[Senate Hearing 111-941]
[From the U.S. Government Publishing Office]
S. Hrg. 111-941
PUTTING SAFETY FIRST: STRENGTHENING
ENFORCEMENT AND CREATING A CULTURE
OF COMPLIANCE AT MINES AND OTHER
DANGEROUS WORKPLACES
=======================================================================
HEARING
OF THE
COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
ON
EXAMINING PUTTING SAFETY FIRST, FOCUSING ON STRENGTHENING ENFORCEMENT
AND CREATING A CULTURE OF COMPLIANCE AT MINES AND OTHER DANGEROUS
WORKPLACES
__________
APRIL 27, 2010
__________
Printed for the use of the Committee on Health, Education, Labor, and
Pensions
Available via the World Wide Web: http://www.gpo.gov/fdsys/
----------
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COMMITTEE ON HEALTH, EDUCATION, LABOR, AND PENSIONS
TOM HARKIN, Iowa, Chairman
CHRISTOPHER J. DODD, Connecticut MICHAEL B. ENZI, Wyoming
BARBARA A. MIKULSKI, Maryland JUDD GREGG, New Hampshire
JEFF BINGAMAN, New Mexico LAMAR ALEXANDER, Tennessee
PATTY MURRAY, Washington RICHARD BURR, North Carolina
JACK REED, Rhode Island JOHNNY ISAKSON, Georgia
BERNARD SANDERS (I), Vermont JOHN McCAIN, Arizona
SHERROD BROWN, Ohio ORRIN G. HATCH, Utah
ROBERT P. CASEY, JR., Pennsylvania LISA MURKOWSKI, Alaska
KAY R. HAGAN, North Carolina TOM COBURN, M.D., Oklahoma
JEFF MERKLEY, Oregon PAT ROBERTS, Kansas
AL FRANKEN, Minnesota
MICHAEL F. BENNET, Colorado
Daniel Smith, Staff Director
Pamela Smith, Deputy Staff Director
Frank Macchiarola, Republican Staff Director and Chief Counsel
(ii)
C O N T E N T S
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STATEMENTS
TUESDAY, APRIL 27, 2010
Page
Harkin, Hon. Tom, Chairman, Committee on Health, Education,
Labor, and Pensions, opening statement......................... 1
Isakson, Hon. Johnny, a U.S. Senator from the State of Georgia... 3
Prepared statement........................................... 5
Rockefeller, Hon. John D., IV, a U.S. Senator from the State of
West Virginia.................................................. 7
Prepared statement........................................... 9
Main, Joseph A., Assistant Secretary of Labor for Mine Safety and
Health, Washington, DC......................................... 10
Prepared statement........................................... 13
Brown, Hon. Sherrod, a U.S. Senator from the State of Ohio....... 25
Murray, Hon. Patty, a U.S. Senator from the State of Washington.. 26
Franken, Hon. Al, a U.S. Senator from the State of Minnesota..... 29
Enzi, Hon. Michael B., a U.S. Senator from the State of Wyoming,
opening statement.............................................. 31
Prepared statement........................................... 32
Roberts, Cecil E., President, United Mine Workers, Triangle, VA.. 35
Prepared statement........................................... 37
Harris, Jeffrey, Mine Worker, Farley, WVA........................ 41
Prepared statement........................................... 43
Addington, Wes, Deputy Director, Appalachian Citizens' Law
Center, Whites-
burg, KY....................................................... 44
Prepared statement........................................... 45
Watzman, Bruce, Senior Vice President, Regulatory Affairs,
National Mining Association, Washington, DC.................... 53
Prepared statement........................................... 55
Casey, Hon. Robert P., Jr., a U.S. Senator from the State of
Pennsylvania................................................... 69
Michaels, David, PhD, MPH, Assistant Secretary of Labor for
Occupational Safety and Health, Washington, DC................. 73
Prepared statement........................................... 75
Seminario, Peg, Director of Safety and Health, AFL-CIO, Bethesda,
MD............................................................. 89
Prepared statement........................................... 91
Shaw, Holly, Philadelphia, PA.................................... 99
Prepared statement........................................... 102
Brandt, Michael, MS, MPH, DrPH, CIH, Board President (2010-2011),
American Industrial Hygiene Association, Los Alamos, NM........ 105
Prepared statement........................................... 107
Heflin, Kelli, Coordinator of Regulatory Compliance and Safety
Manager, Scott's Liquid Gold, Denver, CO....................... 110
Prepared statement........................................... 113
(iii)
ADDITIONAL MATERIAL
Statements, articles, publications, letters, etc.:
Senator Byrd................................................. 122
Senator Webb................................................. 124
Coalition for Workplace Safety (CWS)......................... 125
Refinery Safety at a Glance.................................. 126
National Stone, Sand & Gravel Association.................... 128
Response to questions of Senator Harkin by Bruce Watzman..... 131
Response by David Michaels to questions of:
Senator Harkin........................................... 132
Senator Enzi............................................. 133
Senator Burr............................................. 135
Senator Isakson.......................................... 135
Response to questions of Senator Enzi by Michael Brandt...... 137
Lettters to:
Senator Murray from Lynn D. Westfall, Chief Economist and
Senior Vice President for External Affairs, TESORO
Corp. (May 5, 2010).................................... 28
Senator Harkin from Cecil Roberts, President, United Mine
Workers of America, UMWA (May 7, 2010)................. 139
PUTTING SAFETY FIRST: STRENGTHENING ENFORCEMENT AND CREATING A CULTURE
OF COMPLIANCE AT MINES AND OTHER DANGEROUS WORKPLACES
----------
TUESDAY, APRIL 27, 2010
U.S. Senate,
Committee on Health, Education, Labor, and Pensions,
Washington, DC.
The committee met, pursuant to notice, at 2:07 p.m. in Room
SD-430, Dirksen Senate Office Building, Hon. Tom Harkin,
Chairman of the committee, presiding.
Present: Senators Harkin, Murray, Brown, Casey, Franken,
Bennet, Enzi, and Isakson.
Also Present: Senator Rockefeller.
Opening Statement of Senator Harkin
The Chairman. The Senate Committee on Health, Education,
Labor, and Pensions will please come to order.
The topic of today's hearing couldn't be more timely or
more important, in the wake of the West Virginia coal mining
disaster that killed 29 miners; the refinery explosion in
Anacortes, WA, where seven workers died; the disaster that
killed six people at a Connecticut natural gas power plant;
and, just last week, a blast, on the Louisiana oil rig, off the
Gulf of Mexico, that most likely killed 11 workers. It is time
to focus renewed attention on the safety of our fellow workers.
This string of recent worker deaths and injuries is a grim
reminder that too many employers cut corners on safety, too
many workers pay the price with their lives.
As the son of a coal miner, I feel these losses very deeply
and on a very personal level. My thoughts and prayers are with
the families and coworkers of those killed, those injured or
missing because of these awful tragedies. While there is very
little comfort we can offer during this difficult time, we can
promise that their loved ones will not have died in vain. We
will learn from these tragedies so that no one has to go to
work in fear that they won't come home at the end of the shift.
Certainly, the history of the American workplace suggests
that, when we focus our efforts, we can do great things to
improve safety and health. Since the passage of the Coal Mine
Health and Safety Act and the Occupational Safety and Health
Act, four decades ago, countless lives have been saved, and the
number of workplace accidents has been dramatically reduced.
But, we still have a long way to go. Every year, tens of
thousands of American workers are killed or permanently
disabled by workplace injuries and occupational disease.
In 2008, the latest available data, 5,214 workers were
killed by traumatic injuries. An estimated 50,000 to 60,000
died from occupational diseases. Too many workers remain in
harm's way, and it's long past time to strengthen the critical
laws that help keep Americans safe on the job.
One area in our health and safety laws that needs
particular attention is enforcement. While the vast majority of
employers are responsible and do all they can to protect their
workers, there is, unfortunately, a population of employers
that prioritize profits over safety and knowingly and
repeatedly violate the law.
The deadly blast at the Upper Big Branch Coal Mine, earlier
this month, was a tragic example of the dangers of this
approach. This facility had a record of numerous and serious
safety violations, including 515 violations, last year alone--
515, last year alone. That's 76 percent more than the national
average. So far this year, it has already accumulated 124
additional violations. Even more troubling, 48, 48 of these
accrued citations were repeated, quote, ``significant and
substantial violations of safety standards that the mine
operator knew, or at least should have known, presented a
serious threat to worker safety.''
The problem of repeat offenders is certainly not limited to
the world of mining. Flagrant abuse of the law is common in
many of our most dangerous industries. Unfortunately, the
penalties for breaking the law are often so minimal that
employers can dismiss them as just a minor cost of doing
business.
Currently, serious violations, where there is a substantial
probability of death or serious physical harm, are subject to a
maximum civil penalty of $7,000 under OSHA. For comparison,
that's $18,000 less than the maximum fine for a class-1 civil
environmental violation under the Clean Air Act.
Criminal penalties under OSHA are also weak. If a worker
dies because of the willful act of his or her employer, that
employer faces a maximum conviction for a misdemeanor and up to
6 months in jail. In contrast, that same employer willfully
violating the Clean Water Act could be fined up to $250,000 and
spend up to 15 years in prison. In other words--this is my
point--our laws do more to protect the environment than it does
to protect our workers.
In addition to putting real teeth in our safety and health
laws, we have to make sure that our Federal agencies have the
enforcement tools they need to identify mines and nonmine
workplaces with the worst safety records, and hold these repeat
offenders accountable. We have provisions in our laws that are
supposed to target repeat offenders, but they're either
rendered ineffective, through mistaken interpretation, or
undermined by employers who will go to great lengths to game
the system.
There's no question that a mine, like the Upper Big Branch,
should have been receiving special scrutiny under the Pattern
of Violation provisions of our mine safety laws. This is an
operator that, even in the wake of the worst mining disaster in
recent history, continues to use such unsafe practices that,
just today, MSHA ordered the withdrawal of miners from three
different Massey Mines, due to hazardous conditions.
As bad as UBB's record was, the law has been interpreted to
allow them to continue operating without Pattern of Violation
treatment, as long as they can reduce their violations by more
than one-third in response to a written warning. With a record
as spotty as UBB's, a partial reduction in their numerous
citations is hardly a sign of a safe mine, and should not be a
``get-out-of-jail-free card'' to escape the intent of the law.
It's not just historically weak interpretations of the law
that are to blame; employers also find creative ways to ensure
that the system cannot work as Congress intended. In the mining
industry, for example, some chronic violators have avoided
being placed on Pattern of Violation status, and avoided paying
legitimate penalties, by contesting nearly every citation that
is assessed against them. Because MSHA uses only final orders
to establish a pattern of violations, and the average contested
citation takes over a year to adjudicate, since there are now
16,000 cases backlogged at the Federal Mine Safety and Health
Review Commission, repeat offenders are able to evade Pattern
of Violation status by contesting large numbers of violations.
At the Upper Big Branch Coal Mine, for example, Massey
contested 97 percent of its Significant and Substantial
violations, in 2007. A similar problem is seen in nonmine
workplaces. While the backlog of cases is not nearly as great
at the Occupational Safety and Health Review Commission, under
OSHA's weaker law, the employers don't even have to fix a known
hazard until the entire review process is completed, years
later. I think this is unacceptable, and it's got to change.
So, we sit here today, on the eve of Workers Memorial Day--
that's tomorrow April 28--a day that is set aside to remember
the thousands of men and women who die on the job in our
country every year. The best way we can honor their memory is
to renew our efforts to protect workers' lives and improve
safety and health in our country's coal mines and other
dangerous workplaces.
With that, I would yield to my friend Senator Isakson.
Senator Isakson. Well, thank you, Chairman Harkin.
First of all, I'd ask unanimous consent that the full
statement of Senator Enzi, the ranking member of the committee,
be placed in the record.
Statement of Senator Isakson
Senator Isakson. A little over 3 years ago, just after
Christmas, I got in an airplane with Senator Ted Kennedy,
Senator Jay Rockefeller, and Senator Mike Enzi, and traveled to
the Sago Mine disaster in West Virginia. I got to see,
firsthand, the tragedy of the deaths of miners in an accident;
got to meet, firsthand, with the families of those West
Virginians that had lost their loved ones; still have the
picture of Junior Hemmer that was given to me by his daughter.
I attended the signing at the old executive office building, of
the MINER Act, which Senator Rockefeller and myself, Senator
Enzi and Senator Kennedy were proud to be a part of.
I take this hearing probably more seriously than I take
just about any hearing, because when you look in the face of
someone who has lost a loved one to a tragedy, no matter what
that tragedy is, you really understand the full impact of the
loss of a human life. None of us on this committee want to do
anything other than to ensure the laws that we have work in the
interest of the safety of miners, and make sure that we
approach these with very serious and studied opinions.
In particular, I was very pleased, at that time, to work in
a deliberate way to make sure we found out the determination of
the cause before we ran off halfcocked, thinking, by adding a
fine or adding a statute, we'd improve the situation.
I think I'm correct, Mr. Main--and you can correct me if
I'm wrong--but on the day of the explosion that we're talking
about today, there were MSHA inspectors in the mine--they were
just in another part of the mine--which shows you that, even on
the day of the problem, if the inspectors that are there to
prevent the problem were there, then there must be something
either they need to do or we need to do.
However, I want to point out, Senator Rockefeller--and I'm
referring to him, because he's sitting here and he can correct
me if I'm wrong--went to extensive effort, in the MINER Act, to
try and target those things we knew we could do to, hopefully,
meet what every person's goal in this committee is, and that
is, ensure this never happens again. But, it's happened again.
And that's a wake-up call for all of us, everybody at MSHA,
everybody at OSHA, and everybody in the U.S. Senate and the
Congress, to act on.
We should recognize, too, that enforcement of existing law
is as important as creating a new law that you think's going to
get at the problem if you're not using the existing law. For
example, I want to read a few things that MSHA has the
authority to do now:
''MSHA may, under section 104(b), order an immediate
withdrawal of any mine, from any part of the mine, or
from the entire mine when a hazard that cannot be
immediately abated is endangering miners.''
Now, I'm not about to say that the inspectors there that
day didn't know there was something getting ready to happen,
but they obviously didn't or they'd have had the power to close
that mine.
``MSHA can seek a temporary or permanent injunctive
relief to close a mine, or take any other appropriate
action, whenever it finds a mine operator engaged in
behavior that constitutes a continuing hazard to
miners, under Section 818(a) of the MINER Act. If MSHA
determines that there is a consistent pattern of
significant and substantial violations, they may issue
a Pattern of Violation letter, under 104(e), for which
violations found after issuance of a letter, MSHA will
issue an order withdrawing miners from the affected
area.''
And,
``MSHA may, under the MINER Act, find flagrant
violations, whereby there has been a reckless or
repeated failure to make reasonable efforts to
eliminate a known violation of a mandatory health or
safety standard that substantially and approximately
caused, or reasonably could have been expected to cause
death or a serious bodily injury, and that violation
can cover a fine up to $225,000.''
My point is not to say we've done enough, but it is to say
we've given a lot of authority to MSHA already. The enforcement
of that authority and the use of that authority by MSHA is
critical if the U.S. Senate, and all of us in it, reach the
goal, as was stated at the ceremony the President spoke at the
other night, to see to it that this never happens again. We
wanted to do that in the MINER Act, we want to do that today,
but there--it's all hands on deck. It's everybody we can find
that can do anything to help us find the causes, so we can
prohibit those causes. It's finding out all the information of
who did what when. It's taking the authorities that exist and
making sure they were exercised before we blame it on some--or
you pass some new authority just to correct something that
wasn't used anyway.
Whatever the case, the wives and loved ones of the 29
miners of West Virginia lost in the most recent incident are at
the top of our mind and at the bottom of our hearts.
I look forward to working with the Chairman, Senator
Rockefeller, and Senator Byrd. I think Congressman Rahall
deserves a tremendous amount of credit for his--I saw more of
him on television, and he was there at the right hand of the
families, the inspectors, and the government officials, seeing
to it that everything that could be done was done. I commend
him for doing that; and Senator Rockefeller and Senator Byrd,
for their untiring support of efforts to improve mine safety,
which is so critical to the families, but it's critical to the
great State of West Virginia.
With that, I yield back my time.
[The prepared statement of Senator Isakson follows:]
Prepared Statement of Senator Isakson
I am pleased to welcome Mr. Joseph Main and all of our
witnesses to today's hearing.
It has now been 3 years since Senators Kennedy, Enzi and I
joined Senator Rockefeller on a visit to Upshur County, West
Virginia to meet with the devoted families of the miners who
perished in the Sago Mine tragedy. It was, to say the very
least, one of the most moving experiences of my life.
Sadly, we find ourselves here again, this time after the
tragedy at Upper Big Branch mine.
After Sago, many of us in this room delved into the safety
challenges and how the industry and the Federal and State
regulators were meeting them. We consulted professional safety
experts inside and outside the mining community--including
academicians and technology experts. The result was the MINER
Act that Congress passed in the summer of 2006.
At the same time as Congress was responding to these
tragedies, so was the entire mining industry. Complacency about
safety was no longer acceptable for 21st century mining.
Employees, employers, and MSHA staff set out to put the
industry on course to drive mine accidents down to zero.
After Sago, more attention was focus on areas of the mine
where incidents were more likely to occur. Mines better managed
risk by designing programs specifically designed to raise
awareness of safety underground. Almost a billion dollars has
been invested in communications technologies, increased oxygen
supplies for underground survival, and enhanced rescue
capabilities.
Despite these efforts, we lost another 29 brave miners at
Upper Big Branch earlier this month. I will continue to pray
for the families as we seek answers to their questions.
One we have heard asked is whether this mine was known to
be operating in an unsafe manner and, if so, why MSHA allowed
that? There is no doubt that MSHA has extensive legal authority
under current law to stop unsafe mining when it finds it.
MSHA may, under section 104(b), order an immediate
withdrawal of miners from any part of the mine or the entirety
of the mine when a hazard that cannot be immediately abated is
endangering miners. This includes closure of the area,
equipment, or practice that is alleged to be in violation of
the standards.
MSHA may seek temporary or permanent injunctive relief to
close a mine or take any other appropriate action whenever it
finds a mine operator engaged in behavior that constitutes a
continuing hazard to miners, under Section 818(a).
If MSHA deems a mine operator's conduct to be reckless
disregard, intentional misconduct, indifference, or a serious
lack of reasonable care, the agency may, under Section 104(d),
issue an unwarrantable failure citation. Such violations carry
a maximum civil penalty of $70,000.
If MSHA determines that there is a consistent pattern of
significant and substantial violations, they may issue a
pattern of violations letter under Section 104(e). For each
significant violation found after issuance of the letter, MSHA
will issue an order withdrawing miners from the affected area.
MSHA may, under the MINER Act, find ``flagrant''
violations, whereby there has been a ``reckless or repeated
failure to make reasonable efforts to eliminate a known
violation of a mandatory health or safety standard that
substantially and proximately caused, or reasonably could have
been expected to cause, death or serious bodily injury.'' Such
violations carry a maximum civil penalty of $220,000.
Under the 1977 Mine Act, MSHA can bring criminal charge
against agents, officers and directors who knowingly authorize
order or carry out violations of mandatory standards.
Similarly, MSHA may impose criminal penalties on any person who
knowingly falsifies a record or document required to be
maintained.
I know some are now asking that we increase MSHA's
authority. Before we even consider such an action, I think we
first have to determine why MSHA did not use all the authority
it already has with regard to Upper Big Branch. Despite issuing
over 60 orders to withdraw miners during the last 18 months,
MSHA did not seek injunctive relief, did not find a pattern of
violations, took no action to eliminate what it now calls a
``loophole'' in its own pattern violation rules, and did not
even seek to classify any of the multiple violations that it
cited as ``flagrant.''
In closing, every time we discuss mine safety, I cannot
help but remember George ``Junior'' Hamner. Junior Hamner died
in the disaster at Sago Mine. His loving daughter gave me a
picture of him and asked that in my capacity as the Ranking
Member of the Employment and Workplace Safety Subcommittee, I
would work to see that future generations of miners would not
suffer as her father did. I promised her I would.
It is in light of that promise that I will continue working
with the industry, the Obama administration, and my colleagues
on both sides of the aisle to ensure that American mining is
unquestionably the safest mining in the world.
The Chairman. Thank you very much.
I ask the indulgence of the committee, since this tragedy
took place in Senator Rockefeller's State, I've asked Senator
Rockefeller to join us here. And I'd like to recognize him for
a brief statement.
Senator Rockefeller.
Statement of Senator Rockefeller
Senator Rockefeller. Thank you, Mr. Chairman.
I enormously appreciate the attitude of yourself and your
colleagues in allowing me to be here, as indeed you did after
the Sago Mine disaster, and we wrote legislation.
Congressman Rahall being in the audience is important.
I just wish that everybody, other than those who were
there, who are watching in the audience and in the other
overflow room, could have been at the ceremony--the Miners
Memorial on Sunday, which was one of the most powerful and
gripping experiences that I've ever had.
Workplace safety is important in all industries, but it's
absolutely critical in those industries where the risks of
injury are great, and the consequences of poor safety are
severe. Sadly, we've been there before, after the tragedy of
Sago and Aracoma. I had the honor, as I indicated, of joining
this committee then. I would like to be made a permanent
member, but I'm not going to push the envelope.
[Laughter.]
It meant a lot to the families, there at Sago, that
Senators Kennedy and I'll just say, in particular, Senator
Isakson and Senator Enzi were there, because they had not been
to West Virginia before; they had not been to a mine disaster
before; and they moved in with those families and talked with
them. For quite a long period they were a part and parcel, and
then became a part and parcel of the legislation that we
passed. It would not have passed if it had not been for Senator
Isakson and Senator Enzi, and their perseverance. It was as if
they had became West Virginians.
We vowed to improve safety in the mines, and we passed the
MINERs Act, which we thought was pretty good. We were reacting
to what we had seen at Aracoma, not at Aracoma, at Sago. It was
a good piece of legislation that did improve safety,
particularly with respect to response teams and--actually, the
only piece of Federal legislation in the previous 30 years,
which says something, probably not very good. Frankly, that
legislation was not enough.
First and foremost, safety is about a company doing the
right thing to develop a true culture of safety. Easily said,
hard to do, something that I'll want to be talking with Mr.
Main about.
We need to find out what is working in safe mines, where
people are doing the same thing. They may be larger, they may
be smaller. Because these are doing the right thing every day,
and we cannot forget about what it is about them that allows
them to do the same act of mining, in the same danger, but to
do it safely. What do they do that others don't?
On the other hand, we need to know what is not working,
likewise, in more dangerous mines. Why do injuries and deaths
occur there, whereas they don't in mines that are watched over
more carefully? Because the mine operators who show no regard
for safety should not be allowed to gain competitive advantage,
because some are being very careful and very specific in the
way they try to do safety in the right ways, and others aren't.
The sad fact is, in the coal fields, which are remote, far
distant--in this case, Senator Isakson, even more distant than
Sago. I mean, way, way back in the hills of southern West
Virginia.
Safety is also about State and Federal Government stepping
in; I think, toughening up our laws, where appropriate. I don't
disagree with what you said, Senator Isakson, but I think there
is room for improvement. We sort of react to the latest mine
disaster. Is that a good way to do safety legislation? I don't
think it probably is, but it's a heck of a motivator, and it
makes us do things that we might not otherwise have done. So,
we need to grab the spirit of this moment, the sadness of this
moment, and do our duty.
We will learn a lot from MSHA's investigation into this
tragedy. That investigation will take 6, 8, 10 months. I'm not
sure legislation can wait for that. In point of fact, I'm quite
sure it can't. So, therein also lies an immediate problem. I
don't think it's necessarily going to be a problem, because I
think many of our problems in our system are already quite
clear. I would just name four, Mr. Chairman, and then I'll be
finished, for the moment.
First, we know that MSHA can issue immediate withdrawal
orders for imminent dangerous violations, but we need to find
out if MSHA is doing all it can do to find them, and if it is
using its authority to the fullest extent.
Second, currently the Mine Safety and Health Review
Commission has a backlog of more than 16,000 cases, consisting
of 82,000 violations. That's an awful lot of violations and
appeals and all kinds of other things. I think that has to
change. I'm certain that has to change. We must help do that,
either by self-reforming of MSHA, or, more likely, doing it in
legislation so that MSHA really has no choice but to do it; and
then budget help has to follow that.
We need to put an end to the loopholes in the law that
allow some mines to put profit over safety. We all know what
that is. It's the using of the appeal process, because that
way, they can go ahead and mine; and, since they're appealing,
they don't have to pay a fine, they can go ahead and do what
they're doing. That doesn't seem right at all.
Third, we also need to improve MSHA's enforcement efforts,
themselves, and determine what new authorities, as an agency,
that MSHA may need. MSHA must not be shy about this. It is a
culture unto itself. It's a culture which is a different one
now, I think, than the last time we did legislation. I'm
talking about such things as subpoena power or, a little bit
more farfetched but not at all out of the ring, enhanced
criminal penalties.
And fourth, there's also more work to do to protect whistle
blowers. I believe in whistle blowers. I don't believe in
irresponsible whistle blowers, who've just had a really bad
week with their wife, and they're just furious and want to
cause trouble. There's nothing in me that says that we can't
find a way to separate those out and to take, not just the 1-
800-number phone calls, which are more removed, but make the
whistleblower system work.
Mr. Chairman, I thank you for letting me come here. I look
forward to this.
Prepared Statement of Senator Rockefeller
I want to thank Chairman Harkin, Ranking Member Enzi and
all my colleagues on the committee for allowing me to
participate in this timely hearing the day before Workers
Memorial Day.
Workplace safety is important in all industries--but it is
absolutely critical in those industries where the risks of
injury are great and the consequences of poor safety are
severe.
Sadly, we have been here before--after the tragedies of
Sago and Aracoma. I had the honor of joining the committee
then. And it meant a lot to the families of the miners lost in
those tragedies when several members of this committee--
Senators Enzi, Kennedy, and Isakson--came to West Virginia at
the time to see the essence of my State up close.
Following those tragic events, we vowed to improve safety
in the mines, and we came together to pass the bipartisan MINER
Act--a good piece of legislation that did improve safety and
rescue response--the most significant Federal mine safety
legislation since 1977.
But it is clear that we must do more. We must honor the
sacrifice of the 29 brave miners killed at the Upper Big Branch
mine by learning from this terrible tragedy and making mining
safer.
First and foremost, safety is about a company doing the
right thing to develop a true culture of safety. We need to
find out what is working in safe mines, because there are
companies doing the right thing every day and we cannot forget
that.
And we need to know what is not working in dangerous mines.
The mine operators who show no regard for safety should not be
allowed to gain a competitive advantage by risking the lives of
their employees.
Safety is also about State and Federal Governments stepping
in and toughening up our laws--and providing the resources and
the people to enforce those laws. We will learn a lot from the
Mine Safety and Health Administration's investigation into the
tragedy, but many problems in our system are already quite
clear.
First, we know that MSHA can issue immediate withdrawal
orders for imminently dangerous violations. But we need to find
out if MSHA is doing all it can to find them and if it is using
its authority to the fullest extent.
Second, the Federal Mine Safety and Health Review
Commission currently has a backlog of more than 16,000 cases
consisting of 82,000 violations. That must change. We must
reduce the appeals backlog as soon as possible and put an end
to the loopholes in the law that allow some mines to put
profits over safety.
Third, we need to improve MSHA's enforcement efforts and
determine what new authorities the agency may need, such as
subpoena power or enhanced criminal penalties.
And fourth, there is more work to do to protect
whistleblowers. No one should fear losing their job because
they are trying to make the workplace safer.
We are all committed. The President is committed. So, let's
get down to business. Mr. Chairman, thank you for having me
here. I am grateful and I look forward to working with you on
this important issue going forward.
The Chairman. Thank you very much, Senator Rockefeller.
Again, my personal thanks to you for your great leadership in
so many areas, but in this area, in which I also care so much
about, along with you and Senator Isakson and others.
It's been mentioned that Congressman Nick Rahall is here in
the audience, who represents the Third District of West
Virginia, for 34 years. Born and raised there. That's where the
Upper Big Branch disaster occurred. I served in the House for
several years with Mr. Rahall, as did you, right, Senator
Isakson?
Again, you're welcome here, Congressman Rahall. If you'd
like to join us up on the podium, however you feel. Welcome.
Thank you, Nick.
Well, let me just say to everyone, their statements will be
made a part of the record in their entirety. I'm going to ask
each of our witnesses if they could sum up in about 5 minutes
or so. We have, if I'm not mistaken, four different panels.
We'll start, first, with Mr. Joe Main, who is Assistant
Secretary of Labor for Mine Safety and Health, for the U.S.
Department of Labor.
Again, your statement will be made a part of the record in
its entirety.
Mr. Main, if you could sum up in 5 minutes or so, I'd sure
appreciate it.
STATEMENT OF JOSEPH A. MAIN, ASSISTANT SECRETARY OF LABOR FOR
MINE SAFETY AND HEALTH, WASHINGTON, DC
Mr. Main. Thank you, Mr. Chairman.
Chairman Harkin, Ranking Member Enzi, members of the
committee, thank you for inviting us here today. I do wish it
was under far different circumstances.
I do want to pass on some words of appreciation to Senator
Rockefeller, Congressman Rahall, the staff of Senator Byrd and
others who spent a lot of time with us at the Upper Big Branch
Mine during some pretty difficult days, a couple weeks ago, and
shared with us the difficulties that is faced when you have a
mine emergency like this. I mean, several times a day we'd have
to call the families together to give them bad news or just
news--of hope--that is never good news. That takes a toll on a
family that, unless you're there living through that, one can
never appreciate and understand. I think that's what drives me,
in the job that I have, to end that kind of grief in the coal
fields of this country. I do appreciate all the support and
help that we had from folks here, during those difficult days.
Let me express my deepest condolences, too, to the families
and friends and coworkers of the 29 miners who perished in the
Upper Big Branch Mine, and offer my wishes for a speedy
recovery to the surviving miner, who remains under medical
care.
We're also very thankful that the other injured miner has
been released from the hospital. Our prayers are with them all.
As the President said, ``We owe them more than prayers. We
owe them action. We owe them accountability.'' That ought to
be--they ought to know that, behind them, there's a company
that's doing what it takes to protect them, and a government
that is looking out for their safety.
I want to remind the committee that we do not just face a
safety crisis in this country, just on the mining side; it's
one of workplace safety. Fourteen workers lose their lives
every day in this country by just doing their jobs.
Fatalities in coal mines are preventable. Explosions in
coal mines are preventable. The tragedy at Upper Big Branch
Mine did not have to happen.
On April 5, 2010, at 3:02 p.m., an explosion occurred at
the Upper Big Branch Mine, and it took the lives of 29 miners.
Initial reports indicate that the explosion was massive.
From 2007 to today, MSHA has steadily increased its
enforcement presence at the Upper Big Branch Mine. In 2007,
MSHA inspectors were onsite at the Upper Big Branch Mine a
total of 934 hours. That increased to 1,854 hours in 2009,
double the amount of time over those 2 years. During those
inspections, MSHA found and issued an increasing number of
violations, citations, and orders; including significant and
substantial violations.
In December 2007, MSHA informed the mine that it could be
placed into Pattern of Violation status; however, the mine
operator was able to avoid the status by reducing its level of
serious violations. The mine again had a significant spike in
safety violations in 2009, where MSHA issued 515 violations--
citations and orders. In 2009, MSHA issued 48 withdrawal orders
for repeated violations, and that was 19 times the national
rate.
Just as troubling, three other massive mines had more
citations. The Department of Labor is in litigation to
establish that one of these, the Knox Creek, Tiller No. 1 mine,
is a pattern violator. If MSHA prevails, Knox Creek will be the
first mine placed on a Pattern of Violations status since the
passage of the 1977 MINE Act.
In the wake of this tragedy we know that weaknesses, even
in our strongest tools, are clear. Most important, changes are
needed. Changes are needed for mine operators to take more
responsibility for the high number of violations being cited at
mines across the country, increasing mine operator inspection
requirements, and reforming the Pattern of Violations program.
MSHA's Pattern of Violation program should be our most
effective tool for holding bad actors accountable, but the
policies, that this Administration inherited, make it easy for
operators, like Massey, to avoid the Pattern of Violation
status. Massey used a popular tactic to avoid Pattern--or
potential Pattern of Violation status; contesting violations
blocked MSHA from using the violations to put the mine in a
potential Pattern of Violation status for over 500 days. When
you figure this is a 2-year history that's used under the
process, another 500 days, you're looking at 3 years to get to
a start of the problem.
The current system also allows operators to avoid Pattern
of Violation status by reducing its S&S violations by more than
30 percent in 90 days, which is the formula that's used. The
Upper Big Branch Mine did this in 2007 and avoided the pattern
status.
In terms of reform, there are steps that we are taking. Our
regulatory agenda focused on regulations that require companies
to take responsibility to find and fix problems before they're
discovered. What we call the ``plan, prevent, protect'' system.
Secretary Solis is committed to changing the ``catch-me-if-you-
can'' approach everywhere it exists. Some of those regulations
that we'll be talking about was announced in the Federal
Register yesterday.
We are soliciting information on the use of comprehensive
safety management programs, and plan to propose a rule to re-
institute the preshift examinations for violations of mandatory
safety and health standards, that was removed about 1992, which
is currently contained from the 1969 Coal Mine Health and
Safety Act.
New regulations to simplify the Pattern of Violations
criteria are also planned. In addition, we're considering
greater use of other tools to stop scofflaw mine operators
sooner, such as the MINE Act's existing provision to seek
permanent or temporary injunctive relief, which has been talked
about today.
We need budgetary, regulatory, and legislative action to
solve the backlog problem. While the backlog at the Federal
Mine Safety and Health Review Commission adversely impacts the
use of MSHA's current Pattern of Violation process, more
fundamentally it has severely reduced the deterrent value of
its penalties. There are more than 16,000 cases pending before
the Commission. We should build on the Administration's
proposed 27-percent increase in the Commission's budget, to
provide sufficient personnel to quickly resolve disputes.
In testimony before the U.S. House of Representatives on
February 23, I outlined specific measures to address the
backlog problem. They included simplifying the citation/penalty
determination process; improving the conferencing system;
corporate-wide holistic settlements; and operator
implementation of meaningful health and safety programs.
MSHA and Federal prosecutors also need more tools to
investigate and punish wrongdoing. Unlike other agencies that
enforce Federal law, MSHA lacks the authority to subpoena
testimony and documents as part of its investigative process.
MSHA's criminal penalties must be enhanced so that the threat
of jail is real for the worst offenders. Knowing violations of
key standard laws--of key safety laws should be felonies and
not misdemeanors.
Most importantly, we must empower the miners. Miners must
be able to raise valid safety concerns without fear of
retaliation.
We look forward to working with the committee on
strengthening whistleblower protections for miners. Due to
limits of MSHA's current authority, I think it is necessary to
examine the current statutes, regulations, and policies, and
ask, ``What more can we do to ensure the health and safety of
America's miners?''
There are miners--mine operators every day that run safe
operations and safe mines. Miners go to work and come back
every day unharmed, free of illness, free of death. That is the
standard we need to put in place across this country. Miners
and other workers have the right to come home safely after
every shift.
I look forward to continue to work with this committee and
would be happy to answer any questions that you have.
I thank you again, Mr. Chairman, for calling this important
hearing.
Thank you.
[The prepared statement of Mr. Main follows:]
Prepared Statement of Joseph A. Main
Chairman Harkin, Ranking Member Enzi, members of the committee, I
want to thank you for inviting us here today. I wish I were here under
different circumstances.
Let me first express my deepest condolences to the families,
friends and co-workers of the 29 miners who perished in the Upper Big
Branch Mine on April 5, 2010, and offer my wishes for a speedy recovery
to the surviving miner who remains under medical care. Our prayers are
with all of them.
As the President said,
``We owe them 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.''
Every worker has a right to a safe and healthy workplace. Every
worker has a right to go home at the end of his or her shift and to do
so without a workplace injury or illness. Workplace fatalities--even in
an industry like underground coal mining--are preventable. No one
should die for a paycheck.
I also want to remind the committee that we do not just face a mine
safety crisis in this country; we face a workplace safety crisis.
Fourteen workers lose their lives every day in this country, just doing
their jobs. Dr. David Michaels, Assistant Secretary of Labor for the
Occupational Safety and Health Administration, will be testifying later
this afternoon and will describe important measures that need to be
taken to ensure the safety of all American workers.
Throughout the media coverage of the Upper Big Branch tragedy, many
commentators have implied that we should expect and accept a certain
number of fatalities every year in coal mining. The Department of Labor
and the Mine Safety and Health Administration (MSHA) could not disagree
more strongly. Fatalities in coal mines are preventable. Explosions in
coal mines are preventable. The tragedy at the Upper Big Branch mine
did not have to happen. That is why I am so grateful to be here with
you to discuss how we can make President Obama's promise a reality.
events at the upper big branch mine
First, I would like to share with you a short summary of what
happened on April 5, 2010 at Performance Coal Company's Upper Big
Branch Mine-South (UBB) in Montcoal, WV. The mine operator of UBB is
Massey Energy Company.
We know there was a catastrophic explosion that triggered carbon
monoxide alarms at the mine at 3:02 p.m., indicating this was the
likely time of the explosion that killed 29 miners and put two
survivors in the hospital. Initial reports indicate that the explosion
was massive.
The accident investigation team will evaluate all aspects of this
accident and identify the cause of the disaster. Based upon initial
reports from the mine rescue teams, the most extensive damage appears
to have occurred in and near active working sections of the mine. The
rescue teams reported mining equipment severely damaged in these areas.
Every miner working in this area was believed to have been killed
instantly.
While the cause of this specific explosion is still being
determined, most mine explosions are caused by the combustion of
accumulations of methane, which may combine with combustible coal dust
mixed with air. Historically, blasts of this magnitude have involved
propagation from coal dust.
The explosion at the Upper Big Branch Mine occurred at or around
the time of a shift change. It killed miners in and around two working
sections of the mine. It also killed and injured miners who we believe
were traveling from the working sections at the end of their shift.
At approximately 3:27 p.m., MSHA records indicate the company
alerted MSHA and the West Virginia Department of Miners' Health, Safety
and Training of the explosion. Immediately, over 20 mine emergency
rescue teams from Massey, other coal companies in the region, the
State, and MSHA responded to the disaster, with the first rescue teams
going underground at approximately 5:30 p.m. Due to the extensive
damage from the explosion, the rescue teams reportedly had to proceed
more than a mile on foot to reach the working section.
Within 10 hours of the explosion, rescue teams had found 18 victims
in the Upper Big Branch Mine, in addition to the seven dead and two
injured miners evacuated by fellow miners immediately following the
explosion. Rescue efforts continued in the early morning hours of April
6, but were suspended when rescuers reported encountering heavy smoke,
methane, and carbon monoxide. Rescuers started drilling bore holes to
clear the air inside the mine before the rescue teams re-entered the
mine.
Mine rescue teams made additional efforts to enter the mine early
in the morning of Wednesday, April 7, the night of Thursday, April 8,
and early in the morning of Friday, April 9. Each time they were forced
to exit before the final four miners were found. Finally, on the
evening of April 9, the final four miners were found--three in the
long-wall 22 section, and one in the long-wall headgate area. A total
of 29 miners died as a result of the explosion, and one remains
hospitalized. From the time of the explosion until the last missing
miner was located, the rescue effort lasted 104 hours.
These tragic events followed a years-long effort by MSHA to use the
tools we had available to force Massey Energy to comply with the law
and turn around its extensive record of serious safety and health
violations at the Upper Big Branch Mine. From 2007 until today, MSHA
has steadily increased its enforcement presence at Upper Big Branch
Mine. In 2007, MSHA inspectors were onsite at Upper Big Branch mine a
total of 934 hours. In 2009, inspectors were onsite at the mine for a
total of 1,854 hours.
During all those hours of inspections, MSHA found and issued an
increasing number of citations for ``significant and substantial''
(``S&S'') violations of the Mine Act, including an alarming number of
citations and orders requiring miners to be withdrawn from the mine. In
December 2007, MSHA informed the mine it could be placed into ``pattern
of violations'' status if it did not take steps to reduce its
significant and substantial violations. If implemented, pattern of
violations status would have given MSHA a powerful enforcement tool,
enabling the agency to order the withdrawal of miners from any area
with S&S violations until such violations were fixed. However, the mine
operator was able to successfully avert these consequences by reducing
the levels of serious violations thereby avoiding being classified in a
``pattern of violations'' status.
Upper Big Branch mine again experienced a significant spike in
safety violations in 2009. MSHA issued 515 citations and orders at the
mine in 2009 and another 124 to date in 2010. MSHA issued fines for
these violations of nearly $1.1 million; though, most of those fines
are being contested by Massey.
The citations MSHA has issued at Upper Big Branch have not only
been more numerous than average, they have also been more serious. Over
39 percent of citations issued at Upper Big Branch in 2009 were for S&S
violations. In some prior years, the S&S rate at Upper Big Branch has
been 10-12 percent higher than the national average.
