action pending the resolution of
the citation. Obtaining a stay in these circumstances should not entail
the kind of high burden necessary to obtain preliminary injunctive
relief.
4. Section 705. Civil Penalties. ORC supports the proposed
increases in civil penalty maximums, the civil penalty ``enhancements''
(except as discussed below) for willful and repeat violations resulting
in the death of an employee, and the periodic inflation adjustment of
the statutory penalty amounts. The proposed new civil penalty maximums,
in effect, amount to a one-time cost of living ``catch-up'' over the 19
years since the penalty amounts were last increased by Congress. It is
important that civil penalties assessed for violations be a credible
partial deterrent (although penalties alone are far from a sufficient
incentive for compliance) to future violations.
The reservation ORC has about the enhanced penalties for fatalities
is the use of the phrase ``caused or contributed to'' the death of an
employee in section 705(a)(1)(C). In the absence of a definition or
clarification of the term ``contributed to,'' the agency may rely on
meanings of the same term in other contexts, e.g., injury and illness
recordkeeping, where even a slight contribution to an injury or illness
by factors related to work would be deemed a sufficient basis to record
the case. In order to justify an enhanced civil penalty of this
magnitude, the violation should be required to have ``caused or
directly and substantially contributed to'' the death of an employee.
5. Section 706. Criminal Penalties. The existing limited criminal
sanctions contained in the OSH Act have been seldom invoked and are
nearly universally recognized as inadequate in more than one respect.
It is entirely reasonable to regard a willful violation that causes the
death of an employee as a felony with appropriate associated penalties.
However, with respect to addition of the phrase ``contributed to'' as a
basis for criminal prosecution, ORC has even greater concerns than
those expressed above in the context of civil penalties. Once again, a
direct and substantial ``contribution'' by the violation to the death
(or serious bodily harm) of an employee should be required in order to
justify criminal liability. We also believe that a clarification of the
intention behind substituting the word ``knowingly'' in HR 5663 for
``willfully'' in HR 2067, the Protecting America's Workers Act as
originally introduced, is necessary. In the absence of an explanation
of this proposed change, there is a great deal of uncertainty around
whether the use of the word ``knowingly'' effectively lowers the
standard of proof for the prosecutor or whether the two words are
legally equivalent.
Similarly, the explicit addition of ``any officer and director'' to
the definition of ``employer'' for purposes of identifying potential
targets for criminal prosecution, absent a clarification of intent,
raises significant fears among business managers that they could be
subject to prosecution for merely being somewhere in the ``chain of
command'' or having some kind of safety and health role in the company
but having no knowledge of, or responsibility for, an event that causes
an employee death. Based primarily on case law developed under federal
environmental statutes that have applied similar terms, ORC urges, at a
minimum, report language that would make clear that the Committee
intends to limit potential liability to corporate officials who had
knowledge of the existence of the condition that caused the injury or
fatality and knew or had reason to know that the condition could result
in serious injury or death, had the authority and ability to correct,
or cause the correction, of the condition, and knowingly failed to
exercise his or her authority to take appropriate action to correct the
condition.
Finally, the proposed expansion of criminal liability to cases of
knowing violations that cause or contribute to ``serious bodily harm''
to an employee raises important policy questions about the most
effective use of already scarce OSHA resources--criminal investigations
require substantial time and effort on the part of specially-trained
OSHA compliance staff. However, ORC is pleased to see that the
committee has reverted to a more limited definition of ``serious bodily
harm'' than that contained in the first ``discussion draft'' released
following the introduction of HR 2067.
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[Additional submissions of Mr. Kline follow:]
American Society of Safety Engineers,
1800 East Oakton Street,
Des Plaines, IL, July 12, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, 2181 Rayburn House Office Building,
Washington, DC.
Dear Chairman Miller: The American Society of Safety Engineers
(ASSE) appreciates this opportunity to comment on your legislation, the
Miner Safety and Health Act of 2010 (HR 5663). While we understand and
support much of your intent to strengthen occupational safety and
health protections for this nation's workers in very workplace, ASSE
cannot support HR 5663 in its entirety or support the quick rush to a
bill at this time. The bill is so wide-sweeping in attempting to move
forward reforms to both the Federal Mine Safety and Health Act (Mine
Act) and the Occupational Safety and Health Act (OSH Act) that we fear
a careful analysis of the mining provisions in particular in the short
time from its July 1 introduction to the scheduled July 13 hearing and
possible markup of the bill does not serve the purpose of advancing
occupational safety and health in the most thoughtful way possible.
ASSE is particularly concerned that this rush to markup does not
address a glaring failure of the OSH Act to provide more than 8 million
public sector workers with the same minimal federal occupational safety
and health protections that all other workers enjoy. To propose
toughening the safety and health protections most workers already have
while so many other Americans--all public servants, many of who serve
to protect our welfare, ironically--are not protected at even current
levels of protection is unfair to those public servants. Over the last
several years, ASSE's members in Florida have worked with labor and
business groups to advance protections for state, county and municipal
workers with still more work needed to achieve that goal. So we know
first-hand how difficult it would be to go from state to state to
address this problem. However difficult a federal measure might be, the
only reasonably workable fix is through an amendment to the OSH Act.
The OSH Act will not be truly reformed until public sector workers
receive the workplace protections they deserve.
If this bill moves quickly forward as written, ASSE also fears that
some very positive contributions it makes in OSH Act reform will be
lost under the weight of opposition to Mine Act reforms that, in the
view of our members, will make it difficult to achieve your goal of
strengthening oversight of this nation's mines. While we urge you to
consider more carefully the strategy of placing so much in one bill to
be considered in such short a time, we do respect the commitment you
have to occupational safety and health. In response to your bill, ASSE
has developed the following comments based on the expertise and
experience of our more than 32,000 member safety, health and
environmental (SH&E) professionals who work with employers in every
industry across the country and provide the leading expertise and
experience employers rely on to protect their workers from workplace
hazards. However these provisions move forward, we hope to work with
you to make sure they can achieve the common goal we share in making
sure that this nation's oversight of workplace safety and health is
effective.
