ASSE Opposes New Miner Safety and Health Act

July 14, 2010
Efforts to link key provisions of the Protecting America’s Workers Act (PAW Act, HR 2067) to mining safety and health provisions of the Mine Safety and Health Act of 2010 bill, HR 5663, are creating workplace legislation that is widesweeping but still does not accomplish protecting all of America’s workers, says the American Society of Safety Engineers (ASSE). The group is urging Congress to take a step back and think about the 8 million public sector workers who still won’t be covered under the new legislation.

The bill, which attempts to move forward reforms to both the Federal Mine Safety and Health Act (Mine Act) and the Occupational Safety and Health Act (OSH Act), does not serve the purpose of advancing occupational safety and health “in the most thoughtful way possible,” says ASSE.

In a letter sent today to Representative George Miller, chair of the House Committee on Education and Labor, ASSE President Darryl C. Hill, PhD, CSP, raised concerns and noted, “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 – are not protected at even current levels of protection is unfair to those public servants,” Hill wrote.

The OSH Act will not be reformed “until public sector workers receive the workplace protections they deserve,” Hill said.

ASSE is also concerned that positive contributions made to the PAW Act in reforming the OSH Act will be lost under the weight of opposition to Mine Act reforms that will make it difficult to achieve strengthening oversight of the nation’s mines.

Among the various OSH Act reforms included in the bill, ASSE does not oppose the increased levels of civil and criminal penalties proposed in this legislation if the new definition of employer under the criminal provisions is changed from ‘any officer or director’ to ‘any responsible officer or director’. As it stands, Hill noted, this definition helps protect the large majority of ASSE members doing their job from being held accountable for others’ failure to address safety and health risks.

“ASSE does not seek protections for an SH&E professional’s failure to fulfill professional responsibilities,” Hill said, “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.”

ASSE also conditionally supports a change from “willful” to “knowing” in the language of the bill to determine criminal intent under an OSH Act prosecution if it is made clear “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; a 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,” Hill said.

Hill notes that previous ASSE concerns about whistleblower provisions in the PAW Act had been addressed in HR 5663 and that ASSE supported sections on ‘Enhanced Protections from Retaliation and Prohibition of Retaliation’. ASSE, however, cannot agree with establishing a whistleblower private right of action. While ASSE supports giving victims the opportunity to appear before the Occupational Safety and Health Review Commission (OSHRC), it cannot support giving victims an opportunity to make a statement before the parties conducting settlement negotiations.

ASSE does support provisions allowing employers to file with the OSHRC a motion to stay a period for the correction of a violation designated as serious, willful, or repeated, a provision in HR 5663 that addresses concerns ASSE had with similar PAW Act provisions.

Concerning mining provisions in the bill, ASSE members are concerned about several provisions, including subpoena power language; significant and substantial violations; and, how the increase in mining civil and criminal penalties for ‘knowing’ violations would be handled.

Hill noted that 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 2007 increases resulted in the current 17,000-case backlog at the Federal Mine Safety and 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,” Hill noted. “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.”

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