In what is perhaps the most troubling statistic, in 2009, MSHA
issued 48 withdrawal orders at the Upper Big Branch Mine for repeated
actions that could significantly and substantially contribute to a
hazard that the operator knew or should have known violated safety and
health rules. Massey failed to address these violations over and over
again until a Federal mine inspector ordered it done. The mine's rate
for these kinds of violations is nearly 19 times the national rate.
Despite the 515 citations and orders issued at Upper Big Branch in
2009, three other Massey mines had more citations. The Department of
Labor is in litigation to establish that one of these, the Tiller #1
Mine operated by Massey's Knox Creek Coal Corporation, is a pattern
violator. If MSHA prevails in the litigation, Knox Creek will be the
first mine to be placed on pattern of violations status since the
passage of the Mine Act.
msha's current tools for holding mine operators accountable
Following my confirmation as Assistant Secretary of Labor for Mine
Safety and Health, I began evaluating MSHA's enforcement program to
identify areas in need of improvement. Among those identified was the
need for mine operators to take more responsibility for the high number
of violations being cited at mines across the country, increasing mine
operator inspection requirements and reforming the ``pattern of
violations'' program.
In the days since the Upper Big Branch mine explosion, we have
spent a considerable amount of time at MSHA reviewing the tools
available to MSHA to enforce the law, the weaknesses in those tools,
and how we think those tools should be changed. I would like to start
by describing the tools we have available.
Federal law places the responsibility for compliance with safety
and health standards on mine operators. MSHA is charged with the
promulgation and enforcement of those standards. Under the Mine Act,
MSHA inspects all underground mines at least four times annually and
all surface operations at least twice annually. The act requires
inspectors to cite all violations they observe. MSHA also investigates
all fatal accidents and miner complaints of hazardous conditions or
discrimination.
When faced with a mine with a seriously deficient safety record
like the Upper Big Branch mine, MSHA has limited tools to hold bad
actors accountable and to try to force them to change their behavior.
For example, MSHA can withdraw miners from a mine or a section of a
mine, if an inspector finds a condition which presents an ``imminent
danger.'' The withdrawal order is in effect only until the hazard is
abated. Since 2000, MSHA issued five imminent danger orders at the
Upper Big Branch mine, with the last one coming in 2009.
MSHA also has the authority to require abatement of all cited
violations. If a mine operator fails to abate a violation within the
time prescribed by MSHA, MSHA can withdraw miners from the affected
portion of the mine until the operator corrects the condition and MSHA
ensures that the hazard no longer exists. Since 2000, MSHA issued 17 of
these withdrawal orders at the Upper Big Branch mine, including four in
2009 and one in 2010.
MSHA can hold operators who engage in actions that could
significantly and substantially contribute to a hazard that they knew
or should have known violated safety and health rules to a more
rigorous enforcement regime. If MSHA finds repeated violations of this
type, known as ``unwarrantable failures,'' it can immediately issue
orders withdrawing miners from the affected area of the mine until MSHA
determines that the violation is abated. Since 2000, MSHA has issued 17
withdrawal orders under Section 104(d)(1) of the Mine Act based on
unwarrantable failures, and 67 withdrawal orders for repeated similar
violations under Section 104(d)(2) of the Act at the Upper Big Branch
mine.
Finally, MSHA has the authority to place a mine into a ``pattern of
violations'' category based on a number of criteria including the
number of serious violations within a 24-month timeframe. If a mine
ultimately ends up in a ``pattern of violations'' status, MSHA can
issue withdrawal orders for every serious violation until each
violation is fixed. The Upper Big Branch mine was placed into a
``potential pattern of violations'' category in 2007, but quickly
reduced its serious violations by more than 30 percent to avoid ending
up in an actual pattern of violations status.
Were it not for a computer error in the screening process, the mine
could have been placed into a potential pattern of violations status in
October of 2009, when the last pattern of violations review for this
mine took place.\1\
---------------------------------------------------------------------------
\1\ MSHA will be notifying the pattern of violations screening
process and revising and confirming the accuracy of the programming and
query system used going forward.
---------------------------------------------------------------------------
Upon notification of being in potential pattern of violations
status, the mine then would have been given 90 days to reduce its S&S
violations by 30 percent, or to reduce its level of S&S violations to
below the industry average for mines of similar type and size. From
October through December 2009, the Upper Big Branch Mine dramatically
reduced its level of S&S violations by nearly 65 percent. For this
reason, even had there been no computer programming error, the mine
would not, under MSHA's current rules, have been in a pattern of
violations status at the time of the explosion.
weaknesses in msha's current tools
When I accepted President Obama's appointment to lead MSHA, I had a
number of goals and reforms in mind for the agency. The most important
of these goals was to shift the current enforcement model for mine
safety and health to one that is consistent with the intent of the Mine
Act--a model in which all mine operators take primary responsibility
for ensuring compliance with safety and health standards. While tough
enforcement is critical to having safer mines, MSHA cannot be in every
mine, every day on every shift. That is why miners are safest when
employers take responsibility for preventing violations and hazards,
not when MSHA cites them.
MSHA's current toolbox of enforcement measures is not well stocked
to encourage prevention. While many mine operators and other employers
in dangerous industries have a culture of safety, driven by the
recognition they are responsible for safeguarding their workers' safety
and health, others choose a different approach. They choose to take
advantage of the fact that MSHA cannot be looking over their shoulders
at every minute of every day to monitor their behavior. They make a
calculated decision about how and if they should comply with mine
safety and health laws, weighing the likelihood they will be caught
against the consequence if they should. This is the ``catch-me-if-you-
can'' approach to safety and health in action.
The ``catch-me-if-you-can'' model of workplace safety and health
appears to have been at work at Upper Big Branch. The company that owns
this mine, Massey Energy, has a troubling record when it comes to
protecting its workers. In Calendar Year 2009, MSHA assessed nearly
10,985 citations and orders against Massey Energy. Systemic safety
problems are not limited to the Upper Big Branch mine, to Massey
Energy, or to the mining industry. Indeed, the ``catch-me-if-you-can''
approach to compliance appears in all types of American workplaces. My
colleague, Dr. David Michaels, will shortly testify about how OSHA is
dealing with this phenomenon in the non-mining sector.
At MSHA, our ``pattern of violations'' program should be one of our
most serious and effective tools for holding bad actors accountable.
MSHA's experience at the Upper Big Branch mine demonstrates the
program's limitations under current procedures.
Massey Energy employed a popular tactic at Upper Big Branch used by
mines with troubling safety records to avoid potential pattern of
violations status. Massey Energy contested large numbers of their
significant and substantial citations. In Calendar Year 2009, the
Massey Energy Company was assessed penalties that totaled in excess of
$13.5 million, and contested $10.5 million of those penalties, or 78
percent. MSHA uses only final orders to establish a pattern of
violations. It takes more than 600 days for the average contested
citation to reach the ``final order'' stage from the day the citation
is written. The delay is due largely to a more than 16,000 case backlog
at the independent Federal Mine Safety and Health Review Commission
(FMSHRC).
Even where the violation is obvious, operators have a huge
incentive to contest the violation. A contest blocks MSHA from using
the violation--even the obvious ones--to put the mine into a potential
pattern of violations for an average 500 days after the case has been
contested. For operators with troubling safety records, that may amount
to 500 days without having to worry about being put into a ``pattern of
violations'' status. In fact, the Upper Big Branch mine contested the
majority of its serious violation citations. From 2007 to 2009, the
mine contested 77 percent of its S&S violations.
Even when the excessive contest strategy fails and a mine ends up
in a ``potential pattern of violations'' status, it can almost always
avoid the ultimate ``pattern of violations'' label with temporary
improvements in safety. The current system allows an operator to avoid
going into pattern of violation status if the operator reduces its S&S
violations by more than 30 percent within 90 days. Upper Big Branch
mine did this in 2007 and avoided pattern of violations status, even
though the number of S&S violations remained above the national
average. The policies this Administration inherited make it relatively
easy for operators like Massey to avoid pattern of violations status.
In fact, MSHA has been able to place only one mine into pattern of
violations status, and that order was revoked when one of the
violations on which it was based was thrown out through the contest
process.
As you can see, the current rules and procedures make it far too
easy for mines to avoid the one robust tool MSHA has for really
cracking down on recalcitrant operators.
improving msha's tools: areas for reform
The weaknesses in even our strongest tools are clearer in the wake
of the Upper Big Branch tragedy. The path we need to be on to
strengthen those tools is clearer, too. Undoubtedly, as we learn more
about what happened at Upper Big Branch, we will have more and better
ideas about how to change our practices, regulations and law. For now,
I would like to outline some of the steps we are taking already and
those we would like to recommend.
Plan/Prevent/Protect Regulations. Secretary Solis is committed to
changing the ``catch-me-if-you-can'' approach everywhere it exists.
That's why our regulatory agenda, which we made public just yesterday,
is focused on regulations that will require companies to take
responsibility to find and fix problems before they are discovered by
the Department's worker protection agencies. To achieve this goal, we
need a system that encourages employers to engage in planning and
control of hazards. This kind of planning, coupled with enforcement,
will result in actual protection of workers or what we call the ``plan/
prevent/protect'' system.
At MSHA, we announced that we are moving forward to solicit
information on requiring use of a comprehensive health and safety
management program. In addition, we will be proposing a rule to re-
institute the pre-shift examinations in areas of mines where miners
work or travel for violations of mandatory safety and health standards.
The 1969 Coal Mine Health and Safety Act (and the Mine Act) provides
that such inspections may be required, and the requirement had been
contained in MSHA's regulations until they were changed in 1992. We
believe that these measures will help prevent hazardous conditions from
ever existing and threatening workers.
Pattern of Violations. We know that even with these new measures in
place it is too easy for mine operators to evade responsibility and too
hard for the government to hold bad actors accountable. We must find
new ways to compel chronic violators to protect the health and safety
of their workers. The ``pattern of violations'' tool was placed in the
Mine Act in 1977 to achieve that very goal.
As I noted in my February 23, 2010, testimony before the House
Committee on Education and Labor, the current criteria used for
determining that an operator has a potential pattern of violations
include a mine's history of S&S violations of a particular standard,
history of S&S violations related to a particular hazard, and history
of S&S violations caused by an unwarrantable failure to comply with
health and safety standards.
Under current regulations, MSHA only considers violations that have
become final orders of the FMSHRC. Citations and orders that are under
contest, no matter how egregious, are not considered in establishing
that a mine has a potential pattern of violations. Once a potential
pattern is found, an operator has a notice period to reduce the number
of S&S violations at its mine. If the operator fails to reduce the
number of violations, only then are they placed in pattern of
violations status. By the time the current process is over, mine
operators are being considered for pattern of violations status based
on violations that, in many cases, were written years ago.
We realize the current ``pattern of violations'' program is broken
and must be fixed. That is why in our regulatory agenda we announced
that we will be issuing new regulations to simplify the criteria for
placing mines into the ``pattern of violations'' program. We are
looking into what other changes in the regulations or statute are
necessary to streamline the ``pattern of violations'' program and make
it more effective, including strengthening the conditions for operators
being removed from ``pattern of violations'' status. We will consider
what notice period, if any, is appropriate, and how the use of health
and safety management programs for operators with these kinds of
serious violations can play a role in improving the pattern of
violations system. Meanwhile, right now we are in the process of
reviewing pending cases of operators with significant numbers of S&S
citations in order to expedite appropriate cases.
In addition, we are considering greater use of other authorities
for stopping scofflaw mine operators more quickly, such as the existing
authority under the Mine Act to seek permanent or temporary injunctive
relief. The Mine Act empowers the Secretary to obtain an injunction in
Federal court against a mine operator she believes is engaged in a
``pattern of violations'' of the Mine Act. Though it has been a part of
the act for years, we do not believe any Administration has ever
attempted to use the provision. Because we do not believe that the Mine
Act requires a Federal court to have final orders in hand from FMSHRC
in order to issue an injunction against an operator with a pattern of
violations, bringing this existing tool into the Department's arsenal
will enable it to bypass the backlog of cases awaiting final orders
from FMSHRC and permit it to take swift action against mine operators
who are chronic lawbreakers.
Injunctive relief obtained directly from a Federal court would
combine strong enforcement with immediate safety measures. This relief
could be used to require court-ordered, company-funded, full-time
monitoring of problem mines, or the implementation of a comprehensive
mine or corporate-wide health and safety plans. Most important, it
could be used to shut down mines until they can assure compliance with
the law. MSHA could take direct action through the courts.
FMSHRC Backlog. While the backlog at FMSHRC adversely impacts the
use of MSHA's current ``pattern of violations'' process, more
fundamentally it has severely reduced the deterrent value that
penalties were meant to have. There are more than 16,000 cases pending
before FMSHRC, including $209 million in contested fines. The average
case takes more than 600 days to resolve from the time it is issued. I
believe that we need budgetary, regulatory, and legislative action to
solve this problem.
The budgetary actions needed would include building on the
Administration's proposed 27 percent increase in FMSHRC's budget this
year to provide sufficient personnel to quickly resolve disputes.
MSHA's planned regulatory actions include improving the use of
effective mine safety and health management programs by all mine
operators. The best way to resolve the backlog problem looking forward
is for mine operators to take full responsibility for compliance with
the Mine Act and mandatory health and safety standards issued under it.
They must take measures to ensure safer and healthier mines that, under
rigorous and complete inspections, receive fewer citations and orders
from MSHA because there are fewer violations to cite. This will require
operators to more fully inspect their own mines for violations.
Helpful legislative actions could include requiring mine operators
to put significant penalty amounts, as well as penalties associated
with more serious violations, into escrow or providing for pre-judgment
interest. If operators have to put aside penalty amounts during the
contest period or know that they will have to pay interest if a penalty
is ultimately imposed, they will be less likely to contest cases just
for the sake of delay. The current system provides a financial benefit
for delaying tactics.
In testimony before the U.S. House of Representatives on February
23, 2010, I outlined specific measures MSHA was considering to address
the backlog problem. They included making the citation process more
objective and consistent by simplifying the citation and penalty
determination process and improving related training, improving the
conferencing system, making greater use of the ``closeout'' inspection
meeting after mine inspections, continuing to develop training programs
and materials to aid mine operators with compliance, and corporate-wide
holistic settlements that require operators to implement meaningful
health and safety programs.
Enhanced investigative and law enforcement tools. MSHA and Federal
prosecutors need more tools to investigate and punish wrongdoing. Gaps
in MSHA's legal tools undermine the deterrent effect of its
investigative powers. MSHA should have the authority to issue subpoenas
to require companies and individuals to turn over documents promptly
when needed. Moreover, MSHA's criminal penalties must be enhanced so
that the threat of jail is real for the most egregious violators.
``Knowing'' violations of key safety laws should be felonies, not
misdemeanors.
Empowering miners. No one knows what goes on in a mine, including
what safety corners are being cut, better than the miners. They must
have a voice in the workplace if we want to know about hazards before
they cause death and injury. Empowering miners to protect themselves
will give them that voice. Too many miners are afraid of losing their
jobs or facing other forms of retaliation for raising valid safety
concerns to MSHA.
We believe that additional measures would give miners the courage
and confidence to come forward when necessary. For example, the statute
should be amended to enhance protections for miners from retaliation
when they do come forward. Miners should be assured of pay and should
not have to wait months to get it while a withdrawal order is in
effect. They should not have to balance the risk to their paycheck with
the risk to their lives. We look forward to working with the committee
on strengthening whistleblower protections for the Nation's miners.
As the preliminary report Secretary Solis and I provided to the
President noted, this is not an exhaustive list. We should build on
recent improvements in the transparency of MSHA data, so that before an
accident occurs, miners and the public can easily use MSHA reports and
data to identify companies that must improve their safety practices.
Other critical steps, for example, could address particular
conditions, such as improving control of mine gases, rules to ensure
sufficient rock dusting, and improving mine emergency response. We are
reviewing the full range of our legal and regulatory authority, as well
as possible management reforms, and will continue to do so as we move
forward with the investigation to determine how to ensure that another
disaster like the explosion at the Upper Big Branch mine does not
happen again.
conclusion
At 3:02 p.m. on April 5, 2010, an explosion occurred at the Upper
Big Branch mine and took the lives of 29 miners. Any loss of innocent
life of this magnitude is a profound tragedy. Making this event even
more tragic is the fact that, as history has shown us, mine disasters
are preventable.
I had the opportunity to watch the mine rescue teams and MSHA
personnel coordinating the response and the search for survivors. I had
the honor of meeting with the families of the miners as they waited for
news about their loved ones. They showed an unbelievable level of
courage and composure even when they knew they were facing difficult
odds.
We know the kinds of events that lead to explosions in coal mines,
and we know the actions that can be taken to prevent them. There are
specific techniques that a mine operator can employ to reduce the
levels of combustible materials such as methane and coal dust. Equally
important is an operator's commitment to a culture of safety centered
around protecting the health and safety of his or her workers, rather
than simply avoiding a citation or a fine.
MSHA has assembled a dedicated team of professional investigators
that will look into every aspect of this accident. We will work closely
with State officials. During our investigation, we will honor our
commitment to transparency and openness, and we will make the results
of our investigation fully public at its conclusion. At that time, we
will present you, the President, the families, and the American people
with a formal report on our findings.
We take every incident that results in injury or loss of life
seriously and personally. Due to the limits of the current authority
given to MSHA, and the efforts companies like Massey will take to
escape enhanced enforcement, we think it is necessary to examine the
statutes, regulations and policies on the books and ask ourselves what
more we can do to ensure the health and safety of America's miners.
These men and women work hard every day to ensure that we have the
electricity we need to light our homes, power our industries, and
ensure our national security. We owe it to them to do everything we can
to make sure that every miner--and every worker--comes home safely at
the end of every shift.
I look forward to continuing to work with this committee and would
be happy to answer any of your questions.
The Chairman. Thank you very much, Mr. Main. Thank you for
your leadership.
Just one question I have for you. You said that MSHA's
taking a look at regulatory changes that will simplify the
criteria for placing mines in the Pattern of Violations
program. I guess, if you don't want to get into all that now,
I'd ask you to submit to us what those regulatory changes are
that you can do, that we don't have to address legislatively.
If there are things you can do with regulations that relieves
us of the burden of doing it legislatively, we'd much rather do
that so we can focus on just what we need to do legislatively.
If you could maybe submit that to us later on.
Mr. Main. I'll be happy to do that.
The Chairman. A good list of those regulatory changes.
Mr. Main. We will do that.
The Chairman. I'd appreciate that very much.
Senator Isakson.
Senator Isakson. Thank you, Mr. Chairman.
Thank you very much, Mr. Main, for being here to testify on
all the work that you and your inspectors do.
Do you know if MSHA has ever sought injunctive relief to
close a mine that had been deemed to constitute a continuing
hazard to miners?
Mr. Main. In terms of the injunctive relief that we're
talking about, I think what we're about to pursue is probably
going to be the first time in the history of using that under
the MINE Act, from what I'm told from our legal department.
Senator Isakson. It is true you already have injunctive
relief, is that correct?
Mr. Main. There is injunctive relief that exists--that
talks, in part, about being part of the Pattern of Violations.
There is some language that will probably be tested. There is a
provision, that we fully intend to test, and there may be a
need for Congress to take a look at remedying any shortcomings
in that injunctive relief as we move forward.
Senator Isakson. To date, you've never used the power that
you do have. Is that correct?
Mr. Main. That particular power, to my knowledge, in the
history of the MINE Act since 1969, I do not believe that's the
case. Yes.
Senator Isakson. In your printed statement of your remarks,
your preprinted testimony, on the third paragraph of page 5,
you cite a spike in violations at this mine, and refer to 515
citations that were filed in 2009, and 124 in 2010. To try and
figure out what those violations would be, I divided that
number into that 1.1 million, which was the amount you said
those fines would accumulate to. That's a $1,725 average fine
per 624 violations. Then I went to look at the authority that
you've got on fines, and under civil penalties at MSHA, you've
got up to $50,000 on standard violations, up to $220,000
flagrant violations, up to $5,000 a day on a failure to
correct, $250,000 on a criminal willful violation, $500,000 on
a repeat willful violation, and then $10,000 or 5 years in
prison for making a false statement to authorities.
If I take those numbers of authority and talk about serious
violations, it wouldn't take a minute to get to $1.1 million,
yet you issued 639 violations during that 15-month period
leading up to the explosion. Were most of those 624 violations,
like, a rag being found or a miner smoking or something like
that? What were those violations?
Mr. Main. As far as miners smoking, I'm not aware that any
dealt with that. I think the most often cited were ventilation
problems, combustible material problems, things of that nature.
I think one of the--and having been on this job for about 6
months, and trying to figure out how all these components work,
and looking back to how the MINE Act was enforced, and the
tools that the agency had to use during the course,
particularly, of that spike, and understanding the whole
penalty process, one of the things I came to realize is that
probably the tool that is most effective, even beyond the
dollars, is the ability to shut down a facility to get a
problem fixed. I think, when I looked at what the agency did
over that period of time, they seemed to ratchet up the use of
that tool much more than is normal. As a matter of fact, I
think this mine wound up to have the most 104(d)(2) orders of
any mine in the United States.
Senator Isakson. Those are shut down orders?
Mr. Main. Those are shutdown orders.
Senator Isakson. How many times was that done?
Mr. Main. There were 48 of those that was issued at the
Upper Big Branch Mine. And from the statistics that the folks
showed me, that was the mine that had the most. It's been my
view that over time, the quickest way to get something fixed is
to stop it and fix it.
One of the worries I have is that we do need to fix this
penalty system. I don't think there's any question about that.
This contest process has really, I think, crippled the
implementation--MINE Act crippled the--what I think was some
great provisions put in, in the new MINER Act. That's the
reason that we've looked at some of these quicker enforcement
tools, and ones that deal with, sort of, the halting of the
process until things get fixed. The two on top of that list,
one is this injunctive action, that we're talking about, that
we really need to put in use, and put in use quick, as opposed
to later.
Everyplace that I went in the last couple weeks, I was
asked a simple question, ``Why didn't you shut that mine
down?'' If you look at the way all those orders or, all those
tools are laid out, it's basically designed to find an area of
the mine that's out of compliance, force the operator to fix
that, and, once it's fixed, to go back into compliance. As far
as a tool that's really laid out to deal with a holistic mine
problem that encompasses several standards, the only one that
you have is the Pattern of Violations, really, that's been used
over the last--well, the Pattern, since 1977; and that's the
heaviest tool, I think, that's been in the MINE Act since 1969.
We need to do something quick, which--the injunctive relief
is your best tool that we've looked at. We need to fix this
Pattern problem, where people actually respect it. To have a
law that was put into effect after the Scotia disaster in 1977,
that I think Congress really thought was going to fix a
problem, the application of that law was undercut. We went
through 33 years without one single mine ever actually having
been placed on the Pattern. That may change if the courts agree
with us here with the case that we have going forward.
As we looked at the Pattern--and I was looking at this
prior to the Upper Big Branch disaster--this is something that
we talked about at the House hearing in February. The Pattern
system we saw was broken, in respect to how difficult it was to
put mines on that has a troubled compliance history, and how
easy it was to get off. Setting there, you can see how it's
very easy to game the system on both ends. Contest the
violations, let them string out; it'll be years before it ever
gets there, and they're going to be so overloaded in the court
system that scheduling a hearing's going to be difficult. And
still will be, if we don't fix that side of the problem.
On the getting-off side, means that they don't really get
put on the Pattern, they are put on notice that they can be on
a Pattern, but if they drop their S&S rate for just a short
period of time, they can get off. We've had mines, that I saw,
in looking to the data, that have been, twice over, identified
as Pattern mines.
The Pattern hasn't been used much. I think if you go back
in the mid-1990s, for a short period of time, and then, just
recently, post-2007, is about the only periods of time that the
Pattern was ever utilized as a tool. What we aim to do and--in
regard to my testimony in February, and what we aim to do now,
is to fix that.
This 24-month history is a problem. This 24-month history
held hostage to the contest process is a problem. How we select
these mines--from what I've seen I'm not happy with that. We
need a better identifier of a formula. The computer error that
was found, that's just one of the issues that I think we have
to go back and repair to make this system work.
To make it work, I think we have to have a process in place
that effectively identifies those mines that has a troubled
history. We have to quickly deal with applying the Pattern.
We've got to make it tough for them to get off. Tough means
that, if you believe that they got there, in the first place,
because they didn't have an effective health and safety
program, and they weren't inspecting their mine to take care of
business, one logical assumption would be--for them to get off,
they would have to have an effective health and safety program
that does that. Not just over 90 days for a drop of the S&S
violations, but to fix so those miners can have some comfort.
Another issue that we've looked at is this subpoena issue.
There was a story that hit today, over three other mines that
MSHA made inspections at recently, two of them before the Upper
Big Branch disaster and one after the disaster. All three of
those was triggered by anonymous complaints. Now, did miners
make those complaints? We don't know. There was some
specificity that probably some miners were worried; worried
enough about it to make a call, but was careful enough not to
leave their name behind.
When our inspectors went in those mines, we found illegal
conduct that one would not think that we would see in mines
today, and conduct that was only found because, when the
inspectors got there in two mines, they captured the phone so
the mine operators couldn't call underground.
Senator Isakson. I hate to cut you off, but the Chairman's
about to have a hissy fit over here because we've gone 5
minutes over.
Can I just ask for one clarification that takes two words?
The Chairman. OK, sure.
Senator Isakson. You want to replace ``hazard to miners,''
in the current injunctive relief, with the terminology
``Pattern of Practice,'' is that what I heard you say?
Mr. Main. I'm sorry?
Senator Isakson. Currently under injunctive relief, you're
allowed to do it if you see a persistent hazard to miners. You
wanted--and what I was trying to understand out of your
testimony, you'd like to expand that or change it to ``Pattern
of Practice'' of the mine operator. Is that correct?
Mr. Main. Yes. We want to work with Congress to actually
fix that, and talk through what we really need to do to change
that language.
Senator Isakson. OK. Thank you, sir.
Mr. Main. OK.
Senator Isakson. Sorry about that.
The Chairman. No, that's alright, Senator Isakson. Thank
you very much.
Senator Byrd wanted to attend. He is unable to attend the
hearing. He gave me some questions he wanted to ask. I will
submit those, for the record, to you, Mr. Main, without asking
them.
[The information referred to may be found in Additional
Material.]
We are privileged to have Senator Rockefeller here to join
us.
Just in terms of the order, I'd say it's Rockefeller,
Senator Brown, Senator Murray, Senator Bennet, and Senator
Franken, unless Republicans show up, in which we'll go back and
forth.
Senator Rockefeller. Mr. Main, this is 26 pages of
violations at the mine that we have just been dealing with.
They take place, actually, only since January 1, 2009. We're
talking about a relatively short period of time, and all of
these violations. Now, I'm constantly--you run into mine
ventilation plan, dust control, all kinds of things which are
accumulation of combustible materials, all things with are just
bespeaking of something about to happen.
My question is--we're sitting here sort of fixed on the
Pattern of Violation. Should it be, should it not be? Why isn't
it possible for one of your people, a Federal inspector, duly
trained, when they come upon such a thing, maybe they make a
quick phone call to you, or something of that sort, but that
they have the power to shut down that portion of the mine which
appears to be affected, and which----
Mr. Main. Yes.
Senator Rockefeller. These are all for real. These are all
very, very much for real. They carry fines with them, they
carry violations with them, they're part of the problem which
is squashing MSHA, in terms of working out the appeal process
and all the rest of it. I don't want to imply that MSHA's a
bureaucracy, but I do want to imply that you have individual
folks who are well-trained, who are professional mine
inspectors; they see these problems; many of them have worked
in the mine, maybe most of them have worked in the mines, so
they have to know what it is. It's pretty hard to miss
combustible materials when you're looking at it. It's pretty
hard to miss ventilation problems when you're feeling it. Why
can't they take action? Why is it that we have to go through
this enormous thing leading up to a Pattern of Violation,
which, in fact, has never been used?
Mr. Main. Probably a good way to start this is
understanding what the tools are that the inspectors have. I
don't disagree with you, Senator Rockefeller. And I think
you're going to see a more aggressive use of tools that exist
in that MINE Act.
If you look, historically, at what's happened--I'm going to
take an easy one, a situation where you have a continuous miner
that is not permissible. What that means is that there's some
component on that piece of equipment that has a gap where--in
the housing that houses the electrical components, of which a
spark, a tiny spark, could get through that could ignite an
explosion. The cause of Commission decisions--and this is
something we have, too, on our decks that we want to talk about
some reforms on--the Commission decisions, over the years, have
defined those kind of standards to the point that it is very
difficult for that inspector to cite--and just starting up the
ladder--those kind of conditions as a S&S, or serious
violation.
When I looked at the way the standard's applied currently,
and found that you almost have to have the explosion occur to
find a serious violation in that regard, that tells me we've
got a problem with the way that the standards are being
interpreted, and the way they're being applied in this country,
but it's over years of litigation through the review
Commission.
When an inspector goes to the mine, they have full
authority to use their tools, whatever they have at their
disposal, if they determine a condition as imminent danger, to
issue that 107(a) order to have those miners moved from that
particular area until the company fixes that specific problem.
Let's say its curtain down; once the company puts the curtain
back up, the ventilation curtain, they can go back to work.
Senator Rockefeller. Mr. Main.
Mr. Main. Yes.
Senator Rockefeller. Ventilation is no mystery; you can
feel it. Dust is no mystery; you taste it, you can smell it,
and you breathe it in. Why, if that is a condition that one of
your inspectors finds, that he cannot simply close things down
for a period of time so that that can be fixed?
Mr. Main. In the past, I think that there has been a
weakness in the enforcement of the law, and that has a lot to
do with the way that the law has been interpreted, that--to be
honest--I think, going forward, we're going to test that every
day, to utilize the tools that's in our possession.
During this recent sweep, as an example, that we kicked off
after the Upper Big Branch--and the focus of that was to make
sure we didn't have another Upper Big Branch out there in any
of the mines--we had six mines that were actually shut down
because the tools that was in that tool bag was probably more
used than they have been over time. Now, once the companies fix
those--like the ventilation problems, clean up the coal dust--
--
The Chairman. Mr. Main----
Mr. Main. Yes.
The Chairman [continuing]. I'm going to interrupt you,
right here, just a second.
Mr. Isakson just gave me this,
``MSHA may seek temporary or permanent injunctive
relief to close a mine or take any other appropriate
action whenever it finds a mine operator engaged in
behavior that constitutes a continuing hazard to
miners, under Section 818(a).''
You just said you've got dust; we know dust is a hazard. It
can be an explosive hazard. I mean, that's not even a question.
He asked you a very straight forward question.
Mr. Main. That's----
The Chairman. Why can't you use that? Why has it never been
used? Is that what you're telling me?
Voice. That was his answer to me some time ago.
Mr. Main. Yes. It's never been used in the history of the
MINE Act, that we know of, Senator. We're in the process----
The Chairman. Why?
Mr. Main. That's a good question.
The Chairman. Well, who can answer it?
Mr. Main. We're going to use----
The Chairman. If you can't answer it who can answer it?
Mr. Main. I can't speak for past Administrations, but I can
tell you this. We're going to use it.
The Chairman. Well I sure hope so.
Mr. Main. Yes.
The Chairman. If nothing else comes out of this hearing, at
least you're going to start using that for the future.
Mr. Main. It will be used.
The Chairman. Thank you, Mr. Main. I'm sorry to interrupt
you, but I wanted to get that issue taken care of. I'm sorry to
have interrupted you on that, but----
Senator Rockefeller. You didn't.
The Chairman. I appreciate that, thank you.
Now, can we go to Senator Brown?
I ask people, please keep in mind that we have three more
panels.
Senator Brown. I think Senator Enzi was next, was he not?
Voice. [Inaudible.]
The Chairman. OK.
Statement of Senator Brown
Senator Brown. Well, thank you, Mr. Chairman, for holding
this hearing.
Mr. Main, thank you for joining us, and the other panels,
from the mine workers and citizens and people in the community
in West Virginia.
Tomorrow is Workers Memorial Day in this country, a day to
honor the working men and women killed, disabled, or injured on
the job. In my State of Ohio, alone, in 2008, 167 workers died
on the job, nearly 119,000 injury claims were filed with Ohio
Bureau of Workers Compensation.
Before my question, I'd like to share a real quick story
that I had actually shared with Mr. Main when he was in my
office. I wear on my lapel--it was given to me at a Workers
Memorial Day, 10 years ago, a depiction of a canary in a
birdcage--and everybody in this room knows what that's about--
to signify the importance of worker safety and all the other
things that come with that.
The question I have is that you mentioned in your
statement, Mr. Main, that quote ``MSHA has limited tools to
hold bad actors accountable and to try to force mining
companies to change their behavior.'' You gave an example of a
tool that MSHA does use to force a change in behavior, by
issuing a withdrawal order in stopping production. These orders
are only used when conditions present imminent danger. My
question is, Isn't that too late? Are withdrawal orders used
enough? Are the thresholds that make a withdrawal order
necessary adequate to prevent disasters?
Mr. Main. Yes, there are about four basic tools that the
inspectors have under the MINE Act to take action. One is what
we call 104(a) citation, which is--they cite the condition; if
it isn't corrected in the time given to abate, it's what we
call a 104(b) closure order.
Now, we have the 107(a) imminent danger order, which, if
the inspector observes a condition they believe to be
imminently dangerous, they can take quick action for that
condition, shut down that area until it's corrected.
We have the 104(d)(1) and (d)(2) orders. 104(d)(1) order is
conditions are serious, that are willful violations by the mine
operator, that can be cited first as a citation, and then as an
order. Then, once they issue that--which closes down that area,
once they issue an order, until that condition's fixed. Once a
mine gets on what we call the (d)(1) series, any subsequent
inspection, when the inspector finds a similar violation, they
can issue an automatic (d)(2) order. That was the 48(d)(2)
orders that was issued at the Upper Big Branch, and how they
got to that.
Then, the other provision under the MINE Act is the 104(e)
Pattern of Violations, which is a long process to get to. It's
a system that's broken.
The injunctive relief action that has been spoken about
here is something that our folks have been taking a look at.
And we do fully intend to implement that. It is the one tool in
the MINE Act that gets to a broader application. We are asking
Congress to take a look at that, to--presuming there'll be some
challenges to that--look at those pieces in there that may be
troubling. We're going to take the first run of using that
through the courts, but that's one that we hope to have some
support from Congress.
That's basically the tools that exist.
Senator Brown. Do you think the withdrawal orders used--
stopping production--are they used too late? Are they used
early enough that it saves lives?
Mr. Main. It's my belief--and that's the reason we're
looking at a number of things that I think that we have to do
to fix this problem. We've got to figure out a way to empower
those miners, that are working in some of these conditions,
that are fearful to report, and figure out how we can empower
them to be able to take action to protect themselves. That's
the issue that I think is front and center here.
As I look at the penalties versus the order--I mean, the
one that gets you to the quickest action, in my opinion, is
that order. Penalty is just going to be--for whatever is the
end result of the penalty process, however it's worked out,
it's going to be a lot longer period of getting the penalties
worked out.
Senator Brown. Well, that's, obviously, the point of the
withdrawal order.
You said ``empower the miners'' to report and to point out
these violations. Simple question, Are union mines safer than
nonunion mines?
Mr. Main. Well, I think that if there are worker
representatives at mines, and those representatives have a
chance to freely exercise that right, that Congress gave them
under 103(f), and if they're traveling with those inspectors
during that process, there's absolutely no thought in my mind,
otherwise, that those mines have to be safer. Where the mine
operator allows their workers to have a voice in safety, and
freely exercise that, I think, are safer mines.
Senator Brown. Thank you, Mr. Chairman.
The Chairman. Thank you, Senator Brown.
Senator Murray.
Statement of Senator Murray
Senator Murray. Mr. Chairman, I want to thank you for
having this hearing to recognize the men and women who we have
lost on the job, and to talk about how we can make our
workplaces more safe and healthy.
I want to express my sincere sympathy to all of the
families that are here in this room, and, really, thousands
across the country.
Two days ago I was in Anacortes, WA, where over 1,000
people from the community came to a memorial service for the
seven men and women who died in the tragic refinery fire on
April 2d at the Tesoro Refinery: Dan Aldridge, Matt Bowen,
Donna Van Dreumel, Matt Gumbel, Darrin Hoines, Lew Janz, and
Kathryn Powell. It was an overwhelming event, and I know that
all the families here are suffering terribly. I just want to
say, to all in this room and to the other room--in the overflow
room--I really respect your courage in being here, because I
know that nothing we can do can bring back your loved one, but
your courage and conviction in coming here today, and being in
the audience, helps us really push hard to do the right thing
so this won't happen again. I just personally want to thank all
the families that are here today.
Mr. Chairman, I have some questions for the panel coming up
on OSHA, regarding the Tesoro Refinery, but I do want to ask
Mr. Main, we've worked long and hard on these mining issues,
and it's so troubling that we just can't seem to get there. I
noticed, on April 22d, an article in the New York Times
entitled, ``Two Mines Show How Safety Practices Vary Widely.''
It outlined the safety culture at two separate nonunion mining
operations, one at TECO Coal and one at the Upper Big Branch,
that were operated by a subsidiary of Massey. The article
referenced a Federal mine inspector by the name of Daniel
Woods, saying that Massey mines were some of the most difficult
mines to handle. And he said:
``Inspections that should have taken a day, took
three, because the first day would be spent arguing
with Massey operators over paperwork and permission to
enter certain sections of the mine.''
Do MSHA inspectors require the mine operator's permission
to go into a mine?
Mr. Main. No.
Senator Murray. So, what is the barrier for an inspector to
get into a mine?
Mr. Main. I'm not sure what happened on this particular
case. Having been out on inspections in my lifetime, I know
there are different ways that mine operators deal with
inspections. Some of them work with the process, work with the
inspectors. Some use tactics to just delay an inspection
process.
There are times when inspectors have to take extraordinary
action to enforce their right to go to the mines. That does not
happen very often. I think, in most cases, what happens is, the
inspector goes through their normal process of doing mine
inspections.
What's raised here--and if you couple what was raised in
that situation with what we found in three recent inspections
that we just reported on today, I think you get some ideas
about how--and even that story--I heard a little bit about it,
didn't read it all--but how some mines set up their operations
to normally flow with the compliance to the law, and others do
not. We'll have to look into more details of that. But, I could
appreciate why an inspector may have had some difficulties.
Senator Murray. I think we need to understand that. We need
to know if there's something we can do in the law to make sure
that inspectors get in.
Now, in your written testimony you talk about how Massey
Energy employed a popular tactic of contesting a large number
of citations. How does that tactic help operators avoid a
pattern of violations?
Mr. Main. Real simply, this. For the cost of a postage
stamp, they can file a request to contest a violation. That
violation goes into a process to be adjudicated. Right now, we
have a 16,000 case backlog, we have years to resolve those
backlogs. Until those particular violations are finalized by
the court system, by the judicial system, they can't be counted
as part of the operator's history.
Senator Murray. Is there an increased penalty for contested
violations?
Mr. Main. No.
Senator Murray. Well, is there any disincentive for
operators to file?
Mr. Main. One of the things we're looking at is creating
some disincentives--a fair disincentive for those operators who
do try to game the system. There has to be some process, at the
end of the day, as all of these issues get resolved, to deal
with that. Currently, no, there's not.
Senator Murray. OK. I appreciate that.
My time's up. Thank you, Mr. Chairman.
------
TESORO,
San Antonio, TX 78259,
May 5, 2010.
Hon. Patty Murray,
U.S. Senate,
Washington, DC 20510.
Dear Senator Murray: With this letter, and on behalf of the Tesoro
Companies, I am requesting that the attached materials be included in
the formal record for the hearing, ``Putting Safety First:
Strengthening Enforcement and Creating A Culture of Compliance at Mines
and Other Dangerous Workplaces,'' held on April 27, 2010 by the U.S.
Senate Committee on Health, Education, Labor, and Pensions.
Tesoro is making this request because a reference to an incident
at, as well as the safety history record of, our refinery in Anacortes,
WA, was made during the course of said hearing. Tesoro believes that
the materials contained in the attached two documents provide the
committee with a more comprehensive treatment of the issues that were
raised during the hearing.
Thank you in advance for your consideration of this request.
Sincerely,
Lynn D. Westfall,
Chief Economist,
Senior Vice President for External Affairs.
______
ATTACHMENTS
refinery safety
The Facts from OSHA data:
1. The rate of safety incidents in the refining industry is 83
percent better than the rate for general industry.
2. Since 2005, the refining industry has reduced its incident rate
by 36 percent versus just 9 percent for general industry.
3. The 2009 incident rate for the Anacortes refinery is 18 percent
better than the latest average rate for the refining industry as a
whole.
4. The Anacortes refinery reduced its incident rate by 63 percent
between 2008 and 2009.