The following section-by-section comments, beginning with the OSH
Act reform provisions in HR 5663, also reflect our members' passion for
the idea that whatever Congress or the Administration does to impact
workplace safety and health must reflect their hard-won understanding
from the job floor of how best to protect workers. We urge you to
listen to them and work with them to make sure that your laudable goal
of reforming the Mine Act and the OSH Act will succeed where it counts,
in more workers returning home each day safe and healthy.
osh act reforms
Section 701--Enhanced Protections from Retaliation
ASSE supports expanding federal OSH Act whistleblower protections
to employees who report injuries, illnesses or unsafe working
conditions on the job. Shielding workers from recrimination and
retaliation for reporting injuries, illness or unsafe conditions,
testifying before Congress or other bodies, refusing to violate the OSH
Act or otherwise exercising their rights are necessary elements to
ensuring worker participation and ownership of workplace safety and
health. While we recognize that this system unfortunately can be abused
for personal and workplace political issues, still, if a worker's job
security and compensation are not adequately protected, those with
legitimate concerns that an employer ignores will rarely be able or
willing to risk taking needed steps to help correct risks to workplace
safety.
Section 701(b) Prohibition of Retaliation
ASSE supports protecting employees from workplace discrimination
for refusing to perform a duty if the employee has a reasonable
apprehension that performing the duty would result in serious injury or
health impairment. A tenet of effective workplace safety and health is
that every person in a workplace, from management to worker, must be
committed to safety and health. Permitting workers who have a
meaningful sense of a dangerous workplace risk to protect themselves or
other workers is consistent with the training that our members provide
workers and assistance they provide employers in workplaces every day.
Section 701(c) Prohibition of Retaliation Procedures
Similarly, workplace safety and health is best served if federal
whistleblower protections adequately shield those who in good faith are
forced to address workplace hazards by reporting dangerous conditions
or practices to outside authorities. For that reason, ASSE supports HR
5663's proposed expansion of the statute of limitations from 30 to 180
days for reporting discrimination resulting from protected activities
concerning reporting injuries, illnesses or unsafe working conditions.
This provision is comparable to the statutory period for safety
whistleblower protection provided to commercial drivers under the
Surface Transportation Assistance Act, which OSHA also enforces.
ASSE also supports the provision that, if findings are not issued
within 90 days of a complaint, the complainant may request a hearing.
This private right of action is currently available under the Mine Act
in whistleblower protection cases. Because complainants may have lost
their jobs due to their protected activity, lengthy delays in
concluding investigations and holding hearings can exemplify the
saying, ``Justice delayed is justice denied.'' Our members fully
understand the importance of these provisions. SH&E professionals
themselves can face the kind of discrimination these provisions guard
against for simply doing what they have a professional and ethical
responsibility for doing
Finally, ASSE appreciates the effort in this bill to establish a
more reasonable process for determining the appropriateness of claims
through the regulatory process by establishing an administrative
appeals process. An appeals process should help limit the use of the
federal judicial system, a concern we raised with previous versions of
these provisions. In the end, however, ASSE cannot support provisions
allowing complainants to seek review of an OSHA order with the U.S.
Court of Appeals, which amounts to a private right of action for what
Congress has determined should be a regulatory enforcement matter. The
current system was established to avoid protracted and expensive
litigation, which this provision would undermine. As we have said
before, the whistleblower function at OSHA has suffered from a lack of
adequate resources. Instead of opening the process to further
litigation and requiring the Department of Labor to apply scarce
resources to litigation, Congress should ensure that OSHA has the
funding necessary to carry out this important function so claims can
receive their due attention in a timely manner.
Section 702--Victims' rights
The entire process of investigating and determining appropriate
actions under the OSH Act needs to be sensitive to the impact and loss
that a victim and victim's family has experienced, especially when
there has been a fatality. Workers deserve to feel a level of common
compassion from government and employers that the OSH Act should
encourage. Not only is such an attitude the right thing to do, it is
also the prudent thing when the process has the potential of becoming
irrationally adversarial even when all parties are well-intended. This
is particularly true for the provisions proposed here to facilitate
more and better communications with victims and their families.
Therefore, ASSE supports provisions that would permit a victim to
meet with OSHA about the inspection or investigation before the
decision whether or not to issue a citation is made; to receive at no
cost copies of citations or related reports; and to be provided an
explanation of rights of employees or their representative to
participate in enforcement proceedings. We also support the inclusion
in HR 5663 of a provision requiring each OSHA area office to have a
family liaison. Having someone especially capable and, we suggest,
trained in dealing with victims' families is a positive step forward.
ASSE is concerned, however, that overlooked in this well meaning
effort to increase victims' ability to state grievances in the process
is the capability of the process to move ahead with proper attention to
the facts of each case and the ability of all those involved to do
their work in helping determine the appropriate outcome of
investigations without inappropriate disruption. A victim's voice must
be heard in this process, but a victim's personal perceptions at a
difficult time, however legitimate, are not always consistent with the
process of negotiating often highly technical legal issues by the
parties involved. That is why ASSE continues to urge that an amendment
is needed to limit the definition of ``victim'' to ``an immediate
family member'' in subsection (g). The common definition of family
could mean many people who do not have a close interest in the
proceeding.
