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Mine safety bill would hold employers accountable for worker safety, extend OSHA protections, witnesses claim at House hearing

July 15th, 2010  |  Connie Eyer

The Miner Safety and Health Act (H.R. 5663) would provide strong tools to not only ensure that mine operators with troubling safety records improve safety and empower workers to speak up about safety concerns, but would also extend OSHA protections in other workplaces such as refineries, power plants and food-processing facilities, according to testimony provided July 13 at a House Education and Labor Committee hearing.

In the wake of the April 29 explosion at Massey Energy’s Upper Big Branch, which killed 29 miners and highlighted serious flaws in existing laws, the legislation is an attempt to hold employers accountable if they knowingly put their workers in danger. In addition, whistleblower laws would be strengthened to the level of other federal whistleblower laws on the books, and penalties would be increased for the second time in 40 years and indexed to inflation. “The Upper Big Branch mine tragedy is the perfect example of how current law is inadequate, especially for those operations that do everything to flout the law,” said George Miller (D-Cal), Committee Chair. “Despite a pattern of serious violations, there was little [the Mine Safety and Health Administration] 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. Reform of mine safety laws is essential.”

More than mines. Expressing concern for workers who are fired for voicing safety and health concerns while the courts spend years deciding contested citations, David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, seeks to substantially modify worker safety laws in place since the Occupational Safety and Health Act of 1970. “Instead of waiting for an OSHA inspection or a workplace accident to address workplace hazards,” Michaels said, “employers would be required to create a plan for identifying and remediating hazards, and then to implement this plan.”

“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,” Michaels said. “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.”

The mine safety legislation puts more teeth into the Mine Act, noted Patricia Smith, Solicitor of Labor. Two new criminal provisions have been added, which strengthen 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 will be treated with severity. “Advance notice prevents MSHA inspectors from being able to observe mining as it is actually being done,” Smith said. “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.”

In urging the Committee and Congress to approve this legislation without delay, Lynn Rhinehart, General Counsel, AFL-CIO, noted that the bill would correct four weaknesses that 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.

Punitive focus ineffective. However, testifying on behalf of the Coalition for Workplace Safety, an industry group, Jonathon Snare, partner, Morgan Lewis, expressed concern that the legislation’s dramatic changes to the OSH Act are focused exclusively on punishing employers, which will not result in an actual “real world” impact that improves workplace safety and health. “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,” Snare warned. Noting that the 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,” Snare contended that “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.”