5. In the last 2 years, employees at the Anacortes refinery have
worked over 1.3 milk hours and recorded only seven reportable
incidents, ranging from a strained back requiring physical therapy to a
lacerated finger that required four stitches.
The Anacortes refinery has received or will receive the following
safety awards from the National Petrochemicals and Refiners
Association:
1. 2006: Meritorious Award for low incident rates;
2. 2007: Meritorious Award for low incident rate;
3. 2007: Achievement Award for 2 years without a lost time
accident;
4. 2007: Achievement Award for over 1.5 million man-hours without a
lost time accident;
5. 2009: Meritorious Award for low incident rate; and
6. 2009: Gold Award for a 25 percent or greater reduction in
incident rates over the last 3 year.
anacortes refinery safety violations
The Facts:
1. While the initial investigation resulted in 17 alleged
violations, L&I subsequently agreed to withdraw 14 of the citations and
reduce the fine to $12,250.
2. Of the remaining three citations, two have been corrected and
one will be corrected by the end of the year.
3. We also agreed with L&I to have a third party review nine
related areas of concern. The company that was hired completed their
review in March but has not yet issued their report.
4. Of 52 similar investigations carried out at refineries across
the United States, the average number of initial violations is 17.4 per
facility and the average penalty is $98,300.
The range of the number of alleged violations has been
from 1 to 56.
The range in the initial fines has been from $1,125 to
$3,042,000.
Source: OSHA database
______
The Chairman. Senator Murray, you just put your finger on
it. That's how they do it. They just get these huge backlogs;
and, until they get a final adjudication, MSHA can't do
anything.
Senator Murray. Well, and I would say--16,000 of them--
obviously, what we're doing is just delaying the safety of our
mine workers.
Mr. Main. Yes. It can----
The Chairman. Senator Bennet's not here.
Mr. Main [continuing]. Hold them up for----
The Chairman. Senator Franken.
Statement of Senator Franken
Senator Franken. Thank you, Mr. Chairman.
I'd like to associate myself with Senator Murray's remarks,
and address myself to the families, and thank them for being
here to bear witness and to make sure that this doesn't happen
to other miners and other families.
I think anyone who reads your testimony about the number
and nature of the violations by Upper Big Branch Mine and by
Massey would be shocked. I'm wondering, is there something
wrong with the law here? Is there something wrong with the
culture here? I assume there's no love lost between MSHA and
Massey.
You say that these mines have stayed open, have been held
open because of the way the law has been interpreted. My
question is, by whom? I mean, even when there's been dust and
violations in ventilation and gas leaks, these are all the
things that we suspect caused this explosion. Well, who--the
way the law has been interpreted--has kept these mines open,
this mine open, even in the face of all these violations. Who
interpreted the law that way to allow these mines to stay open?
Mr. Main. There's different litigation events that's
happened over the years that has led to the current application
of the Mine law, for one. The Federal Mine Safety and Health
Review Commission deals with the resolution of enforcement
actions that MSHA takes, citations they issue, orders they
issue. A lot of the historical application of the law has been
developed through the Review Commission. That's one of the
reasons that we think we need to take a look at some of the
provisions that are the center of the universe for limiting
MSHA's inspectors' ability to use some of these. One of them I
just pointed to earlier was this notion that a permissibility
violation, where you have a piece of equipment that has a gap
in it that a spark could escape from--it just takes a little
spark to blow up a coal mine in a gassy mine--has to go to an
extraordinary step, almost an explosion, before you can
consider that serious, under the--I mean, that's the way----
Senator Franken. I'm sorry, but you're saying that this is
in courts and----
Mr. Main. This is in----
Senator Franken [continuing]. Litigation?
Mr. Main. Yes, there's been litigation, over the years,
that has refined the definitions of the applications of law.
Senator Franken. And these are judges? Federal judges?
Who's making----
Mr. Main. Federal Review Commission.
Senator Franken. Federal Review Commission.
Mr. Main. Yes. There are a couple areas that we are looking
at for some relief, which we may be well looking at
legislatively, and that's some of the things we want to have a
chance to discuss with the committee. One of them is redefining
this Significant and Substantial issue. Another is unwarnable
failure, where there's an unwarnable failure on the part of the
mine operator to address a safety condition. Those, over the
years, based on my view--and, I think, the view of others--have
been constrained to the point that--if you look at the S&S rate
nationally, it's about a third of the violations. If you went
back during a period of when--about 1980, you are looking at
about 80 percent of the violations being S&S. Now, I'm not
saying that that's where they should land at, but I'm just
saying, over the years, that's where the application of those
have settled. To change that, we need to change the definitions
that are used to identify which standards are serious and which
are not.
There are a number of things that we have, Mr. Chairman and
Senator, on the table to take a look at, here, as we move
forward, in trying to figure out what all reforms that really
need to be----
Senator Franken. Maybe there are definitions of what--
what's S&S? Serious----
Mr. Main. Significant----
Senator Franken [continuing]. And Substantial?
Mr. Main [continuing]. And Substantial. And it----
Senator Franken. Yes.
Mr. Main [continuing]. Drives Unwarnable Failure violations
and orders. It drives the Pattern of Violations process,
because, to be able to cite either one of those, it has to be
significant and substantial.
Senator Franken. Well, I know we have three other panels. I
had another question that I'll submit to you, on--you say you
want the miners to be empowered. There are miner representative
systems, where miners can participate in this, but only 2
percent of the mines, say, in Kentucky, have that. And I wanted
to know why. I'll submit that in writing for you, sir.
Mr. Main. OK. Thank you.
Senator Franken. Thank you Secretary Main.
Mr. Chairman.
The Chairman. Thank you.
We have been joined by our Ranking Member, Senator Enzi.
Senator Enzi.
Opening Statement of Senator Enzi
Senator Enzi. Thank you, Mr. Chairman.
I appreciate Senator Isakson standing in as the Ranking
Member for me. And I appreciate you putting my statement in the
record.
The Upper Big Branch Mine is the worst accident in 40
years, and 29 people lost their lives. I know that the families
and communities are hurting. and I appreciate those of you who
are here. Our sympathies go out to you.
As you may know, I represent another coal mining State.
Being able to safely mine our natural resources and enjoy the
economic benefits of the industry is as important to the people
of Wyoming as it is to the ones of West Virginia. That's why I
worked with Senator Rockefeller and Senator Byrd, along with
Senators Kennedy and Isakson, to write that MINER Act, in 2006,
in response to the string of tragedies that occurred that year.
It's very frustrating, for those of us who worked so hard on
the MINER Act, to hear accounts of MSHA's activity at this
mine.
MSHA found over 500 violations in 2009, over 100 violations
so far in the current year, and a significant amount of them
were unwarranted failures. In the last 2 years, MSHA issued
over 60 orders to withdraw miners from the UBB site, because of
hazardous conditions. MSHA inspectors spent 180 days there in
2009, yet no one from the Regional Mine Office followed up to
ensure that the UBB was placed on a Potential Pattern of
Violation status in October 2009, as it should have been. Back
in 2007, UBB was appropriately placed on a Potential Pattern of
Violations status, and they moved quickly to reduce and improve
its safety record to avoid being on that status. Now, compared
to 2007, MSHA has a larger budget, more inspectors, and new
leadership, partly because of the MINER Act.
I will submit a series of questions that deal with this.
I won't take up more time now, knowing that we have three
more panels to go, and other important questions.
I thank Senator Rockefeller for all of the action that he
helped us to take 4 years ago with the Miner Act. I think it's
one of the fastest times that we've ever passed a law in
Congress. We addressed a lot of the issues that came to our
attention from the Sago and Aracoma accidents. I know, from the
oversight hearings that we held after that, that we did do a
lot of those things. We do expect agencies to report to us when
they find something that isn't covered by the law, that needs
to be covered by the law.
I'll have followup questions to dig into that a little bit
deeper.
Thank you for being here today.
Prepared Statement of Senator Enzi
Good morning. I want to thank Chairman Harkin for
scheduling today's hearing. Two recent tragedies have focused
the country on the important topic of workplace safety, one the
most important missions of the HELP Committee. As a Senator
from a State whose primary industry is energy production, my
heart goes out to the families and communities that lost those
hard-working Americans this month. The work they do benefits
every single one of us and underpins our entire economy, and we
appreciate it though too few of us ever let them know. Perhaps
out of the tragic accidents that have taken the lives of 29 men
in West Virginia, 7 in Senator Murray's home State of
Washington and left 11 missing off the coast of Louisiana, we
can build a new commitment to keeping workplaces safe.
Although these mass accidents capture the media's attention
until the next story comes along, the truth is that men and
women lose their lives nearly every day in workplace incidents,
some of them heartbreakingly senseless. Congress created the
Occupational Safety and Health Administration in 1970 and the
Mine Health and Safety Administration in 1977 to have a
singular focus on making workplaces safer. Since then more
Federal agencies have been established to further this cause:
the National Institute of Occupational Safety and Health
(NIOSH), the Chemical Safety Board and other more specialized
agencies. Despite the recent tragedies, workplace injuries and
deaths have, in fact, shown a long-term downward trend.
The most recent BLS data for 2008 indicates the lowest
annual number of workplace fatalities since recordkeeping began
in 1992. Concentrated efforts to focus on minority groups that
had traditionally higher rates seem to be paying off, as well.
In 2008, deaths among Hispanic workers were down 14 percent and
deaths among African-American workers down 12 percent. Injury
rates have shown a similar drop. Since 1994, the total case
rate has declined by 50 percent; and, the lost-days-away-from-
work rate has declined by 44 percent. Mining accidents, too,
have seen a long-term downward trend and last year was the
safest on record, though this month's tragedy makes that fact
difficult to recognize.
This progress is certainly encouraging, but it should not
cause anyone to become complacent. The number of work-related
deaths and injuries still remains unacceptably high. Workplace
injuries continue to bring hardship to employees and their
families and burden our economy. All of us involved in this
issue must continue our effort to make our Nation's workers and
workplaces safer.
We owe it to those whose workplace accidents were not
prevented to analyze why not, and learn what can be done
better. There is no doubt that after an accident, a workplace
will receive a great deal of regulatory attention, but I want
to look for ways to reach the workplace before anything goes
wrong and prevent accidents. One undeniable fact is that
enforcement alone cannot ensure the safety of America's
workforce. Simple mathematics show the shortcomings of an
inspect-and-sanction system. With less than 2,400 OSHA
employees, more than 7 million workplaces, and inspectors
averaging around 40 inspections a year, it is clear that most
workplaces will never see an OSHA inspector until it is too
late.
If we truly want to continue to improve workplace safety we
need to think creatively; and, to fashion policies aimed at
getting results. One shining example of creative thinking that
has proven to make workplaces safer was recently placed on the
chopping block by the Department of Labor. No program has been
more successful in creating such a culture of safety in the
workplace than the Voluntary Protection Programs, or VPP. Since
it was created in 1982, Republican and Democrat administrations
alike have fostered its growth to now 2,284 worksites, a
quarter of which are unionized, covering almost 1 million
employees.
The results speak for themselves. VPP worksites have an
average Days Away Restricted or Transferred (DART) case rate of
52 percent below the average for their industry. And it isn't
just large worksites. In recent years, smaller worksites have
made significant strides in VPP, increasing from 28 percent of
VPP sites in 2003 to 39 percent in 2008. One of today's
witnesses, Kelli Heflin, is the safety manager of a 65-employee
Colorado company that has seen a decrease from 13 annual
injuries to zero since it joined VPP.
VPP works because it creates a culture of safety at
worksites and builds a partnership between management and
employees. At a VPP worksite, safety is truly everyone's
responsibility. Participants also have access to a network of
safety experts and years of experience solving safety problems.
The benefits of VPP extend beyond making workplaces safer.
It also saves money in two direct ways. First, VPP participants
save money by avoiding injuries. In 2007, Federal Agency VPP
participants saved the government more than $59 million and
private sector VPP participants saved more than $300 million.
Additionally, taxpayers get more for their dollar when
workplaces make the significant commitment to safety required
by VPP because it allows OSHA to focus its resources where they
are most needed.
VPP Participant employers are extremely proud of the strong
safety record these partnerships have enabled them to achieve.
They contribute a great deal to reducing the VPP program
expenditures. VPP participants have assigned approximately
1,200 of their own employees to act as OSHA Special Government
Employees (SGEs) who conduct onsite evaluations for OSHA.
I was very surprised when the Administration's Budget
Request proposed eliminating the small amount it takes to
administer VPP--$3.125 million and sought to transfer the 35
FTE it takes to run the program to other functions. Throughout
Dr. Michaels confirmation process I and other members of this
committee asked about his commitment to compliance assistance
and the VPP program specifically, and were repeatedly assured
that he ``recognized their great value'' and would ``continue
to support'' VPP and work with this committee to do so.
Instead, the budget proposed cutting all funding, and
transferring away all staff. Equally disturbing was the fact
that despite all of the assurances, this action was taken
without any outreach to the Republican Members of this
committee, many of whom repeatedly expressed their support for
VPP.
The budget proposal stated that OSHA was seeking
``alternative non-Federal forms of funding'' and working
closely with stakeholders, but, to date, no plan to secure such
funding has been offered by the Administration or in either the
House or Senate authorizing committee. To the extent such
``alternative funding'' is bureaucratic code for a fee-based
system such a proposal is simply not workable and completely
counterproductive. Participating employers already voluntarily
absorb significant costs to participate in the current program.
Asking businesses--particularly small businesses, and
particularly in the current economic environment--to take on
more costs will only result in them dropping out of the
program. Further still, a fee-based system simply destroys the
credibility and integrity of VPP participation for employees.
This half-baked plan to defund VPP was unanimously rejected
by the Senate Budget Committee last week, and I suspect a
similar rejection may come via Appropriators. I hope the
Department will consider itself on notice that the Senate
supports innovative, cost-effective approaches to improve
workplace safety, and we do not want to see programs that are
working, like VPP, diminished. Senator Landrieu and I
introduced legislation yesterday that will codify the program,
expand it to include more small businesses and incorporate
improvements suggested by a recent GAO report. I look forward
to working that legislation through the committee this year.
Whether in a coal mine, an oil field or a shoe store,
improving workplace safety has been an issue of longstanding
concern to me. From my days as a small businessman, to my
service in the Wyoming State Legislature, and now, in my
service in the Senate, I have been very supportive of
innovative efforts to increase workplace safety--especially for
small businesses without the resources to have in-house safety
experts. Although we sometimes disagree on the way to get
there, we all agree that zero accidents is where we'd like to
get.
Finally, I know that this hearing was originally scheduled
to coincide with Workers Memorial Day. I certainly join the
rest of the committee in honoring all the lives that have been
lost in workplace accidents, in the recent mass accidents and
every other accident. On this day, it is appropriate to
remember those who have been lost, and to recommit to the
mission of improving workplace safety. By looking seriously at
the whole issue--and making no subject off limits--we can pay
them the best tribute of real progress in reducing workplace
fatalities.
The Chairman. Mr. Main, thank you very much for being here,
thanks for your leadership in this issue. We'll followup on
that 818(a).
And please thank Secretary Solis----
Mr. Main. Will do.
The Chairman [continuing]. For her help on this, and for
her great interest in moving this forward. We've talked on
that, on a couple of occasions, and I know she wants to get to
the bottom of this and change things, too. So, thank her on our
behalf.
Thank you very much, Mr. Main.
Mr. Main. Thank you.
The Chairman. Now we call panel two.
Panel No. 2, Mr. Cecil Roberts. Mr. Roberts has been
president of the United Mine Workers of America since 1995.
He's a sixth-generation coal miner, who's devoted his career to
advocating for better treatment for miners. Mr. Roberts
graduated from West Virginia Technical College in 1987,
received an honorary doctorate in humanities from West Virginia
University of Technology in 1997.
Then we have Mr. Jeff Harris. Mr. Harris is a third-
generation miner. He has been working in mines in West Virginia
for more than 30 years. He is currently employed at the Harris
No. 1 Mine in Boone County, WVA, where he works as a roof
bolter who pins the underground roof of the mines to keep it
safe.
Next, we have Mr. Wes Addington. Mr. Addington is deputy
director of the Appalachian Citizens Law Center, a nonprofit
law firm that fights for justice in the coal fields by
representing coal miners and their families on the issues of
black lung and mine safety. He is also director of the Center's
Mine Safety Project. Mr. Addington earned his undergraduate and
law degrees from the University of Kentucky.
Last we have Mr. Bruce Watzman. Mr. Watzman is National
Mining Association's senior vice president for regulatory
affairs. His responsibilities include working with member
companies on the design of safety and health programs for use
in the mines, and with Federal and State regulators, on the
management on safety and health programs. He also serves on the
executive committee of the mining section of the National
Safety Council, and on various planning and advisory committees
for MSHA and the National Institute of Occupational Safety and
Health. Before joining the NMA, Mr. Watzman was a legislative
assistant to Representative Nick Rahall, of West Virginia.
Welcome, all of you, and thank you for being here. I thank
you for your patience, as I will thank the next two panels.
Your statements will be made a part of the record in their
entirety. I would appreciate it if you could sum it up in 5
minutes so we could engage in some rounds of questions.
Mr. Roberts, we'll start with you. Welcome back to this
committee. You are no stranger to us, nor a stranger to this
committee. I know what you've been going through over the last
several weeks, too, so thank you for being here, Cecil.
STATEMENT OF CECIL E. ROBERTS, PRESIDENT, UNITED MINE WORKERS,
TRIANGLE, VA
Mr. Roberts. Thank you very much, Mr. Chairman.
I want to thank you for holding the hearing today. I want
to thank this committee for the work you did in 2006. I want to
thank you for the compassion that you've shown over the years
to coal miners, particularly those involved in tragedies. We're
very thankful for legislation that was passed in 2006.
I want to thank my friend Senator Rockefeller, also, for
his lifelong commitment to keeping coal mines safe, not only in
West Virginia, but across this Nation.
I want to thank Senator Byrd for his hard work, for many,
many years, on this particular issue; our friend Nick Rahall,
who is here today, and thank him, not only in this instance,
but for many years of hard work and dedication to coal miners
of this Nation.
I want to also recognize the family members who are here
today. Someone mentioned the Handler family. They are here, as
well as others from Sago and other disasters across this
country. What we hope, and what my prayer is, is that I never
have to do this again the rest of my life.
Someone asked me, Senator Rockefeller, as I entered the
memorial service on Sunday, ``What do you hope to come of
this?'' I said, ``I hope this is my last one.''
These were Massey employees, in a nonunion mine, but I want
to tell you, they were my friends, they were my neighbors. I've
known some of them--the Davis family, in particular--all my
life. And I've got to tell you, it's the most emotional thing I
think I've been through for a while. And I apologize for that.
As we come today, I want to point out, this is five of
these tragedies in the last 4 years. All of these tragedies are
preventable.
I want to say something here, that I firmly believe in my
heart, that this tragedy should never have occurred at Upper
Big Branch. The only way it occurred, the law that you wrote
was violated. If they had been in compliance with the laws that
Congress had written in 1969, updated in 1977, updated in 2006,
it would have been impossible for this tragedy to have
occurred.
I want to point out one other thing--and I'm going to talk
about MSHA myself here momentarily, but we've avoided one
thing. Why is it that we have operators, in this Nation, that
will practice this kind of mining? We have had coal companies
on Coal River, Senator Rockefeller, in that area, in Logan
County, for 100 years. I defy anyone to go back and see where
Peabody had a tragedy like this, where Armco had a tragedy like
this, where Bethlehem had a tragedy like this--it never
happened. Why is it that this particular company has had two of
these--two of these--tragedies, at Aracoma and now Upper Big
Branch?
I want to report something, so all of you can understand
something. These miners who work at Massey are scared to death.
They're intimidated. This company is run like it was 1921, not
like it's the present day. That's the truth. You don't have to
take my word for this. Not only are the miners intimidated, but
the communities are intimidated. I can tell you one thing, the
communities and the people in West Virginia have had enough of
this, and they're about ready to stand up and take a position,
here.
My position is that, when you talk about criminal
prosecution, here, now's the time, because the people who knew
that this was going on--there's no question in my mind that the
people at the very top here, and the board of directors, knew
that this mine was in this kind of shape. This owner of this
company, this president and CEO, he doesn't live 1,000 miles
away. He lives right in the heart of the coal fields, checks on
these mines every single day. Fear and intimidation is the rule
there.
Let me tell you, we have to understand, when we have people
like this--I think we should hold the Federal Government and
MSHA responsible, here; but, I must say to you, How is it that
a company can be allowed, in this day and age, to put people in
this kind of a position? Congress should stand up and take a
position that we're not going to tolerate this. This is the
United States of America. This is not China, and this is not
Colombia, this is America we're living in.
A young man of 28, 5 years ago, wrote his mother and his
fiance a letter--he has a young baby, which I happened to meet
on Sunday--and said, ``If I die in this coal mine, please tell
everyone that I love them.'' That's the kind of letter people
used to write when they went off to Vietnam, in my era. That's
the kind of letter people used to write to go to Iraq and off
to war. That's the kind of letter young men write. That's not
the kind of letter they're supposed to write when they get
their dinner bucket and go to work in the United States of
America.
There are some things MSHA can do, and Joe Main mentioned
some of them. I am proud to say to you that I thank President
Obama for putting a coal miner in charge of this agency,
instead of a coal executive, for the first time in the history
of this country. I submit to you, you can hold Joe accountable,
and you should, but it's not going to be long that the coal
industry's going to be in here saying, ``He's too tough on
us.'' I'm putting you on notice that that's what's going to
happen. Because he's going to enforce the law, MSHA's going to
enforce the law, and coal miners are going to be safer for
this.
I am, today, sending a letter to Joe Main, I'm sending a
letter to Hilda Solis. It's time for us to have a public
hearing on this situation in the State of West Virginia.
Because they do have subpoena powers whenever they have a
public hearing. Let's put everyone at--that had anything to do
with this tragedy up where the families can come--by the way,
families are excluded from these investigations, when they have
them in private; but, if you have a public hearing, the
families, who are the most affected by what happened here, they
can come, subpoena powers can be issued, and put somebody in
jail if they lie.
I know I've gone over my time. I know I'm emotional about
this, but I invite all of you to take the records of this coal
company--this is not the worst mine they have. This is the
fourth-worst mine they have. There are three others in worse
shape than this one.
I'm sorry, and I got carried away, but I must tell you how
I feel about this today.
Thank you.
[The prepared statement of Mr. Roberts follows:]
Prepared Statement of Cecil E. Roberts
Thank you for allowing us to address this committee. 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.
This committee has played an important role in addressing
employees' health and safety. I would like to express my particular
appreciation to the leadership of this committee for your efforts
directed at protecting and enhancing the health and safety of coal
miners throughout the Nation. Your continued attention is critical to
dealing with the challenges that all too often prevent some miners from
being able to go home safely at the end of their shift. After all,
going to work, whether as a coal miner or other worker, should be a
means for earning a paycheck and providing for your family, not a roll
of the dice about whether you will live to see another day.
Yet, for too many American workers, the price of a job has been the
employee's life. Earlier this month 29 brave coal miners perished at
Massey's Upper Big Branch mine, and one more remains hospitalized as I
prepared this statement. Our hearts and prayers go out to all the
families who have lost their loved ones as well as with the family
sitting by the hospital bed of the injured miner. We know the entire
community has been devastated by this tragedy.
We also share the grief of the families of workers killed at the
Tesoro Refinery days before the Upper Big Branch mine exploded, those
missing after the gas rig fire just last week in the Gulf of Mexico,
and the thousands of other workers killed in the last year due to
atrocious health and safety conditions at work. Tomorrow is Workers'
Memorial Day to remember and honor those who have died from their work.
We are glad to have this opportunity to discuss how our government can
do a better job to protect our Nation's workers from unsafe and
unhealthy work places.
Statistics from the mining industry offer dramatic proof that
improved laws and regulations make a huge difference in workers'
safety. We recently celebrated the 40th anniversary of the mining
industry's key legislation, the Coal and Mine Acts. In the 40 years
before that landmark legislation, an average of 809 miners were killed
in coal mines each year; and in the 40 years since it was enacted an
average of 83 miners were killed.
While these numbers prove beyond a doubt that strong laws make a
huge difference, more must be done. We are here today to talk about
what could and should be done to change a system that still allows
miners and other workers to die at work or from their work, whether
from preventable occupational illnesses or from avoidable work-site
tragedies.
Today we were asked to focus on problems the government faces when
dealing with employers that repeatedly fail or refuse to heed their
duty to obey workplace safety laws and regulations. Unless operators do
what the law requires of them, and do so each and every day--not just
when a government inspector is physically on site--miners will continue
to be exposed to needless hazards to their health and safety, too many
will be injured, too many will be made sick, and too many will pay the
ultimate price with their life.
These challenges have persisted for decades, if not longer. I have
been here repeatedly, and my predecessors before me, to complain about
the terrible conditions miners endure when operators don't follow the
law and miners are killed as a result. I also have testified about
problems that follow when there's an MSHA governed by industry
executives.
I thank President Obama for naming an Assistant Secretary who is a
coal miner and who knows the industry through the eyes of a miner. In
fact, the President and Vice President have shown an unparalleled
interest and commitment to the problems still plaguing mine safety, for
which we are deeply appreciative.
Turning to the factors that adversely impact miners' health and
safety, we must start by looking at the operators and their mines.
First and foremost, it is every operator's responsibility to provide a
safe and healthful workplace. Yet, we know corners are frequently cut,
which means that miners' health and safety gets sacrificed.
It is time to hold CEOs and corporate Boards of Directors
accountable when the facts reveal systematic problems with health and
safety compliance. It is not enough to issue fines or levy charges
against low-level managers who violate the law when they are doing what
their supervisors direct and expect. There is something dreadfully
wrong when corporate executives are eager to speak about their
productivity and profits, but reluctant to consider the cost to their
workers.
In the last 10 years, 52 miners were killed working for Massey.
This happened while Massey's CEO, Don Blankenship, has been paid
millions upon millions each year; since 2003 Don Blankenship has been
compensated by more than $5 million each year, and he made over $28
million in just 1 year! Last year he earned over $17 million. These
figures include significant ``performance'' awards and don't even
include the stock options he was also given. This is terribly wrong.
This brings me to the primary question we were asked to address
today, which is: What can be done to prevent recalcitrant employers
from violating the law and jeopardizing their employees' health and
safety?
While we appreciate and rely upon the work of MSHA personnel who
inspect mines, review mining plans, and perform other critical
functions dedicated to miners' health and safety, MSHA can and should
be more pro-active and effective in using all the enforcement tools
Congress provided in the Mine Act. The enhanced penalty structure that
came out of the 2006 MINER Act has been turned on its head by an
industry challenging so many citations that cases are backlogged for
years; its Pattern of Violation enforcement tool--in the law since the
1977 Act but untouched until a few years ago is burdened by a
regulatory framework that completely frustrates Congress's intent; and
the opportunity to seek injunctive relief is a tool that has not been
utilized, but is available and could offer the swift and effective
relief needed when a mine demonstrates a pattern of unsafe conditions.
In the MINER Act, Congress directed that higher fines should apply
to MSHA violations. However, since the higher penalties took effect,
many operators including Massey, began routinely challenging MSHA
citations and orders thereby clogging the adjudicative process and
delaying the resolution of alleged violations. Yet, until there is a
``final order,'' the operator doesn't have to pay a penny towards the
fine. By way of example, Massey has been assessed with fines amounting
to $1.1 million since January 2009 for its alleged violations at Upper
Big Branch; very little of these penalties have been paid because the
company has filed ``contests'' and they remain caught up in the FMSHRC
backlog.
Since the MINER Act took effect in 2006, the docket of the Federal
Mine Safety and Health Review Commission (FMSHRC) has mushroomed. Its
backlog is well over 16,000 cases, of which 9,000 new cases were added
in fiscal year 2009, alone; compare this to the 2,700 cases filed in
fiscal year 2006. Cases entering the system now will likely take at
least 2 or 3 years to be resolved. The problem of delayed payments was
a problem Congress tried to fix in 1977 in the Mine Act:
``The committee firmly believes that to effectively induce
compliance, the penalty must be paid by the operator in
reasonably close time proximity to the occurrence of the
underlying violation.''
Leg. Hist., Senate Report at 604. Unfortunately, the penalty scheme
is broken again; not only is there delay in the payment of any
assessments but the increased penalty structure Congress implemented
through the MINER Act has not lead to the intended improvement in
operator compliance.
The reality is that as it stands now, operators have every
incentive to file contests and take appeals to the FMSHRC, because MSHA
and the FMSHRC routinely compromise their fines to settle cases.
Assessed penalties are reduced by about 47 percent when they are
contested. We believe this system has to change: MSHA needs to do a
better job supporting the citations its inspectors write by allowing
inspectors to defend their work, and providing MSHA with help from the
Solicitor's office so the Agency can determine which cases to pursue
and which ones to settle, which should be decided based on the merits
of a case, not expediency.
The delay in resolving MSHA litigation is important for a number of
reasons, one of which pertains to the amount of fines an operator has
to pay based on its ``history of previous violations.'' Under the Mine
Act, Congress directed MSHA to consider an operator's ``history of
previous violations'' when figuring the fine for health and safety
violations. MSHA's regulation (at 30 CFR Part 100) provides that when
an operator engages in repeated violations of the same standard,
penalties should increase. Yet, until there's a ``final order,'' the
citation is excluded from MSHA's calculations about the operator's
history of violations; and MSHA's penalty structure considers only
final orders from the preceding 15 months.
With operators like Massey routinely contesting their S&S
citations, the increased penalties intended for repeat violations have
been effectively eliminated. In other words, Congress's directive that
MSHA consider the operator's history of previous violations no longer
has any role in the enforcement scheme.
Another adverse effect of the litigation backlog arises with the
``pattern of violation'' (POV) tool that Congress gave MSHA in Section
104(e) of the Mine Act. Like with the history of violations provision,
MSHA's regulation requires it to consider only ``final'' citations and
orders. The POV mechanism was Congress's suggested means for dealing
with habitual violators: after the Scotia mine exploded in 1976 and
Congress enacted the Mine Act in 1977, it developed the POV language to
allow MSHA to move against operators that have a lot of S&S violations
and show little in the way of improved compliance, or operators that
experience a worsening trend of S&S violations indicating a greater
than normal risk of disaster. The legislative history shows Congress
intended the POV criteria to be flexible, so that it could consider
both quantitative and qualitative factors. However, the regulation MSHA
finally promulgated in 1990 is unnecessarily complex. By having such a
complex structure, MSHA tied itself up with bureaucratic hurdles that
reduced the flexibility Congress clearly intended it to maintain. As
you know, MSHA didn't ever use the POV until after the 2006 disasters
and it was called before Congress to answer about its lax enforcement
efforts.
As written, the POV regulation requires MSHA to give the operator a
written warning about it potentially being placed in the POV status
before the POV will be implemented. Since MSHA began using this tool
after 2006, Massey mines have received 13 written warnings, more than a
third of those issued nationwide.
The rationale for using a warning letter before imposing the POV
status on a mine is that MSHA's primary goal for the POV is to achieve
compliance with all applicable health and safety standards, not shut
down mines. So long as the operator reduces its S&S violations within
90 days, it is freed of MSHA's more rigorous enforcement. MSHA's
warning letters certainly get the operators' attention, and MSHA has
generally been able to effect the requisite short-term corrections from
operators so they are then freed of the POV threat.
Clearly MSHA should be able to exercise its POV enforcement
authority more than it has chosen to do so far. The POV regulation is
simply too complicated and bureaucratic. We believe MSHA should
simplify its POV procedures so it can take swift action when the Agency
observes chronic safety problems at an operation. We want MSHA to be
able to use this tool to stop unsafe operators from continually placing
miners in harm's way. When miners lives are what's at stake we believe
it is far better to err on the side of protecting the miners, even if
there is some possibility that MSHA might sometime close a mine when a
lesser remedy might arguably be feasible. We would rather see MSHA shut
all or part of a mine without having to go through such formal
procedures, recognizing MSHA's decision to impose a POV would be
subject to review at the FMSHRC.
Even though the goal of the POV provision is to reduce violations,
the reality is that it is still too easy for a law-breaking operator to
make some temporary fixes simply to escape the POV consequence without
making the significant, systemic health and safety improvements
necessary to turn an unsafe operation into a safe one. While we are not
opposed to having MSHA first put operators on notice that conditions at
their operation warrant a heightened level of attention and may lead to
a POV absent quick and significant improvements, any operator that
receives the warning notice should still be required to operate under
the improved conditions for a prolonged period--long enough so that
miners at the operation can see the difference and work under the
improved conditions, which should then represent the new norm. If an
operator gets a first warning letter, even if it then improves and
avoids application of a POV, MSHA should have a system for watching the
operation to ensure there have been systematic improvements, not just
temporary fixes to get the government off its back.
We also note that while MSHA seems to consider only 24 months of
history when looking at the POV criteria, unlike its regulation on
fines there is nothing in the POV regulation that requires MSHA to
limit its review to 24 months' worth of history at an operation when
considering the heightened enforcement. We suggest the Agency has more
flexibility than it has claimed and we encourage it to exercise its
full range of discretion in this regard.
To make its enforcement tools more effective, we encourage MSHA to
identify mines that would be subjected to higher penalties for repeat
violations or for a ``pattern,'' and prepare to litigate those cases
more quickly, with cooperation from the FMSHRC to give priority
attention to these cases. Doing this would reduce some of the
incentives operators now have for filing contests.
In addition to the POV issues discussed above, we understand MSHA
has been reluctant to close a mine based on the number or type of
violations or withdrawal orders; we believe it's authority to do so
should be clarified. The Agency should be more aggressive in moving to
shut mines that are dangerous. If an operator makes only short-term,
band-aid remedies despite systemic safety problems, MSHA should be able
to move against it. To the extent there is any ambiguity about MSHA's
authority to close a mine, that uncertainty must be eliminated. MSHA
should not have to wade through months or years of records of
violations before moving to shut a dangerous mine.
Some other suggestions we support include requiring employers to
pay their penalties into an escrow account, rather than waiting until
the contest process is completed; eliminating the 15-month limit and
expanding the look-back period for purposes of considering an
operator's history of violations; and hiring more ALJs at the FMSHRC,
and staff within DOL to move cases more quickly and reduce the FMSHRC
backlog.
There are also some new powers that would help MSHA to be more
effective in ensuring miners have a safe and healthful place to work.
We recommend expanding the Secretary's subpoena power so that it
resembles that in OSHA. This would give the Agency the authority to
compel a witness to provide evidence as part of the routine enforcement
scheme, instead of only as part of a post accident public hearing. We
also believe it is important to improve the whistleblower protections
to encourage miners who may know about dangers to come forward. The
criminal provisions should be enhanced so that MSHA violations can be
prosecuted as felonies, not only misdemeanors. Also, it should be
clarified that the criminal penalties apply to those who contribute to
unlawful conduct; in some cases it should not just be the front line
supervisors who are held liable, but higher management should be
accountable for corporate policies that put profits ahead of miners'
safety and health.
MSHA should also start factoring in the work of contractors that
work on mine property when considering the safety record of the owner
and operator. By treating the operator and its contractor as two
separate entities, MSHA overlooks data that should reflect on the
operator's safety record.
We believe that investigations of the Upper Big Branch tragedy will
show that safe mining practices were not followed at that operation and
miners were being exposed to senseless dangers. We already know that
MSHA issued 515 citations and orders at the Upper Big Branch mine in
2009, and another 124 so far in 2010; moreover, the paper MSHA issued
to Upper Big Branch reflects serious health and safety violations: 39
percent of the 2009 citations were for ``significant and substantial''
(``S&S'') violations. These violations are usually quite serious--the
kind of violations that can contribute to mine fires, explosions and
the deaths of coal miners. Even more troubling is the fact that MSHA
issued 48 withdrawal orders at Upper Big Branch due to repeated S&S
violations the operator knew or should have known constituted a hazard.
These numbers far exceed industry norms.
For the Upper Big Branch investigation, we are encouraging MSHA to
hold public hearings. Doing so would allow the government to subpoena
witnesses, and would give it the right to question top management. We
are convinced that the many problems that contributed to the explosion
at Upper Big Branch did not develop at the foreman or mine supervisor
level, but reflect corporate policies that should be heard in the open.
Only by conducting an open hearing will miners, the public, and the
families of those killed be able to learn what really happened.
Operators that invest in equipment and training to make a mine
safer should not have to compete against those that refuse to make
these needed investments. In the end it's miners who pay the price when
operators do not adhere to what the law requires. As long as there are
good paying jobs in mining, there will be workers willing to take the
work thinking and praying they will be the lucky ones. Working in
America in the 21st Century should not require such a gamble. And
unless operators start running their mines consistent with what the law
requires, we will continue to witness miners dying.
The Union and coal miners hailed the passage of the MINER Act as
the dawn of a new day to improving coal mine health and safety. We have
seen some improvements, but we have a long way to go. MSHA should be
given more enforcement tools to help it enforce the law. And the law
should be strengthened further. Thank you for allowing us to address
this committee, and for your continued commitment to workers' health
and safety.
The Chairman. I wish my dad could have met you.
Mr. Roberts. I wish I could have met your dad.
The Chairman. Yes, I wish you could have, too. He started
working in the coal mines underground sometime between 1905 and
1910--I don't know when--and worked there for 20 years. That
was before I was born, I want you to know.
[Laughter.]
Voice. In Wyoming.
The Chairman. No. This was Iowa. Iowa was second, once,
only to Pennsylvania, in the number of coal mines. And
listening to him, later in life, talk about those early years,
when they were working in those mines, and what would happen to
them if they tried to organize a labor union or anything like
that, just to hear what would happen to them sort of reminds me
of what you're talking about right now. I would have thought
that those days were long gone--long gone--back in the Dark
Ages, someplace like that. I wish he could have met you.
Mr. Harris, welcome. Please proceed. As I said, your
statements will be made a part of the record.
STATEMENT OF JEFFREY HARRIS, MINE WORKER,
FARLEY, WV
Mr. Harris. Yes.
I am Jeff Harris, a third-generation coal miner. I've
worked at the Massey mines. And what really concerns me with
the panel----
I really appreciate everybody for being here, and the
families.
I am really sickened by what really went on. The reason I
say what I say is that I worked at the Massey mines. The mines
that I worked at, at the Massey mines, they would take air
readings until they got the right one, and then they would
just--that's what they would do. Because the new detectors and
everything reads memory, they wouldn't turn them in. When I
first went to work for Massey, everyone had told me about it,
and I said, ``No, they hadn't''--I said, ``It can't be that
bad.''
I went over there, and I worked at the Big Branch Mines.
When the inspectors would shut the mines down that I went to
work for, at the Kepler Mines, in Pineville--when they would
shut the mines down, Massey would transfer us to different
mines. Didn't matter if you worked there and knew it or
nothing. That's where you had to go, where--you had to live out
of your car. Went over to the Big Branch Mines, never knew
nothing about the mines, went into the mines. They'd never give
you a safety meeting. You went up on that section, and the
first thing they said, ``That's your machine.'' I was a roof
bolter. You went up to that roof bolter, the first thing they'd
do was start tearing the ventilation curtain down, that
ventilates the face.
I heard Senator Rockefeller talk about the dust and the
debris and stuff that creates the explosion. Hey, when the
inspector would show up on the property, they would shut the
section down. They would drop dust, they would get all the
debris away that could cause an explosion. Soon as the
inspector would leave the property they jerk all the
ventilation back down and start mining coal. It's impossible
for you to mine 600, 700 feet of coal in a 8-hour period out of
coal mines, and do it right.
I worked at union mines. I was working out of union mines.
We try to do everything right. We do everything right, and the
company wanted us to do everything right. It's not fair to
those miners. Like I say, I worked there, and I talked to those
guys. I'm not telling you what someone told me. I'd try to get
those guys to understand that we need to stand up. And you know
what they said? ``If you don't like it, you get out of here,
because if we stand up, we all are fired.'' And that's the way
that they operate.
I worked until I couldn't take it no more. My wife was
worried to death. I would fear for my safety the whole time I
worked for them. So, I quit. I said, ``I will starve to death
first.'' It's not right for a person, a human being, to have to
go to work under those type of pressures and do a job. I mean,
it's not right.
People have gotten hurt, when I worked there. They would
let you come to work. To keep from filing a accident report,
they would put you on light duty--let you stay out in the bath
house, or do a light-duty job to keep from filing an accident
report, so it wouldn't go against the mines.
It's just so much that, I don't have enough time to tell it
all. But, it's not fair. Like Cecil said, this is America. We
shouldn't have to live like that. I'm on the Mine Committee at
the mines where I work at. I'm on the Safety Committee, and I
have as much power as MSHA. I can tell them to shut the section
down if something's not right, and we are going to fix it.
Those men at Massey, they don't have that right. It's just not
right.