ASSE also is concerned that, while well meaning, the provisions
aimed at giving a victim a voice in the legal process as written in
this bill have gone too far. We do support giving a victim the
opportunity to appear and make a statement before the Occupational
Safety and Health Review Commission (OSHRC), which is an environment
structured enough to enable all parties to voice their interests in a
productive way. Commission members, too, are the most appropriate
audience for victims. It is with commissioners that victims' positions
can have the most impact on the ultimate outcome in a matter. But we
cannot support requiring that the victim, on request, be given an
opportunity to appear and make a statement before the parties
conducting settlement negotiations. As we have said in the past, the
unintended consequence of this provision could be OSHA's entanglement
in more drawn-out actions and a significant increase in OSHRC's case
load. Since HR 5663 better serves the victim by providing an
opportunity to appear before OSHRC directly, we urge you to delete
subsection (c).
Section 703--Correction of Serious, Willful, or Repeated Violations
Pending Context and Procedures for a Stay
ASSE greatly appreciates the effort to address concerns we had with
similar provisions in the PAW Act that employers were not being given
an opportunity to protect their interests in the proposed process,
especially when a serious citation is often open to the subjective
opinion of an inspector. That concern has been met with provisions in
this bill to allow an employer to file with OSHRC a motion to stay a
period for the correction of a violation designated as serious,
willful, or repeated. That change should provide a fair balance of the
interests while still meeting the goal of not allowing employers to
avoid their responsibility to correct violations through legal process.
We are pleased to support this provision.
Sections 705-706 Civil and Criminal Penalties
ASSE has always supported appropriate and fair enforcement OSH Act
violations and does not oppose the increased levels of civil and
criminal penalties proposed in this legislation if, as we state below,
certain language further explaining provisions, is included in report
language to the bill. For most of our members' employers, their
commitment to workplace safety and health is driven by both moral and
business commitments that these increased penalties will not change.
For too many other employers not similarly committed, the current
penalties under the OSH Act are not high enough to affect their
behavior, in our members' experience. ASSE has become increasingly
concerned that, because of the much higher penalties the Environmental
Protection Agency is able to impose, the commitment of some employers
to worker safety and health may be taking a back seat to concern over
avoiding environmental penalties. Arguably, this focus on environmental
issues may be partially responsible for the current rush to voluntary
sustainability among industry leaders. Appropriate levels of penalties,
we believe, can similarly bring increased attention to worker safety
and health issues and help lead to greater voluntary attention to the
sustainability of this nation's workforce. Workers deserve no less.
ASSE remains concerned, however, that this effort to increase
enforcement capability comes at the same time the current
Administration is moving away from what our members see as the most
successful cooperative effort to work with employers in the Voluntary
Protection Program. While stronger enforcement tools are needed, so too
is an OSHA fully capable of working with employers to help ensure that
employers are fully committed to safe and healthy workplaces and not
simply trying to avoid penalties for meeting minimal OSHA standards. We
should be able to expect better than minimal adherence from most of
this nation's employers. We urge you to join us in not only supporting
appropriate OSHA penalties but in also helping ensure that VPP can
continue even as this effort moves forward.
We note that ASSE's conditional support for the increased penalties
proposed here is based on the fact that HR 5663 addresses key concerns
we raised with similar provisions contained in the Protecting America's
Workers Act (HR 2067). ASSE appreciates the effort to meet its
concerns. As we more specifically say below, our goal was to better
define how increased penalties are to be applied and to help ensure
that the target of higher penalties are employers who do not take
responsibility for a consistent culture of safety in their
organizations. Our members can find themselves the lone voice in an
organization arguing to upper management for greater resources or
commitment to safety and health. If failures occur before they succeed,
they should not have to answer for the failure of others to address
known risks. ASSE does not seek protections for an SH&E professional's
failure to fulfill professional responsibilities, but worker safety and
health is best served by putting those responsible for an
organization's commitment to safety and health on notice of penalties
that can result from shirking that responsibility. While the bill does
not go as far as we had wanted in encouraging responsibility for an
organization's safety culture, ASSE is pleased that HR 5663 will help
see that most SH&E professionals are not unfairly left to take
responsibility for others in an organization who fail to make needed
decisions to protect workers.
``Any officer or director''--More specifically, for purposes of
finding a responsible party under the criminal provisions, provisions
in HR 5663 defining an ``employer'' as ``any officer or director'' is a
significant step forward in the right direction in encouraging
responsibility for an organization's safety culture. However, it does
not go far enough in making sure those responsible for an
organization's commitment to safety and health cannot escape that
responsibility. Better language to assign the kind of responsibility
that can make a difference in a workplace culture requires the phrase
to be ``any responsible officer or director.'' Our members who work in
organizations report a vast difference between officers and directors
who have the power to make a difference in an organization and those
who do not. Aiming these penalties at those who do not have such
authority does not serve the purpose of making significant change in
employers' perception of OSHA penalties. For this reason, we urge you
to change this language to ``any responsible officer or director.''
Knowing--A long-standing concern of ASSE's members is the lack of
specific definition for ``willful'' in determining criminal
responsibility under the OSH Act. In practice, ``willful'' is
inconsistently applied. Without a firm definition, OSHA enforcement
personnel in the field and the regional offices are left to determine
subjectively the level of a violation, leaving employers open to what
can seem like selective enforcement of violations. Our members are
concerned that too many resources, too many arguments, too much
confusion results from what is, in practice, a term inconsistently
applied to violations. Most importantly, ``willful'' is far too vague a
term to be used as an appropriate benchmark for criminal prosecution.
