House Committee Approves Landmark Miner and Worker Safety Legislation

On a 30-17 vote, the House Education and Labor Committee on July 21 approved legislation to reform the nation’s mine and worker safety laws and update the Occupational Safety and Health Act (OSH Act). The full House is expected to vote on H.R. 5663, the Robert C. Byrd Miner Safety and Health Act 0f 2010, (and pass it) before the August break, while the Senate is expected to vote on the bill (and defeat it) after the break.

“The legislation passed by the House Education and Labor Committee represents an important step forward in strengthening safety laws for our nation’s miners,” said Secretary of Labor Hilda Solis.

“This bill will compel operators who don’t take the safety and health of miners seriously to do so,” she added. “In addition, by also strengthening the OSH Act, this bill will improve safety and health for all workers. Every worker deserves to come home safe at the end of a shift.”

The Robert C. Byrd Miner Safety and Health Act (H.R. 5663) would provide stronger tools to ensure that underground coal mine operations with troubling safety records improve conditions, 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.

“Too many families have suffered a tragic loss because of callous mine operators, ineffective protections and outdated laws. It is time to provide effective protections so that every worker can return home safely at the end of their shift. Congress has an obligation to make sure that is the case,” said U.S. Rep. George Miller, D-Calif., the chairman of the committee. “This legislation addresses serious gaps in the law and makes comprehensive, common-sense reforms to strengthen our nation’s safety laws.”

The legislation approved by the committee would give miners working in underground coal mines additional protections against retaliation if they speak up about dangerous conditions. In May, the House Education and Labor Committee heard testimony in Beckley, West Virginia from miners and families of those who died in the Upper Big Branch Mine about serious shortcomings in miner protections, including threats and intimidation of miners who brought up safety concerns to their bosses.

The Upper Big Branch explosion also highlighted serious flaws in existing laws that undermine MSHA’s ability to bring tougher sanctions against the nation’s most dangerous mines. The bill would revamp the criteria for “pattern of violations” sanctions to ensure that dangerous underground coal mine operations fix chronic problems.

“The safety and health of our nation's miners is too important not to act,” said Rep. Lynn Woolsey, D-Calif., chair of the Subcommittee on Workforce Protections. “The Occupational Safety and Health Act, in particular, has not been significantly amended in 40 years and is badly outdated and needs to be brought into the 21st century. The bill that has been voted out of this committee will save lives and I am looking forward to its passage on the floor.”

Revamping the OSH Act

In response to a number of recent deadly explosions at refineries, power plants and food processing facilities, the bill also extends similar worker protections to all workplaces in order to hold employers accountable if they knowingly put their workers in danger.

“Every day, 14 workers don’t come home from work. While they don’t make headlines like trapped miners do, their lives and limbs are no less valuable,” said Miller.

In a White Paper issued in November 2008, ORC Worldwide, a global human resources consulting firm whose Washington, D.C., office provides specialized occupational safety and health services to businesses and other organizations, commented 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.”

In comments sent to Miller before the markup and passage of H.R. 5663, ORC Worldwide noted, “H.R. 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 work force. 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.” (To view the complete statement from ORC Worldwide, click here.)

To ensure that all workplaces have basic protections, whistleblower protections would be strengthened, criminal and civil penalties would be increased and hazard abatement would be sped up. In addition, victims of workplace incidents and their family members would be provided greater rights during investigations and enforcement actions. OSHA would be allowed to assert concurrent enforcement jurisdiction in states with OSHA state plans, if the state is failing to maintain protections for workers that is at least as effective as federal OSHA.

One of the major amendments to the bill was offered by Congresswoman Dina Titus, D-Nev., and examines the management of occupational safety and health in states with OSHA state plans. Titus noted that such state plans are required to provide occupational safety and health regulations that are “at least as effective” as those of federal OSHA. Nevada recently came under fire for non-compliance.

“Federal OSHA’s special review of Nevada’s OSHA enforcement program is that Nevada OSHA has not been enforcing workplace health and safety standards as well as should have been the case,” said Titus. “In fact, the deficiencies discovered in Nevada were so glaring that the Department of Labor initiated in-depth reviews of all state plans, and those reviews will be released shortly.”

Under current law, she noted, Federal OSHA only has two options to make Nevada – or any other state with an approved plan – follow through on their obligations to workers:

1) Ask nicely and hope the state complies, or
2) Terminate the state plan, an extreme step that would remove state control, leave state and local government employees unprotected for a period of time and add costs to DOL for funding and running a health and safety program in the state.

Titus’ amendment offered a middle ground, giving OSHA options other than complete plan termination when a state plan is found to be underperforming. Her amendment establishes a formal mechanism for OSHA to identify a problem with a state plan and compel a remedy without beginning the process for withdrawing approval, and ensures continued application of health and safety regulations by providing OSHA with concurrent enforcement authority for the duration of the time that a state plan formally isfixing deficiencies. There are opportunities for states to appeal and to fix problems within certain deadlines.

“My amendment also holds federal OSHA accountable for providing strong oversight and guidance to state plans by establishing a regular Government Accountability Office (GAO) study – one every 5 years – to look at the effectiveness of state plans and the Secretary of Labor’s oversight of such plans,” said Titus. “The study would also include a look at funding of state OSHA plans, which under existing law, is supposed to be 50/50 – 50 percent from the state and 50 percent from the federal government. We know that many states are currently paying more than their 50 percent, including, among others, Minnesota, Washington, Kentucky and California.”

(Other mark-ups can be found at http://edlabor.house.gov/markups/2010/07/miner-safety-and-health-act-of.shtml )

Changes to Mine Safety Law

The mine safety portion of the approved bill would apply to all underground coal mines and other so-called “gassy” mines that emit potentially flammable or explosive amounts of methane.

Among other provisions, the reforms approved:

• Making mines with serious and repeated violations safe – Criteria for “pattern of violations” sanctions would be revamped for underground coal mines and other ‘gassy’ mines to ensure that operators which chronically and repeatedly violate mine safety standards or have high accident rates dramatically improve safety.

• Ensuring irresponsible operators are held accountable – Maximum criminal penalties would be increased for underground coal mines, and a sanction is established for mine operators who knowingly tamper with or disable safety equipment that could kill miners. Operators would be required to pay penalties in a timely manner.

• Giving MSHA better enforcement tools – MSHA would be given the authority to subpoena documents and testimony. The agency could seek a court order to close a mine when there is a continuing threat to the health and safety of miners. MSHA could require more training of miners in unsafe mines. MSHA will require contractors, in addition to operators, to report accidents and injuries, and hours of work at each mine, and those filing reports would be held responsible for their accuracy.

• Protecting miners who speak out on unsafe conditions – Protections for workers who speak out about unsafe conditions in underground coal and other gassy mines would be strengthened and would guarantee that miners wouldn’t lose pay for safety-related closures. In addition, miners would receive protections allowing them to speak freely during investigations.

• Modernizing safety requirements in coal mines – Increased rock dusting would be required to prevent coal dust explosions. Pre-shift reviews of hazards and violations in the mine must be communicated to incoming miners to ensure that they are not caught unaware. Protocols for continuous atmospheric monitoring for methane and carbon monoxide will be developed by NIOSH and adopted by MSHA through regulations.

• Increasing MSHA’s accountability – The legislative outline provides for an independent investigation of the most serious incidents, which includes an assessment of whether there are gaps in MSHA’s oversight or regulation. It asks the Government Accountability Office to assess whether there are problems with timeliness of mine plan reviews.

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