[The prepared statement of Mr. Harris follows:]
Prepared Statement of Jeffrey Harris
My name is Jeffrey Harris. I am a coal miner from Beckley, WV. I
have over 30 years of experience as an underground coal miner. For the
last 4 years I have worked at the Harris #1 Mine, which is owned and
operated by the Patriot Coal Company. I am a roof bolter, which means
my job is to pin the underground roof of the mine to keep it safe. I
also have experience doing most of the underground jobs including
running equipment, working on the belts, and construction.
Before my current job, I worked for Massey. I worked at the Keppler
Mine in Pineville, WV and my job was roof bolter there, too. I worked
for Massey for about 6 months in the first half of 2006. Even though I
was hired to work at the Keppler Mine, I spent a little time at the
Upper Big Branch, and some other Massey operations. When MSHA shut down
the Keppler mine because of violations, the Company would send us to
other mines to work.
In the end, I quit my job with Massey because I couldn't take the
poor conditions in the mine. I was scared and didn't feel comfortable
working there. I am here to tell you about some of the things I know
from my time working at Massey mines; things that aren't right and
which shouldn't be allowed to continue. I am here because I am
concerned that other miners are working in conditions I know aren't
safe.
Sometimes, if we had heard that there was too much gas, we'd be
told the problem was taken care of and not to worry. We might not
believe them that the problem was fixed, but we had a job to do and we
worked. Then when an inspector came by, he would find excess gas and
shut us down. This showed us that the Company couldn't be trusted.
You might wonder why we would work if we thought it was dangerous.
The answer is simple: either you worked or you quit. If you complained,
you'd be singled out and get fired. Employees were scared, but like me
they have to feed their family. Jobs are scarce, and good paying coal
mining jobs are hard to come by.
One of the problems at Upper Big Branch Mine was with the air. When
we were outside they might talk about safety but as soon as you went
underground it was a different story. When we got to a section to mine
coal, they'd tear down the ventilation curtain. The air was so thick
you could hardly see in front of you. When an MSHA inspector came to
the section, we'd hang the curtain, but as soon as the inspector left,
the curtain came down again. Some people would tell the inspectors
about these kinds of ventilation changes that were made for the
inspectors benefit, but the inspectors told us ``we need to catch it,''
and that didn't happen very often.
At the Massey mines, we'd also shut down equipment when the
inspectors were at the mine so they couldn't take readings while we
were mining. We'd have to say the machine was ``down.'' As soon as the
inspector left, we'd kick it right back into service. This was a common
practice. I could tell the inspectors would get frustrated, but they
had a lot of ground to cover and couldn't hang around waiting.
In checking for gas, we would take a number of gas monitors to
check for gas levels, but we would only report the lowest. If other
readings were too high, they wouldn't get reported at all.
The Massey mines were always understaffed, which also meant there
weren't people available to take all the safety readings, or take care
of the ventilation like it should be done. Our regular schedule was a
12-hour day with 4 hours mandatory overtime. We had to wait for our
replacement to take over before we could leave our equipment to go
home. If the replacement didn't come, we'd have to stay and keep on
working even beyond the 16 hours.
Reports about Massey's lost time accidents are also misleading. I
was lucky and never got hurt while I worked for Massey, but I know
plenty of other guys who did get injured. If you got hurt, you were
told not to fill out the lost time accident paperwork. The Company
would just pay guys to sit in the bathhouse or to stay home if they got
hurt--anything but fill out the paperwork.
I could say even more but this gives you an idea of some of the
problems. If an operator wants to, it's pretty easy to cut corners on
safety. That's exactly what I saw at the Massey mines where I worked.
People shouldn't have to work like that. Nobody should have to fear for
their life just to earn a paycheck.
Thank you for giving me this chance to talk about mine safety. I
would be happy to answer your questions.
The Chairman. Well, Mr. Harris, thank you very much, very
powerful statement. That's why it's always good to have someone
like you, who's out there, that gets their hands dirty, and
goes in those mines, come here and tell us what it's really
like.
Mr. Addington.
STATEMENT OF WES ADDINGTON, DEPUTY DIRECTOR, APPALACHIAN
CITIZENS' LAW CENTER, WHITESBURG, KY
Mr. Addington. Chairman Harkin and members of the committee
and Senator Rockefeller, thank you for allowing me to speak to
you today regarding the health and safety of America's miners.
My name is Wes Addington, and I'm an attorney at the
Appalachian Citizens' Law Center, a nonprofit law firm that
represents miners and their families on mine safety and health
issues. At the Law Center, I operate the Mine Safety Project,
which works to improve safety conditions for miners in the coal
fields. Primarily, the Mine Safety Project represents miners
that suffer workplace discrimination for making protected
safety complaints.
Unfortunately, I'm before you today following the mine
explosion in Montcoal, WV, which has claimed the lives of 29
miners. The Massey disaster, at Upper Big Branch, now becomes
synonymous with death in the coal mines, like the four recent
disasters before it: Crandall Canyon, Darby, Aracoma, and Sago.
All were preventable. Five coal mining disasters in barely 4
years is not only a crisis, it's a national disgrace.
My father was a Kentucky coal miner, and his father before
him, and all four of my great-grandfathers were miners.
Congress's opening declaration in the MINE Act of 1977 is that,
``The first priority and concern of all in the coal or other
mining industry must be the health and safety of its most
precious resource, the miner.'' However, moving forward, the
miner should also be our most precious resource in any strategy
to improve mine safety in America and prevent future disasters.
Miners best know the conditions present in their mines, more so
than even inspectors and operators, and can provide invaluable
information to Federal regulators working to ensure their
protection.
Congress realized, long ago, that mine safety and health
will generally improve to the extent that miners themselves are
aware of mining hazards and play an integral part in the
enforcement of the mine safety and health standards.
We have to the reach the point in this country that miners,
without hesitation, report unsafe conditions. However, recent
mine disasters and scores of individual mining fatalities show
that this is not happening frequently enough. Unfortunately, in
too many mines, miners that complain about unsafe conditions
are harassed, interfered with, or even discharged. Many miners
feel that those who do complain aren't supported or protected
to the degree envisioned under the MINE Act. Understandably,
then, an experienced and skilled coal miner will often quit a
bad situation and find a new job elsewhere, rather than ask
MSHA or the State mine enforcement agency to investigate and
remedy the unsafe conditions. Thus, the Federal Government has
to do a better job of publicizing miners' safety rights and
increasing their support of miners who exercise those rights.
Now, I know my time is limited here, but I would just like
to point the committee to my other two topics of interest that
I planned on talking about today, which is increasing the
frequency and the quality of training of miner safety rights,
and the failure of MSHA to place mines on a Pattern of
Violation notice.
What I would like to talk about, really briefly, is
representatives of miners. Representatives of miners are
working miners that are selected by at least two other miners
to represent them in safety and health matters at their mine.
Miners' reps are granted special rights, under the Federal law,
which are designed to encourage active participation in the
enforcement of mandatory health and safety standards, and to
keep their coworkers apprised of issues that might affect mine
safety and health. They have the right to accompany MSHA
inspectors during an inspection of the mine, for the purpose of
aiding such inspection and to participate in pre- and post-
conferences held at the mine. They also have a right to receive
every copy of any order, citation, notice, or decision that is
given to the mine operator.
Yet, with all the inherent safety advantages--the Miners'
Right--the Rep system offers to miners, it is shockingly
underutilized.
A Freedom of Information Act response revealed, in 2008,
that more than 98 percent of 249 coal mines in eastern
Kentucky's MSHA district No. 6 did not have one miners'
representative. Only 4 of those 249 mines had miners'
representatives. One reason for the lack of miners' reps is
that miners are often interfered with, or at least discouraged,
by the operator if they show interest in becoming a miners'
rep. One of our current clients was discharged for becoming a
miners' rep at his mine.
MSHA should devote special attention toward increasing the
number of miners' reps, and I would encourage Congress to
consider a change in the law to require miners' reps on every
shift at every mine, to ensure the substantial safety
protections gained through this system.
Thank you.
[The prepared statement of Mr. Addington follows:]
Prepared Statement of Wes Addington
Summary
We have to reach the point in this country that miners, without
hesitation, report unsafe conditions. However, recent mine disasters
and scores of individual mining fatalities show that this is not
happening frequently enough. Unfortunately, in too many mines, miners
that complain about unsafe conditions are harassed, interfered with, or
even discharged.
representatives of miners
Representatives of Miners are working miners that are selected by
at least two other miners to represent them in safety and health
matters at their mine. Miners' Representatives are granted special
rights under Federal law, which are designed to encourage active
participation in the enforcement of mandatory health and safety
standards and to keep their co-workers apprised of issues that affect
their health and safety. Yet, with all the inherent safety advantages
the Miners' Representative system offers to miners, it is shockingly
underutilized. MSHA should devote special attention towards increasing
the number of Miners' Representatives. I would encourage Congress to
consider a change in the law to require a Miners' Representative be
designated at every mine on each shift to ensure the safety protections
gained through this system.
miners' rights training
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. Miners are in a unique position to
monitor workplace conditions when inspectors are absent and have an
active voice in safety issues at their mines. The present program has
systemic shortcomings. In my experience, too 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. Thus, to meet
Congress' goals under the Mine Act, miners need more extensive and more
frequent training of their statutory rights. Not only should the
frequency of miners' statutory rights training increase, but also the
quality of and methods by which miners receive such training.
pattern of violations
In response to the Scotia Mine Disaster in 1976, Congress sought to
address chronic and repeat violators and prevent operators from
continually piling up citations for dangerous conditions. It is clear
from the legislative history that Congress believed the ``pattern of
violations'' provision in the Mine Act would be a strong enforcement
tool to go after the worst violators. Yet, 33 years and more than a
dozen mine disasters later, MSHA apparently has only issued one (1)
``pattern of violations.'' The implementing regulation and MSHA's
internal criteria for determining a ``pattern'' is currently framed so
that it is nearly impossible for a repeat violator to be subjected to
the enhanced enforcement intended in the statutory provision. MSHA has
not used the statutory tools available in the Mine Act to aggressively
address problem mines. Not only has MSHA unnecessarily constrained its
ability to use the ``pattern of violations'' provision, it has
reportedly never sought an injunction or restraining order against a
mine that it believes engaged in a pattern of violation that
constitutes a continuing hazard to the safety of miners as allowed
under section 108(a)(2) of the Mine Act. Thus, additional legislation
may be needed to fully realize Congress' intention 33 years ago to
prevent mine operators from engaging in a pattern of recurrent
violations that can ultimately lead to the deaths of miners.
______
Chairman Harkin and members of the Senate Committee on Health,
Education, Labor, and Pensions, thank you for allowing me to speak to
you today regarding the health and safety of America's miners.
My name is Wes Addington and I am an attorney at the Appalachian
Citizens' Law Center, a non-profit law firm that represents miners and
their families on mine safety and health issues. The Law Center is
based in Whitesburg, KY, which is centrally located in the Appalachian
coal fields.\1\ At the Law Center, I operate the Mine Safety Project,
which works to improve safety conditions for miners in the coal fields.
Primarily, the Mine Safety Project represents miners that suffer
workplace discrimination for making protected safety complaints. In
addition to mine safety, we also focus on the area of miners' health
where we represent disabled miners afflicted with black lung disease
and miners' widows whose husbands have died from the disease.
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\1\ Whitesburg is in Letcher County, site of the 1976 Scotia Mine
Disaster, which killed 26 miners and mine inspectors and led to the
passage of the Federal Mine Safety and Health Act of 1977.
---------------------------------------------------------------------------
Unfortunately, I am before you today following the mine explosion
in Montcoal, WV, which claimed the lives of 29 miners. The Massey
Disaster at Upper Big Branch now becomes synonymous with death in the
coal mines like the four recent disasters before it: Crandall Canyon,
Darby, Aracoma, and Sago. All were preventable. Five coal mining
disasters in barely 4 years is not only a crisis, it is a national
disgrace.
My father was a Kentucky coal miner and his father before him and
all four of my great grandfathers were miners. Congress' opening
declaration in Federal Mine Safety and Health Act of 1977 is that ``the
first priority and concern of all in the coal or other mining in dustry
must be the health and safety of its most precious resource--the
miner.'' \2\ However, moving forward, the miner should also be our most
precious resource in any strategy to improve mine safety in America and
prevent future disasters. Miners best know the conditions present in
their mines, more so than even inspectors and operators, and can
provide invaluable information to the Federal regulators working to
ensure their protection. Congress realized long ago that ``mine safety
and health will generally improve to the extent that miners themselves
are aware of mining hazards and play an integral part in the
enforcement of the mine safety and health standards.'' \3\
---------------------------------------------------------------------------
\2\ 30 U.S.C. 801 et al. (``Mine Act'').
\3\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977), reprinted
in Senate Subcommittee on Labor, Committee on Human Resources, 95th
Cong., 2d Sess., Legislative History of the Federal Mine Safety and
Health Act of 1977.
---------------------------------------------------------------------------
We have to reach the point in this country that miners, without
hesitation, report unsafe conditions. However, recent mine disasters
and scores of individual mining fatalities show that this is not
happening frequently enough. Unfortunately, in too many mines, miners
that complain about unsafe conditions are harassed, interfered with, or
even discharged. Many miners feel that those who do complain aren't
supported or protected to the degree envisioned under the Mine Act.
Understandably then, an experienced and skilled miner will often quit a
bad situation and find a new job elsewhere, rather than ask MSHA or the
State mine enforcement agency to investigate and remedy the unsafe
conditions. Thus, the Federal Government has to do a better job of
publicizing miners' safety rights under current law and increasing
their support of miners that exercise those rights. In areas, current
law is insufficient to properly protect our miners. With that in mind,
I make the following recommendations:
representatives of miners
Representatives of Miners are working miners that are selected by
at least two other miners to represent them in safety and health
matters at their mine.\4\ Miners' Representatives are granted special
rights under Federal law, which are designed to encourage active
participation in the enforcement of mandatory health and safety
standards and to keep their co-workers apprised of issues that affect
their health and safety. Miners' Representatives have the following
rights:
---------------------------------------------------------------------------
\4\ 30 U.S.C. 813(f).
The right to receive a copy of every proposed mandatory
health or safety standard or regulation at the time of publication in
the Federal Register. Sec. 101(e) of the Mine Act.
The right to accompany an MSHA inspector during the
inspection of the mine, for the purpose of aiding such inspection and
to participate in pre- or post-inspection conferences held at the mine.
Sec. 103(f).\5\
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\5\ ``Presence of a representative of miners at opening conference
helps miners to know what the concerns and focus of the inspector will
be, and attendance at closing conference will enable miners to be fully
apprised of the results of the inspection. It is the committee's view
that such participation will enable miners to understand the safety and
health requirements of the Act and will enhance miner safety and health
awareness.'' S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977)
---------------------------------------------------------------------------
The right to receive a copy of the notification to the
operator for every citation or order issued by MSHA. Sec. 105(a).
The right to receive a copy of the notification to the
operator for every citation that the operator has failed to correct.
Sec. 105(b)(1)(A).
The right to receive a copy of any order, citation, notice
or decision that is required by the Mine Act to be given to the
operator. Sec. 109(b).
The right to receive a copy of any electrical equipment
permit granted. Sec. 305(b).
In view of these special safety rights granted to Miners'
Representatives, it's clear that Congress intended them to play a
central role in matters of safety and health and be a vital source of
information for the rest of the miners. MSHA has said that the Miners'
Representative ``plays an important part in our inspection work.'' MSHA
further stated:
Congress put this into the Act because they felt that you
[the miner], with your knowledge of the work site, could
provide our inspectors with a great deal of useful information.
They also felt that if you watched what happened during an
inspection you would better understand how the Act's safety and
health requirements work.
In fact, MSHA recommended that every shift have a Miners'
Representative available.\6\
---------------------------------------------------------------------------
\6\ A Guide To Miners' Rights and Responsibilities Under the
Federal Mine Safety and Health Act of 1977. U.S. Department of Labor,
MSHA (2000).
---------------------------------------------------------------------------
Yet, with all the inherent safety advantages the Miners'
Representative system offers to miners, it is shockingly underutilized.
A Freedom of Information Act response revealed, in 2008, that more than
98 percent of the 249 coal mines in eastern Kentucky's District 6 did
not have a Miners' Representative.\7\ One reason for the lack of
Miners' Representatives is that miners are often interfered with or at
least discouraged by the operator if they show interest in becoming a
Miners' Representative. One of our current clients was discharged for
becoming a Miners' Representative at his mine. Additionally, MSHA does
not sufficiently promote or encourage miners to become Miners'
Representatives.
---------------------------------------------------------------------------
\7\ The FOIA request was made by Dr. Celeste Monforton for every
mine in the country with more than 5,000 employee hours.
---------------------------------------------------------------------------
Thus, I would implore MSHA to devote special attention towards
emphasizing and encouraging miners to become Miners' Representatives.
Far too many miners aren't even aware that they can designate one of
their co-workers to travel with inspectors during inspections and
receive copies of all citations, orders, and notices issued to the
operator. I would encourage Congress to consider a change in the law to
require a Miners' Representative be designated at every mine on each
shift to ensure the safety protections gained through this system.
miners' rights training
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. The present program has systemic
shortcomings.\8\ 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. After completing
the required 40-hour training for new underground miners in Kentucky
myself, I realized that the portion of the training on miners' rights
was woefully inadequate if we expect miners to actively participate in
enforcement of health and safety standards at their mines.
---------------------------------------------------------------------------
\8\ The bulk of my submitted testimony on miners' rights training
was submitted to MSHA as part of Petition for Rulemaking in 2008. We
had asked MSHA to make all of the changes recommended in this section
of my testimony 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 Web site.'' April 8, 2008 Letter from Acting Assistant
Secretary, Richard E. Stickler. Anyone who has ever viewed MSHA's
complicated Web site would understand that this was essentially non-
responsive.
---------------------------------------------------------------------------
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, escape ways, 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.\9\ (emphasis
added).
---------------------------------------------------------------------------
\9\ 30 U.S.C. 825(a)(1).
---------------------------------------------------------------------------
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.\10\ (emphasis added).
---------------------------------------------------------------------------
\10\ 30 U.S.C. 825(a)(2).
Importantly, the Mine Act also requires that all miners receive at
least 8 hours of refresher training annually.\11\
---------------------------------------------------------------------------
\11\ 30 U.S.C. 825(a)(3).
---------------------------------------------------------------------------
Federal Regulations set forth requirements for training and
retraining of underground and surface miners, including training as to
statutory rights. Part 48 requires that miners receive such statutory
rights training only if they are new miners, and to a lesser extent, if
they are experienced miners who are newly employed by an operator,
transferring to the mine, or returning to a mine after an absence of 12
months or more. Part 48 does not require that miners must receive
statutory rights training during their annual refresher training.\12\
---------------------------------------------------------------------------
\12\ 30 CFR part 48.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\13\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
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
my 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.
Even if miners have some understanding of their statutory rights,
they will not exercise those rights for fear of retaliation. They often
lack confidence in MSHA's ability to protect them from retaliation, and
rarely have anywhere else to turn for help. The upshot of this dynamic
is that miners who find themselves working in unsafe or unhealthy
conditions usually are silent about the unsafe conditions or find work
at another mine, rather than speak out and risk retaliation, which can
result in the assignment of undesirable work, threats from management
or outright discharge. I've represented miners that have been fired for
complaining about unsafe equipment and refusing to perform unsafe work.
I've also represented a miner that was illegally suspended by the
operator for not having required training for which the operator was
actually responsible to provide.\14\
---------------------------------------------------------------------------
\14\ ``No miner who is ordered withdrawn from a coal or other mine
. . . shall be discharged or otherwise discriminated against because of
such order; and no miner who is ordered withdrawn from a coal or other
mine . . . shall suffer a loss of compensation during the period
necessary for such miner to receive training and for an authorized
representative of the Secretary to determine that such miner has
received the requisite training.'' 30 U.S.C. 104(g)(2).
---------------------------------------------------------------------------
Thus, to meet Congress' goals under the Mine Act, miners need more
robust and more frequent training of their statutory rights. To remedy
the problems outlined above, MSHA must change not only the frequency of
miners' statutory rights training, but also the quality of and methods
by which miners receive such training.
As to the issue of frequency of statutory rights training, as noted
above, MSHA requires statutory rights training under Part 48 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 at
all and cannot protect themselves. An obvious solution to this dilemma
is to require statutory rights training in annual refresher training.
There should also be changes in the methods by which miners receive
statutory rights training, and the substance and quality of that
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, such as trainings provided by State
mine safety agencies.
Additionally, the training should delineate each of the following
statutory rights of coal miners and/or miners' representatives:
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 long-wall 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 escape ways.
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 would 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.
pattern of violations
In response to the Scotia Mine Disaster in Letcher County, KY,
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.'' \15\
It's clear from the legislative history that Congress believed the
``pattern of violations'' provision would be a strong enforcement tool
to go after the worst violators:
---------------------------------------------------------------------------
\15\ 30 U.S.C. 814(e).
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.\16\
---------------------------------------------------------------------------
\16\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
---------------------------------------------------------------------------
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 \17\ (emphasis
added).
---------------------------------------------------------------------------
\17\ S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
Finally, they felt that they 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 standard. 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, 33 years and more than a dozen mine disasters later, MSHA
apparently has only issued one (1) ``pattern of violations'' under the
Mine Act. The implementing regulation and MSHA's internal criteria for
determining a ``pattern'' is currently framed so that it is nearly
impossible for a repeat violator to be subjected to the enhanced
enforcement intended in the statutory provision.\18\ I have attached to
my testimony a letter recently sent by myself and longtime mine safety
advocate Tony Oppegard to MSHA requesting that they rescind and rewrite
the regulation so that it complies with the statutory requirements of
section 104(e).
---------------------------------------------------------------------------
\18\ 30 CFR part 104; http://www.msha.gov/POV/POVsinglesource.asp.
---------------------------------------------------------------------------
Much has been recently made of the effect that the significant
backlog of cases at the Federal Mine Safety and Health Review
Commission (``Commission'') has had on MSHA's ability to enforce the
``pattern of violations'' provision against repeat violators. The claim
is that mine operators are appealing all violations upon which a
pattern could be based and their pending status ties MSHA's hands.\19\
Although the backlog is troubling and should be addressed, it is a red
herring and not the root cause of the problem.\20\ Never mind that the
backlog has only existed for a couple of the 33 years the ``pattern of
violations'' provision has been on the books. Simply, MSHA has not used
the statutory tools available in the Mine Act to aggressively address
problem mines. Not only has MSHA unnecessarily constrained its ability
to use section 104(e), it has reportedly never sought an injunction or
restraining order against a mine that it believes engaged in a pattern
of violation that constitutes a continuing hazard to the safety of
miners as allowed under section 108(a)(2).\21\ Thus, additional
legislation may be needed to fully realize Congress' intention 33 years
ago to prevent mine operators from engaging in a pattern of recurrent
violations that can ultimately lead to the deaths of miners.
---------------------------------------------------------------------------
\19\ Although a recent report cited a ``computer program error''
and not the Commission's backlog for the failure to send a warning
letter that Upper Big Branch mine may be placed on a ``pattern of
violations.'' http://wvgazette.com/News/montcoal/201004130638.
\20\ In fact, further undercutting the claim that endless appeals
are preventing ``pattern of violations'' notices, is the 2006 agreement
between the Solicitor and Massey Energy wherein the company could
reopen delinquent penalties that had become final orders of the
Commission:
We consider the Secretary's position in this case in light of
the provisions of the ``Informal Agreement between Dinsmore & Shohl
Attorneys and Department of Labor--MSHA--Attorneys Regarding Matters
Involving Massey Energy Company Subsidiaries'' dated September 13,
2006. Therein, the Secretary agreed not to object to any motion to
reopen a matter in which any Massey Energy subsidiary failed to timely
return MSHA Form 1000-179 or inadvertently paid a penalty it intended
to contest so long as the motion to reopen is filed within a reasonable
time. Thus, we assume that the Secretary is not considering the
substantive merits of a motion to reopen from any Massey Energy
subsidiary so long as the motion is filed within a reasonable time.
Such agreements obviously are not binding on the Commission, and the
Secretary's position in conformance with the agreement in this case has
no bearing on our determination on the merits of the operator's
proffered excuse.--Secretary of Labor, MSHA v. Rockhouse Energy Mining
Co., 31 FMSHRC 847 (Aug. 11, 2009).
\21\ 30 U.S.C. 818(a)(2).
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Once again, we as a nation are reeling from another mine disaster.
However, Congress has an opportunity to enact changes that can ensure
the protection of today's miners and prevent future generations of
mining families from suffering like too many families have over the
years. Thank you for taking my recommendations into consideration.
______
Tony Oppegard, Attorney-at-Law,
Lexington, KY 40522.
Wes Addington, Attorney-at-Law,
Whitesburg, KY 41858,
April 12, 2010.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety & Health,
Mine Safety & Health Administration,
1100 Wilson Boulevard,
Arlington, VA 22209,
Re: Request to rescind ``pattern of violations'' regulation.
Dear Mr. Main: On behalf of the coal miners that we represent in
safety-related litigation in the coal fields of eastern Kentucky, we
hereby respectfully request MSHA to immediately rescind its ``Pattern
of Violations'' regulation found at 30 CFR Part 104, and to re-write
the regulation so that it complies with the statutory requirements set
forth in 104(e)(1) of the Mine Act and as expressed in the Mine Act's
legislative history.
Section 104(e)(1) provides, in pertinent part, that:
``If an operator has a pattern of violations of mandatory
health or safety standards in the coal or other mine which are
of such nature as could have significantly and substantially
contributed to the cause and effect of . . . mine health or
safety hazards, he shall be given written notice that such
pattern exists. If, upon any inspection within 90 days after
the issuance of such notice, an authorized representative of
the Secretary finds any violation of a mandatory health or
safety standard which could significantly and substantially
contribute to . . . a safety or health hazard, the authorized
representative shall issue an order requiring the operator to
cause all persons in the area affected by such violation . . .
to be withdrawn from, and to be prohibited from entering, such
area until an authorized representative determines that such
violation has been abated'' (emphasis added).
The committee that drafted the ``Pattern of Violations'' provision
stated that:
``The need for such a provision was forcefully demonstrated
during the investigation by the Subcommittee on Labor of the
Scotia mine disaster which occurred in March 1976 in eastern
Kentucky. 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.
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
105(d)(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.
The committee intends that the criteria [to determine when a
pattern of violations exists] make clear that a pattern may be
established by violations of different standards, as well as by
violations of a particular standard. Moreover, while the
committee considers that a pattern is more than an isolated
violation, pattern does not necessarily mean a prescribed
number of violations of predetermined standards nor does it
presuppose any element of intent or state of mind of the
operator. . . .''--Legislative History of the Federal Mine
Safety & Health Act of 1977, at 32-33 (1978) (emphasis added)
Based on the foregoing plain language of the statute, as well as
its legislative history, we believe the Mine Act mandates MSHA to
notify an operator whenever a pattern of violation exists. The
regulation promulgated by MSHA--which WARNS the operator that it might
be placed on a pattern if it doesn't improve its safety performance--in
our view, contradicts the plain language of the provision and,
moreover, defeats its intent. By WARNING an outlaw operator, MSHA is
effectively telling the operator how to avoid being placed on a pattern
and thus how to avoid stricter scrutiny of its compliance with the law.
We think it akin to an MSHA inspector observing a violation, but
improperly warning the operator that a citation will be issued if the
violation is not corrected in a prescribed period of time.
The fact that only one coal mine in the entire United States has
been placed on a pattern under 104(e)(1) since the passage of the
Mine Act in 1977 should make it obvious to MSHA that this provision of
the law is not working. We believe that the Congress that enacted this
important enforcement tool in 1977 would be stunned to know that it has
only been used once in the past 33 years--despite the fact that miners
continue to die at an unacceptable rate in our Nation's mines.
Indeed, the extensive and flagrant violation history of the Upper
Big Branch mine makes clear that that mine should have been ``placed on
a pattern'' long before the recent disaster. Any mine that accumulates
almost 50 unwarrantable failure violations in a single year deserves
the heightened scrutiny provided by 104(e)(1) of the Mine Act. The
fact that Massey's Upper Big Branch mine did not meet the criteria set
forth in MSHA's ``pattern of violations'' regulation is proof that the
regulation contradicts the intent of the statutory provision. Had MSHA
used this enforcement tool as Congress intended, the mine would have
received the stricter scrutiny that might have prevented the disaster.
Please call us if you have any questions about this request. Thank
you for your consideration of this matter.
Sincerely,
Tony Oppegard,
Attorney-at-Law,
P.O. Box 22446, Lexington, KY 40522; (859) 948-9239.
Wes Addington,
Attorney-at-Law, Appalachian Citizens Law Center,
317 Main Street, Whitesburg, KY 41858; (606) 633-3929.
______
The Chairman. Thank you, Mr. Addington. Thank you for that
suggestion. We'll look at it seriously.
Mr. Watzman, welcome.
STATEMENT OF BRUCE WATZMAN, SENIOR VICE PRESIDENT, REGULATORY
AFFAIRS, NATIONAL MINING ASSOCIATION, WASHINGTON, DC
Mr. Watzman. Thank you, Mr. Chairman, for the opportunity
to appear today.
Before turning to the topic of this hearing, let me again
express the condolences of the entire mining community to the
families of those who tragically lost their lives at the Upper
Big Branch Mine. Our thoughts and prayers are with all who are
touched by this tragedy. Our heartfelt thanks go out to the
rescue team members who worked so tirelessly to recover their
fellow miners.
I come here today to assure you that we will join with you
to find out what happened at the mine, and why it happened. We
do not accept that mining tragedies are inevitable. We join
with others here today to ensure that from this tragedy will
emerge a stronger resolve to do better what we've tried so hard
to do well.
We understand the significance of the challenge we face, to
bring all miners home safely from their important work. This is
the responsibility that we owe all who work in the mines, and
it's the debt that we owe those who perished at the Upper Big
Branch Mine.
Mine safety is an operator's obligation, and must be their
highest priority. Both operators and MSHA have a shared
responsibility to ensure a safe workplace. It is this shared
responsibility that led to the dramatic improvement of the last
2 years, where we achieved all-time historic lows, in terms of
the number of miners who lost their lives. Still too many, but
the record was improving.
Several themes have emerged since the events of April 5,
and I'd like to address three that are most relevant to this
hearing.
First is the question of the adequacy of enforcement
authority provided MSHA under the MINE Act, the quality of
workplace inspections, and the appropriate application of the
full range of enforcement authority provided in the law.
Second is the backlog of cases pending before the Review
Commission, and whether these appeals jeopardize miners' safety
and health by preventing MSHA from instituting additional
sanctions against operators.
And third, whether new laws or regulations are necessary to
create a culture of prevention across the industry.
Turning to the first issue, attached to my written
statement is an analysis demonstrating how the enforcement
authority under the MINE Act goes well beyond the enforcement
authority provided OSHA, for example. Mines are subject to
mandatory inspections. Inspectors have warrantless entry
authority; authority to withdraw miners from any area of the
mine, for failure to abate cited conditions, for failure to
comply with mandatory standards, and when an imminent danger is
present. The enforcement powers under the MINE Act are
extensive. They need to be used, when conditions warrant,
rather than broadly supplemented.
The second issue is the backlog of cases before the Review
Commission. We support efforts to eliminate the backlog. Its
continuation does not serve the interest of miners nor mine
operators. We want to assure you that we're ready to take the
steps now to correct what all agree is a dysfunctional citation
and appeals process. Unlike under OSHA, appealing a citation
under the MINE Act, does not stay the requirements to correct
the alleged violation. The ``abate first and contest later''
rule of the MINE Act imposes immediate and substantial
obligations on operators to eliminate, whether valid or not,
the perceived hazard that gave rise to the condition under
which the citation is issued.
Now, some believe that the backlog results from a
deliberate attempt by some operators to clog the adjudicatory
system to prevent the agency from placing a mine on the pattern
cycle. Even if one were to accept this, there is, without
question, the ability of the agency to take additional
enforcement actions. The imminent danger authority, which was
discussed earlier, is available. Unlike pattern authority, it
doesn't require even the finding of a violation of a mandatory
standard. It's far more powerful than the pattern tool, but
it's infrequently used.
MSHA also has injunctive relief authority. The fact is,
Congress did not limit MSHA's enforcement authorities. The
tools are sufficient, when properly used.
The final point is what we need to do to create a culture
of safety across the entire industry, a culture of prevention
across the industry. In our view, the strategies for improving
performance must change. Last year, 86 percent of the mines in
our industry worked the entire year without a lost-time
accident. Enforcement contributed to this record. It's
necessary, but it, in and of itself, is not sufficient.
We need to place renewed emphasis on risk-based safety
performance through programs that share the best of the best in
safety performance with the entire industry. These are vital
components of an effective safety effort that go beyond
regulatory enforcement authority.
Mine operators who improve their performance year after
year recognize the need to go beyond mere conformity with the
law. They understand that regulations alone aren't sufficient
to bring about continued improvement.
It's time for all of us to recognize that culture,
leadership, training, and other organizational behavioral
factors influence performance. To the extent they fall short,
regulators provide a needed and necessary safety net.
Regulators and mine operators must stand apart, but an
adversarial relationship should not be a hostile relationship
as we seek better ways to improve miner safety.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Watzman follows:]
Prepared Statement of Bruce Watzman
Mr. Chairman and members of the committee, thank you for providing
the National Mining Association (NMA) the opportunity to share our
thoughts on: (1) whether the Federal Mine Safety and Health Act of 1969
as amended and as administered by the Mine Safety Health Administration
(MSHA) is an effective tool to ensure safe worksites and safe operator
behavior; and (2) whether the enforcement authorities of the act,
including the assessment and adjudication structure, are sufficient to
create a culture of compliance at the Nation's mines.
Allow me, again, to express the condolences of the entire mining
community to the families of those who tragically lost their lives at
the Upper Big Branch (UBB) mine. Our thoughts and prayers are with all
who were touched by this tragedy, and our heartfelt thanks are extended
to all of the rescue personnel who worked so tirelessly to recover the
fallen. We also commend President Obama and Vice President Biden for
giving appropriate recognition and solace to the mining community at
Beckley, WV last weekend.
commitment to a complete, impartial and transparent investigation
I come here today to assure you that the full resources of American
mining will join with State and Federal agencies, academic institutions
and other professionals to find out what happened at the Upper Big
Branch mine and why it happened. This will require a thorough review of
the roles played by all parties--mine management, miners and Federal
and State regulators--who were shaping the policies and procedures at
the mine prior to the accident. We do not accept this or any mining
tragedy as inevitable. Preventing a reoccurrence must include a
complete and transparent examination of the actions of all parties. At
the very least, we must use Upper Big Branch as a tool to further
improve mine safety.
For those reasons we applaud the decision of Secretary of Labor
Solis to request an independent party to undertake a review of MSHA's
actions leading up to and following this tragic event. This will ensure
an impartial and open investigation. As in the past, numerous valuable
reports will emerge from the examination process that is now underway.
Despite inevitable overlaps, the forthcoming analyses, findings and
recommendations must be evaluated and decisions to implement the
recommendations must be made quickly to better protect miners.
We understand the significance of the task we face, to ensure a
tragedy like this one is not repeated. Our goal remains to bring all
miners home safely from their important work. That is the
responsibility American mining owes all who work in our mines, and it
is the debt we owe those who perished.
We join with others here today to ensure that from this tragedy
will emerge stronger resolve and more comprehensive cooperation in our
pursuit of safer mines. Our expectation is that from this and similar
hearings and from the exhaustive investigations underway we can do
better in what we've tried hard to do well.
Last week in remarks to the Nation, President Obama stated that all
miners deserve ``a company that's doing what it takes to protect them,
and a government that is looking out for their safety.'' We agree.
American mining has made significant investments in and commitment to
mine safety in recent years and has successfully lowered our rate of
injuries. Last year was the safest year in history for all of U.S.
mining and for coal mining. We understand, however, that this
accomplishment offers little solace to the families that lost loved
ones. The loss of life at the Upper Big Branch Mine calls our progress
into question. We understand that. Only when the lessons learned from
this tragedy are clearly identified and woven into the fabric of daily
operating procedures can we expect to realize the full results of our
commitment to safety.
As this committee considers what it will hear today and the results
of the investigations that are currently underway, it is appropriate to
consider if existing enforcement authority is sufficient to protect
miner safety. Put another way, we should consider whether the
enforcement process is properly focused on quality workplace
inspections and the appropriate application of the full range of
enforcement authority provided in the law.
msha's enforcement authority is sufficient
In our view, the enforcement authority provided MSHA under the Mine
Act is sufficient to ensure that mine operators are providing a safe
and healthy work environment for their employees. The Mine Act goes
well beyond the authority provided to the Occupational Safety and
Health Administration (OSHA), for example. Unlike workplaces in general
industry, mines are currently subjected to mandatory inspections during
which inspectors have the authority to enter without a warrant,
evaluate an entire mine and withdraw miners from any area of a mine for
failure to abate cited conditions, for unwarrantable failure to comply
with mandatory standards, and in any area that presents an imminent
danger. Withdrawal orders may be issued on the spot by any authorized
representative of the Secretary. This is the most powerful enforcement
tool afforded any enforcement agency.
Many mines, because of the time needed to conduct an inspection,
have inspectors on site nearly every day. Additionally, the Mine Act
contains individual civil penalties for corporate officers and agents
for knowing violations and possible criminal sanctions of 1-year for
accidents not involving a fatality. In sum, the enforcement powers
under the Mine Act need to be used when conditions warrant, and if MSHA
was not using them to their fullest extent, Congress should examine the
reasons for that before increasing the enforcement power. (Attachment 1
summarizes MSHA's critical enforcement authority.)
Much attention also has been focused on MSHA's use of the ``Pattern
of Violation'' authority under the act. While we can speculate on
whether or not placing UBB under a Pattern of Violation would have
prevented the events of April 5, we must recognize that MSHA has other
enforcement tools that accomplish the same result as the pattern
provision. In fact, the ``imminent danger'' withdrawal authority of the
act, unlike ``Pattern,'' does not even require the finding of a
violation of a mandatory health or safety standard before a withdrawal
order can be issued.
Hence, ``imminent danger'' authority is a far more powerful
enforcement tool than the ``pattern'' authority.
backlog in contested citations is untenable and must be addressed
Let me turn now to the citation and appeals process and clearly
state that the current backlog in contested citations is untenable and
must be addressed. Let me be equally clear that when a violation is
cited, the mine operator must abate the underlying cause within the
time set by the mine inspector. The abatement action is not subject to
appeal: It must be taken. This requirement is also unique to American
mining. (See attachment 2)
Once the underlying condition has been abated, only then can the
merits of the original alleged violation and the resulting penalty be
contested. Recently, attention has focused on the rate at which mine
operators have been formally contesting citations and actions,
including citations and withdrawal orders issued by MSHA. Attention has
also focused on whether this has prevented the agency from instituting
additional sanctions, including ``Pattern of Violations'' enforcement.
This matter was thoroughly discussed at a February hearing before the
House Education and Labor Committee. While reasonable people may
disagree on the cause for the backlog of cases pending before the
Federal Mine Safety and Health Review Commission, all agree that this
situation cannot continue. The backlog does not serve the interest of
miners or the interest of mine operators. We pledge to work with
Congress to eliminate it.
Reducing the backlog will require, among other things, the
commitment of additional resources to fund the hiring of new staff at
the Commission and within the Department of Labor's Office of the
Solicitor. Attachment 3 contains a summary of the evolution of the
agency's conference system for citations and actions and our additional
recommendations for improving the current system.
potential causes of appeals to citations, orders and penalties
Looking beyond the immediate task of reducing the backlog, we need
to examine the causes and what must be done to prevent a reoccurrence.
During his testimony before the House, MSHA Assistant Secretary Main
outlined several steps he was considering to address this problem.
While details remain to be worked out, we support the thrust of his
views and look forward to working with him and all stakeholders to
eliminate the backlog.
To fix an appeals process that all agree is broken, it is important
to understand why it is broken. Allow me to offer our observations on
the causes of the increase in appeals--many of which we share with
Assistant Secretary Main. Key among the contributing factors is the
subjectivity of the citation and order process, the discretionary
authority of the inspector and the related influence of inspector
training and experience. The regulations upon which inspectors base
enforcement actions are predominately comprised of performance-based
standards. The interpretation of these standards is based on individual
circumstances and can vary from inspector to inspector and between
inspector and operator based on the facts unique to the cited condition
or practice.
The penalty amounts, which have also increased, are not only based
on the inspector's enforcement discretion in alleging a violation of a
standard, but also on the inspector's conclusions on a number of other
factors, all of which are discretionary based on his or her
interpretation of the circumstances surrounding an alleged violation.
These factors can have a profound impact on penalty amounts. They
include likelihood of occurrence, severity of injury, degree of
negligence and the number of persons affected by the allegations, to
mention only a few of the considerations that are set out in the
regulations and in the Mine Act and influence the penalty calculation.