As we have said before, ASSE would like to be able to support the
suggested change of ``willful'' to ``knowing'' in the OSH Act. The use
of ``knowing'' is consistent with criminal prosecutions in general and,
more specifically, with various environmental statutes [for example,
the Clean Water Act, 33 USC 1319(c)(3)(B)], and its use infers the
``mens rea'' needed to show criminal intent, which a judge or jury will
ultimately determine whether that has been proven beyond a reasonable
doubt. However, we still are unable to support the use of ``knowing''
without legislative or report language clarifying that, for the purpose
of the OSH Act's criminal provisions, ``knowing'' reflects both a
knowledge and awareness that the hazard, actions or conditions are
likely to place another person in imminent danger of death or serious
bodily injury, knowledge and awareness that the hazard, actions, or
conditions constitute a violation of a mandatory safety or health
standard, and that the person had the ability to take action to address
the hazard or condition and did not. With that explanation on the
record, we could support this provision. Without it, the use of
``knowing'' remains too vague a term to help drive a significant change
in the way organizations view worker safety and health, which should be
the unwavering goal of this bill.
mining provisions
Among ASSE's members are hundreds of safety and health
professionals who work at mines and are members of the Society's Mining
Practice Specialty. The following comments on some key provisions of
this bill are based on their leading experience and expertise in
protecting workers in this nation's mines.
Section 101--NIOSH/Panel Accident Investigations
ASSE supports the provision that would create independent panels,
headed by NIOSH, to investigate accidents involving the deaths of three
or more individuals, or other critical accidents as warranted. This is
consistent with the role Congress intended for NIOSH and may lead to
better investigations that are not enforcement-driven but are conducted
solely to determine what occurred and what needs to be done in the
future from a mine safety and health perspective to prevent a
recurrence. Because it is unclear how often NIOSH would be called upon
to engage in such activities, as they are now doing in the Massey Big
Branch investigation, it is imperative that sufficient resources be
allocated for NIOSH so that assisting MSHA in investigating key
incidents will not detract from the already underfunded
responsibilities that NIOSH laudably fulfills.
Section 102--Subpoena Power
This legislation would expand MSHA's existing subpoena power beyond
its current capabilities, where MSHA must convene a public hearing to
compel testimony and the production of documents prior to the issuance
of any citations or commencement of litigation. Although OSHA has
similar broad subpoena power, OSHA is not a strict liability statute
and does not have warrantless search authority. OSHA also does not have
the power already set forth in Section 108(a)(1) (E) of the Mine Act
that permits MSHA to obtain injunctions to compel production of
documents necessary to carry out its activities under the Act.
From a safety and health management perspective, ASSE is concerned
that these provisions could lead to MSHA's misuse of such broad
subpoena power during routine inspections by engaging in ``fishing
expeditions'' for the purpose of obtaining documents such as safety/
health audits, root cause analytical documents, and ``near miss''
accident reports. Any of these self-evaluative documents may record the
existence of past hazardous conditions that have subsequently been
addressed. However, because there is no statute of limitations for the
issuance of MSHA citations, and in light of strict liability
prosecution, such audit documents or incident reports could trigger
citations regardless of whether a condition had already been adequately
addressed and abated prior to its discovery by MSHA.
Such prosecutions would definitely have a chilling effect on
companies' practices of self-auditing or using independent safety and
health professionals to proactively audit the facilities. Also impeded
would be the current practice of documenting ``near miss'' incidents so
that procedures can be reevaluated as needed and additional training on
work practices provided to avoid future occurrences. This result would
discourage these common means our members use to help mines improve
safety and health.
If MSHA is able to compel production of such documents through this
expanded subpoena power, HR 5663 should also require MSHA to adopt a
``safe harbor'' policy--as OSHA has done--wherein the results of audits
and other self-evaluative documents will not be used to prosecute the
company or its management as long as identified hazards that reflect
non-compliant conditions were corrected in a timely manner prior to the
agency's inspection of the facility.
Section 201--Significant and Substantial Violations
ASSE cannot support making all violations presumptively significant
and substantial as HR 5663 would require. This provision would shift
improperly the burden of proof away from MSHA to forcing the mine
operator to prove the non-existence of any degree of hazard, which is
an almost insurmountable burden. It also detracts attention from truly
serious hazards and, by doing so, makes it difficult for companies to
learn from inspections about what are the significant issues that must
receive priority during their daily workplace examinations. Just as
OSHA distinguishes between ``serious'' (reasonable probability that a
reasonable serious injury could occur) and ``other than serious''
violations (both recordkeeping infractions and less serious hazards
that are unlikely to cause injury, or where there is lack of worker
exposure), so too should MSHA retain such distinctions.
Moreover, given the use of significant and substantial citations in
the expanded Pattern of Violations (POV) criteria proposed in Section
202 of the bill, making virtually every citation a trigger for POV will
certainly encourage even more citation contests and diffuse the
importance of a significant and substantial classification if even
minor hazards are encompassed within this classification.
Sections 301-305--Civil and Criminal Penalties
ASSE's comments concerning increased criminal penalties for
``knowing'' violations of the OSH Act's standards equally apply to
similar violations under the Mine Act, as amended. We support
increasing criminal penalties from misdemeanors to felonies. However,
we have observed that while the OSHA-related provisions are limited to
prosecuting knowing violations that are related to fatal or serious
bodily injuries, there are no such limitations under the Mine Act
provisions. We urge Congress to apply parity and make it clear that
criminal prosecution for knowing violations of MSHA standards should
only occur if serious injuries or worse are involved, or individuals
have issued false statements or falsified documents in the course of an
inspection or investigation.
As noted elsewhere, we also encourage Congress to make it clearer
what constitutes ``knowing'' violations. Further, this should be more
precise than simply being aware of a condition that MSHA believes to be
a violation since reasonable persons can differ as to what constitutes
a hazard or risk when dealing with the agency's subjective standards.