Because there is unavoidable subjectivity in the citation and order
process and wide discretion is afforded the inspector when
characterizing violations under the penalty criteria, inspector
training and experience can have significant influence on the outcomes
as was pointed out in the recent Department of Labor, Office of the
Inspector General report on required retraining of inspectors. (Report
Number 05-10-001-06-001, March 30, 201)
Until Feb. 2008, an informal consultation process was used to
resolve most of the disagreements between the inspector and the mine
operator that arose from the subjective interpretation of performance-
based standards and the discretionary authority of the inspector in
assessing factors that affect penalties. When that process was
suspended, all differences were, by default, thrown into the appeals
process. There was, however, no commensurate increase in resources to
handle the inevitable growth in what are now classified as ``formal
contests'' simply because they are pending at the Commission, rather
than at the agency. Between higher fines and the elimination of lower
level conferences, appeals were inadvertently incentivized because any
disagreement over any aspect of the inspector's enforcement discretion
became subject to a formal contest proceeding.
Allow me to re-state our commitment to work with Congress and MSHA
to eliminate the backlog while preserving operators' due process
rights. NMA and MSHA have both offered suggestions for achieving that
objective, and we look forward to additional productive recommendations
from this committee and others.
mine safety goes beyond regulatory requirements and enforcement
Beyond the enforcement arena, we need to examine what programs,
procedures and practices are working and disseminate that information
across all of mining. We have worked with companies to foster the
implementation of risk management processes, and we've launched a risk-
based safety awareness campaign targeting known hazards. We initially
focused attention on selected areas of mining operations with the
highest accident rates and then built voluntary awareness programs
around each one. Going forward, we envision a larger effort to ensure
that best practices and procedures and information on promising
techniques and technologies for reducing accidents on the job are
shared throughout mining.
Our efforts are singular in focus, to bring all miners home safely
from their important work. In the end, mine and miner safety is the
operator's obligation and must be their highest priority. To the extent
they fall short regulators provide a needed safety net in the full
meaning of the term. If unintended consequences of policies have
diminished MSHA's perception of its authority, we have a shared mission
to rectify that situation.
______
Attachment 1.--Critical Enforcement Authority of the Federal Mine
Safety and Health Administration
i. enforcement authority
Citations
MSHA may issue a citation for violation of the 1977 Mine Act or for
violation of a mandatory health or safety standard, rule, order or
regulation. A citation requires that corrective action be taken by the
mine operator to correct the condition or practice cited, but it does
not result in the cessation of the activity or equipment at issue. A
citation shall be issued with reasonable promptness, shall be in
writing, and shall describe with particularity the nature of the
violation, including reference to the statutory or regulatory provision
alleged to have been violated. Further, ``the citation shall fix a
reasonable time for the abatement of the violation.'' Citations may be
characterized as ``significant and substantial.''
The term ``significant and substantial'' refers to the
gravity of, or the degree of hazard or risk posed by, the alleged
violation. The Commission has held that ``[a] violation is of such a
nature as could significantly and substantially contribute to the cause
and effect of a mine safety or health hazard if, based upon the
particular facts surrounding that violation, there exists a reasonable
likelihood that the hazards contributed to will result in an injury or
illness of a reasonably serious nature.''
Additionally, MSHA may issue an unwarrantable failure citation for
a violation that could significantly and substantially contribute to a
health or safety hazard and resulted from a heightened degree of
negligence, such as indifference to health and safety. This starts the
cumulative enforcement action known as the ``unwarrantable failure''
withdrawal order chain, which the operator remains on until there is an
intervening inspection that reveals no further violations resulting
from heightened negligence.
The term ``unwarrantable failure'' refers to the
operator's degree of fault or negligence in causing a violation or
allowing it to exist. The term has been defined by the Commission as
``aggravated conduct constituting more than ordinary negligence.''
Withdrawal Orders
A withdrawal order may be issued on the spot and without a hearing
and results in the immediate closure of the area, equipment, or
practice that is alleged to be in violation of the standards. All
personnel associated with the condition or practice must be withdrawn,
except those persons necessary to correct the violation.
Every withdrawal order issued requires that the inspector determine
the ``area affected'' by the condition, which depends on the nature and
extent of the hazard specifically identified. Depending on the facts
and circumstances, a withdrawal order could include, for example, a
piece of equipment or area of a mine, or it could affect an entire mine
depending on the nature and extent of hazard.
Withdrawal orders may result from failure to abate a violation
within the time prescribed under section 104(b).
An unwarrantable failure withdrawal order may be issued subsequent
to a section 104(d)(1) citation during the same inspection or within 90
days after issuance of such a citation if violations result from
heightened negligence (and regardless of whether any serious hazard is
presented) until a complete inspection of the mine reveals no further
heightened negligence violations.
MSHA has withdrawal order authority under section 104(e) of the
Mine Act for significant and substantial violations following written
notice from MSHA of a ``pattern of violations.'' This is also a
cumulative enforcement process that results in the issuance of a
withdrawal order every time a violation is found to ``significantly and
substantially'' contribute to a serious hazard until an entire
inspection of the mine reveals no further ``significant and
substantial'' violations.
MSHA has the authority to issue a withdrawal order under section
107(a) if an imminent danger is found by an inspector, which is a
condition or practice ``which could reasonably be expected to cause
death or serious physical harm before such condition or practice can be
abated.'' A finding of an imminent danger does not require a finding of
a violation of a mandatory health or safety standard.
MSHA may issue a withdrawal order for untrained miners under
section 104(g) of the Mine Act, which affects every miner deemed to
have inadequate training and forces the withdrawal of such miners until
they have received the required training.
ii. injunctive authority
The 1977 Mine Act authorizes MSHA to pursue a civil action against
an operator in Federal district court seeking relief, including
temporary or permanent injunctive relief or a restraining order. MSHA
may seek such relief whenever a mine operator or its agent refuses to
comply with any order or decision issued under the 1977 Mine Act;
interferes with, hinders, or delays MSHA from carrying out its duties;
refuses to allow an inspection or accident investigation; or refuses to
provide other information or documents.
iii. penalty assessments criteria
A mine operator who receives a citation or a withdrawal order is
subject to a maximum civil penalty of $70,000, unless the violation is
deemed to be ``flagrant,'' which can result in a maximum civil penalty
of $220,000. ``Flagrant'' violations are ``[a] reckless or repeated
failure to make reasonable efforts to eliminate a known violation of a
mandatory health or safety standard that substantially and proximately
caused, or reasonably could have been expected to cause, death or
serious bodily injury.''
Any operator who fails to correct a violation for which a section
104(a) citation has been issued may be assessed a civil penalty of not
more than $7,500 per day that the condition is allowed to continue
unabated.
MSHA must impose a minimum penalty of $5,000 for failure to timely
notify MSHA of an accident involving the death of an individual at the
mine or an injury or entrapment of an individual at the mine that has a
reasonable potential to cause death. Minimum penalties must be assessed
for unwarrantable failure violations at $2,000 for citations or orders
issued under section 104(d)(1) and $4,000 for orders issued under
section 104(d)(2).
Civil and/or criminal penalties may be imposed by MSHA/DOJ on
agents, officers and directors who knowingly authorize, order or carry
out violations of mandatory standards.
Criminal penalties may be imposed on any person who knowingly
falsifies a record or document required to be maintained under the 1977
Mine Act.
Attachment 2.--MSHA/OSHA Comparison
------------------------------------------------------------------------
MSHA OSHA
------------------------------------------------------------------------
No State Plans............................ State plans.
Annually, two (2) mandatory complete No mandatory inspections.
inspections for surface operations; four
(4) mandatory complete inspections for
underground operations.
No general duty clause.................... General duty clause
requirement that employers
correct hazards
irrespective of defined
regulatory requirements.
Mandatory penalties for all citations..... No mandatory penalties for
all citations.
Inspectors have closure order authority Closure orders by court
for failure to abate, unwarrantable order only.
failure, and imminent danger conditions.
Individual civil penalties for corporate No individual civil
officers and agents for knowing penalties for corporate
violations and possible criminal officers. Six-month
sanctions of 1 year possible for criminal sanctions for
accidents not involving a fatality. fatality-related incidents.
Injury & illness reports and statistics Injury & illness reports and
are required to be submitted to MSHA for statistics are required to
each incident by each mine site. be maintained in a log and
made available for review
but not reported.
Mandatory new employee training: 40 hours No mandatory minimum general
for underground miners, 24 for surface training required. Training
miners. Mandatory refresher and task required by specific
training. standards.
Regulatory requirements are supplanted by No general plan approval
required site operating plans that must authority.
be approved by MSHA. Plan provisions are
enforceable as if they were regulatory
requirements.
Employee representative entitled to No walk-around pay.
inspection walk-around pay.
Individual employees may bring No private right of action
discrimination cases based on safety even for safety discrimination
if MSHA refuses to prosecute a case. case.
------------------------------------------------------------------------
Attachment 3.--Mine Safety and Health Administration (Citation/
Conference System)
i. history of enforcement actions (the initial system)
Mine Safety and Health Administration regulations in 30 CFR Part
100.6 provide for an informal resolution of questions regarding
enforcement actions. This history timeline begins with the adoption of
the Alternative Case Resolution Initiative (ACRI).
During the Clinton administration in 1994, ACRI was developed with
MHSA and the Office of the Solicitor joining together and designating
Conference/Litigation Representatives (CLR). The CLR was an inspector
trained by the Solicitor to handle the informal conferences that the
District Manager was required to conduct. By 2001, the CLRs were
handling all the safety and health conferences and about 35 percent of
the total number of cases that operators contested (the Solicitor
placed limits on what type of cases the CLRs could handle). An MSHA
Fact Sheet (95-9) has the following quote:
Mine operators may also seek informal conferences following
the issuance of the citation or order under 30 CFR Part 100.6.
The CLRs in Coal Districts and Supervisory Mine Inspectors in
Metal/Nonmetal Districts primarily serve on behalf of the
District Manager and meet with the operator to attempt an
informal resolution of the dispute before a civil penalty is
assessed.
This widely recognized and highly commended program is one of
the few times that non-lawyers have represented a Cabinet-level
official in a legal proceeding. As of Aug. 30, 2001, MSHA has
trained over 100 enforcement personnel to act as CLRs for the
ACRI program and there are CLRs designated in each MSHA
district office. The CLRs are currently responsible for
processing approximately 35 percent of the total number of
cases contested by mine operators.
MSHA and the mining community are reaping the benefits of the
ACRI program. The CLRs efforts have reduced formal litigation,
improved relations between MSHA and the mining community,
improved communications between MSHA's inspectors and the legal
community, and permitted the dedication of legal resources to
more complex and serious cases.
As noted, this system worked reasonably well. Some key points as to
why the conferences seemed to work include:
1. The request for a safety and health conference had to be made
within a 10-day period.
2. Most CLRs did not require the operator to list in writing the
arguments to be presented at the conference.
3. Non-Significant & Substantial (non-serious) violations were
assessed at a set dollar value regardless of the inspector evaluation.
Few non-S & S violations ever went to conference and very few ever were
entered in the ALJ system.
4. In many instances the CLRs were used by the District Managers as
``instructors of the law'' so that changes in evaluations were passed
through the MSHA system as a teaching tool to reduce improper
enforcement. Conversely, the same applied to operators, who learned why
a violation was appropriately evaluated in a certain manner and how its
impact on safety could be used to train employees on preventative
actions.
5. The CLR made decisions based on the facts of the case presented
at the safety and health conference.
ii. the interim system
Beginning early in the last decade, MSHA embarked on a ``new
hiring'' process to replace retiring inspectors. Additionally, as a way
to accomplish MSHA's mandate to complete ``100 percent'' inspection,
MSHA determined that a reallocation of resources was needed. A casualty
of that reallocation was the demise of the consultation process. In
sum, the agency initiated several actions that, when viewed in total,
wrecked the previous safety and health conference system and gave rise
to the situation we find ourselves in today. The following timeline of
administrative actions shows the evolution of today's flawed system:
Oct. 26, 2006
MSHA publishes the standard that is intended to be used for
determining flagrant violations. (PIL I06-III-04 now released as PIL
I08-III-02) Repeat history is defined as the third allegation of
unwarrantable failure of the same standard in 15 months.
April 27, 2007
The new Part 100 civil penalty regulations are released.
Assessments for violation are dramatically increased. In addition the
single price penalty for non-serious, non-S&S violations is dropped.
(Attachments 2 and 3 document the significance of these changes for
hypothetical, but routinely issued violations, under the old and new
penalty formulas).
June 14, 2007
MSHA issues its first list of Pattern of Violation (POV) mines. Two
of the many selection requirements are: two elevated enforcement
actions and 10 (surface) or 20 (underground) S&S violations in a 24-
month period.
Note that on Dec. 7, 2007; June 17, 2008; March 16, 2009; and Oct.
7, 2009, additional lists of mines that were categorized as potential
POV mines were released.
Oct. 4, 2007
MSHA announces the ``100 percent'' plan for meeting mandatory
inspection requirements. CLRs, who were already postponing citation
conferences, were now assigned to inspections.
Feb. 4, 2008
MSHA issues PIL I08-III-1. This PIL essentially formalizes the end
to manager's conferences. Informally, prior to this date, and for most
of 2007, conferences were not being scheduled. After this date, all the
previously requested but unscheduled conferences were placed in the
administrative system.
iv. present system
On March 27, 2009, MSHA published a new model for conferences.
Rather than conducting an informal conference prior to receiving an
assessment and filing with the Commission, the new system requires the
operator to wait until an assessment is received and file after the
enforcement action in question is docketed. Now all conferences will
take place only after civil penalties are proposed and timely
contested. This means that an operator eager to avoid litigation
through the conference process must contest the citation, file a
written request for a conference within 10 days, wait for a period of
at least 4 to 6 weeks, receive the proposed penalty assessment, contest
the penalty within 30 days of receipt and then have a conference within
90-days, unless an extension is requested (usually by MSHA).
In short, all of the enforcement actions that in the previous
conference system would not have reached the Commission are now
included as part of the total number of docketed enforcement actions
and each such case will remain on the list of contested cases until
resolved. The delay created by MSHA's changes to the contest system
increases the number of cases that are being challenged through the ALJ
system, and it is likely that this number will continue to increase.
The system also creates other bottlenecks that need to be
addressed:
The new system requires the operator to wait for the
assessment and to formally contest those violations with which he
disagrees. The Solicitor is then required to respond, and the operator
may then be required to formally respond (generally through attorneys).
In some districts, the CLR routinely asks for a 90-day stay so that an
attempt to settle the case can be made, as is contemplated in the new
conference system.
All of the enhanced conferences require some type of legal
paperwork to the Commission to finalize whatever agreement is reached.
Again, the more informal pre-assessment system did not include this
requirement. Clearly the informal system allowed for a more nimble
system where the operator and CLR could resolve a larger amount of
cases without burdening the Commission.
The requirement to contest a citation(s) within 30 days of
receipt of the penalty often results in operators' challenging all of
the enforcement actions issued by an inspector within a docket due to
the sheer volume and the limited time available to examine the
allegations underlying each enforcement action and the components that
affect penalty assessments.
conclusion
Beyond the interpretive differences that may exist between an
operator and inspector, policy choices made by MSHA have also
contributed to the dramatic increase in the Commission's caseload.
All these factors combined to create a process that increased the
number of citations at the same time it eliminated an informal
procedure for contesting them, forcing operators into a time-consuming,
expensive adjudicatory process that does nothing to increase mine
safety. In sum these are:
The new Part 100 civil penalty rules;
Failure to maintain an effective ``close-out'' conference
at the end of each inspection day;
The loss of an effective safety and health conference
process;
The loss of an independent conference decision process;
Timing and grouping of proposed assessments; and
MSHA's heightened Pattern of Violation criteria and focus.
We believe the conditions that gave rise to the ``back-log'' can be
fixed administratively without legislation. However, doing so requires
all parties to recognize that:
All conditions affecting mine safety are abated by the
operator within the time set by the inspector and prior to adjudication
of the dispute.
The convergence of increased enforcement actions, coupled
with the unofficial and then official cessation of safety and health
manager's conferences, set in motion a significant increase in
litigated cases. Unfortunately, operators today have no option but the
Commission for contesting enforcement actions.
During the time conferences were unavailable (February
2008 to March 2009) MSHA issued a policy on flagrant violation
standards, four patterns of violation cycle letters and a new penalty
system under Part 100. Also, we believe an evaluation of violation in
many districts would show a pattern of increased gravity that
subsequently increased the penalties to a point where a challenge was
necessary. Filing for a formal hearing using attorneys and cluttering
the ``Commission'' system is the only avenue available for an operator.
changes should be made in the system
The following are suggested changes that would help unlock the
logjam at the ``Commission:''
MSHA should improve the training of inspectors and
enforcement authorities for recognizing and evaluating a violation. The
number of enforcement actions being modified is a clear indication that
inspectors are not being properly trained or supervised on how to
evaluate a citation. The issue of inspector training was recently
highlighted in a March 30, 2010 report of the DOL, Office of the
Inspector General, who found failures in the agency's inspector
training program.
Revert to the informal conference (pre-assessment). This
conference was more timely and, because it was informal, generated
minimal paperwork compared to the more time-consuming, formal system in
place today. Unfortunately, many current cases are now handed to
counsel due to the requirement for a timely response to a
``Commission'' deadline.
Provide the CLRs autonomy from the managers in their district. We
have long advocated a different reporting scheme for the CLRs. Having
them report, as is currently the case, to the District Manager
introduces unnecessary conflict. MSHA should create a separate office
where the CLR could report to a more independent review.
Provide more realistic timeframes for operators to respond to
agency notices. The current 30-day response time is insufficient,
necessitating operators to initiate enforcement action challenges
merely to protect themselves from responding to individual actions
because time has expired. Concurrent with this, MSHA should reform the
manner in which it bundles dockets to ensure they include only the
enforcement actions and related proposed civil penalties from the same
inspection.
Mandate that the CLR and ALJ decisions be used as training tools
for inspectors so that better evaluations are completed by inspectors.
Having to ``re-litigate'' settled issues because information is not
shared on a timely basis across the agency unnecessarily adds to the
Commission backlog and drains scarce resources.
The Chairman. Thank you very much, Mr. Watzman.
Before we start a round of questions, I was told, earlier,
that many people here had some photographs of their loved ones
who lost their lives, either in the last event, or maybe some
previous. You've been very kind to come here. Hold up those
pictures so we can see who these people are, these real human
beings. Hold them up. Hold them up for us.
[Pause.]
Now, were these all people who lost their lives in the
Upper Big Branch?
Voice. They're from different----
The Chairman. Other events.
[Pause.]
Well, thank you for being here. And thank you for----
Voice. Thank you.
The Chairman [continuing]. For bringing those pictures.
Mr. Watzman, let me start with you. You point out, in your
testimony, that MSHA inspectors have the authority to enter a
withdrawal order, on the spot, if they see an imminent danger.
Well, that sounds all well and good, doesn't it? Sounds good.
It depends on an inspector being there at exactly the right
place at exactly the right time. How can you do that? You can't
depend on that. It seems to me, you just can't depend that
someone's going to be at the right place at the right time to
prevent an imminent disaster. It seems that we need to have the
ability to more effectively target operators who routinely put
their workers at risk, to stop them before they become an
imminent threat.
I do disagree with your suggestion that the, quote,
``Imminent Danger Withdrawal authority accomplishes the same
result as MSHA's Pattern of Violation authority.''
In February, in a hearing before the House Committee on
Education and Labor, you said, ``The Pattern of Violation is in
the law for a very valid reason.'' Well, it is there for a
valid reason. It's just that it's not being used, and there
probably are some legislative things that we need to address,
in making sure that that pattern can be used more effectively.
We've got to quit letting people game the system, as they do
right now, with these Patterns of Violations that go on year
after year after year, and they never have to do anything,
because they never get a final adjudication. They never get
that final adjudication, you see. That's how they game the
system.
While the imminent danger can be used, it just seems to me
that it is not practical to have someone there, exactly the
right place, at exactly the right time.
Mr. Watzman. Mr. Chairman, you're exactly right. An
inspector can't be at a mine every moment the mine is
operating, nor can they be in every location in the mine. There
are several factors that come into play.
One of the things in the title for this hearing is
``changing the culture within the industry,'' changing the
culture across the industry. And that's an important element.
There are additional authorities. The Assistant Secretary
was entered into a dialogue with several of you earlier about
the injunctive relief authority. They don't have to wait for
the pattern. The agency, today, does not have to wait for the
adjudicatory process.
My point is, pattern is an important tool, and I'm not
trying to minimize the significance of that tool, but what I'm
trying to impress upon you is that there are other tools that
exist today while we continue to work through this backlog that
troubles all of us.
The Chairman. ``Changing the culture,'' is that what you
said? Well, I don't think Mr. Harris's culture needs to be
changed, or the workers that work with him--I don't just mean
him--or Mr. Roberts and the other miners' families out here.
I've been around coal miners most of my life. They work hard.
These are hardworking people. And they want to work. They know
they're providing the energy to run America. They want to take
care of their families. Some of them want their kids to grow up
to be lawyers, or Senators--I don't think my dad ever wanted me
to be one of these, but----
[Laughter.]
The Chairman [continuing]. Nonetheless. They care deeply
about their fellow workers and their health and their welfare.
It seems that the culture we're talking about changing happens
to be at the employer level. Is that what you're talking about?
Mr. Watzman. I think the culture needs to be changed across
the entirety of the industry. There are many factors that come
into play when you're talking about culture. It has to start
from the top down, clearly. That's recognized across
organizations, be they in mining or outside of mining; that the
leadership comes from the top down, and that sets the message
for the entire organization. Those are some of the things that
we're trying to do across the industry, voluntarily, to take--
and it was discussed earlier--the best of the best. There are
companies out there that perform, year in and year out, without
lost-time accidents. We're trying to determine and share what
they do, and why they're able to accomplish that, and make sure
that the entirety of the industry has the benefit of that.
The Chairman. Mr. Roberts, your observation on changing the
culture. Obviously, there are some mine organizations and
owners, that, as you pointed out, operate good mines.
Mr. Roberts. We don't need to change the culture of the
entire industry, because most CEOs that I know, most presidents
of companies I know, would never have tolerated what's been
going on at the Upper Big Branch Mine and some of these other
Massey--they would have fired people, they would have sent
people in there and cleaned these mines up themselves. I'll
give you--I won't call their name, because I didn't ask if I
could use their name today. I've had CEOs call me that's got
their names on--one of their mines is on Potential Pattern
here. He says, ``Cecil, I don't know what's going on there.''
They called me and said, ``But, I'm going to find out.'' He
said, ``I thought I had leadership there that I could depend
on. If that's not the case, they'll be gone. And I'm telling
you, I'm going to fix this.'' Now, that's the CEO of the
company telling me they're going to fix this pattern of
violations. They're not under it. They were on the list for a
potential.
Ninety-five percent of this industry--now, this is a bold
statement from me on the other end here--you don't have a
problem like this. But, we have a serious problem, here, with
about 5 percent of this industry who do not care what laws you
pass, they don't care who you send to enforce it. They're going
to fight this, day in and day out. We have got to come to grips
with this and fix it.
The Chairman. Senator Enzi.
Senator Enzi. Thank you, Mr. Chairman. I appreciate you
holding this hearing, which was called ``Creating a Culture of
Compliance.'' That's what we're trying to do.
Mr. Addington, I'm sure you're aware that MSHA has, for a
long time, had an anonymous reporting system for reporting
hazards, where anybody can use an 800 number or file a report
online; and as the Web page says, in bold letters, they don't
need to identify themselves. In your experience with miners,
are they aware of this anonymous reporting system? Have any of
the employees you've worked with tried to use this system? And
what was the result?
Mr. Addington. Yes and no. Enough miners are not aware of,
broadly, their statutory safety rights under the act, including
the 800 number. The problem--it is a nice function, that they
can anonymously make a complaint. The problem, in reality, is,
depending on what they're complaining about, it's not very hard
to figure out, at the mine site, who made that complaint. If
they're complaining about the belts, it might be the belt
examiner, that they look for first. A number of the clients
that we represent, anymore, when they make complaints, they
make sure their name is on it, because they have more
protection under the law, they feel, that way.
In theory, it is a good function. In certain cases, it's
essential, because miners can be protected, using the 800
number. In other instances, they're just as well better off
making the complaint out in the open.
Senator Enzi. Thank you. That's helpful.
Mr. Watzman, since 2006, MSHA's budget's increased--and
that's after the MINER Act passed--has increased by 36 percent.
MSHA's hired over 100 new coal inspectors. Perhaps due to these
increased resources, MSHA was able to complete 100 percent of
their statutorily required inspections in 2008 and 2009, for
the first time. Why do you think MSHA was unable to properly
followup on the clearly concerning record of the Upper Big
Branch Mine? Does MSHA need more flexibility to focus on bad
actors?
Mr. Watzman. Senator, I can't speculate as to the thought
process within the agency, and the actions that they choose to
take, or not choose to take. What we know is that there are
mines in this country, given their size and given the
requirement that MSHA must inspect every underground mine in
its entirety four times a year. There's a misperception that
four times a year means an inspector's in the mine 4 days a
year. There are mines in the country that the quarterly
inspection begins the first day of the quarter, and the
closeout is the last day of the quarter, and they roll into the
next inspection. There are mines in the country where there's
an inspector in the mine every day that the mine is operating.
I won't tell you that that's the rule, because it's not. There
are many mines where that occurs.
I'd like to leave you with that thought, rather than try to
speculate on why MSHA did or did not take any followup actions
based upon the information that they had available to them.
Senator Enzi. Thank you. I noted that the Upper Big Branch
Mine had inspectors on the site 180 days in the last year. That
wasn't every day, but that was pretty significant. When an MSHA
inspector identifies a hazard and issues a citation, is there
any way for the operator to avoid abating that hazard?
Mr. Watzman. No. Under the law the operator has to abate
the hazard, and the citation fixes an abatement time.
Oftentimes, it's by the end of the shift; it may be by the end
of that day, depending upon the conditions that they found. It
may be an extended abatement period, and the inspector may
extend the abatement period beyond that originally set, if it
requires a technologic add-on to a piece of equipment or
something of that nature. There is a fixed requirement for them
to abate the citation long before this adjudicatory process
takes place that we discussed earlier, before the Review
Commission.
Senator Enzi. Does contesting it get them out from under
having to abate it?
Mr. Watzman. No.
Senator Enzi. Thank you.
I'll yield my time.
The Chairman. Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman.
I'm really glad, Mr. Addington, that you said what you did
about if somebody calls a 1-800 number, which is not the
culture of southern West Virginia or most of West Virginia. We
don't spend a lot of time calling 1-800 numbers, because the
assumption is, nothing's going to happen. The most important
thing you said is, they can trace where that phone call came
from. I serve on the Intelligence Committee. You don't have to
have been in NSA or the CIA to know that's a very easy thing to
do. Making the phone call is, in fact, not being--not reporting
a danger, is putting your own job in danger. That's what it
comes down to, to me.
I'd like to say, to Mr. Watzman, you're the head of a very
large corporation. I think, as President Roberts just said,
that about 86 percent of the coal operators that operate
mines----
Mr. Watzman. It's higher than that, probably.
Senator Rockefeller [continuing]. Are good--well, let's
just say 86 percent--do a good job--try to do a good job. I
have had those same phone calls that you have. People who are
on that list, who don't want to be on that list, shocked they
are on that list, and they want to do something about it. On
the other hand, there are some that don't, that proudly flaunt
that they don't, who require production schedules, perhaps
every 2 hours of every day of every year, to find out not how
the safety is doing, but how the production is coming along.
I'm talking fairly specifically here.
Why is it that you've not stood up in this association? I
have so many operators coming to me, disavowing any
relationship with this particular company, which is, in fact,
involved in all of the recent--Aracoma, Sago, through the
subsidiary, Upper Branch--all of them. Why is it that part of
your responsibility isn't to confront those people? Your
association's responsibility is to confront those people,
saying, ``You're giving all of us a bad name.'' Or, why is it
that you wouldn't accept the idea that the board of directors
should be brought in? Because sometimes the personality of a
CEO--a president--can overwhelm the presence of a board,
because they're well paid, they don't have to show up a lot,
and they don't have the same responsibility. Maybe we ought to
have something wherein those board members have to go down a
mine----
[Laughter.]
Senator Rockefeller [continuing]. Two or three times a
year. Maybe we ought to have something like--the safety record
of that mine has to appear in the SEC report that they submit,
the safety record in the mine. Well, you can say, ``Well, that
would have to apply to all industries.'' No industry is like
the coal industry. No industry is like the coal industry, in
terms of danger, and in terms of remoteness and intimidation.
To you Mr. Harris--no, I won't make this to you, because
you've already been so eloquent on it.
To you, President Roberts. Intimidation, to me, is at the
bottom of so much of this.
Mr. Roberts. There's no doubt.
Senator Rockefeller. It's not totally provable, but it's an
utter fact. I've heard so much of it, in these last 40 years
that I've been working with this problem. Therefore, you have
to get at intimidation. You can't get at intimidation through
rules and regulation, through MSHA, through any law that we
pass. That is the culture of the mines, I think, that you and I
are talking about. How do you respond to that?
Mr. Roberts. I think that there are a couple things that I
would suggest that we might want to think about.
First of all, the law says, currently, that any miner who
feels he or she is in danger has a right, legally, to withdraw
from that particular area. That doesn't happen in these mines,
because of fear of being fired and blackballed. You lose the
job you have, and never get another job at Massey, if you
exercise that right.
The second thing is, if you call this 1-800 number and they
find out about it, as Mr. Addington so eloquently put it,
they're afraid they're going to get fired for that.
If I were to encourage you to think about something right
now, I would put criminal penalties on any mine operator who
disciplines someone--and I don't mean that somebody just didn't
want to work--if someone legitimately felt they were in danger,
no one should be forced to work in that condition. No one
should be fired, Senator, for calling someone to say, ``I think
this mine's going to explode.'' There are stories here, now--
and people have come to us, and I'm sure they've come to you,
that said, ``There were grown men here, crying, afraid that
this mine was going to explode, that's been in the mining
industry for years.''
We should be embarrassed--me, in particular, for what I
do--and all of us, to say, in America, that shouldn't happen.
We should put someone in jail, whether it's a section foreman
or mine foreman or the owner of the company, who allows
something like that to happen. We need to give, somehow, power
to these workers to say, ``If I call MSHA, I'm not going to get
fired, because the boss is going to jail if he fires me. Not
only that, the CEO is subject to going to jail if he fires
me.''
You need to somehow convince these workers that the
government of this country will stand up for them and can
protect them. Right now, they don't believe it.
Senator Rockefeller. I thank you, Mr. Chairman.
The Chairman. Senator Franken.
Senator Franken. I want to followup on something Senator
Rockefeller said, Mr. Watzman. You said that mine operators--
that mine safety must be their highest priority. And you said,
``They must go beyond mere conformity with the law.'' It sounds
like, from everything we've heard, that Massey had a reputation
of not doing that, to say the least. Why does the National
Mining Association tolerate that?
Mr. Watzman. Senator, I don't think it's a question or an
issue of tolerating. I'm not sure that there's much value
gained in ostracizing an individual or an organization. What we
would rather do, and what we're trying to do, as I said
earlier, is raise the performance of the entire industry--
through the sharing of best practices, through the voluntary
awareness programs that we've initiated, through the new Web
site that we've created, called safetyshare
.org--to make sure that we can disseminate, across the
industry, the best practices, the best of the best, so that we
can bring that level of performance up. I'm not sure that
ostracizing an individual or an organization moves us in that
direction.
Senator Franken. Well, if that organization willfully
defies any--I mean, they're not going to respond to the newest
Web video on safety--Massey, obviously. I mean, I think that's
silly, frankly.
Mr. Addington, when we had Mr. Main here, I kind of said--
this is shocking, this testimony, to me, that these mines
continue to stay open. And I say, ``Why can't you shut down a
mine? Or shut down part of a mine?'' And he said, ``Well,
because the Federal Mine Safety and Health Review Commission
has made some rulings that made it hard to shut down.'' Is that
true, in your experience?
Mr. Addington. Well, it probably is partly true, in some
respects. As to Pattern of Violations, I don't believe that's
true.
If you'll look at Section 104, Pattern of Violations, the
statute, as it was intended--and if you look at the legislative
history, it really was intended to be a hammer. Unfortunately,
through implementing regulations in 1990, it was weakened, and
then MSHA's own internal criteria that they're using now
weakened it even more.
I mean, we've heard, a couple times during the hearing,
about Potential Pattern of Violations. You won't find that in
the statute. The statute says nothing about Potential Pattern
of Violations. It says, ``If a mine is engaged in a Pattern of
Violations, they get a notice.'' Well, right now, what's been
happening is, they get a warning that they might eventually get
a notice. You can see--and then, the criteria for getting off
that warning is relatively easy, compared to what it takes to
get on the warning. In the current state, you're talking about
years before you can get a potential--or get a Pattern of
Violations Notice.
Senator Franken. Well, I think we have to examine what we
can do legally to make sure that mines that are clearly not
safe are shut down.
Thank you.
And thank you, Mr. Chairman.
The Chairman. Well, I might respond, if I might, Al, on
that. Let's say a miner sees some potential safety violations
that he could report that would shut the mine down. Then
they're out of work. They don't get paid. Right away, you've
got the conflict. ``Should I report it? It's unsafe, but they
shut it down, me and my fellow workers are out of work and
we're out of pay.'' I can understand the conflict that would
arise, that a miner might feel, in that kind of a situation.
Senator Casey.
Statement of Senator Casey
Senator Casey. Mr. Chairman, thank you and Ranking Member
Enzi, for calling this hearing.
We're grateful to have Senator Rockefeller with us.
I, first of all, want to express personal condolences for
all those who lost someone in this tragedy. No words of
condolence or sorrow can match the grief that so many people
feel. It is important that we have hearings, like this and
others, to change policy and to try to do our best to be
responsive to this tragedy.
I grew up in a region of Pennsylvania which, for decades,
more than one generation, was an anthracite coal region--the
anthracite capital of the world, really. I have a very, very
limited sense, based upon some reading and some family history
and things like that, just a fleeting glimpse of what it's like
to work in a mine, or what it's like to have a family member do
this. A lot of us come to these issues with a degree of
humility that we should acknowledge.
There was an essay written by Stephen Crane, just before
the turn of the last century, about a mine near my hometown of
Scranton--a beautiful, haunting essay about all the ways you
could die in that mine, all the darkness and danger, as only a
great writer like he could express. At one point in the essay,
he talks about the ``hundred perils,'' meaning the hundred
different ways you could die in a mine.
With all of the modern technology and advancements, I don't
think any of us could even imagine this kind of a tragedy
happening today. If it means changing policy, we need to do
that. If it means amending or adjusting, we've got to do that.
I apologize for being late, and maybe not being able to
stay for the next panel, but I want to ask a fundamental, basic
question that is on the minds, I think, of all of us, and may
have been answered 13 times already, but repetition around here
is actually a good thing. That's the basic, fundamental
question--based upon the experience at the table from our
witnesses--and we're grateful for your presence and your
testimony. What does the U.S. Senate--I'll leave the House;
they've got their own work to do--but, what should the U.S.
Senate do, and the Administration do, in the next 6 months, to
make sure that this kind of tragedy does not happen or we
substantially reduce the likelihood that something like this
would happen again?
I'll start with Mr. Roberts. I've known him over the years.
I'm grateful for your leadership on these issues on behalf
of working men and women.
Mr. Roberts. Mr. Senator, thank you.
There's a number of things I suggest in my testimony. One
is dealing with the backlog that exists at the Review
Commission. There's not only a disincentive that doesn't exist,
there's an incentive to appeal every one of these fines,
because, if you look at the record, you get a 40-some percent
reduction on appeal. If you get cited for a million dollars,
and you're going on appeal--before it's all over, you're going
to end up paying half that, or less.
By way of example--and it hasn't come out here, by the
way--they owe over a million dollars in fines, at Upper Big
Branch, and they've paid 100-and-some thousand dollars of that,
the rest of it, I guess, is still sitting somewhere in an
appeal process.
We argue that there's no reason why these fines should not
be paid immediately and held in escrow if they want to appeal.
That way they do not get the benefit of that money in their
pocket and encourage them to do this.
I would point this panel back to 1977 and what this
Congress wrote, that these fines should be paid in close
proximity of the time they were issued, because that Congress
understood that failure to do that would lead to something
similar to what we have currently. So, we would argue and pay
those fines quickly.
The second thing we would argue--I think this whole Pattern
of Violations has been kicked around here pretty good--it's
absolute failure, the way it works right now. What should
happen is, if you're appealing this cases, pay the fines. If,
indeed, you had been issued these penalties, I think it's time
for MSHA to take a real close look at you, even though you're
appealing this, because it may be too late, as was the case at
Upper Big Branch, while all this is in appeal, while we're
trying to get to some magical point in our lives here, to say,
``Oh, yes. That mine should be shut down.''
I think if, indeed, there's been this many penalties
issued, then I think we take the step to say, ``All right, the
district manager needs to send more inspectors more frequently
into that mine, because there's something wrong here.'' Just
because you haven't got to the final day when some appeal
process says you have to pay these fines--it's too late for
these miners. They've gamed the system here. And I mentioned
that in my testimony.
There's going to be someone to argue that, ``Well, we don't
really need laws,'' or whatever, and I would point out--and I
said this in the beginning--had the law been obeyed here, we
would not have had this explosion and 29 miners losing their
life.
However, I would point out, good laws work. We just
recently celebrated the 40th anniversary of the 1969 Coal Mine
Health and Safety Act that came effective in January 1970.
Just something for you to think about. The 40 years prior
to that act, 32,000 miners lost their lives--over 32,000. The
40 years after, 3,200. Those who say, ``Oh, gee, laws don't
work,'' that's not true. Those who say, ``Let's do away with
laws and let us be about the business of doing whatever we
want,'' well, that's what we did the 40 years before we passed
the 1969 Act, and it didn't work.
I've got a lot of ideas about this, but, I would like to
give the other panel members some chance, here.
Senator Casey. Thank you.
The Chairman. Senator Rockefeller wanted to make one more
comment, and I just have a certain question for Mr. Harris.
Senator Rockefeller. Thank you, Mr. Chairman.
We've been talking a lot about the culture, and I think
it's important to point out that, I would say, 98 percent of
West Virginians, of Pennsylvanians, of Ohioans, Wyomingites----
[Laughter.]
Have never been down a mine. What people have to understand
is, this isn't sort of a public place we're talking about. This
is 35 minutes, 45 minutes up a beautiful hollow, with lovely
streams and things, and then all of a sudden you come to this
enormous mine. It's a private, private life. Decisions are made
by very few, and the effects are very many.
The miners are put in an impossible cultural position,
because if they get offered payment of $65,000 or $70,000, what
are they going to do?
Voice. Fight to keep their job.
Senator Rockefeller. Are they going to say, ``No, not
interested?'' That's not the way it works. When they--and they
have families, so they have an obligation to the families.
They've got to survive, and they've got to take care of their
families, as well as to keep the lights on in America. It isn't
really a choice for them, this culture.
To me, the culture has to start from the top. I'm going to
give you an example. I'll be short, Mr. Chairman, as I always
am.
[Laughter.]
I was Governor, for 8 years, of West Virginia. We were
having unacceptably high death rates in our mines. I decided
that, as chief executive--that is the CEO--that I would go to
each of the mines--where the mine inspectors would gather after
there had been a death. That had never happened before. There I
was sitting, as they were trying to explain to each other what
happened and who should have done what. Things happened.
Everything was different, because the culture change took place
at the top.
Now, I'm not saying that I changed the world, but it did
have an effect.
Voice. That's true.
Senator Rockefeller. That's why, in a secret world, at the
end of 35 miles of hard driving, and then 1,000 to 2,000 feet
underground, where only a few people from that State, or from
any State, have ever been, it has to come from the top. It has
to come from the top.
Senator Enzi. And, Mr. Chairman, related to that, yes, I
have been down in an underground mine, but I know that most
people have not.
The Chairman. Because we're Senators.
Senator Enzi. There's a fellow from West Virginia--I don't
know that he still lives there--named Homer Hickam, who's
written some great books that give you a little bit of an
understanding of what it is. Right after 2001, he wrote a book
called, ``We Are Not Afraid,'' which talks about the culture of
the miners, as well as, perhaps, the way that Americans ought
to view the terrorism attacks that we've had. He also has a
book, called ``The Red Helmet,'' that even gets into some mine
accidents. I'd recommend those to people that haven't been in a
mine.
Thank you.
The Chairman. Thank you all.
Listening to everybody--I've been respectful of not trying
to interfere, but hearing all the questions, and hearing the
comments and stuff, I keep thinking, ``What's Harris got to say
about this? What's a guy who actually goes in the mines, and
works in those mines''--you got any last thing you want to say,
here?
Mr. Harris. Yes. I really believe that those people that
died, didn't have to die. It didn't have to happen. It could
have been avoided. That's what I like about being in a union
mine. You have representation all the time, you don't have to
be scared to call that 800 number. You don't have to have that
fear.
The coal operators, they want to get the work done safely.