Finally, this legislation would criminalize retaliation against
``whistleblowers'' and would make such actions punishable by up to 10
years imprisonment, which is a harsher penalty than for knowing
violations of mandatory standards. This seems to be a punitive rather
than a deterrent measure and is the only example we know where human
resources-related actions such as termination, demotion, or transfer
could result in incarceration of management if the individual suffering
the adverse action had also engaged in protected activity under Section
105(c) of the Mine Act. This provision should be reconsidered, in terms
of its proportionality to the offense.
With respect to increasing civil penalties, Congress increased MSHA
maximum penalties to $220,000 for ``flagrant'' violations in the 2006
MINER Act. MSHA also implemented an across-the-board increase in 2007,
in part to implement the ``flagrant'' penalties and also the mandatory
minimum penalties for Section 104(d) violations that were set in the
2006 legislation. The result of the 2007 increases was an explosion of
contested cases, resulting in the current 17,000-case backlog at the
Federal Mine Safety & Health Review Commission (FMSHRC). We are
concerned that a new increase, effectively doubling the maximum penalty
(from $70,000 to $150,000) for non-flagrant significant and substantial
citations, will have the effect of raising all penalties
proportionately. This will increase the contest rate yet again,
threatening the viability of the FMSHRC system and depriving both the
mining community and MSHA of timely due process in resolving disputes.
It needs to be noted that immediate abatement is already required for
contested citations, unless deadlines are briefly extended to allow for
expedited proceedings at the discretion of the FMSHRC and MSHA. So,
contests do not, in our view, directly impact safety or health
conditions at the mine. But dramatically increasing the delays that
already exist may be detrimental to both sides' ability to litigate
cases as witnesses' memories fade, individuals retire, and evidence
becomes lost over time.
Although Congress has included a ``pre-judgment interest''
provision in this legislation as a deterrent to contesting citations,
we doubt that this will be effective in reducing contests. The stakes
will be too high for mine operators to accept citations they dispute
when penalties are doubled and in light of the expanded exposure to
Pattern of Violations findings resulting from increased serious and
significant citations, which would occur if this bill becomes law
contemporaneously with changing the definition of S&S to make all
violations presumptively fall into this category.
Congress must also clarify how the pre-judgment interest will be
applied in cases that settle before trial. Unclear is whether interest
can be waived in the interest of settlement. Also unclear is the
situation where citations are modified in terms of negligence or
gravity, which would change the basic penalty under the criteria in 30
CFR 100.3, but are not vacated entirely. Would interest be waived where
the operator's contest had merit in terms of how a citation was
classified, even if a violation is upheld in some form? These issues
must be addressed before pre-judgment interest is implemented
legislatively. ASSE also believes that the FMSHRC's de novo penalty
powers should remain intact, and the FMSHRC should not be bound by the
Part 100.3 criteria but should be able to increase or decrease
penalties appropriate to the evidence presented and the FMSHRC's
findings on a case-by-case basis.
Section 501-507--Rulemaking Provisions
This legislation directs MSHA to engage in rulemaking on a number
of critical issues to mine safety in underground coal, and ASSE
supports in general these initiatives. However, we note that MSHA
already has an ambitious rulemaking agenda that includes such things as
strengthening of the crystalline silica standard for all mines and the
development of an injury and illness prevention program (I2P2)
standard. In our members' view, an I2P2 standard should be a priority
because it will have the most significant and positive impact on
improving a company's safety culture and ensuring adequate risk
assessment, hazard control, employee training and empowerment, and
evaluation of the effectiveness of safety programs and procedures. The
I2P2 initiative should not be put on the back burner as a result of
resource choices that would be necessary if the new rulemaking required
by HR 5663 are put on a fast-track for MSHA's standards office.
Therefore, if Congress believes that it is necessary to mandate the new
rulemaking initiatives, adequate resources should be provided to MSHA's
standards office so that the I2P2 rulemaking can also proceed in a
timely manner.
ASSE is somewhat baffled by the intention of Section 507,
concerning ``certification'' of personnel. If personnel are already
required to be certified, what is the benefit to charging fees for this
certification in terms of safety and health? Moreover, we hesitate to
support making activities conducted by one whose certification may have
lapsed automatically ``flagrant'' [Section 104(d)] violations, as this
could occur through oversight rather than through intentional
misconduct. Congress should also more clearly delineate which
certifications are within the scope of this provision, what the fees
would be, and how often recertification would be required, as there are
currently no such specifications to our knowledge in the standards
under the Mine Act.
Conclusion
Again, while ASSE believes a better approach would be to give
adequate separate attention to Mine Act and OSH Act safety and health
reforms, we respect your intention to bring about greater commitment
among employers to worker safety and health and look forward to an
opportunity to work with you and the Committee to make sure any reforms
that are pursued are able to accomplish their intended goal.
Sincerely,
Darryl C. Hill, Ph.D., CSP,
President.
______
July 13, 2010.
Hon. George Miller, Chairman; Hon. John Kline, Ranking Member,
Committee on Education and Labor, 2181 Rayburn House Office Building,
Washington, DC.
Dear Chairman Miller and Ranking Member Kline: On behalf of
Associated Builders and Contractors (ABC), a national association with
77 chapters representing 25,000 merit shop construction and
construction--related firms with 2 million employees, we appreciate the
opportunity to submit this statement as part of today's Full Committee
hearing on H.R. 5663, Miner Safety and Health Act of 2010. ABC and its
members are ardent advocates of workplace safety, which is demonstrated
through our proven record of cooperation and collaboration with the
Occupational Safety and Health Administration (OSHA) and dedication to
workplace safety education and training. ABC, however, strongly opposes
the provisions (Title VII) that would amend the Occupational Safety and
Health Act (OSH Act) that are included within H.R. 5663.