They want you to go home safely. They want you to return to
your families. You don't have that in nonunion mines. You don't
have it. Inspectors have told me that they have asked for
representation at the nonunion mines, some of the men that walk
with them. They say, ``No, because we going to get fired if we
do.'' I mean, you shouldn't have to live like that. To be on
this side of it, it's really worth it, because you have voice.
And if they're going to shut the mines down, they're going
to shut the mines down. It doesn't matter what you say or do.
If Massey's going to shut the mines down, he's going to shut it
down anyway. He's going to lay everybody off anyway, so it
doesn't matter. You do so much for him, then he's going lay you
off. He doesn't care about you, all he cares about is what he's
getting out of there--coal and that money. He wants to be the
lead coal producer in the southern Appalachian. And as long as
he can be that, he doesn't care about anybody. That's all I
have to say.
The Chairman. Well, Mr. Harris, I think that is a great
final word.
Thank you for this panel.
We'll now bring our next panel up. Panel three is David
Michaels. Dr. Michaels is Assistant Secretary of Labor for
Occupational Safety and Health. He's a nationally recognized
leader in the scientific community's efforts to protect the
integrity of the science that forms the basis of our public-
health, environmental, and regulatory policies. Before coming
to OSHA, he was professor of environmental and occupational
health at the George Washington University School of Public
Health and Health Services. From 1998 to 2001, Dr. Michaels
served as the Assistant Secretary of Energy for Environment,
Safety, and Health.
Mr. Michaels, we'll just hold on here a second until we get
some calm restored here.
We're now shifting over to OSHA. I just might say,
parenthetically, that this panel and the next panel, now, we're
going to be shifting for MSHA to OSHA, and focusing on the
Occupational Safety and Health program.
[Pause.]
Could we please take conversations out in the hall? If you
really need to talk, I'd appreciate it. We really do have to
move along here.
OK. Mr. Michaels, welcome to the committee. Your statement
will be made a part of the record in its entirety. If you could
sum it up in 5 minute, we would deeply appreciate it.
Mr. Michaels, welcome.
STATEMENT OF DAVID MICHAELS, PhD, MPH, ASSISTANT SECRETARY OF
LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, DC
Mr. Michaels. Thank you, Chairman Harkin, Ranking Member
Enzi, members of the committee.
Today, we are meeting under the shadow of three recent
tragedies that have captured the headlines and the hearts of
the American people: the almost unimaginable deaths of 29
miners in West Virginia; the loss of seven refinery workers in
Washington State; and the 11 workers still missing from the
Deepwater Horizon.
We are also here in the knowledge that 14 Americans fail to
come home from work to their families every single day of the
year. We must think seriously and act courageously to ensure
that OSHA has the tools it needs to enforce safe working
conditions. If we are to fill Secretary of Labor Hilda Solis'
vision of ``good jobs for everyone,'' we must have effective
laws that will ensure that all employers do the right thing.
Good jobs are safe jobs. American workers still face
unacceptable hazards.
Yesterday, the Labor Department released its spring
regulatory agenda, which includes a new enforcement strategy:
plan, prevent, protect. This new approach would require each
employer to do what many employers do now; to implement their
own Injury and Illness Prevention Program tailored to the
actual hazards of that employer's worksite. We're asking them
to find and fix their hazards.
Last week, we announced a new initiative to implement long
overdue administrative changes to our penalty formulas, which
will have the effect of raising OSHA penalties, while
maintaining our policy of reducing penalties for small
employers and those acting in good faith. We will implement a
new severe-violator enforcement program, increasing our focus
on repeatedly recalcitrant employers.
While important, these two administrative measures are
severely limited by the constraints of current OSHA law. The
Administration supports the Protecting America's Workers Act,
PAWA, which makes meaningful and substantial statutory changes
to OSHA's penalty structure and enforcement program.
The most serious obstacle to effective OSHA enforcement is
the very low level of civil penalties allowed under our law, as
well as our weak criminal sanctions. Currently, the maximum
penalty for serious violations, those that pose a substantial
probability of death or serious physical harm, is only $7,000.
OSHA penalties have not been raised since 1990. PAWA indexes
civil penalties to the consumer price index, to ensure the new
penalty structure does not degrade over time.
It is a sad truth that, for some irresponsible employers,
nothing focuses attention like the possibility of going to
prison. Currently, successful criminal prosecution, under the
OSH Act, only results in a misdemeanor. Under PAWA, it is a
felony.
Another obstacle to protecting workers is that now if the
employer contests a violation, OSHA cannot force that employer
to fix the hazard until after the contest is decided. This
loophole in the law has fatal consequences. OSHA has identified
at least 30 cases, over the last 10 years, in which workers
have been killed during the contest period after the citation
was filed. PAWA would require employers to abate serious,
willful, and repeat hazards after the citation is issued.
We know that OSHA works better if workers are actively
involved in protecting their health and safety. If employees
fear they will be retaliated against for participating in
safety and health activities, they are not likely to do so.
OSHA's whistleblower provisions are 40 years old, and lag far
behind similar provisions in law that provide stronger worker
protections and have been enacted with strong bipartisan
support.
PAWA provides workers with a private right of action. It is
critically important that, if an employer fails to comply with
an order providing relief, both DOL and the worker can file a
civil action. PAWA also codifies a worker's right to refuse
unsafe work, and prohibits employer retaliation against
employees for reporting injuries or illnesses.
OSHA recognizes the importance of family participation.
While it is OSHA's policy to talk to families during the
investigation process, and to inform them about our citation
procedures and settlements, this policy has not always been
implemented consistently and in a timely manner. PAWA would
place into law the right of a victim or family member to meet
with OSHA regarding the investigation, and receive copies of
the citation at the same time as the employer, at no cost. PAWA
would also enable victims to be informed of any notice of
contest, and to make a statement before an agreement is made to
withdraw or modify a citation.
Finally, it is a little-known fact that State and local
employees who respond to our emergencies, repair our highways,
clean and treat our drinking and waste water, pick up our
garbage, take care of our mentally ill, provide social
services, and staff our prisons--they are not covered by OSHA,
unless the State in which they work chooses to do so, and only
25 States have elected to do so. Public-sector workers perform
work that is as dangerous as those in the private sector, and,
according to the Bureau of Labor statistics, they have a higher
injury rate than private-sector workers. Public employees
deserve to be safe on the job. The days of treating public
employees as second-class citizens must come to an end.
Mr. Chairman, as we prepare to observe Workers Memorial Day
tomorrow, we realize that our work is far from done. To quote
from President Obama's statement, in the wake of the Upper Big
Branch mine disaster,
``We owe all workers action. We owe them
accountability. We owe them assurance that, when they
go to work every day, they are not alone. They ought to
know that, behind them, is a government that is looking
out for their safety.''
I join with you, Mr. Chairman, in dedicating ourselves to
bringing about the day when there will be no more workers
memorialized for dying on the job.
Thank you again for this opportunity to testify.
[The prepared statement of Mr. Michaels follows:]
Prepared Statement of David Michaels, PhD, MPH
Chairman Harkin, Ranking Member Enzi, members of the committee, I
want to thank the committee for inviting us here today. It is a sad,
but true commentary on human nature and the political system that great
advances are all too often made only in the shadow of great tragedy.
Today, we are meeting under the shadow of two recent tragedies that
have captured the headlines and the hearts of the American people--the
almost unimaginable deaths of 29 miners in West Virginia, and the loss
of seven refinery workers in Washington State. We are also here today
in the knowledge that 14 Americans fail to come home from work to their
families every single day of the year. In addition, tens of thousands
die every year from workplace disease and over 4.6 million workers are
seriously injured on the job. Most of these workers die one at a time,
far from the headlines and nightly news, remembered only by their
family, friends and co-workers. I have here before me a pile of news
clips collected over the last couple of weeks describing workers, men
and women, young and old who have been crushed, electrocuted, burned,
or who have died in falls, trench collapses and forklift accidents.
These are the invisible relentless daily tragedies of the American
workplace. Thank you for inviting us here today to work with you to
find ways to stop this senseless sacrifice in American workplaces.
Until 1970, although certain industry-specific protections such as
the Coal Mine Health and Safety Act of 1969 existed, 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).
The results of this law speak for themselves. The annual injury/
illness rate among American workers has decreased by 65 percent since
1973. Employers, unions, academia, and private safety and health
organizations pay a great deal more attention to worker protection
today than they did prior to enactment of this landmark legislation.
The promise of the act, ``to assure so far as possible every
working man and woman in the Nation safe and healthful working
conditions'' is needed today as much as it was 40 years ago. Yet the
means provided by the act to achieve that worthy goal are tragically
outdated and inadequate. It has now been almost 40 years since the
Occupational Safety and Health (OSH) Act was passed, and aside from an
overdue increase in penalties almost 20 years ago, no significant
change has been made to this law. There are far too many obstacles that
prevent effective enforcement of the law, far too many loopholes that
allow unscrupulous employers to continue to get away with endangering
workers. This must stop.
Now is the time to think seriously and act courageously to ensure
that OSHA and MSHA have the tools they need to enforce safe working
conditions, and that this government develops effective incentives that
will ensure all employers do the right thing. If we are to fulfill
Secretary Solis' vision of Good Jobs for Everyone, we must address
these urgent problems. Good jobs are safe jobs, and American workers
still face unacceptable hazards.
We all know that most businesses want to do the right thing and
will expend the necessary resources to ensure that their workplaces are
safe. We need to make sure that they have the information and
assistance they need to protect their employees. There are still far
too many businesses in this country who continue to cut corners on
safety, endangering the health and safety of their workers. As
Secretary Solis pointed out to President Obama in her report last week
on the Upper Big Branch mine disaster, she is committed to taking
action now to stop reckless mine operators and other business owners
who risk the lives and health of their workers. Too often, we see
employers who assess the benefits of refusing to comply with the law
and compare them to the costs of complying with the law. If they find
that the costs of compliance outweigh the penalties they will face if
caught, they opt to gamble with their workers' lives. This is a
``catch-me-if-you-can'' approach to safety and health. It is what we
saw in action at Upper Big Branch and what we at OSHA see far too often
in the workplaces we visit.
We know that we do not have, nor will we ever have enough
inspectors to be in every workplace often enough to make sure that all
workplace safety laws, rules and best practices are followed.
Therefore, we need to find ways to leverage our resources to ensure the
goals of the OSH Act are met. Our mission must not be to punish or
react, but to require employers to plan, prevent and protect.
To do this effectively, major changes need to be made in the act.
The Occupational Safety and Health Act is almost 40 years old. Since
enactment, the act has not been significantly modified in all of those
years and has not kept up with many of the significant advances made in
other laws, including consumer and worker protections.
OSHA has already taken broad steps toward this goal. Just
yesterday, 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 each 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 implement this
plan. Essentially, through this common sense rule, 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, also known as ``Find and Fix.'' Workers would participate in
developing and implementing such a plan and evaluating its
effectiveness in achieving compliance. OSHA will soon initiate
rulemaking on this standard with stakeholder meetings, the first to
take place in June in New Jersey.
Additionally, we are doing everything we can within the limits of
our law to expand and strengthen workplace protections. Last week, we
announced a new initiative to implement long-overdue administrative
modifications to our penalty formulas, which will have the effect of
raising OSHA penalties while maintaining our policy of reducing
penalties for small employers and those acting in good faith. These
changes will be well-advertised so that all employers are aware of the
new policies. However, OSHA believes any administrative changes we are
able to make would still be inadequate to compel bad employers to abate
serious hazards. These steps are an effort to do the best with the
outdated, antiquated tools we have. But, we can only do so much within
the constraints of the current OSH Act.
We also announced that OSHA will implement a new Severe Violators
Enforcement Program, increasing our focus on repeatedly recalcitrant
employers, which will be discussed in more detail later in my
testimony.
While important, both of these administrative measures are severely
limited by constraints of current law. To adequately plan, prevent and
protect, the law governing OSHA must be updated to reflect the 21st
Century.
The Administration supports the Protecting America's Workers Act
(PAWA), which makes meaningful and substantial statutory changes to
OSHA's penalty structure and enforcement program. PAWA, coupled with
our vigorous ``plan/prevent/protect'' regulatory agenda, will begin to
make the ``catch-me-if-you-can'' approach to workplace safety a thing
of the past.
penalties
The most serious obstacle to effective OSHA enforcement of the law
is the very low level of civil penalties allowed under our law, as well
as our weak criminal sanctions.
While most employers understand the business case and the moral
case for providing a safe workplace, many do not and the threat of
penalties plays a major incentive in forcing them to comply with the
law. The deterrent effects of these penalties are determined by both
the magnitude and the likelihood of penalties. Swift, certain and
meaningful penalties provide an important inducement to ``do the right
thing.'' However, OSHA's current penalties are not large enough to
provide adequate incentives. Although OSHA can, in rare circumstances
involving large numbers of egregious violations, generate large
penalties, most OSHA fines are far too small to serve as anything more
than an inconvenient cost of doing business.
I also want to stress here that OSHA enforcement and penalties are
not just a reaction to workplace tragedies; they serve an important
preventive function. Just as the fear of a ticket and large fine keeps
the average driver from running red lights to make it to the meeting
for which he or she is late, OSHA inspections and penalties must be
large enough to discourage employers from cutting corners or
underfunding safety programs to save a few dollars. Even the largest
fines, when levied on a giant corporation, have little effect on the
company's bottom line.
Congress has increased monetary penalties for violations of the OSH
Act only once in 40 years despite inflation during that period. As a
result, 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.
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 say that again, 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.
After factoring in reductions for size, good faith and history, as
well as other factors, the current average OSHA penalty for a serious
violation is only around $1,000. The median initial penalty proposed
for all investigations conducted in fiscal year 2007 in 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.
The current penalties do not provide an adequate deterrent. This is
apparent when compared to penalties that other agencies are allowed to
assess. For example, the Department of Agriculture is authorized to
impose a fine of up to $130,000 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 for indecent content. 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.
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 an EPA Clean Water Act violation amounting to $10
million. How can we tell Jeff Davis' wife Mary, and their five
children, that the penalty for killing fish and crabs is many times
higher than the penalty for killing their husband and father?
The Protecting America's Workers 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 not
inappropriately large. In fact, for most violations, they raise
penalties only to the level where they will have the same value,
accounting for inflation, as they had in 1990.
Unlike most other Federal enforcement agencies, 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,
which has reduced the real dollar value of OSHA penalties by about 39
percent. In order to ensure the effect of the newly increased penalties
do not degrade in the same way, PAWA indexes civil penalties to
increases or decreases in the Consumer Price Index (CPI). These penalty
increases are necessary to create at least the same deterrent that
Congress originally intended when it passed the OSH Act almost 40 years
ago. Simply put, OSHA penalties must be increased to provide a real
disincentive for employers not to accept injuries and worker deaths as
a cost of doing business.
Throughout its history, OSHA has faced the problem of employers who
have allowed multiple serious and repeated violations to exist across
several of their workplaces. It isn't only the coal mining industry
that faces employers like Massey Energy that rack up dozens or hundreds
of violations throughout the corporation.
Sometimes even large penalties are ineffective. After OSHA cites
these companies at one location, workers often continue to get hurt or
die from the same kinds of hazards at another site within the same
company. OSHA has only limited tools to require recalcitrant employers
to abate life-threatening hazards. As I stated earlier, OSHA issued its
new Severe Violators Enforcement program (SVEP) last week. SVEP is a
refinement of the Enhanced Enforcement Program, designed as a
supplemental special enforcement tool to address recalcitrant employers
who fail to meet their obligations under the OSH Act. This program
includes more mandatory inspections of an identified company; mandatory
follow-up inspections, including inspections at other locations of the
same company; and a more intense examination of an employer's history
to assess if there are systemic problems that would trigger additional
mandatory inspections. This is about as close as OSHA can come, within
the limits of our law, to MSHA's ``pattern of violations'' system.
There are a number of improvements to OSHA's law that could allow
us to implement a pattern of violations authority that would facilitate
more severe penalties when a pattern is identified. Additional
authority to propose higher penalties for ``multiple repeat
violations'' could enable OSHA to address situations in which companies
demonstrate consistent and repeated disregard for the lives of their
employees.
In addition, under current law, OSHA cannot cite a repeat violation
if the original violation occurred in one of the Nation's 21 ``State-
Plan'' States which administer their own OSHA programs. Permit me to
explain this. If a roofer who was not provided fall protection is
killed after falling from a roof in Ohio, OSHA will investigate and
determine, among other things, if other employees of that contractor
had ever been injured or killed under similar circumstances. If OSHA
had previously cited that employer for violations of our fall
protection rules in a State where we have jurisdiction, we could cite
the employer for a repeat violation. However, if the previous violation
had occurred in nearby Indiana or Kentucky, perhaps just a few miles
from the site of the fatality, the law states that we could not
classify the events around the fatality as a repeat violation, even if
the original violation involved a worker who was killed under identical
circumstances--simply because they were in State-Plan States. This
defies any common sense definition of a repeat violation.
Enhanced civil penalties and an improved mechanism for going after
repeatedly recalcitrant employers are much needed. Also needed is a
much more effective way of addressing the most egregious employer
wrongdoing. The solution here is enhanced criminal sanctions and the
real threat of incarceration for employers whose knowing violation of
OSHA standards leads to the death or serious bodily injury of an
employee. It is a sad truth that nothing focuses attention like the
possibility of going to prison. Unscrupulous employers who refuse to
comply with safety and health standards as an economic calculus will
think again if there is a chance that they will go to prison for
ignoring their responsibilities to their workers.
Under the OSH Act, criminal penalties are currently 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 6 months in jail, making
these crimes a misdemeanor.
The criminal penalty provisions of the OSH Act have never been
updated since the law was enacted in 1970. The criminal provisions in
the OSH Act are weaker than virtually every other safety and health and
environmental law. Most of these other Federal laws have been
strengthened over the years to provide for much tougher criminal
sanctions. 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 prison sentence for dealing with counterfeit
obligations or money, or mail fraud; and for a life sentence for
operating certain types of criminal financial enterprises.
Simply put, serious violations of the OSH Act that result in death
or serious bodily injury should be felonies like insider trading, tax
crimes, customs violations and anti-trust violations.
PAWA would also amend the criminal provision of the OSH Act to
change the requisite mental state from ``willfully'' to ``knowingly.''
Most Federal environmental crimes and most Federal regulatory crime use
the term ``knowingly,'' rather than ``willfully.'' Under a ``knowing''
standard, the government must only prove that the defendant had
knowledge of the facts that constitute the offense, i.e., that the
conduct at issue was not accidental or a mistake. Harmonizing the
language of the OSH Act with that of these other statutes would add
clarity to the law. PAWA would do that through the provision that any
employer is subject to criminal prosecution if that employer
``knowingly'' violates any standard, rule or order and that the
violation results in death or serious bodily injury to an employee.
OSHA strongly supports this change in the law.
abatement during contest
Another major obstacle to protecting workers in the OSH Act is that
OSHA cannot force employers to fix an identified workplace hazard if
the employer has contested the violation until after the contest is
decided.
When OSHA identifies a serious workplace hazard, one capable of
killing or seriously injuring a worker, we cite that employer.
Employers then have the right to contest that citation. This is as it
should be. The problem--often the fatal problem--with the law as
currently written, is that the employer is under no obligation to fix
the unsafe condition until the contest is settled, which can be months,
or even years, after the initial citation. Workers are, therefore, left
without protection from identified health and safety hazards.
We don't tell truck drivers to continue operating on faulty brakes
for weeks or months until their court appeal is heard. Why should we
allow employers to continue operating dangerous machinery for months or
years after the hazard has been identified and cited?
The OSH Act can allow dangerous conditions to exist for many years
while litigation is under way. For example, in 1994, OSHA cited a
Dayton Tire facility in Oklahoma City for multiple violations of the
Lock Out/Tag Out standard that had already killed one worker. An
Administrative Law Judge (ALJ) affirmed the violations almost 3 years
later, and the Occupational Safety and Health Review Commission then
accepted the case for review, but has still not issued a decision. In
2006, 12 years after being cited, Dayton closed the facility without
ever abating the violations.
This loophole in the law has had fatal consequences. OSHA has
identified at least 30 cases between fiscal year 1999 and fiscal year
2009 where workers have been killed during the contest period after a
citation was filed. The only situation worse than a worker being
injured or killed on the job by a senseless and preventable hazard, is
having a second worker needlessly felled by the same hazard.
The lack of any mechanism to force employers to abate hazards
during the contest period also contributes to the low level of OSHA
penalties. OSHA inspectors are primarily interested in making sure that
workers are safe, not in collecting fines. Many employers have learned
that by threatening to appeal even the most irrefutable hazard, they
force OSHA staff to choose between immediate abatement of a life-
threatening hazard, or pursuing violation through a lengthy appeal.
Faced with a situation where it may be months or years until a
contested citation is settled and a hazard is fixed, OSHA is often
forced to settle at a much lower level than would be deserved in order
to get faster abatement of the hazard so that workers are safe.
OSHA supports a provision of PAWA that would require employers to
abate serious, willful and repeat hazards after a citation is issued
during the contest period. This provision would also enable OSHA to
issue ``failure to abate'' notices at a workplace with a citation under
contest, enhancing the right of workers to be protected from the most
egregious workplace hazards.
Now, it has been argued that mandated abatement during the contest
period is ``unjustified'' and ``an outrageous trampling of due process
rights.'' Those who feel this way should know that a similar
requirement has existed in the mine safety laws for 40 years without
wreaking havoc in the mine industry. OSHA is merely asking to provide
general industry workers with the same protection that miners have
possessed for decades. In weighing the balance between employee
protection and employer contest rights, employee safety should come
first.
whistleblower protection
OSHA will never be able to inspect every workplace every day, or
even every year. Far from it. Which is why Congress designed the OSH
Act to rely heavily on workers to help identify hazards at their
workplaces. If employees fear that they will lose their jobs or
otherwise be retaliated against for participating in safety and health
activities or expressing concern, they are not likely to do so.
Secretary Solis flagged the importance of robust whistleblower
protections in preventing workplace disasters by including a
recommendation to improve the whistleblower provisions of the Mine Act
in her report to the President last week.
The OSH Act was one of the first safety and health laws to contain
a provision for protecting whistleblowers--section 11(c). Forty years
ago, that provision was innovative and forward looking. In 2010,
however, it is a legal dinosaur. It is clear that the OSH Act's
whistleblower provision is in dire need of substantial improvement.
Notable weaknesses in section 11(c) include: inadequate time for
employees to file complaints; lack of a statutory right of appeal; lack
of a private right of action; and OSHA's lack of authority to issue
findings and preliminary orders, so that a complainant's only chance to
prevail is through the Federal Government filing an action in U.S.
District Court. Achieving the Secretary's goal of Good Jobs for
Everyone includes strengthening workers' voices in their workplaces.
Without robust job protections, these voices may be silenced.
In recent years, a number of more modern, more effective
whistleblower protections have passed the Congress with strong bi-
partisan support. Additionally, there has been bi-partisan consensus
for the past 25 years on the need for uniform whistleblower protections
for workers in every industry--making the different whistleblower
statutes more consistent and equitable. This Administration supports
uniformity as well.
The Protecting America's Workers Act expands the OSH Act's anti-
retaliation provisions. The bill codifies a worker's right to refuse to
perform unsafe work, protects employees who refuse work because they
fear harm to other workers, prohibits employer policies that discourage
workers from reporting illnesses or injuries, prohibits employer
retaliation against employees for reporting injuries or illnesses, and
grants workers the right to further pursue their case if OSHA does not
proceed in a timely fashion.
Additionally, current laws give workers only 30 days to file an
11(c) complaint. It often takes workers more than 30 days to learn what
the law says and how to file a complaint. 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.
For example, we received an 11(c) complaint from a former textile
employee who claimed to have been fired for reporting to management
that he had become ill due to smoke exposure during the production
process. The worker contacted OSHA to file an 11(c) complaint 62 days
after he was fired, compelling OSHA to dismiss the case as untimely
under existing law. PAWA would increase the existing 30-day deadline
for filing an 11(c) complaint to 180 days, bringing 11(c) more in line
with some of the other whistleblower statutes enforced by OSHA, and
greatly increasing the protections afforded by section 11(c).
The private right of action is another key element of whistleblower
protections that is lacking in OSHA's current 11(c) provision. It is
critically important that, if an employer fails to comply with an order
providing relief, both DOL and the complainant be able to file a civil
action for enforcement of that order in a U.S. District Court. Most of
the other whistleblower provisions that OSHA enforces have this private
right of action provision--certainly the OSH Act should be amended to
include it and PAWA does just that.
Finally, PAWA would codify a number of OSHA's high standards for
professionalism and transparency in conducting whistleblower
investigations that are of critical importance to this Administration.
For example, PAWA requires OSHA to interview complainants and to
provide complainants with the respondent's response and the evidence
supporting the respondent's position. PAWA affords complainants the
opportunity to meet with OSHA and to rebut the employer's statements or
evidence. While we train our investigators on the critical importance
of conducting thorough interviews with complainants and involving
complainants in the rigorous testing of proffered employer defenses, we
believe that requiring these investigative steps by statute could only
assist OSHA in its mission of providing robust protection to
occupational safety and health whistle blowers.
These legislative changes in the whistleblower provisions are a
long-overdue response to deficiencies that have become apparent over
the past four decades. This legislation makes good on the promise to
stand by those workers who have the courage to come forward when they
know their employer is cutting corners on safety and health and
guarantees that they don't have to sacrifice their jobs in order to do
the right thing. OSHA has the responsibility of administering 16 other
whistleblower statutes in addition to the provision in its own
governing statute. The fact that almost all of those other statutes are
more protective to workers is a fact that needs to be addressed now,
and this committee has been involved, with bipartisan support, in
passing many of those whistleblower laws that provide far greater
protection than OSHA's law.
This hearing provides OSHA with the opportunity to identify areas
where the Agency and the Administration have identified needed
legislative changes that go beyond those proposed in PAWA. These
changes would strengthen the OSH Act and provide an added deterrent to
businesses that ignore workplace safety and health hazards.
I would propose amending the OSH Act to provide for assessment of
civil penalties against employers who violate the whistleblower
provisions. Currently, while an employer found to be discriminating
against an employee must make the employee whole again, there is no
provision for civil penalties against employers. The provisions are not
in the current version of PAWA but similar provisions are included in
the S-MINER Act that was passed in the House of Representatives in
2008. Under this provision, any employer found to be in violation of
Section 11(c) of the Act would be subject to civil penalties of not
less than $10,000 and not more than $100,000 for each occurrence of a
violation.
Finally, as conclusion of these cases can often take many months, a
provision should be made to re-instate the complainant pending outcome
of the case. The Mine Act provides that in cases when MSHA determines
that the employee's complaint was not frivolously brought, the Review
Commission can order immediate re-instatement of the miner pending
final order on the complaint.
families and victims
PAWA includes a number of sections that would expand the rights of
workers and victims' families. OSHA has long known that workers, and
often their families, can serve as OSHA's ``eyes and ears,''
identifying workplace hazards. Workers injured in workplace incidents
and their friends and family often provide useful information to
investigators, because employees frequently discuss work activities and
co-workers with family members during non-work hours.
In addition, family members and co-workers are sincerely interested
in learning how an incident occurred, finding out if anything could
have been done to prevent it, and knowing what steps the employers and
employees will take in the future to ensure that someone else is not
similarly injured or killed.
While it is OSHA's policy to talk to families during the
investigation process and inform them about our citation procedures and
settlements, this policy has not always been implemented consistently
and in a timely manner. In addition, OSHA's interactions with families
and victims could certainly be expanded without slowing down the
enforcement process.
PAWA would place into law, for the first time, the right of a
victim (injured employee or family member) to meet with OSHA regarding
the investigation and to receive copies of the citation or resulting
report at the same time as the employer at no cost. PAWA would also
enable victims to be informed of any notice of contest and to make a
statement before an agreement is made to withdraw or modify a citation.
No one is affected more by a workplace tragedy than workers and
their families, so we fully recognize and appreciate their desire to be
more involved in the remedial process. However, we do believe that
clarification is needed of the provisions allowing victims or their
representatives to meet in person with OSHA before the agency decides
whether to issue a citation, or to appear before parties conducting
settlement negotiations. Our fear is that this process could result in
significant delays in our enforcement process, which neither OSHA nor
the families would want.
preventing frivolous contests
Some have argued that if OSHA's monetary penalties are increased,
employers would be more likely to contest enforcement actions and clog
the system with litigation. We have certainly seen that phenomenon in
mine enforcement. The Labor Department's Report to the President on the
Upper Big Branch Mine disaster suggested one method of addressing this
problem: requiring mine operators to put significant penalty amounts
into escrow. The committee should look into this option for OSHA as
well.
presumptive willfuls
Not a week goes by that I don't read about a worker killed or
seriously injured from a 10- or 15-foot deep trench collapsing on top
of them. The law says that trenches more than 5 feet deep must be
protected by a trench box or equivalent protection. These protections
are well known and these deaths are completely, easily and cheaply
preventable. I would attest--and I don't think there is a single
construction safety expert in this country who would contradict me--
there is no construction company owner in this country who does not
understand the hazards inherent in deep trenches or how to prevent
collapses. In fact, sometime in the 5th century BC, the historian
Herodotus, observing the Phoenician army digging trenches wrote of the
hazards of trench collapses and how to avoid them. Yet, 2,500 years
later, workers continue to die in trenches.
There is no reason why such a well-recognized and easily
preventable violation that leads to the death or serious injury of a
worker should not be a presumptive willful citation. There are other
violations that would fall into the same category; workers working at
great heights without fall protection, for example.
imminent danger
Currently, when OSHA identifies an imminent danger, such as a
worker in a deep trench or at a high elevation without fall protection,
the Agency cannot take immediate action to shut down the process or
remove employees from harm until the hazard is corrected. OSHA must
seek an injunction in Federal District Court if the employer refuses to
voluntarily correct an imminent danger. While this process can work
smoothly and rapidly in many situations where relatively quick court
action can be obtained, some hazards can result in death in minutes. In
addition, inspectors often work far from the courthouse when worker
safety demands quick action.
In contrast, the Mine Act treats imminent danger orders as
essentially self-enforcing, requiring mine operators to evacuate miners
in the affected area immediately, until the hazard is corrected, and
then seek review in the Commission. Unfortunately, OSHA does not have
the same authority as MSHA, which can order the withdrawal of miners or
equipment if certain hazards are not abated.
The committee might consider providing OSHA the authority, similar
to the authority MSHA has, to ``tag'' a hazard or workplace condition
that poses an imminent danger of death or serious injury. The employer
would then be required to take immediate corrective action or have the
workplace shut down. Internal procedures could be developed to ensure
that compliance officers do not take unjustified actions.
contract employees and multi-employer worksites
Another obstacle to effective OSHA enforcement is the growing use
of contract employees and OSHA's inability in certain circumstances to
determine the hazards these employees face and to force the responsible
party to control those hazards.
For example, the General Duty Clause of the OSH Act addresses an
employer's responsibility to protect its own employees from recognized
hazards, even where no standard exists. The employer is not responsible
under the General Duty Clause for a hazard encountered by contract
workers, even if the employer creates or controls the hazard. Contract
employees receive less training than direct-hire employees so they may
need added protection.
In modern, multi-employer work settings, employers are often
responsible for the working conditions of many workers who technically
may be employed by others. Employers with control of complex, multi-
employer workplaces should bear responsibility for making the workplace
safe and healthful not only for workers on their own payroll, but for
all affected workers. The wording of the present 5(a)(1) of the OSH Act
only requires an employer to provide safe working conditions for ``his
employees.'' Extending an employer's general duty beyond its own
employees to also protect contract employees from recognized hazards
that the employer creates or controls would enhance the utility of the
general duty clause.
The goal of this hearing is to identify barriers to enforcement and
ways to encourage employer compliance with the law. To that end, I
would be remiss if I failed to mention one additional barrier to
protection for almost 9 million workers in this country who provide
this Nation's most vital services: public employees.
It is a fact, little known among the American public, that public
employees in the United States--who respond in our emergencies, repair
our highways, clean and treat our drinking and waste water, pick up our
garbage, take care of our mentally ill, provide social services and
staff our prisons--are not covered by OSHA unless the State in which
they work chooses to do so. Today, almost 40 years after passage of the
Occupational Safety and Health Act, half of the States still do not
provide federally approved coverage for public employees.
According to the Bureau of Labor Statistics, the total recordable
case injury and illness incidence rate in 2008 for State government
employees was 21 percent higher than the private sector rate. The rate
for local government employees was 79 percent higher. Clearly, some
public sector jobs are extremely dangerous. Public employees deserve to
be safe on the job, just as private-sector employees do.
In testimony before this subcommittee in May 2007, Jon Turnipseed,
Safety Supervisor for the City of San Bernardino Municipal Water
Department in California, said it most succinctly:
From my own view as a public sector employee, the simplest
but most compelling reason is that saving lives and preventing
injuries always tops the list of values that our government
holds dear in every other responsibility it undertakes. State
and local government workers are, in many instances, the
``first responders'' upon whom we all depend. Whether a
terrorist attack or a natural disaster, these first responders
are the first people who rush in to help save lives. We put a
premium on that capability in our society. These same people
who protect the public from hazards deserve no less of a
commitment to occupational safety and health protections from
their employers, the public, and all of us here today.
Twenty-six States and one territory now provide federally approved
OSHA coverage to their public employees and you will find that they
consider it not a hardship, but a necessary provision for the safety of
their employees and the provision of good government. Nonetheless, in
2008 there were more than 277,000 injuries and illnesses with days away
from work among State and local governmental employees. In a State that
has public employee coverage, a public employer can be held responsible
for safety violations. A crane operator in New Jersey died from
injuries after his head was crushed by a cargo spreader in 2008. New
Jersey, which has an OSHA program for public employees, issued a
citation for willful OSHA violations. However, if this tragedy had
occurred in Pennsylvania or Delaware, which have no public employee
safety and health programs, the employer could not have been held
accountable.
Again, we support the Protecting America's Workers Act, which
extends OSHA coverage to public-sector employees. Because the extension
of such coverage will have costs, it should occur over time, and we
welcome further discussion of implementation issues. There is simply no
good argument in the 21st century for allowing public employees to be
injured or killed under conditions that would be illegal and strictly
punished if they were private sector employees. The days of treating
public employees as second class citizens must come to an end.
______
Mr. Chairman, as we prepare to observe Workers Memorial Day
tomorrow we realize that our work is far from done. Whether it be the
death of 29 workers in a coal mine in West Virginia, the loss of six
employees in an explosion at an oil refinery in Washington State, or
the single deaths that occur in workplaces each day in America, this
carnage amounts to an unacceptable burden for the workers of America to
bear in producing the goods and services that fuel not only our
economy, but also our country. To take from President Obama's statement
last week in the wake of the Upper Big Branch mine disaster, we owe all
workers action. We owe them accountability. We owe them assurance that
when they go to work every day they are not alone. They ought to know
that behind them is a government that is looking out for their safety.
I join with you, Mr. Chairman, in dedicating ourselves to bringing
about the day when there will be no more workers memorialized for dying
on the job. Thank you again for the opportunity to testify today. I am
happy to answer your questions.
The Chairman. Mr. Michaels, thank you very much for your
testimony.
I read your written testimony last night; I thought maybe
you were going to talk about some of these examples here. I
mentioned in my open statement, how the fines and penalties, of
both civil and criminal, are tougher on environmental laws than
they are on worker safety.
You put, in your testimony, about the 2001 tank full of
sulfuric acid that exploded at a refinery in Delaware, killed
Jeff Davis, a worker. His body was literally dissolved in the
acid. The OSHA penalty was $175,000. Yet, in the same incident,
thousands of dead fish and crabs were discovered, allowing an
EPA Clean Water Act violation amounting to $10 million. How can
we tell Jeff Davis's wife, Mary, and their five children that
the penalty for killing fish and crabs is many times higher
than the penalty for killing their husband and father?
Now, again, these things just cry out for us to do
something. We've got to make the necessary changes. And that's
what we look to you for, is your suggestions and your advice on
how we change these.
Right now--and we just heard from MSHA; I think you were
here during all that--they have the authority to order the
withdrawal of miners from an area, until they have abatement.
They can shut down a mine. We know that that doesn't happen
that often. Yet, OSHA cannot immediately shut down the process
or remove workers from harm until the hazard is corrected. Is
that correct?
Mr. Michaels. Yes, sir. If an OSHA inspector is in a
facility and sees a hazard that we believe is imminent--is
dangerous to workers--we can certainly ask the employer to shut
it down, but we can't require it. We have to go to court to do
that.
The Chairman. Even though there may be imminent danger.
Mr. Michaels. Yes, sir.
The Chairman. Do you have any advice or any suggestions for
legislative changes?
Mr. Michaels. I certainly would like to see that changed. I
think that's an extremely important change. MSHA has the
ability to be given a report, not even be onsite, but to make a
phone call and say, ``Shut that down until we arrive.'' And we
certainly can't do that. The OSHA law is very weak, and hasn't
been amended, in any substantive way, since 1970.
The Chairman. Yes. Let me tell you, as a former member of
the House representing a very rural district in Iowa, and as a
Senator representing a lot of small towns and communities, over
the years I've heard story after story of OSHA inspectors
coming out and nitpicking on something. They find some little
thing. You hear all these horror stories. Some of them, we've
tried to track down. It's very hard to do. But, address
yourself to that. I'm sure you've been around long enough----
Mr. Michaels. Yes.
The Chairman [continuing]. You've heard all this, right?
They just pick on these little----
Mr. Michaels. Yes.
The Chairman [continuing]. Things, and just create
nonsensical kinds of things that they've got to fix up.
Mr. Michaels. Yes, I believe that was the case in the early
1970s. When OSHA first began, they took all the standards, from
many different consensus organizations, and I'm told that they
just applied them all equally. Any violation they found, they
issued a citation. Obviously, that was a severe mistake. OSHA
took a real beating. I think they learned. This was, actually,
under Presidents Nixon and Ford. I think it got straightened
out, really, by the Ford administration. And OSHA hasn't been
that way since.
OSHA takes its job very seriously. We have relatively few
inspectors. We and our State partners have only about 2,000
inspectors to cover 8 million workplaces and 130-plus million
workers across the country. We only look at serious problems.
Eighty-three percent of our violations are serious violations,
which means they could threaten death or impose serious
physical harm on the worker involved. We don't have time to
nitpick.
The Chairman. Tell me about--quickly, my time's running
out--the SVE Program, this Severe Violators Enforcement
Program. How does that differ from your Enhanced Enforcement
Program?
Mr. Michaels. Well, it's reshaped. We could certainly get
you more information on this. It really makes us focus on those
employers, where we found serious problems, that we think are
quite recalcitrant, and it makes us go back in there on a
regular basis and see what's going on there. We think it's a
big advance. We're just putting it into effect now. I wasn't
here for the previous program, but I'm confident this program
is really going to do a good job.
The Chairman. Thank you, Mr. Michaels.
Senator Enzi.
Senator Enzi. Thank you, Mr. Chairman.
I helped to get the Post Office under OSHA when I first got
here and called for inspections in my office on a regular
basis. I know the number of inspectors indicates that a
business is only going to be inspected once every 100 years. I
suspect that the thousands of people that we'd have to hire in
order to have a shorter period of time than that would create
quite an economic burden in this country.
There is a program that's working very well, and that's the
VPP program, the Voluntary Participation Program----
Mr. Michaels. Right.
Senator Enzi [continuing]. Where they volunteer safety
experts to work as special government employees, and have some
pretty extensive criteria for them to ever be recognized that
way. VPP leverages 35 FTEs to get the help of 2,400 special
government employees to conduct inspections and audits. I'm
pretty impressed with that. I'm even more impressed with some
of the independent evaluations that have been done, because it
shows that it saves taxpayers millions of dollars every year,
just in personnel. It also avoided serious injuries, probably
$59 million worth, in 2007, not to mention the pain and agony
that goes with that.
VPP has shown very strong growth. I've wanted to get it
down into even medium-sized businesses, not just the big
businesses, and that had been happening more in recent years.
VPP gives recognition to exemplary workplace safety and public-
relations value that's intangible with regard to spreading
OSHA's core mission, and making sure that people go home safe.
Given those factors, do you believe that the VPP is worth
preserving?
Mr. Michaels. Yes, I do. I'm a great believer in the VP
Program. When I was at the Department of Energy, I ran the VPP
program. I think the concern that I've heard, from your office
and from others, is our shifting of resources around that. And
I want to discuss that.
We think it's a very worthwhile program. We are very much
focused, though, on those employers who are not the good
participants, the ones that really want to make a difference.
The VPP program are employers who get it. There are 14 workers
who die every day on the job, and there are lots of employers
who are just irresponsible and don't care. We're forced with
choosing between, Do we put our resources into those employers
who want to do the right thing and those employers who don't?
So, what we've done is, we've just said we have to really focus
on those--increase enforcement on employers who don't really
understand this.