Over the years, ABC and its 77 chapters nationwide have had the
privilege of building excellent working relationships with OSHA's
national, regional and area offices. OSHA staff members have addressed
ABC members at our annual Construction Education Conference and worked
with our chapters to conduct safety training courses throughout the
country. Communication between both OSHA and ABC members has increased
understanding of workplace safety, which has contributed to the
decrease in the number of fatalities and injuries in the construction
industry since 1994.
The approach taken in H.R. 5663 would strain communications and
relations between ABC, its members and OSHA, however, by unnecessarily
increasing the adversarial nature of the relationship between OSHA and
employers. Specifically, H.R. 5663 changes the OSH Act's penalty scheme
by altering the mens rea requirements for criminal liability from
``willful'' to ``knowing'' and the broadening the definition of
employers to ``any company officer or director.'' The bill provides no
definition of ``knowing,'' nor does it provide any limitation or
guidance on which ``officers or directors'' could face criminal
charges. At the same time, H.R. 5663 would dramatically increases civil
and criminal monetary penalties.
These proposed changes will increase litigation, discourage
settlements, and create disincentives for cooperation between
employers, associations and OSHA. This will stretch and misdirect the
resources of OSHA and other federal agencies and impose substantial
costs on businesses at a time they can afford it least, all while doing
nothing to prevent workplace accidents and injuries.
ABC also opposes the provision requiring immediate abatement and
the limits the provision imposes on an employer's ability to challenge
a citation. This denies employers due process rights, and OSHA already
has the authority to seek an injunction if a hazard poses an imminent
threat.
Lastly, H.R. 5663 contains neither support nor assistance for
employers to help them implement better safety programs or understand
their obligations. Such compliance assistance is particularly necessary
to help small businesses, who often cannot afford to maintain safety
personnel or hire consultants to guide them through complicated OSHA
regulations.
The construction industry is already strained with job loss, with
unemployment over 20 percent, and adding more bureaucratic layers to an
already burdened industry is not conducive to expedient economic
recovery. Jobsite safety and health is a top priority for ABC, whose
objective is to have ``zero accident'' worksites.
In order to work towards our shared goals of healthy and safe
workplaces, OSHA must be a resource for employers as well as an
enforcement agency. However, we strongly believe that H.R. 5663 as
introduced, will not improve safety but will instead create greater
cost, litigation and hamper job creation.
Sincerely,
Brewster B. Bevis, Senior Director,
Legislative Affairs, Associated Builders and Contractors.
______
July 13, 2010.
Hon. George Miller, Chairman; Hon. John Kline, Ranking Member,
Committee on Education and Labor, 2181 Rayburn House Office Building,
Washington, DC.
Dear Chairman Miller and Ranking Member Kline: I am writing on
behalf of the 2,700 contractor members of the Independent Electrical
Contractors (IEC), whose concern for the safety of their employees is
second to none. It is unfortunate that I have to write in opposition to
H.R. 5663, The Miner Safety and Health Act of 2010, which will not
improve workplace safety but serve merely as a punitive tool that
closes the proverbial barn door after the horse has already left. This
legislation will serve to bring increased business costs and litigation
to an industry that is already facing more than 20% unemployment, while
providing no benefits to the hard working men and women in the
electrical field.
Prior to addressing IEC's concerns with H.R. 5663, I feel compelled
to make clear to the Committee that IEC members are committed to the
health and safety of their employees and the well-being of their
electrical contracting businesses and customers. For that reason, IEC
has been, and continues to be, an active participant with the
Occupational Safety and Health Administration (OSHA) and other
organizations in a continuing effort to promote the safe products,
procedures, and work practices that govern our industry.
OSHA's cooperative programs, such as the IEC/OSHA Alliance, serve
as a valuable conduit for ensuring that the busy contractor is kept up
to speed on the latest regulations and workplace practices. As part of
IEC's agreement with OSHA, IEC commits to educating its members about
OSHA regulations, as well as, relaying the best industry practices
promoted by OSHA. An excellent example of this partnership is IEC's
Jobsite Safety Handbook, which was produced in cooperation with OSHA,
and provides contractors with a pocket-sized, jobsite safety guide,
written in English and Spanish, for their supervisors and employees.
Cooperative efforts between the government and the private sector,
including the IEC/OSHA Alliance, are key reasons why the injury rate in
our industry has been in a consistent and steady decline. IEC members
believe that one injury is too many, but remain confident in consistent
improvements in this field, and committed to ensuring that jobsite
injuries and fatalities continue their downward trend.
Specifically regarding Title VII of H.R. 5663, IEC is concerned
that the legislation increases penalties and gives OSHA inspectors more
authority over the jobsite without doing anything to actually prevent
accidents from taking place.
The increased criminal penalties are vague, as there is no clear
definition of a ``knowing'' violation, nor is there any guidance or
limitation on the ``officers and directors'' who could face criminal
charges. The lack of clarity that accompanies this significant
expansion of criminal liability will undoubtedly discourage settlements
and instead increase litigation.
Further, H.R. 5663 will give OSHA inspectors, who may not be
experts in the construction industry generally or the electrical field
specifically, the ability to shut down a jobsite until an employer
makes their recommended changes. Along with denying the contractor
their right to appeal for a review of the inspectors' decision, this
new authority could have a substantially negative impact on a small
business owner's ability to be competitive. When an inspector, who has
no training or background in the construction industry, mistakenly
orders the abatement of a jobsite, even for a few hours, they will be
threatening the economic livelihood of that contractor and every
employee on that site, including those who work for other employers on
related jobs.
Again, I would like to express our opposition to H.R. 5663 with the
clear statement that IEC and its contractor members strongly support
improvements to workplace safety, and we remain hopeful that
cooperative relationships, such as the IEC/OSHA Alliance, can continue
to contribute to a reduction in workplace injury rates.
Thank you for your time and consideration.
Brian Worth, Vice President,
Government and Public Affairs.
______
Prepared Statement of the National Stone, Sand and Gravel Association
Mr. Chairman and Members of the Committee: This testimony for the
hearing on ``H.R. 5663, Miner Safety and Health Act of 2010'' is
offered on behalf of the National Stone, Sand and Gravel Association
(NSSGA).
By way of background, the U.S. Geological Survey reports that NSSGA
is the largest mining association by product volume in the world and
represents the crushed stone, sand and gravel--or construction
aggregates--industries that constitute by far the largest segment of
the mining industry in the United States. Our member companies produce
more than 90% of the crushed stone and 75% of the sand and gravel
consumed annually in the United States. Almost every congressional
district is home to a crushed stone, sand or gravel operation.
Proximity to market is critical due to high transportation costs thus
70% of our nation's counties include an aggregates operation.
Aggregates are ubiquitous and essential to the built environment.
Currently, the construction industry is suffering the highest
unemployment level of any industry sector--21.1%--more than double the
national average. According to the U.S. Geological Survey, an estimated
317 million metric tons (Mt) of total construction aggregates were
produced and sold in the United States in the first quarter of 2010, a
decrease of 11% compared with that of the same period of 2009. The
estimated annual output of aggregates in 2009 was 1.92 billion metric
tons (Gt), a 23% decrease compared with that of 2008. Companies in our
industry have had layoffs for the first time in their history. Although
the Reinvestment and Recovery Act has helped to keep the aggregates
industry from falling into a deeper recession, if the stimulus funding
runs out without an extension of the surface transportation law (the
current extension of transportation law expires Dec. 31, 2010), more
job losses unfortunately cannot be prevented unless home, office
building and commercial construction soar by that time.
We believe that introduction of H.R. 5663, ``Miner Safety and
Health Act of 2010'' misses an opportunity for meaningful, bipartisan
mine safety reform. Instead, H.R. 5663 proposes overly broad statutory
changes that will adversely affect all mining, and particularly the
aggregates production industry. We would submit that the bill's focus
should be on requiring recalcitrant mine operators to bring their
operations into compliance with current safety and health laws and
practices.
This bill includes new increases in penalties just four years after
passage of the MINER Act in 2006. Since 2006, penalty assessments for
aggregates operators have more than doubled to $17.4 million in 2009.
Also, the bill establishes two new funds. The dollars required for
these funds are dollars that will not be spent on hiring workers, and
making needed investments in safety and health. In addition, the bill
lacks provisions for compliance assistance, calls for several
rulemakings and includes an unprecedented increase in the authority of
the Secretary of Labor. We believe it is premature to grant more
authority to a regulatory regime that President Obama recently said is
deserving of more review before conclusion of the studies into the
cause of the West Virginia coal mine disaster.
NSSGA and its members continue to be committed to providing the
safest and healthiest work environments possible. This commitment is
demonstrated by NSSGA's work with the U.S. Mine Safety and Health
Administration (MSHA), primarily through the MSHA-NSSGA Alliance for
education and training. The agreement, into which MSHA entered, is said
to be the most productive such relationship MSHA has with industry.
Through the alliance, NSSGA has worked collaboratively to perform
analysis on safety data, develop ``best practices'' materials, and
communicate to members the importance of safety and health.
This commitment has paid off. In 2009, aggregates operators
achieved the lowest total injury incidence rate on record: just 2.46
injuries per 200,000 hours worked. It is the ninth consecutive year in
which aggregates operators reduced their injury rate from the previous
year. Also, through sustained management's emphasis on safety and
health, employee training and education, and other programs, we have
reduced the number of aggregates operator fatalities to seven, the
lowest number ever. While we are proud of this improvement, we will not
rest until we have reduced the number of fatalities to zero.
NSSGA and its members have long recognized the critical importance
of worker safety and health and historically have devoted an enormous
amount of effort and resources to ensuring the wellbeing of our
employees. This unequivocal dedication to safety and MSHA compliance
was demonstrated when the NSSGA board of directors authorized a
company-by-company Safety Pledge campaign to cut the aggregates
industry's national incidence rate in half. There are more than 10,400
pits and quarries in this industry, both small and large. They have
achieved unprecedented levels of safety, and under no circumstances do
they pose the hazards of underground coal mines.
While not intending to be in any way pejorative towards coal an
essential element of the nation's energy mix, we believe that it is
critical to point out distinct differences in the risks posed by
aggregates operations from those posed in coal mining. For instance,
while more than 40% of all coal mines are underground, underground
aggregates (stone) mines constitute slightly less than one percent of
all aggregate mines. Underground stone mines are cavernous and contain
no methane or other flammable gases. Nor is stone dust combustible.
Full-sized off-road equipment from dump trucks to front-end loaders is
able to drive into underground stone mines; ventilation issues are not
comparable to underground coal or other tunneled mines. Also, accidents
involving the death of more than one aggregates worker at a time are
not characteristic of our industry. They are so rare the last time
there was a double fatality accident in the aggregates industry was
more than a dozen years ago. According to MSHA's online records, the
last time there was an aggregates disaster--classified by MSHA as an
accident causing five or more fatalities--was almost 70 years ago, in
1942. To help illustrate these and other substantial distinctions in
mine structure, mined materials and operational methodologies, we
invite you and your staff to tour an underground stone mine.
We applaud the Committee's exploration of issues tied to safety in
the nation's mines; however, we are concerned with a number of
provisions of H.R. 5663. Fundamentally, we believe the bill misses the
opportunity to improve the regulation and enforcement of mine safety.
This bill seems to have been spawned exclusively by the coal disaster
at Upper Big Branch. Yet, the safety issues confronting the aggregates
sector are fundamentally different from those of the coal sector.