We want to see the VPP program continue. We'd like to work
very closely with your committee and with the association of
VPP companies, the VPPPA, in finding alternative means of
funding for this program, because we think it's a good program,
and we want it to continue.
Senator Enzi. Looking at the budget, we're talking about
$3.5 million of changing resources?
Mr. Michaels. Somewhere in that ballpark.
Senator Enzi. Yes. So, 3.5 million; and just in the Federal
savings, there's $59 million in savings. If you look at the
injuries out in the private sector, there's about $300 million
in savings. Doesn't it seem like we really ought to extend that
program and get more of the people that are good participants
into that program so that they're doing extensive inspections
and cutting down accidents, and then we can shift more of the
resources of the inspection over to the bad actors.
Mr. Michaels. I'm not sure where the $59-million figure
comes from. I'd love to see that.
I believe it's a useful program, and I believe the
companies involved want to do the right thing, and we should
encourage them, and we should find a way to do that. We really
do have to focus on the small companies, the high-hazard
companies. VPP is primarily large companies. Only 6 percent of
the employees covered in the VPP program work at employers of
less than 250 people. It's big employers who can afford,
essentially, to help us find some way to fund this program.
Senator Enzi. If we drop that, how much of the extra
resources are we going to need just to take care of the ones
that we're going to be neglecting, who does do a good job. I'll
be interested to know who's developing this new proposal, and
who's been briefed on it, and whether it'll require new
legislative authority, and how long it'll take to put the
system in place, and how we can work more with more of the good
people so that you can really concentrate on the bad people.
I have a bunch of additional questions, but I'll provide
those in writing, especially since the vote's already started.
The Chairman. I'd note the vote started at 4:30, but I know
Senator Murray has another meeting she has to attend to, and
I'm going to recognize Senator Murray before we go on.
Senator Murray. I really appreciate that, Mr. Chairman,
because I do want to talk to you about the terrible tragedy in
my home State, at the Tesoro Refinery. We lost seven workers,
and it's just had a huge impact.
I'm trying to understand how OSHA's inspection protocols
work in States like my State and 26 other States that operate a
DOL-approved State Occupational Safety and Health Program. Can
you tell me how the Federal OSHA programs, like the Petroleum
Refinery National Emphasis Program, are conducted in States
like mine?
Mr. Michaels. Well, I can tell you, yes. We have a National
Emphasis Program that focuses specifically on oil refineries,
because we believe refineries are particularly dangerous
facilities. We've had a number of terrible events. BP Texas
City being one example, but certainly the Tesoro Refinery was
another.
In Federal States we take our experts in process safety
management--it's a relatively small number, people who
understand refining and things like that--and we put them in to
do inspections. We're trying to cover every refinery in the
States that are Federal States. We've asked States, who operate
their own State programs, to do the same thing, because under
the OSHA law, States must be at least as effective as the
Federal OSHA.
Now, fortunately, Washington State has a good OSHA system,
and has decided to replicate what we do. They have adopted----
Senator Murray. There isn't any requirement for----
Mr. Michaels. In this case, there is no requirement. When
this NEP, the National Emphasis Program, was put into effect,
it was allowed to be voluntary on the parts of States. Certain
States, a small number, have decided not to do that. We are
quite concerned about that.
Senator Murray. Yes.
Mr. Michaels. We are now re-evaluating whether--when we
have a national program--we should allow States to opt out of
it, because it would no longer be a national program.
Senator Murray. But, does OSHA do followup inspections to
sites that have been inspected as part of that national----
Mr. Michaels. Yes. In fact, we recently had a followup
inspection at the BP-Husky facility in Ohio. I'm sorry, Senator
Brown isn't here. We went into that facility, we found a number
of violations. We asked BP-Husky to abate those. When we went
into the followup, we found--we had abated those, but went to
the other part of the facility, because these are very large
refineries--they hadn't made changes. The same changes that we
required in one part, they hadn't made them in the other part.
They just ignored that. We just issued a more-than-$2-million
fine against BP-Husky for exactly that problem.
We are extremely concerned about oil refineries and the
possible catastrophic events associated with them. So, we're
going back into them and seeing what we can do.
Senator Murray. Well, as you know, the Tesoro's Refinery
was cited for 17 serious safety violations in April 2009, so
this is a big concern. And I want to followup with several
other questions, but I wanted to ask you, before my time's up.
In your written testimony, you explained that, under current
law, OSHA cannot develop a Pattern of Violations, or cite an
employer of repeat violations, if that employer has employees
in multiple States. Right?
Mr. Michaels. Right.
Senator Murray. If the original violation occurs in one of
these 21 State-Plan States that administer their own OSHA
programs, do you necessarily know that other States have
violations, as well?
Mr. Michaels. That's correct, we don't know, and we can't
use that information. It's one of the many weaknesses of the
law that we hope might be addressed.
Senator Murray. Well, what is the logic behind that?
Mr. Michaels. That's the way the law was written. The State
plans are quite independent.
Senator Murray. Well, Mr. Chairman, this is a serious
problem.
Mr. Michaels. Yes.
Senator Murray. Because if a refinery--and many of them do
have operations in many States, and they're under State-run
OSHA plans, then those violations don't add up in totality, and
people don't know about it.
Mr. Michaels. Correct.
Senator Murray. I mean, it seems we have to fix that.
Mr. Chairman, I know we have a vote. I have a number of
questions I'd like to submit for the record. I want you to know
this is something I intend to pursue.
[The information referred to may be found in Additional
Material.]
The Chairman. Thank you very much, Senator.
Voice. Inaudible.
The Chairman. Yes, sir.
Voice. Inaudible.
Senator Enzi. Mr. Chairman, I just wanted to mention that
that $59-million figure comes from an OSHA press release.
Mr. Michaels. Great. I'd like to see it, thank you.
[Laughter.]
The Chairman. All right.
Well, Senator Rockefeller, if you don't have any----
Senator Rockefeller. No. I just want to yield to Senator
Murray.
The Chairman. Oh. She has----
Senator Murray.
Well, Mr. Michaels, thank you very much.
There's a vote on, right now. We'll recess, here, for about
10 minutes. We'll go over and vote. We'll be back, and we'll
take the next panel.
I would invite panel four to go ahead and take the table:
Margaret Seminario, Holly Shaw, Michael Brandt, and Kelli
Heflin.
We'll be right back.
[Recess.]
The Chairman [resuming the chair]. The Health, Education,
Labor, and Pensions Committee will resume its sitting.
Again, I want to thank all of you for your patience and for
your willingness to be here.
Our fourth panel, Margaret Seminario, director of
Occupational Safety and Health for the AFL-CIO, has worked
extensively on a wide range of regulatory and legislative
initiatives at the Federal and State level, serves on numerous
Federal agency and scientific advisory committees, participated
in international safety and health work through the ILO, the
OECD, and international trade union organizations.
Holly Shaw is an instructional technology teacher at E.M.
Stanton School, in Philadelphia, where she has taught for 20
years. In September 2002, Holly's husband, Scott Shaw, lost his
life while working for Armco Construction on a dredging project
in the Schuylkill River, in Philadelphia. Since the incident,
Holly has been active helping others who have been affected by
a workplace fatality. She is the founder and chairperson of the
Tristate--Family Support Group, which provides support to
families suffering from the loss of a family member to a work-
related injury. She's also active with United Support and
Memorial for Workplace Fatalities, where she travels and
advocates on behalf of families who have lost their loved one
to a workplace fatality.
Michael T. Brandt--Dr. Brandt is a certified industrial
hygienist and the president-elect of the American Industrial
Hygiene Association, with more than 30 years of professional
experience in risk management and business operations
management, serving in highly technical and challenging
leadership roles in the chemical industry, research and
development, manufacturing in the nuclear and high-hazard
sector. He currently serves as operations technical chief of
staff at Los Alamos National Laboratory.
And Ms. Kelli Heflin, regulatory safety manager at Scott's
Liquid Gold, a VPP STAR site. Kelli is very active in Region 8,
assisting OSHA at their information sessions and serving as an
SGE. I'm sorry, what is an SGE?
Ms. Heflin. SGE is a Special Government Employee. I have
been trained, in a special class----
The Chairman. Oh.
Ms. Heflin [continuing]. To assist OSHA on their VPP
audits.
The Chairman. There you go. Thank you.
She's also very active in the VPP Participants Association,
serving as Region 8 chairperson, as secretary on the National
Board of Directors. Started her safety career at Rocky Flats
Environment Technology Site, working in a research development
group that helped employees develop proactive decontamination
techniques prior to entering radioactive areas--or prior to
leaving radioactive areas. Either one, I suppose, right? Kelli
has a master's degree in environment policy management, and a
doctorate in safety management.
Welcome, to all of you. As said before, your statements
will be made a part of the record in their entirety. I would
appreciate it if you could each sum up, in about 5 minutes.
That would be great.
Ms. Seminario, please proceed.
STATEMENT OF PEG SEMINARIO, DIRECTOR OF SAFETY
AND HEALTH, AFL-CIO, BETHESDA, MD
Ms. Seminario. Thank you very much, Senator Harkin. I
appreciate the opportunity to testify today on making the
safety and health of workers a higher priority and improving
protections on the job.
Tomorrow, April 28, is Workers Memorial Day, a day unions
and others, here and around the globe, remember those who have
been killed, injured, and diseased on the job.
Nearly four decades after the job safety and health law was
passed, we find that the promise of safe jobs for American
workers is far from being fulfilled. And, without question,
while we've made great progress, there are too many workers
being killed, injured, and diseased on the job. We are reminded
of the terrible toll, by the recent tragedies in West Virginia,
the Tesoro Refinery in Washington State, and last week's
disaster off the Louisiana coast.
In 2008, there were 5,214 workers killed on the job. That's
an average of 14 workers every day. The vast majority of these
deaths could be prevented if protective safety and health
measures were followed. The fact is that, for too many
employers, the safety of workers is secondary, taking a
backseat to production. For some employers, there is a total
and blatant disregard for workers, and worker safety and other
worker protections are totally ignored.
My testimony today will focus on the adequacies of
protections under the Occupational Safety and Health law.
That's the law that governs the safety and health for the
majority of America's workers.
The OSH Act was enacted in 1970. It was one of the first
safety and health laws that was enacted. It was right after the
Coal Mine Safety law, in 1969, and part of a whole class of
safety and environmental laws. Virtually all the other safety
and health laws in this country--and environmental laws--have
been updated and strengthened since. OSHA has not. Except for
very, very small changes, the act today is exactly as it was
enacted--signed into law in 1970. The simple fact is that it's
out of date, and it is too weak to provide for incentives for
compliance, to deter violations, and to protect workers from
unnecessary injury and death.
Unlike under the Mine Safety and Health Act, there are no
regular inspections under the Occupational Safety and Health
Act, in that the oversight of workplaces is exceedingly rare.
Today, the AFL-CIO released our annual Death on the Job Report.
It's a report that looks at the state of safety and health in
the United States. What we find is that today there are
approximately 2,200 Federal and State OSHA inspectors. With
this level of resources, the Federal Government has the
capacity to inspect workplaces under ITS jurisdiction about
once every 137 years.
I think one thing that's important to note is that OSHA's
capacity is less today than it was in 1980. They had 450 more
inspectors in 1980 than they do 20 years later, even though the
workforce is 40 percent bigger. We aren't paying the kind of
priority, and giving safety and health the kind of emphasis, it
needs.
As we heard earlier, from Dr. David Michaels, the penalties
under the Occupational Safety and Health Act are low,
exceedingly low, particularly for a serious violation. We find
that not even the maximum penalties are hardly ever assessed.
The average serious penalty for an OSHA violation last year
under Federal OSHA was $965.
The penalties are appallingly weak, even in cases where
workers are killed. We did an analysis of OSHA fatality
inspections, and we found that, last year in the United States,
the median penalty--the typical penalty in a worker death was
$5,000. That's it, $5,000 when a worker was killed and that
these penalties vary widely from State to State. In Utah, it
was only $1,250. In your State, Senator Harkin, the median
penalty when a worker was killed was $3,000. So, these
penalties for deaths often are in very serious situations, from
trench cave-ins to lockout of hazardous equipment. They are
from very serious, well-recognized hazards.
If the civil penalties are weak, the criminal penalties are
even weaker under the OSH Act. The maximum criminal penalty for
worker death, for a willful violation, is 6 months in jail.
Very few of these are prosecuted. Since OSHA was enacted, only
79 cases have been prosecuted under the act, with defendants
serving a total of 89 months in jail. During this time, there
were 360,000 workplace fatalities. By comparison, under EPA and
environmental laws, there were 387 criminal enforcement cases
initiated, 250 defendants charged, resulting in 76 years of
jail time in just 1 year. In just 1 year. The comparison here--
there is a total weakness in the laws that are designed to
protect our workers.
It is clear--40 years after the enactment of the
Occupational Safety and Health law--that it is time to move
forward and to strengthen the protections that we provide
workers in this country. We must not only mourn the loss of
those who have died, but to take action to prevent these
tragedies from occurring.
I would urge and advocate that the committee strengthen the
Occupational Safety and Health Act, and start moving on this by
taking up the Protecting America's Workers Act, legislation
introduced by Senator Edward Kennedy before his death. This
legislation would address many of the core deficiencies in the
current OSHA law by extending coverage to workers who aren't
covered, strengthening civil and criminal penalties, and
providing workers stronger rights and antidiscrimination
protections.
So, I would just conclude and encourage the committee to
look carefully at the deficiencies in this law, consider the
testimony of those who are joining me today, and then move
forward and strengthen the Occupational Safety and Health Act
to give workers in this country the protection they deserve.
Thank you.
[The prepared statement of Ms. Seminario follows:]
Prepared Statement of Peg Seminario
Senator Harkin, Ranking Member Enzi, and other members of the
committee, my name is Peg Seminario. I am Safety and Health Director
for the AFL-CIO. I appreciate the opportunity to testify today on
making the safety and health of workers a higher priority and improving
protections on the job.
Tomorrow, April 28, is Workers Memorial Day--a day unions and
others here and around the globe remember those who have been killed,
injured and diseased on the job. Here in the United States, it also
marks the 39th anniversary of when the Occupational Safety and Health
Act went into effect.
Nearly four decades after the job safety law was passed we find
that the promise of safe jobs for American workers is far from being
fulfilled. Without question, progress has been made in improving
protections and in reducing job fatalities, injuries and illnesses. Too
many workers remain at serious risk of injury, illness or death. In the
past few weeks and months there have been a series of workplace
tragedies that have saddened and outraged us all--the coal mine
disaster at the Massey Energy Upper Big Branch mine in West Virginia
that killed 29 miners, an explosion a few days earlier at the Tesoro
Refinery in Washington State that killed seven workers, and the
explosion at the Kleen Energy Plant in Connecticut in February that
also claimed the lives of six workers. Last week there was a
catastrophic explosion that destroyed the Transocean oil rig off the
Louisiana coast. Seventeen workers are known to have been injured in
the blast, and eleven workers are still missing, with little hope of
finding them alive.
In 2008, 5,214 workers were killed on the job--an average of 14
workers every day--and an estimated 50,000 died from occupational
diseases. More than 4.6 million work-related injuries were reported,
this number understates the problem due to limitations in the data
collection and underreporting. The true toll of job injuries is two to
three times greater--about 9 to 14 million job injuries each year.
The vast majority of workplace deaths and injuries could be
prevented if protective safety and health measures were followed. The
fact is that for too many employers, the safety of workers is
secondary, taking a back seat to production. For some employers, there
is a total and blatant disregard for workers. Worker safety
requirements and other worker protections are totally ignored.
Today's hearing is examining the safety practices and protections
at mines and other dangerous workplaces. As you have heard from other
witnesses, clearly there were serious problems at the Massey mine and
in the Mine Safety and Health Administration's (MSHA) oversight and
enforcement that need to be examined and addressed. Action should be
taken to improve mine safety regulations, enforcement and legislation,
just as was done in 2006 following the series of disasters at Sago and
other mines.
My testimony today will focus on the adequacy of protections under
the Occupational Safety and Health Act, the law that governs safety and
health for the majority of America's workers. This job safety and
health law is out of date and too weak to provide incentives for
compliance, to deter violations or to protect workers from retaliation.
The Congress should act to strengthen the OSH Act to hold employers
responsible for protecting workers and accountable when they fail to do
so, to provide government the necessary authority and enforcement power
to get hazards corrected and deter future violations, and to give
workers and unions stronger rights and protections to have a voice in
safety and health on the job.
employers have a legal responsibility to protect workers--but
enforcement and penalties are too weak to create an incentive to
improve conditions and deter violations
The Occupational Safety and Health Act places the responsibility on
employers to protect workers from hazards and to comply with the law.
The law relies largely on the good faith of employers to address
hazards and improve conditions. For this system to work, it must be
backed up with strong and meaningful enforcement. At present, the
Occupational Safety and Health Act and the OSHA enforcement program
provide limited deterrence to employers who put workers in danger. OSHA
inspections and oversight of workplaces are exceedingly rare. There are
no mandatory inspections even for the most dangerous industries or
workplaces. In fiscal year 2009, there were approximately 2,200 Federal
and State OSHA inspectors combined. OSHA has the capacity and resources
to inspect workplaces on average once every 94 years--once every 137
years in the Federal OSHA States.
Over the years OSHA's oversight capacity was diminished, as the
number of inspectors declined at the same time the workforce increased.
The fiscal year 2010 appropriations provided for an increase in OSHA's
enforcement staff and an increase in funding for OSHA State plans, and
returned Federal enforcement staffing levels back to their fiscal year
2001 levels. Even with this recent increase, the number of Federal OSHA
enforcement staff today is 450 fewer than it was in fiscal year 1980,
while the size of the workforce is 40 percent larger than it was at
that time.
Since there is no regular oversight, strong enforcement when
workplaces are inspected and violations are found is even more
important. The penalties provided in the OSH Act are weak. Serious
violations of the law (those that pose a substantial probability of
death or serious physical harm to workers) are subject to a maximum
penalty of $7,000. Willful and repeated violations carry a maximum
penalty of $70,000 and willful violations a minimum of $5,000. These
penalties were last adjusted by the Congress in 1990 (the only time
they have 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.
The maximum civil penalties provided for under the OSH Act are
rarely assessed. Indeed, just the opposite is the case. In fiscal year
2009, the average penalty for a serious violation of the law was $965
for Federal OSHA and $781 for the State OSHA plans combined. Again this
is the average penalty for violations that pose a substantial
probability of death or serious physical harm. California had the
highest average penalty for serious violations and South Carolina had
the lowest. Both of these are State-Plan States. California amended its
OSHA law in 2000 to increase penalties, with the maximum penalty for a
serious violation in that State set at $25,000 compared to $7,000
maximum penalty under Federal OSHA and the other State plans.
For violations that are ``other'' than serious, which also carry a
statutory maximum under the OSH Act of $7,000, the average Federal OSHA
penalty was just $234. Clearly, for most employers these levels of
penalties are not sufficient to change employer behavior, improve
workplace conditions or deter future violations.
OSHA penalties for violations that are willful or repeated also
fall well below the maximum statutory penalties. For both willful and
repeat violations, the OSH Act provides a maximum penalty of $70,000
per violation. For violations that are willful, a $5,000 mandatory
minimum penalty is also prescribed. In fiscal year 2009, the average
Federal OSHA penalty for a willful violation was $34,271, and the
average willful penalty for State plans was $20,270. For repeat
violations, the average Federal OSHA penalty was only $3,871 and for
State plans the average was $1,757, a fraction of the statutory maximum
penalty for such violations.
Even in cases of worker fatalities, OSHA enforcement is appallingly
weak. In fiscal year 2009, the average total penalty in a fatality case
was just $7,668 for Federal and State OSHA plans combined, according to
OSHA inspection data. The median penalty--which reflects the mid-point
of the penalties assessed in fatality cases--is even lower, currently
$5,000 for both Federal OSHA and the State OSHA plans. These data, both
averages and median penalties, include enforcement cases that still are
under contest, and it is likely that after settlements and final
resolution these penalty levels will be much lower.
A state-by-state analysis of fatality investigations shows
penalties in cases involving worker deaths vary widely from State to
State. In fiscal year 2009, Utah had the lowest median penalty for
fatality investigations, with a paltry $1,250 in penalties assessed,
followed by Washington ($1,600) and Kentucky ($2,000). Minnesota had
the highest median penalty ($26,200), followed by New Hampshire
($17,000) and Colorado ($12,000).
What kinds of cases are resulting in such low penalties when
workers are killed? Many are for deaths from well-recognized hazards--
trench cave-ins, failure to lock-out dangerous equipment, and lack of
machine guarding. They include:
A January 2009 trench cave-in in Freyburg, OH. The victim
Andrew Keller was 22 years old. The company, Tumbusch Construction, was
cited for three serious violations and penalized $6,300. The penalties
were 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, TX, 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 3 serious violations with $3,000 in
penalties. The case was settled for $1,500.
A fatality in August 2009, in Lamar, SC. Andrea Taylor,
28, an employee of Affordable Electric was killed on the job. 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 reduced to $1,400.
In August 2009, at SMC, Inc. in Odessa, TX, a worker was caught in
the shaft of milling machine and killed. The company was cited for one
serious violation. The $2,500 proposed penalty was reduced at
settlement to $2,000.
What kind of message does it send to employers, workers and family
members, that the death of a worker caused by a serious or even
repeated violation of the law warrants only a penalty of a few thousand
dollars? It tells them that there is little value placed on the lives
of workers in this country and that there are no serious consequences
for violating the law.
the osh act and osha enforcement policies discount penalties for
violations even in cases of worker death
Why are OSHA penalties for workplace fatalities and job safety
violations so low? The problems are largely systemic and start with the
OSH Act itself. The act sets low maximum penalty levels, particularly
for serious violations, which carry a maximum of $7,000, clearly not a
deterrent for many companies. For example, in 2008, a Walmart store
employee in Valley Stream, NY was trampled to death, when the company
failed to provide for crowd control at a post-Thanksgiving sale. The
company was cited for one serious violation and penalized $7,000, the
maximum amount for a serious violation.
For a willful or repeat violation the maximum penalty is $70,000.
In assessing penalties, under the act, employer size, good faith,
history, and gravity of the violation are to be taken into
consideration.
Throughout its history, OSHA procedures for considering these four
factors have resulted in proposed penalties that are substantially
below the maximum penalties. The agency starts with a gravity-based
penalty, which is then adjusted by specified percentages for each of
the other three factors (except in certain circumstances). For high
gravity serious violations, the current OSHA penalty policy starts with
a base of $5,000, not $7,000 to determine the penalty. This is true
even for fatality cases, which under OSHA policy are supposed to be
classified as high-gravity. In fatality cases, no reductions are
allowed for good faith, but penalty reductions are still allowed for
employer size and history. These reductions vary by the size of
employer, with smaller employers eligible for much larger reductions.
In many cases there is an automatic 30 to 90 percent discount in
penalties, regardless of the gravity of the violations that are found.
OSHA's general policy is to group multiple instances of the same
violation into one citation, with one penalty. For example, if five
workers are injured due to an employer's failure to provide guarding
for machines, the employer will only be cited once for the violation,
even though five workers were hurt. This policy further minimizes the
level of overall penalties in enforcement cases, including fatalities.
The initial citations and penalties in OSHA enforcement cases, weak
to begin with, are reduced even further in the resolution of cases. Due
to limited staff and resources, OSHA area directors and Department of
Labor solicitors are under tremendous pressure to settle cases and
avoid time consuming and costly litigation. Moreover, under the OSH Act
there is no requirement for employers to abate violations while a
challenge to a citation or penalty is pending. Thus to secure abatement
of the hazards, OSHA has a great incentive to settle cases. The result
of these settlements is generally a large reduction in proposed
penalties--often 30-50 percent.
Last Friday OSHA announced two major enforcement initiatives: the
Severe Violators Enforcement Program (SVEP) and a revamping of the
formulas for assessing penalties for violations. The SVEP program calls
for enhanced follow-up and enforcement for the most persistent and
egregious violators who have a history of willful, repeated or failure
to abate violations, particularly related to fatalities, major
occupational safety and health hazards or underreporting of injuries or
illnesses. The new penalty policy which will become effective over the
next several months will result in an increase in the average penalty
for serious violations from the current average of $1,000 to an average
of $3,000 or $4,000, according to OSHA.
These enhancements in OSHA's enforcement program are welcome. But
they still do not change the fact that there are significant
limitations in the OSH Act itself--including a maximum penalty of
$7,000 for a serious violation and no authority to require abatement of
serious hazards while a contest of a citation is pending--that can only
be addressed by changes in the law.
osha criminal penalties are weak and do not hold employers accountable
If the civil penalties under the Occupational Safety and Health Act
provide little deterrence or incentive for employers, the criminal
penalties are even weaker. Under the Occupational Safety and Health
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 is 6 months in jail, making these crimes
a misdemeanor.
The criminal penalty provisions of the OSH Act have never been
updated since the law was enacted in 1970 and are weaker than virtually
all the other Federal safety and environmental laws, which have been
strengthened over the years to provide for much tougher criminal
penalties. 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. Again, there is no prerequisite
for a death or serious injury to occur.
Since 1977 the Mine Safety and Health Act has provided for criminal
penalties for willful violations of safety and health standards and
knowing violations for failure to comply with orders or final decisions
issued under the law. Unlike the OSH Act, these criminal penalties are
not limited to cases involving a worker's death. But like the OSH Act
for the first offense, the penalty is only a misdemeanor with up to 1
year in jail.
The weak criminal penalties under the OSH Act result in relatively
few prosecutions. With limited resources, Federal prosecutors are not
willing or able to devote significant time or energy to these cases.
According to information provided by the Department of Labor, since the
passage of the act in 1970, only 79 cases have been prosecuted under
the act, with defendants serving a total of 89 months in jail. During
this time, there were more than 360,000 workplace fatalities according
to National Safety Council and BLS data, about 20 percent of which were
investigated by Federal OSHA. In fiscal year 2009, according to
information provided by OSHA, there were 11 cases referred by DOL for
possible criminal prosecution. The Department of Justice (DOJ) has
declined to prosecute 2 of these cases; the other 9 are still under
review by DOJ.
The bottom line is that there is no real accountability for
employers or corporate officials who knowingly violate the law and put
workers in danger
By comparison, according to EPA in fiscal year 2009 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--more cases, fines and jail time in 1 year than
during OSHA's entire history. The aggressive use of criminal penalties
for enforcement of environmental laws and the real potential for jail
time for corporate officials, serve as a powerful deterrent to
environmental violators.
In recent years the Justice Department launched a new Worker
Endangerment Initiative that focuses on companies that put workers in
danger while violating environmental laws. The Justice Department
prosecutes these employers using the much tougher criminal provisions
of environmental statutes. Under the initiative, the Justice Department
has prosecuted employers such as McWane, Inc. a major manufacturer of
cast iron pipe, responsible for the deaths of several workers; Motiva
Enterprises, which negligently endangered workers in an explosion that
killed one worker, injured eight others and caused major environmental
releases of sulfuric acid; and British Petroleum for a 2005 explosion
at a Texas refinery that killed 15 workers.
These prosecutions have led to major criminal penalties for
violations of environmental laws, but at the same time underscore the
weaknesses in the enforcement provisions of the Occupational Safety and
Health Act.
In the Motiva case, the company pleaded guilty to endangering its
workers under the Clean Water Act and was ordered to pay a $10 million
fine. The company also paid more than $12 million in civil penalties
for environmental violations. In contrast, in 2002 following the
explosion, OSHA initially cited the company for three serious and two
willful violations with proposed penalties of $161,000. As a result of
a formal settlement, the original serious and willful citations were
dropped and replaced with ``unclassified'' citations carrying $175,000
in penalties, greatly undermining any possibility of criminal
enforcement under the OSH Act.
In the BP Texas City refinery disaster, where 15 workers were
killed and another 170 injured in 2005, under a plea agreement, the
company pleaded guilty to a felony violation of the Clean Air Act and
agreed to pay $50 million in penalties and serve a 3-year probation. BP
also agreed to pay $100 million in criminal penalties for manipulating
the propane market. BP paid no criminal penalties under the OSH Act,
even though 15 workers died and OSHA issued hundreds of civil citations
for willful, egregious violations of the law. Under the OSH Act, even
if BP had paid criminal penalties, it would have been a misdemeanor,
not a felony. Instead, BP paid $21 million in civil penalties in a
settlement reached with OSHA. These civil penalties issued by OSHA were
not sufficient to change BP's practices. In October 2009, OSHA found
that BP had failed to abate the hazardous conditions that caused the
2005 explosion. OSHA issued 270 notices of failure to abate previous
hazards, cited the company for 439 new willful violations and proposed
$87.4 million in fines--the largest in OSHA's history. Under the OSH
Act, OSHA has no authority to take criminal action against BP for these
latest violations.
worker and union rights under the osh act are limited and protections
against employer retaliation are weak
Workers and unions play an important role in improving conditions
in the Nation's workplaces. Workers have first-hand knowledge of
conditions that create hazards and the changes that are needed to
address them. The importance of worker and union participation in
worksite safety and health programs and activities is widely recognized
and recommended. The rights workers have under the OSH Act to be
involved are very limited. At present there is no Federal OSHA
mandatory safety and health program standard that requires that workers
and their representatives be involved in efforts to identify and
correct workplace hazards, although a number of State OSHA plans have
standards that provide for worker and union participation. Many unions
have secured these rights through their collective bargaining
agreements.
In the OSHA enforcement process, workers and unions have the right
to file a complaint, receive an inspection, and to participate in the
OSHA inspection by exercising the right to walk around or talk
privately to inspectors. Once the inspection is completed, workers' and
unions' rights are quite limited. They can contest the abatement date,
but not the proposed penalties or classification of violations, and
only have very limited rights to object to settlements that are reached
between OSHA and employers. The result often is weak enforcement
actions and settlements by OSHA.
Many workers simply are in no position to exercise any safety and
health rights, fearing employer retaliation if they raise safety and
health concerns or even report injuries. While the OSH Act includes
provisions under section 11(c) that prohibit employers from
discriminating against workers for exercising their rights, the
measures are so weak that in practice they provide little protection.
Section 11(c) requires that all discrimination complaints be filed
within 30 days which gives little time for action. Cases can only be
prosecuted by the Secretary of Labor, and must be brought in Federal
court. There are no provisions for preliminary reinstatement while
employer challenges are pending.
The anti-discrimination provisions of the OSH Act were adopted in
1970. Since that time more than two dozen other laws that provide anti-
discrimination or whistleblower protections have been enacted, all of
which provide stronger protections and more effective enforcement
mechanisms. Many of these (16 laws) are enforced by OSHA under
agreements with other agencies.
These include the Surface Transportation Assistance Act, the
Federal Railroad Safety Act, the Toxic Substances Control Act and the
Sarbannes-Oxley Act all of which provide for administrative process for
an individual to seek review of the Secretary's decision, including the
right of a complainant to seek review in the case where the Secretary
finds no violation. A number of these statutes provide individuals the
right to pursue the case on their own if the Secretary fails to act.
Some of these statutes provide for preliminary re-instatement of the
individual based on the initial investigation, so a worker is not
adversely affected while the case and possible employer challenges are
being resolved.
The OSHA whistleblower program is a small program with a small
staff. In fiscal year 2009, the program had 73 staff members
responsible for investigating complaints in the field. (For fiscal year
2011, the President's Budget requests an additional 25 investigators).
As noted above, in addition to administering section 11(c) of OSH Act,
the office investigates discrimination complaints under 16 other
statutes, under agreements with other agencies. As the GAO noted in a
2009 report on the whistleblower program, even though the number of
statutes the office is responsible for enforcing has grown, the number
of staff has remained the same, making it more difficult for the office
to meet its responsibilities.
According to data provided by OSHA, in fiscal year 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. Of these cases, 834
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 re-hearing.
Of the cases that are found meritorious by investigators, few are
actually litigated by the Solicitor of Labor (SOL). In fiscal year
2009, four of the cases recommended went to court. Since fiscal year
1996, out of the 467 cases referred by OSHA to SOL, only 32 lawsuits in
11(c) cases were filed.
The outcomes of the cases brought under the other statutes, (901
cases in fiscal year 2009), is similar. However, under most of these
other statutes, unlike under section 11(c), the individual has the
right to pursue the case on their own or to seek independent review of
the Secretary's decision in an administrative process or in court.
Under the current provisions of the OSH Act, an individual complainant
has no rights independent of the Secretary, and cannot pursue the case
independently or seek review outside the agency.
Workers who raise safety and health concerns or report injuries
should be protected against employer retaliation. The best protection
comes by having a collective bargaining agreement and union
representation. For those who are not represented, protection under the
Occupational Safety and Health Act is critical. The Congress should
strengthen the OSH Act to provide workers the same kind of rights and
protection against discrimination that have been provided under the
Surface Transportation Assistance Act, the Mine Safety and Health Act
and other laws.
congress should act to strengthen the job safety laws
The recent disasters at the Massey Upper Big Branch coal mine,
Tesoro refinery, Kleen Energy plant and Transocean oil rig have
highlighted the serious dangers too many workers face on the job and
the importance of strong safety and health protections. While each of
these tragedies is still under investigation, we know that in these
four cases there were catastrophic failures and as a result 42 men and
women are dead, and another 11 men have likely perished. We also know
that these kinds of tragedies are not isolated or new, as evidenced by
the Imperial Sugar Refinery fire in 2008 that killed 14 workers, the
2005 BP Texas City Refinery blast that killed 15, the dozens of miners
killed in 2006 and 2007 at the Sago mine, the Crandall Canyon mine and
other mines, and the daily toll of 14 workers who lose their lives on
the job each day.
As a nation we must not only mourn their loss, but take action to
prevent these tragedies from continuing to occur.
This Occupational Safety and Health Act is out of date and too weak
to provide meaningful incentives for employers to address job hazards
or to deter violations. The levels of penalties for serious violations,
even in cases of worker deaths are little more than a slap on the
wrist, and there is no accountability for employers who put workers in
grave danger.
The Congress must act.
This committee should start by taking up the Protecting America's
Workers Act (PAWA--S. 1580) legislation to strengthen the Occupational
Safety and Health Act. The bill was introduced by Senator Harry Reid on
behalf of the late Senator Edward Kennedy last August with the co-
sponsorship of many on this committee.
PAWA would address many of the core deficiencies in the current OSH
Act. It would extend coverage to public sector and other workers who
lack protection. It would increase civil and criminal penalties to
provide more meaningful penalties for those who violate the law and
provide a greater deterrent to prevent future violations that put
workers in danger. It would strengthen 11(c) anti-retaliation
protections and expand workers', unions' and victims' rights in the
enforcement process.
Specifically, on enforcement, the bill changes the law to require
that employers abate serious hazards even if they contest citations,
similar to the requirement in the Mine Safety and Health Act. Currently
under the OSH Act, there is no requirement to correct violations until
a contest is resolved, which can sometimes take years. The legislation
would update the base penalties amounts in the OSH Act to adjust for
inflationary increases since 1990 when the penalties were last raised.
The bill would increase the penalties for serious violations to $12,000
from $7,000 and those for repeat and willful violations to $120,000
from $70,000, and provide for inflationary adjustments in the future.
To ensure that penalties for violations that result in worker
deaths are more than a slap on the wrist, the bill sets higher
penalties for such violations. For serious violations that result in a
worker death a maximum penalty of $50,000 and a minimum penalty of
$20,000 is provided, with a minimum of $10,000 for smaller employers.
For willful and repeat violations related to worker deaths, a maximum
penalty of $250,000 and minimum of $50,000 is provided, with a minimum
of $25,000 for small employers.
PAWA also properly strengthens the criminal provisions of the
Occupational Safety and Health Act, which have not been modified since
the act's passage in 1970. The bill would make criminal violations a
felony, instead of a misdemeanor as is now the case, making it more
worthwhile for prosecutors to pursue these violations. PAWA also
expands the criminal provisions to cases where violations cause serious
injury to workers. It expands the criminal provisions to apply to all
responsible corporate officers, not just the top officer or corporation
itself. These enhanced criminal provisions will provide a greater
incentive for management officials to exercise management
responsibility over job safety and health, and give OSHA and the
Department of Justice the tools needed to prosecute corporations and
officials who cause the injury or death of workers.
The legislation would strengthen the OSH Act's whistleblower
provisions to protect workers from retaliation for raising job safety
and health concerns, exercising their rights or reporting injuries, by
bringing the law into conformity with other whistleblower laws. It
extends the time period for filing complaints, provides an
administrative process for review, and gives the complainant the right
to proceed with a case if the Secretary fails to act and to seek an
administrative review of the Secretary's decision. The legislation also
codifies the right of a worker to refuse to perform work that poses a
serious danger and provides for reinstatement of a worker who has been
terminated, while legal challenges are pending.
The legislation also expands the rights of workers, unions and
victims to be involved in the enforcement process. It gives workers and
unions the right to contest proposed penalties and the characterization
of violations, not just the period for abatement, and the right to seek
review of settlements reached by employers and the government. Victims
of workplace injuries and the family members and representatives of
workers killed or incapacitated are given the right to receive copies
of citations and documents, to meet with the Secretary or
representative of the Secretary, to be informed of contests and
settlements and to have the opportunity to make a statement before the
parties before any settlement is finalized.
This committee and the Congress cannot bring back the 29 miners who
died in West Virginia, the seven workers who died in the Tesoro
Refinery explosion in Washington, the six workers killed at the Kleen
Energy plant in Connecticut, and the thousands of others who lost their
lives on the job in just the last year. The committee and the Congress
have the responsibility and the duty to do everything in their power to
prevent similar tragedies and unnecessary deaths from occurring in the
future.
It has been four decades since the Congress enacted the
Occupational Safety and Health Act. It's time for the Congress and the
Nation to make the protection of America's workers a high priority.
It's time for the Congress to renew the commitment to safe jobs for
American workers and to strengthen the job safety and health law by
passing the Protecting America's Workers Act.
Federal OSHA and State OSHA Plan Inspection/Enforcement Activity, Fiscal
Year 2009
------------------------------------------------------------------------
Federal State Plan
Inspections OSHA 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 ($)................. 1,086 462
Willful..................................... 34,271 20,270
Repeat...................................... 3,871 1,757
Serious..................................... 965 781
Unclassified................................ 12,800 9,393
Other....................................... 234 103
FTA......................................... 8,460 4,251
Percent Inspections with Citations Contested.. 17.1 13.1
percent percent
------------------------------------------------------------------------
Source: OSHA IMIS Inspection Reports, Fiscal Year 2009
State By State OSHA Fatality Investigations and Penalties, Fiscal Year 2009
--------------------------------------------------------------------------------------------------------------------------------------------------------
No. of OSHA
Fatality Average Total Median Median
Investigations Total Penalty Per Initial Current
State Conducted, Penalties \1\ Investigation Penalty \2\ Penalty \2\ State or Federal Program \3\
Fiscal Year ($) ($) ($) ($)
2009 \1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama...................................... 20 298,010 14,901 12,250 6,900 Federal
Alaska....................................... 5 21,900 4,380 4,200 2,975 State
Arizona...................................... 17 164,995 9,706 16,500 10,500 State
Arkansas..................................... 15 166,675 11,112 5,500 5,500 Federal
California................................... 160 1,640,385 10,253 11,655 9,260 State
Colorado..................................... 11 278,400 25,309 15,000 12,000 Federal
Connecticut.................................. 8 42,475 5,309 10,000 6,300 Federal
Delaware..................................... 3 42,040 14,013 4,000 2,520 Federal
Florida...................................... 81 643,166 7,940 7,500 6,400 Federal
Georgia...................................... 43 376,205 8,749 11,300 7,000 Federal
Hawaii....................................... 6 28,625 4,771 2,938 2,938 State
Idaho........................................ 5 54,350 10,870 7,500 7,500 Federal
Illinois..................................... 52 129,315 2,487 4,625 4,500 Federal
Indiana...................................... 42 172,913 4,117 6,000 5,250 State
Iowa......................................... 21 246,900 11,757 5,175 3,000 State
Kansas....................................... 12 178,550 14,879 7,400 7,000 Federal
Kentucky..................................... 31 125,275 4,041 3,250 2,000 State
Louisiana.................................... 48 99,215 2,067 3,625 2,750 Federal
Maine........................................ 6 14,160 2,360 3,750 2,500 Federal
Maryland..................................... 20 90,676 4,534 6,763 4,073 State
Massachusetts................................ 23 148,200 6,444 11,750 7,000 Federal
Michigan..................................... 28 142,090 5,075 6,300 5,400 State
Minnesota.................................... 14 260,600 18,614 26,600 26,200 State
Mississippi.................................. 14 106,360 7,597 10,150 6,780 Federal
Missouri..................................... 20 117,125 5,856 8,838 5,250 Federal
Montana...................................... 5 13,000 2,600 2,500 2,500 Federal
Nebraska..................................... 16 312,737 19,546 12,550 7,875 Federal
Nevada....................................... 11 93,100 8,464 9,100 5,950 State
New Hampshire................................ 3 3,500 1,167 17,000 17,000 Federal
New Jersey................................... 39 201,567 5,168 3,000 3,000 Federal
New Mexico................................... 6 23,200 3,867 7,800 7,800 State
New York..................................... 53 625,632 11,804 5,400 4,800 Federal
North Carolina............................... 54 171,245 3,171 4,650 4,063 State
North Dakota................................. 4 27,962 6,991 5,825 5,063 Federal
Ohio......................................... 39 134,895 3,459 7,000 5,175 Federal
Oklahoma..................................... 25 281,150 11,246 10,000 6,000 Federal
Oregon....................................... 25 79,250 3,170 5,000 5,000 State
Pennsylvania................................. 43 262,315 6,100 5,850 4,888 Federal
Rhode Island................................. 4 7,900 1,975 11,025 10,075 Federal
South Carolina............................... 17 13,745 809 3,000 2,375 State
South Dakota................................. 3 7,605 2,535 4,200 2,730 Federal
Tennessee.................................... 42 195,920 4,665 5,400 5,400 State
Texas........................................ 167 1,562,851 9,358 6,000 5,000 Federal
Utah......................................... 14 21,600 1,543 2,750 1,250 State
Vermont...................................... 2 5,250 2,625 5,250 5,250 State
Virginia..................................... 36 678,652 18,851 14,000 10,000 State
Washington................................... 32 77,625 2,426 1,600 1,600 State
West Virginia................................ 10 242,880 24,288 5,400 4,450 Federal
Wisconsin.................................... 23 110,045 4,785 5,550 3,820 Federal
Wyoming...................................... 8 33,156 4,145 4,625 4,250 State
National Median State-Plan States............ 6,338 5,000
National Median Federal States............... 6,750 5,000
Total or National Average \4\................ 1,450 11,118,267 7,668
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ OSHA IMIS Fatality Inspection Reports, Fiscal Year 2009. Report was issued on January 7, 2010.