For instance, expansion of the ``significant and substantial,'' or
``S&S'' category, to apply in cases in which there is a reasonable
possibility that such violation could result in any injury or illness,
no matter how minor, is inappropriate. It unnecessarily broadens this
important classification and eliminates the current requirement that an
S&S violation be of a ``reasonably serious nature.'' If this were to be
enacted, most violations would satisfy the heightened designation of
``S&S.'' An on-going concern of ours has been that we believe that S&S
is very inconsistently applied, and we fear a broadening of this
powerful provision.
Further, we think there would be an incentive to ever safer
behavior and attentiveness as we get to lower and lower incidence rates
if a provision could be added to the law for a ``de minims'' violation.
An alternate solution would be to provide inspectors the discretion to
issue a ``warning'' so that something can be abated at a timeframe
appropriate without resulting in a citation. We believe the law has
been lacking in this discretion and the ability to downgrade a
violation is a must to encourage and focus inspectors, as well as
workforces and management to concentrate on compliance, prevention and
elimination of issues based on level of risk.
The process of making violation of any requirement of the Act or
regulations--no matter how minor--a felony, and reducing the threshold
for criminal liability from ``willful'' to ``knowing,'' would be
counter-productive. This provision would criminalize the management of
a mine, especially mine personnel who first encounter and assess
particular conditions or practices. It would make even minor
housekeeping and paperwork violations criminal felonies. We contend
that, at the least, a felony should require that the defendant have
knowledge that his actions exposed a miner to a reasonable risk of
serious injury or illness or death.
Expansion of section 110(c) provisions dealing with personal
liability of any officers, directors or agents of the company is overly
broad. It would extend liability not only to violations authorized or
carried out by officers but also to ``any policy or practice that
contributed to such violation,'' without any further definition of the
meaning of this phrase. This provision apparently would criminalize
entirely legal policies that might be deemed to have ``contributed'' to
a violation.
Increases in maximum criminal and civil penalties are unwarranted
for a sector that has continued to reduce injury and illness rates that
have been declining for ten years (and six before passage of the MINER
Act.) There is no evidence that current penalties--when actually
imposed and collected--are insufficient to deter and punish improper
behavior.
The overhaul of the Pattern of Violations (POV) provisions is
overly broad and will actually result in perverse consequences that
will harm aggregates without improving safety. If a mine is placed on
POV status, the entire mine (not just the portion with safety issues)
would be closed down until it can comply with an MSHA remediation
order. Penalties and inspections are doubled while a mine is on POV
status. The legislation would allow MSHA to impose rules that base a
finding of a POV on an unspecified combination of violations, orders,
accidents or injuries, without identifying the degree of risk of injury
or illness that should lead to such status. While the current POV
program needs revision, this represents regulatory over-reach and will
lead to unnecessary mine closures. At the very least, pattern status
should be limited to mines where a clear pattern of violations, orders,
or accidents indicates a significant risk to miners of serious injury
or illness or death. The consequences of pattern status are so severe
that they should not be imposed due to a ``pattern'' of minor
violations that do not risk significant harm.
NSSGA could support a well-defined system through which a sustained
pattern of violations representing genuine risk could lead to a mine
closure. But, we would not support the granting of authority to MSHA to
shut down a mine without third-party review.
Increases in penalties for retaliation against whistleblowers
should be refined. The Mine Act currently prohibits retaliation against
whistleblowers, and provides for compensation of miners when sections
of the mine are closed for safety reasons. While we support a
reasonable extension in the period of such compensation, it is
unreasonable to require compensation for an indefinite period,
especially if there are no means of recouping those costs in the event
that there's a vacation of the citation that will have led to the
closure.
Expansion of subpoena authority to ``any functions under this Act''
is too open-ended. As written, there are no criteria or limitations for
this use of subpoena power. NSSGA could support closure of a possible
loophole, but does not support a blanket, vague extension.
Making advance notice of inspections a federal felony is unwise. It
is unclear what constitutes advance notice. We support enforcement
action against anyone who attempts to subvert mine inspections.
However, the definition of what constitutes ``advance notice'' must be
thoughtfully defined. Confidential communication is a primary method by
which miners protect themselves, and keeping any information completely
confidential in the close confines of a mine or mine site is a
challenge. For instance, it is commonplace to inform miners when
visitors are on-site, and it may be necessary to summon certain
managers and employees to meet with the inspectors as they arrive. Any
number of other actions could be incorrectly interpreted as subversive;
thus, a much improved definition is necessary to prevent well-intended
communication among miners from being construed as inappropriate.
Limitation on use of the same attorneys by operators and operator
company employees for defense against alleged violations is ill-
advised. This provision injects MSHA into the attorney-client
relationship, and is unnecessary because bar standards already prohibit
attorneys from representing multiple clients with conflicts of
interest, unless there is mutual consent of all parties.
Requirement that operators include independent contractors in
injury and illness reports is not appropriate. The Mine Act currently
gives production operators and independent contractors equal status and
responsibilities under the law. Yet, this requirement constitutes a
substantial challenge administratively, as the HIPAA Act prohibits
operators from obtaining the required health information and accident
details on employees of independent contractors.
If the Act is amended with such a broadening of enforcement powers,
it may actually make the problems with the underlying statute worse,
which we believe should focus on areas of highest risk first (save
lives), then prevent injury or illness, and finally to assure legal
requirements are being met. The potential for overreach, regulatory or
enforcement misjudgment, reduction of compliance efforts on priority
areas of highest risk and instead a very scattered focus on any and all
issues from a broken mirror to an uncovered trashcan could result. This
would lessen, not improve, our culture of safety.
We appreciate the opportunity to submit this statement for the
record of the hearing on H.R. 5663, the Miner Safety and Health Act of
2010.
______
[Whereupon, at 6:20 p.m., the committee was adjourned.]