\2\ Median initial and median current penalties on Fiscal Year 2009 fatality investigations provided by OSHA on April 14, 2010.
\3\ Under the OSH Act, 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.
The Chairman. Thank you very much, Ms. Seminario.
Ms. Shaw, welcome to the committee. Please proceed.
STATEMENT OF HOLLY SHAW, PHILADELPHIA, PA
Ms. Shaw. Thank you, Chairman Harkin and Ranking Member
Enzi. Thank you for inviting me and allowing me the honor of
speaking to you.
I am here because I lost my husband to a workplace
accident. He was killed on the job. He was too young, and it
should not have happened.
Scott Shaw celebrated his 38th birthday on July 13, 2002.
Scott and I celebrated our ninth wedding anniversary on August
14, 2002. Our son, Nicholas, celebrated his third birthday on
September 12, 2002. His daddy wasn't there. His daddy died 5
days before, on September 7, when he fell into the Schuylkill
River.
Scott fell off the barges he was working on, helping to
dredge the river. There were only two other employees on both
the barges at the time. A coworker of Scott's told me that
Scott was walking from one barge to another to get oil. He was
missed after several minutes, and his hat was discovered
floating in the water. Scott's body was found, 2 days later.
Scott wasn't wearing a life jacket that day. He wasn't
required by his company to wear one. No one from the company
checked to make sure their workers had life jackets. There was
no life preservers on the barge. When Scott walked from one
barge to another, he navigated old tires that were attached
between the barges. They were uneven and not sturdy. The barges
themselves were not the same height, so the tires were fastened
at an acute angle. This is how the employees traveled between
the barges. No one saw Scott go into the water. I like to think
he hit his head and didn't know what happened. He was 6 foot 3,
he was handsome, he was strong, and he was an excellent
swimmer.
This was not the first time Scott had fallen off of the
barge. I can remember two times that Scott came home, soaking
wet, complaining he'd fallen in. The company should have known
then there was a problem.
Scott's death was needless. The company Scott was working
for, Armco Construction of Philadelphia, neglected to follow
safety regulations. OSHA completed an investigation into
Scott's death, and found the company had committed four serious
violations, and they were fined $4,950.
The first violation was committed when the employees
weren't checked and confirmed that they were wearing life
jackets. For this, his company was fined $2,100.
The second violation was found because the company did not
have life preservers on the barge. Armco Construction, Scott's
company, was fined $750 for this violation.
The third violation was for the way the barges were hooked
together. Again, this was termed a ``serious violation.''
Again, the fine was only $1,050.
The last violation, another serious one, was because of the
toxic fumes that the employees were breathing when they put the
crane away. Armco was fined $1,050 for this.
OSHA terms these fines ``citations.'' I call it a travesty.
Weeks Marine, the company that Armco leased the barges
from, was not investigated. They claimed they did not know how
the barges would be attached. They claimed they were not
responsible for the barges after they were leased.
The U.S. District Court for the Eastern District of
Pennsylvania found, in a ruling made on March 31, 2006, that
Weeks Marine did know that the barges did not have a means of
ingress and egress. Yet, when leased to companies, their barges
were not equipped with a gangway or a ladder.
Weeks Marine resurfaced in controversy again in 2009. They
subcontracted barges to Kosnac Tugs. Staten Island workers from
Local 333, United Marine Division, protested by striking
against Kosnac Tugs. One of the issues that was being protested
was the unsafe practice of attaching barges. Again, Weeks
Marine denied responsibility. The barges were attached
haphazardly. Barges were tied together. Again, the only way to
go from one barge to another was either jumping from barge to
barge or navigating across makeshift, unsturdy platforms. A
deckhand was crushed to death between two barges. Another
family suffers because of the same negligence.
I am here today to personalize the fact that a worker's
life is worth more than the fines that OSHA places on these
companies that are at fault. Scott and I have two sons, who are
now 13 and 10 years old. Ryan, my 13-year-old, doesn't remember
a lot about his dad. He saw a therapist, weekly, for a couple
of years because of grief issues. He's entering high school
next year, and was accepted to a magnet high school, a great
honor. His dad isn't here to celebrate with me. Nicholas only
remembers when his dad would tickle him and read to him. Ryan
and I tell him stories about his father, so he knows his dad
loved him very much.
My sons are without a father. I am without a husband. We
will never sit together and watch our sons graduate from high
school and then college. I will never feel my husband's arms
around me again. I will never again be able to hear his voice.
According to the fines OSHA levied on Scott's company,
Scott's life was worth $4,950. The company owner was not
prosecuted. If he had been charged criminally, he would have
been convicted of a misdemeanor. That's it. Not a felony. He
could walk away and live his life.
My husband didn't walk away. Scott left behind a wife,
three sons--two sons from our marriage, and one from a previous
marriage--two sisters, one brother, a mother, and many family
members and friends who loved him tremendously.
We are here today to talk about the process of fining
companies, especially repeat violators, by OSHA. I am still,
after almost 8 years, appalled at the paltry fines that were
levied against Armco, Scott's company. They should have had to
pay as dearly as I did for their ongoing neglect of workers'
safety. They should be criminally prosecuted, if possible.
Not only did they knowingly put their workers in danger,
but they let their company insurance lapse, so there was no
insurance on Scott when he was killed. This was a conscious
action on the part of the company.
The company that Armco leased the barges from, Weeks
Marine, claimed that they did not know how the barges would be
fastened together, and that they were not responsible. No
action was taken against them.
As I said earlier, the Staten Island shipyard workers went
on strike last year. Not because of low wages. Not because of
health insurance. They went on strike because Kosnac Tugs and
Weeks Marine were knowingly exposing their workers to unsafe
practices, including how they fastened barges together.
I believe it's imperative that a message is sent that a
worker's life is worth more than a couple of dollars. Companies
that do not practice safety precautions should be fined highly,
so it sends a message. A worker's life is invaluable, and
companies that disregard worker safety should be sent to
prison. They must be punished.
I also mentioned, that Armco was fined $4,950 for four
serious violations. One day, 2 years after Scott's death,
searching for information on the OSHA site, I discovered that
Armco was given the opportunity to plead down the fines. They
only had to pay $4,000 for Scott's death. I was never notified
that they were granted this privilege. I was never notified
about the informal hearing that occurred. I was never given the
opportunity to talk to OSHA before this plea deal was made with
the company. I was never asked if I knew anything that would
help the initial OSHA investigation.
I am pleased that OSHA announced on April 22, 2010, a new
system of fining companies. The fines are being raised, and
criminal charges can be filed against repeat offenders. There
are too many repeat offenders.
My situation with Armco Construction and Weeks Marine is
not unique. Jeffrey Davis was 50 years old when he was killed
in an explosion at the Motiva Enterprise LLC Refinery in
Delaware City, DE. There was a history of leaks in the tanks of
sulfuric acid. These leaks were never addressed, and were one
of the catalysts to the horrendous explosion in 2001. Jeffrey's
body was never found, but his boots were. Eight other workers
were injured.
Also, the recent disaster at the Upper Big Branch mine in
West Virginia, run by Massey Energy, has brought the subject of
dodging violations, deliberately hiding unsafe workplaces, and
putting greed before the lives of the workers to the forefront
of current news, to the attention of the public. Massey has a
proven history of unsafe workplaces, yet has not been held
accountable. Twenty-nine hardworking men lost their lives
because of this greed. Twenty-nine men's families suffer
needlessly because of this greed. I am in a place to know that
the suffering, the grief does not go away. Neither does the
anger.
The Chairman. Could you skip to your last paragraph?
Ms. Shaw. Yes. Sure. Not a problem.
As an elementary schoolteacher and as a parent, I know that
it is important that a child understand there are consequences
to their actions, and they must accept responsibility for what
they have done. Adults must face their responsibility, must be
held accountable for their actions.
Please don't let another family suffer as we have. The more
that companies are actually punished, the more they will
realize they must practice workplace safety and must protect
their workers.
Thank you for your time.
[The prepared statement of Ms. Shaw follows:]
Prepared Statement of Holly Shaw
summary
My husband, Scott Shaw, was killed while working for Armco
Construction. He fell off of a barge into the Schuylkill River on
September 7, 2002. He left behind a family who loved him dearly.
He fell off one of the barges he was working on, helping
to dredge the river.
Scott was walking from one barge to another to get oil. He
was missed after several minutes, and his hat was discovered floating
in the water. His body was found 2 days later.
Armco Construction did not guarantee their workers' safety.
Armco Construction of Philadelphia, neglected to follow
safety regulations. OSHA completed an investigation into Scott's death,
and found the company had committed 4 serious violations, and they were
fined $4,950.
1st Violation: employees weren't checked and
confirmed that they were wearing life jackets. Fine: $2,100.
2d Violation: company did not have life preservers on
the barge. Fine: $750.
3d Violation: the way the barges were hooked
together. Fine: $1,050.
4th Violation: toxic fumes that the employees were
breathing when they put the crane away. Fine: $1,050.
Weeks Marine, the company that Armco leased the barges from, was
not investigated.
Their claims:
they did not know how the barges would be attached;
were not responsible for the barges after they were
leased; and
the U.S. District Court for the Eastern District of
PA found, March 31, 2006, that Weeks did know and did not
provide means of navigating between barges (ladder/gangway).
Repeat offender:
Leased barges to Kosnac Tugs.
Also were fastened together in an unsafe manner.
A worker's life is worth more than the fines that OSHA places on
these companies that are at fault.
Process of fining companies, especially repeat violators, by OSHA:
A message is sent that a worker's life is worth more than
a couple of dollars. Companies that do not practice safety precautions
should be fined highly.
A worker's life is invaluable, and companies that
disregard workers safety should be sent to prison.
There are too many repeat offenders.
My situation with Armco Construction and Weeks Marine is not
unique.
How valuable family members can be to OSHA's investigation process:
The Protecting America's Workers Act is a powerful tool:
to allow families to have a say in investigations;
to fight for safe workplaces; and
to enforce stiffer penalties against offending
companies, and especially the repeat violators.
Every family should know that their loved one is protected at work.
Adults must face their responsibility, and must be held accountable
for their actions.
The more that companies are actually punished, the more they
realize they must practice workplace safety, and must protect their
workers.
______
Chairman Harkin, Ranking Member Enzi, and distinguished members of
the committee, thank you for inviting me and allowing me the honor of
speaking to you. I am here because I lost my husband to a workplace
accident. He was killed on the job. He was too young, and it should not
have happened.
Scott Shaw celebrated his 38th birthday on July 13, 2002. Scott and
I celebrated our 9th wedding anniversary on August 14, 2002. Our son,
Nicholas, celebrated his 3d birthday on September 12, 2002. His Daddy
wasn't there. His Daddy died 5 days before on September 7, when he fell
into the Schuylkill River. Scott fell off the barges he was working on,
helping to dredge the river. There were only two other employees on
both the barges at the time. A co-worker of Scott's told me that Scott
was walking from one barge to another to get oil. He was missed after
several minutes, and his hat was discovered floating in the water.
Scott's body was found 2 days later.
Scott wasn't wearing a life jacket that day. He wasn't required by
his company to wear one. No one from the company checked to make sure
their workers had life jackets. There were no life preservers on the
barge. When Scott walked from one barge to another, he navigated old
tires that were attached between the barges. They were uneven and not
sturdy. The barges themselves were not the same height, so the tires
were fastened at an acute angle. This is how the employees traveled
between the barges. No one saw Scott go in the water. I like to think
he hit his head and didn't know what happened. He was 63", handsome,
strong, and was an excellent swimmer.
This was not the first time Scott had fallen off of the barge. I
can remember two times that Scott came home soaking wet, complaining
that he had fallen in. The company should have known then that there
was a problem.
Scott's death was needless. The company Scott was working for,
Armco Construction of Philadelphia, neglected to follow safety
regulations. OSHA completed an investigation into Scott's death, and
found the company had committed four serious violations, and they were
fined $4,950.
The first violation was committed when the employees weren't
checked and confirmed that they were wearing life jackets. For this,
his company was fined $2,100. The second violation was found because
the company did not have life preservers on the barge. Armco
Construction, Scott's company, was fined $750 for this violation. The
third violation was for the way the barges were hooked together. Again,
this was termed a ``serious'' violation. Again, the fine was only
$1,050. The last violation, another ``serious'' one, was because of the
toxic fumes that the employees were breathing when they put the crane
away. Armco was fined $1,050 for this. OSHA terms these fines
``citations.'' I call it a travesty.
Weeks Marine, the company that Armco leased the barges from, was
not investigated. They claimed they did not know how the barges would
be attached. They claimed they were not responsible for the barges
after they were leased. The U.S. District Court for the Eastern
District of Pennsylvania found, in a ruling made on March 31, 2006,
that Weeks Marine did know that the barges did not have a means of
ingress and egress. Yet, when leased to companies, their barges were
not equipped with a gangway or a ladder.
Weeks Marine resurfaced in controversy again in 2009. They
subcontracted barges to Kosnac Tugs. Staten Island workers from Local
333, United Marine Division, protested by striking against Kosnac Tugs.
One of the issues that was being protested was the unsafe practice of
attaching barges. Again, Weeks Marine denied responsibility, but the
barges were attached haphazardly. Barges were tied together, and again,
the only way to go from one barge to another was either jumping from
barge to barge, or navigating across makeshift, unsturdy platforms. A
deckhand was crushed to death between two barges. Another family
suffers because of the same negligence.
I am here today to personalize the fact that a worker's life is
worth more than the fines that OSHA places on these companies that are
at fault. Scott and I have two sons, who are now 13 and 10 years old.
Ryan, my 13-year-old, doesn't remember a lot about his dad. He saw a
therapist weekly for a couple of years, because of grief issues. He's
entering high school next year, and was accepted to a magnet high
school, a great honor. His dad isn't here to celebrate with me.
Nicholas only remembers when his dad would tickle him, and read to him.
Ryan and I tell him stories about his father, so he knows his dad loved
him very much. My sons are without a father. I am without a husband. We
will never sit together and watch our sons graduate from high school,
and then college. I will never feel my husband's arms around me again.
I will never again be able to hear his voice.
According to the fines OSHA levied on Scott's company, Scott's life
was worth $4,950. The company owner was not prosecuted. If he had been
charged criminally, he would have been convicted of a misdemeanor.
That's it. Not a felony. He could walk away, and live his life. My
husband didn't walk away. Scott left behind a wife, three sons (two
sons from our marriage, and one from a previous marriage, who
unfortunately was killed 3 years ago at the age of 21), two sisters,
one brother, a mother, and many family members and friends who loved
him tremendously.
We are here today to talk about the process of fining companies,
especially repeat violators, by OSHA. I am still, after almost 8 years,
appalled at the paltry fines that were levied against Armco, Scott's
company. They should have had to pay as dearly as I did for their on-
going neglect of workers' safety. They should be criminally prosecuted,
if possible. Not only did they knowingly put their workers in danger,
but they let their company insurance lapse, so there was no insurance
on Scott when he was killed. This was a conscious action on the part of
the company. The company that Armco leased the barges from, Weeks
Marine, claimed that they did not know how the barges would be fastened
together, and that they were not responsible. No action was taken
against them. As I said earlier, the Staten Island shipyard workers
went on strike last year. Not because of low wages. Not because of
health insurance. They went on strike because Kosnac Tugs and Weeks
Marine were knowingly exposing their workers to unsafe practices,
including how they fastened barges together. I believe it is imperative
that a message is sent that a worker's life is worth more than a couple
of dollars. Companies that do not practice safety precautions should be
fined highly, so it sends a message. A worker's life is invaluable, and
companies that disregard workers safety should be sent to prison. They
must be punished.
I also mentioned before that Armco was fined $4,950 for four
serious violations. One day, 2 years after Scott's death, I was
searching for information on the OSHA site. I discovered that Armco was
given the opportunity to plead down their fines. They only had to pay
$4,000 for Scott's death. I was never notified that they were granted
this privilege. I was never notified about the informal hearing that
occurred. I was never given the opportunity to talk to OSHA before this
plea deal was made with the company. I was never asked if I knew
anything that would help the initial OSHA investigation.
I am pleased that OSHA announced on April 22, 2010, a new system of
fining companies. The fines are being raised, and criminal charges can
be filed against repeat offenders. There are too many repeat offenders.
My situation with Armco Construction and Weeks Marine is not unique.
Jeffrey Davis was 50 years old when he was killed in an explosion at
the Motiva Enterprise LLC Refinery in Delaware City, DE. There was a
history of leaks in the tanks of sulfuric acid. These leaks were never
addressed, and were one of the catalysts to the horrendous explosion on
July 17, 2001. Jeffrey's body was never found. His boots were. Eight
other workers were injured. The recent disaster at the Upper Big Branch
mine in West Virginia, run by Massey Energy, has brought the subject of
dodging violations, deliberately hiding unsafe workplaces, and putting
greed before the lives of workers to the forefront of current news, and
to the attention of the public. Massey has proven history of unsafe
workplaces, yet has not been held accountable. Twenty-six hard working
men lost their lives because of this greed. Twenty-six men's families
suffer needlessly because of this greed. I am in a place to know that
the suffering, the grief does not go away. Neither does the anger.
That's why I speak up. That's why I represent all of those families who
have suffered a loss.
I am here today to not only discuss how fines to companies for
deliberate neglect of worker safety should be raised, I also am here as
a family member, representing other families who have lost a loved one.
I am here to represent the miners and their families in West Virginia.
I am here to represent the refinery workers from Washington State and
their families. I am here to represent the workers and their families
who were killed today, yesterday, and in the past week. I am here to
illustrate how valuable family members can be to OSHA's investigation
process. I am pleading with you to remember those workers we have lost
not as a statistic, but as a person. Look at the faces of those we have
lost. Please let family members be involved in the process, so we may
help you. Please send a clear message to companies that safety is
important. Lives are important. Cut into the company's profits and send
that message.
The Protecting America's Workers Act is a powerful tool to allow
families to have a say in investigations, to fight for safe workplaces,
and to let citizens know that a life is more important than greed by
enforcing stiffer penalties against offending companies, and especially
the repeat violators. I ask that you consider the importance of the
Protecting America's Worker's Act. This issue is not important only on
Worker's Memorial Day every April 28, but every day that someone goes
to work. Workers should have the right to come home safe to their
families. Every family should know that their loved one is protected at
work. No family should suffer like those I represent have.
As an elementary school teacher and as a parent, I know that it is
important that a child understand there are consequences to their
actions, and they must accept responsibility for what they have done.
Adults must face their responsibility, and must be held accountable for
their actions. Please, don't let another family suffer as we have. The
more that companies are actually punished, the more they realize they
must practice workplace safety, and must protect their workers.
Thank you for your time.
The Chairman. Thank you, Ms. Shaw.
Dr. Brandt, welcome. And please proceed.
STATEMENT OF MICHAEL BRANDT, MS, MPH, DrPH, CIH BOARD PRESIDENT
(2010-2011), AMERICAN INDUSTRIAL
HYGIENE ASSOCIATION, LOS ALAMOS, NM
Dr. Brandt. Thank you. Chairman Harkin and Senator Enzi,
I'm honored and pleased to be here to testify in support of
worker health and safety, and to prevent needless worker
injuries, illnesses, and deaths.
I'm here representing the American Industrial Hygiene
Association and our membership of more than 10,000 health and
safety professionals.
AIHA believes we can improve worker health and safety in
five ways. First, holding employers who willfully disregard the
law accountable by increasing penalties and enforcement.
Second, requiring injury and illness prevention programs in
every workplace. Third, continuing to fund compliance
assistance programs, such as the VPP, and consultation services
to assist small- and medium-sized businesses. Fourth, showing
the value of health and safety to employers and employees. And
fifth, improving training and skill-development opportunities
for OSHA and MSHA inspectors.
I'll briefly expand on these comments.
Workers expect to return home, healthy and safe. This
requires employees, employers, and health and safety
professionals to identify and eliminate occupational risks. To
do so, it is essential that we have enforceable regulatory
oversight.
Second, while most employers are doing the right thing,
there are still many who feel it is not worth the cost. For
these employers, the minimal penalties for health and safety
violations is just considered the cost of doing business. And
as we've heard today, this must stop.
AIHA supports increasing the penalties for egregious and
willful violations. It is inconceivable that a willful
violation of an OSHA rule resulting in a fatality is a
misdemeanor with minimal penalties. Employers know that if they
violate an EPA rule, the penalty can be severe, while violating
an OSHA rule is simply a ``slap on the wrist.''
Third, AIHA supports that section of the Protecting
American Workers Act, which increases civil and criminal
penalties for employers who violate OSHA rules and regulations,
as well as increasing penalties for willful violations. We also
support language to make officers and directors legally
responsible under the act.
Fourth, criminalizing willful violations through changes in
regulations must be carefully considered and applied, however.
The standard of evidence will need to be higher than it is
today. As a result, some OSHA and MSHA inspectors may need
increased training and skill development. AIHA supports efforts
to ensure compliance officers achieve professional
certification as a certified industrial hygienist or a
certified safety professional.
Fifth, most of America's employers are concerned about
their workers and realize that health and safety precautions
are good for the bottom line. An AIHA study demonstrated how
workplace risk-reduction programs positively impacts the bottom
line. We need to share these results with employers and
employees.
Sixth, penalties and enforcement alone are not sufficient
to achieve improved worker health and safety. AIHA supports an
approach in which stronger penalties and enforcement are
balanced by providing more compliance assistance and greater
funding for consultation services to employers. One of the most
successful is the Voluntary Protection Program. AIHA supports
continuation of this program, and hopes this Senate Committee
feels the same way and ensures adequate funding to support VPP.
OSHA is also taking steps to change its agency. One effort
being considered is to require an injury and illness prevention
program in every workplace. Assistant Secretary Michaels
recently said that what is needed is a requirement that every
employer establish a comprehensive worker health and safety
program that features management leadership, worker
participation, and structure that fosters continuous
improvement.
OSHA is also addressing the problem of outdated permissible
exposure limits by creating an agency task force to compile
options on how best to deal with the issue of the PELs, most of
which are more than 40 years old and are scientifically
obsolete.
In conclusion, and with respect to funding, Congress can
play an important role. OSHA and EPA were both created in 1970,
yet the annual budget for OSHA is just over $550 million, while
the EPA budget is over $10 billion. EPA's budget is 18 times
greater than that of OSHA.
AIHA members, and, I suspect, the family members here, do
not understand this budget discrepancy. Society has such
stringent penalties and enforcement for environmental matters,
yet penalties that directly impact workers are not given the
same importance. Shouldn't we care at least as much about
people?
On behalf of the AIHA, I thank you for this opportunity to
participate and present our views. AIHA offers our assistance
to Congress and OSHA and MSHA in any way.
I'll be happy to answer any questions that you might have.
Thank you.
[The prepared statement of Dr. Brandt follows:]
Prepared Statement of Michael T. Brandt, MS, MPH, DrPH, CIH
Chairman Harkin and members of the committee, employees and
employers across the United States, as well as the professionals who
work on the front line of worker health and safety, thank you for
holding this hearing.
My name is Michael Brandt and I serve as the President-elect of the
American Industrial Hygiene Association (AIHA). Today, I am here solely
as a private citizen representing the AIHA and our membership of more
than 10,000 health and safety professionals. I hold a doctorate in
public health with a specialty in Environmental Health Sciences. I also
hold master's degrees in industrial hygiene and public health policy,
am a certified industrial hygienist, and, finally, have been involved
in the occupational health and safety profession for more than 32
years. I am currently employed at the Los Alamos National Laboratory in
Los Alamos, NM.
It is a privilege for me to represent the AIHA and our membership
who work each day to protect worker health and safety. I appreciate the
opportunity to appear at this hearing to discuss how we can work
together to transform our workplaces into ones in which employees and
employers work together to ensure worker health and safety, and by
doing so create a competitive business advantage for American
businesses. It goes without saying it is truly unfortunate we meet
under circumstances where 29 workers recently lost their lives in the
Upper Big Branch coal mine and just this past week 11 workers were lost
in the Deepwater Horizon oil rig explosion in the Gulf of Mexico. Such
tragedies again show us the fragility of life and why worker health and
safety requires our full attention and resources.
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 primary 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.
AIHA shares the concerns of many that we must apply the lessons
learned from the foundational sciences of public health, including
epidemiology, industrial hygiene, toxicology, engineering, and
environmental health to further develop the technology, resources, and
education needed to develop effective and affordable solutions to
address health and safety risks. More recently, these resources in
universities, government agencies, including OSHA and the National
Institute for Occupational Safety and Health (NIOSH) and professional
organizations have suffered from underfunding in the United States,
eroding the competitive advantage they provide to American enterprises.
I will focus on a few important workplace health and safety changes
we believe can make a material difference in both the lives of workers
and their employers.
1. Workers and their families expect to return home from work safe
and healthy. Workers should not become ill, suffer injuries, or die on
the job. Providing a healthy and safe workplace requires that
employees, employers, and health and safety professionals collaborate
to identify and eliminate occupational risks. In addition, it is
essential that we have enforceable regulatory oversight that rewards
successful efforts to protect worker health and safety, and is free
from tactics intended to challenge and cast doubt over the validity of
regulatory findings and delay investing in hazard control measures.
2. Most of America's employers understand the critical importance
of health and safety and are concerned about the health and safety of
their workers. These employers implement health and safety management
systems and hazard identification and control programs to ensure that
their workers go home safe and healthy each and every day. They have
recognized that healthy and safe workers are good for their business
and represent a competitive advantage for U.S. business.
In America today employers no longer need to choose between
protecting the health and safety of workers and making money. High
performing organizations realize that investing in health and safety
protections are good for the bottom line and good for workers. AIHA has
clearly demonstrated this competitive advantage through a value study
conducted for our members. Conducted on the shop floors across the
United States, this ``Value of the Profession Study'' clearly
demonstrates how occupational health programs and workplace risk
positively impacts the bottom line, not only in healthier and safer
employees, but in a positive return on an organization's investment in
health and safety.
This important study was conducted in collaboration with NIOSH and
we believe OSHA, MSHA and NIOSH should collaborate further with AIHA to
develop additional case studies across industry, business, and
commercial sectors and share the case studies results, success stories,
and the value methodology with employers. In this way, together we can
continue to share cost-effective solutions to common sets of
occupational risks and hazards with employers, employees, and the
regulatory community.
3. 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 decisionmaking 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 is
a small price to pay and does not affect their decisionmaking. It's
just a small cost of doing business. This must change!
AIHA supports increasing the penalties for egregious and willful
violations. It is inconceivable that a willful violation of an OSHA
rule or regulation resulting in a fatality is considered a misdemeanor
resulting in minimal penalties. Rep. George Miller in a U.S. House
Committee hearing earlier this month commented that:
``These penalties for failing to protect workers pale in
comparison to the penalties for failing to protect animals or
the environment generally. Even maliciously harassing a wild
burro under the Federal Wild Horses and Burros Act can bring
twice as much prison time as killing a worker after willfully
violating the law.''
It has long been known to employers that if they are to violate an
EPA rule the penalty can be financially and operationally severe while
violating an OSHA rule is simply a ``slap on the wrist.''
AIHA supports that section of the Protecting America's Workers Act
(S. 1580) that considerably increases both civil and criminal penalties
for those employers who violate OSHA rules and regulations. Similar
increased penalties are needed at MSHA. AIHA also supports increasing
penalties for egregious and willful violations. 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.
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.
AIHA supports language that would also make officers and directors
legally responsible when it is clearly demonstrated that they had, or
should have had, direct knowledge and authority for the violation and
did not act to mitigate the risk associated with a known violation.
Occupational health and safety professionals should not become the
``scapegoat'' if their recommendations are not followed. In this era of
sustainability and social responsibility, the hallmark of an effective
occupational health and safety regulatory program needs to be guided by
transparency and accountability.
4. Strong penalties and enforcement alone are not sufficient to
achieve improved worker health and safety. AIHA supports an approach in
which stronger penalties and enforcement are balanced by providing more
compliance assistance and supporting efforts to develop occupational
health and safety professionals.
Employers need guidance and support to identify hazards and control
measures, and to understand regulatory requirements and how to comply
with rules and regulations in ways that are practical and in harmony
with the employer's daily business practices. There are numerous
successful ways in which employers receive the support and assistance
they need.
One of the most successful is the Voluntary Protection Program
(VPP). VPP sites add value to worker health and safety protection
through a systematic approach of management and employee involvement in
creating a sustainable healthy and safe workplace. This program has
grown considerably since its inception and AIHA supports continuation
of the program. OSHA has indicated its continued support of the
program, albeit appropriating fewer resources to the program in the
future. A 2009 Government Accountability Office report stated that
improved oversight and controls would better ensure program quality.
AIHA hopes OSHA and the Voluntary Protection Program Participants
Association (VPPPA) work together to see that the program remains a
viable and successful means to better worker health and safety. AIHA
hopes this Senate Committee feels the same way and ensures adequate
funding to support the VPP.
Another incentive is to provide greater funding for consultation
services for small- and medium-size businesses, which are historically
underserved workplaces in terms of health and safety protection and
health and safety compliance. These companies and businesses too often
do not have access to health and safety professionals or have the
financial resources, skills, or technical expertise to implement many
of the OSHA required programs and regulations to protect its workforce.
AIHA is aware of the limited resources of the Federal Government and
suggests OSHA consider additional ways to recognize and use an existing
pool of qualified and competent professionals such as industrial
hygienists and safety professionals to provide employers the needed
guidance and technical expertise.
5. And finally, the agency itself must make some changes in how it
does business. OSHA must address the problems with the rulemaking
process and the difficulty in updating standards. The agency recognizes
these problems and has recently taken the first step to address them.
One of these efforts is implementation of an Injury and Illness
Prevention Program in every workplace. AIHA could not have said it
better than Assistant Secretary of Labor for OSHA Dr. David Michaels
when he recently stated that what is needed is:
``a requirement that every employer establish a comprehensive
workplace safety and health program that features management
leadership, worker participation, and structure that fosters
continual improvement.''
OSHA has also taken the first step in addressing the long-standing
problem of outdated permissible exposure limits (PELs) by creating an
agency task force to compile options on how best to address the issue
of the PELs, most of which are 40 or more years old. These outdated
standards place us behind the rest of the world in health and safety
protections for workers, put our workers at risk, and erode the
competitive advantage of American businesses.
AIHA offers our support for both of these efforts.
conclusion
In conclusion, AIHA believes we can improve worker health and
safety by:
Showing the value (including financial and other benefits)
of health and safety to employers and employees.
Holding employers who willfully disregard the law
accountable by increasing penalties and enforcement on those who fail
to protect workers. Active enforcement would ensure that all
organizations are complying with the OSHA regulations. This would level
the playing field for all businesses, particularly the compliant.
Continuing and funding compliance assistance programs such
as VPP and providing adequate resources to assist small- and medium-
size businesses.
Requiring injury and illness prevention programs in every
workplace.
AIHA members and many others believe that working together we can
eliminate injuries and fatalities in the workplace. Organizations that
make financial investments in health and safety anticipate a positive
return on that investment by keeping workers healthy and safe and
improving operational performance. There is a cost for investing in
health and safety, and in compliance. Organizations that don't invest
in OSHA compliance have an unfair financial advantage. It is better for
employers and employees if OSHA sets good and reasonable standards,
enforces them uniformly, and the consequences for non-compliance are
financially and legally meaningful.
As for resources, this is where Congress can play an important
role. OSHA and EPA were both created in 1970, yet it is inconceivable
that the annual budget for OSHA is just over $550 million while the EPA
budget is over $10 billion. Occupational health and safety
professionals do not understand this budget discrepancy. Society has
such stringent penalties and enforcement for environmental matters, yet
the penalties that directly impact workers are not given the same
importance. Shouldn't we care at least as much about people?
AIHA members put the health and safety of people first and that is
why AIHA supports stronger penalties and enforcement as well as good
and reasonable standards. America's workers deserve it.
On behalf of AIHA, thank you for this opportunity to participate
and present our views. AIHA offers our assistance to Congress and OSHA
in any way possible.
I would be happy to answer any questions the committee may have.
The Chairman. Thank you very much, Dr. Brandt.
Now we turn to Kelli Heflin.
Welcome, and please proceed.
STATEMENT OF KELLI HEFLIN, COORDINATOR OF
REGULATORY COMPLIANCE AND SAFETY MANAGER,
SCOTT'S LIQUID GOLD, DENVER, CO
Ms. Heflin. Chairman Harkin, Ranking Member Enzi, thank you
so much for the opportunity to speak to you today.
I'm here today to talk about the OSHA Voluntary Protection
Program, what it means to my company, and to ask you to reject
the plan laid out in the Administration's fiscal year 2011
budget proposal.
VPP sites go above and beyond what OSHA requires. In
addition to a rigorous audit, each VPP company must submit,
annually, a self-evaluation that analyzes the elements of the
program, an evaluation of meeting those elements, and what
improvements they can make to strengthen that program at their
site.
Participation in the VPP has been invaluable to me, in my
role as safety manager at Scott's Liquid Gold. It has given me
access to education based on real-world experience, networks of
experts, and other resources. It has also given me the ability
to engage my workforce in a safety program that they have
ownership of.
Scott's Liquid Gold started in a garage, almost 60 years
ago, as a family business. Currently, we have about 65
employees at our facility. Our products are manufactured
totally in the United States. We make a conscious effort to
purchase raw materials also in the United States. If you look
at our major competitor's label it states, ``Distributed by
(blank).'' That means it is not manufactured here in this
country. We manufacture several household chemical products,
and a line of skin care called Alpha Hydrox.
The past year has been challenging for us, as a small
company, as it has for everyone. There was one thing that
remained consistent, and that was our safety program. Prior to
implementing VPP elements at our worksite, our injury rate was
13 reportables. After implementing the elements and being in
the program for several years, we reduced our injury rate to
zero in 2008.
The VPP has a proven track record. Companies that
participate in the VPP have about 52 percent less injuries and
illnesses than their BLS counterparts. There are significant
direct-cost savings with reduced insurance rates and reduced
workers compensation claims. However, the most important change
that I have noticed is our employees' involvement in their own
safety.
One of the primary elements in VPP is employee involvement.
Our employees have taken ownership of the program and made a
commitment to safety, both at work and at home.
As a small business, we face a number of disadvantages in
this global economy. As a safety and health management system,
VPP produces a culture change. Workers who are healthy and
injury-free are at work, they're not absent. Less time is spent
replacing them with temporary workers, and less training time
is spent getting those workers up to speed.
VPP is very important in other ways, as well. At Scott's
Liquid Gold, our employees take a massive amount of pride in
telling others that they achieved VPP status.
I could go on and on about the benefits of VPP and the
great people who participate in the program, but I'm also here
as a citizen and an American worker. I pay my taxes, vote in
all the elections, and I mailed census on time.
[Laughter.]
I'm not here as someone with a political agenda. I don't
owe anybody any favors. And I don't make promises to special
interest groups or organizations, at the expense of very
valuable programs, such as VPP.
I am here to object to the current proposal to cut direct
funding to the VPP, or to seek alternative funding for the
program. It is imperative that appropriations language be
included in the fiscal year 2011 proposal.
The VPP is helping OSHA with their mission of keeping
American workers safe. We have extended help in other ways to
alleviate the strain on OSHA resources. The cooperative
programs budget for fiscal year 2010 was increased. The agency
has reduced the number of VPP onsite audits and recertification
audits completed. While my company has done more with less, the
agency has done less with more.
The proposed budget for fiscal year 2011 directs funding to
enforcement and leaves VPP out in the cold, even though it's a
proven program for reducing injuries and illness in the
workplace. The alternative funding being proposed is a fee-
based system, and I can tell you, Scott's Liquid Gold
vehemently opposes this system. The fee-based system not only
adds another layer of cost to our already- strained company
budget, it reduces the integrity of the program.
The VPP was intended to be a three-way partnership between
OSHA, management, and labor. With the Department of Labor's
request to eliminate direct funding for VPP, the agency
effectively took away that leg of the partnership, violating
their own intention under the OSH Act of assisting employers
and employees in eliminating hazards at the workplace. The
agency is not only doing a disservice to companies that have
committed incredible resources--time, money, employees--to
keeping American workers safe, but it is doing a disservice to
their mission of ensuring the health and safety of all the
Nation's workers.
The proposed fee-based funding will exclude small
businesses, such as Scott's Liquid Gold, from participating in
the VPP. In return, OSHA will lose my company's commitment to
helping to educate and train other worksites that may not have
the kind of safety program that VPP requires.
Two of the goals of the agency are to ensure safe and
healthy workplaces for the Nation's workers, and to give
workers a voice in the workplace. Enforcement does not give a
voice to the workers. The elements of VPP specifically give
that voice to the employees by requiring their participation.
OSHA has a huge toolbox, with a variety of tools. By committing
most of the cooperative program's budget to enforcement, they
have effectively gotten rid of most of their tools except for a
metaphorical hammer.
One of the first things that you learn is that you need to
use the right tool for the job at hand. By only having a
hammer, they are excluding tools for educating companies who
have less than stellar safety programs. Hammers are reactive,
not proactive. In seeking alternative funding for VPP, the
agency is keeping that tool, but they're locking it up and
making it available only to the companies that pay for it. This
seems to directly conflict with Section 2(b)(1) of the OSH Act.
VPP is not just one tool. It provides many tools for OSHA.
It provides manpower, through special government employees; it
provides education, through outreach and mentoring; it provides
the thoughts and expertise of over 900,000 American workers
from over 2,300 worksites, giving a voice to workers about
their safety, which is one of the stated goals of the agency.
Why would they rely on enforcement actions only?
Realistically, most sites will never see an OSHA compliance
officer, and will continue to put employees at risk with
unabated hazards. Enforcement actions are usually after the
fact and in response to loss of life or imminently hazardous
situations. Wouldn't the agency rather save lives than respond
to the aftermath of a catastrophic event?
OSHA needs a complete toolbox. And VPP is part of that.
Please reject the fiscal year 2011 budget until it includes
funding for this very important program.
Thank you very much.
[The prepared statement of Ms. Heflin follows:]
Prepared Statement of Kelli Heflin
Good afternoon, Chairman Harkin, Ranking Member Enzi and members of
the HELP committee and thank you for the opportunity to speak on behalf
of Scott's Liquid Gold-Inc., a small manufacturing company located in
Denver, CO. My name is Kelli Heflin and I am the Regulatory Compliance
and Safety Manager at Scott's Liquid Gold-Inc. I am here today to talk
about the Voluntary Protection Program, what it means to my company and
to ask you to reject the plan laid out in the Administration's fiscal
year 2011 budget proposal.
The Voluntary Protection Program (VPP) was formally announced by
OSHA in 1982 and the first site, San Onofrio, CA was approved. The
legislative underpinning for VPP is Section (2)(b)(1) of the OSH Act of
1970, which declares Congress's intent,
``to assure so far as possible every working man and woman in
the Nation safe and healthful working conditions and to
preserve our human resources (1) by encouraging employers and
employees in their efforts to reduce the number of occupational
safety and health hazards at their places of employment, and to
stimulate employers and employees to institute new and to
perfect existing programs for providing safe and healthful
working conditions.''
VPP sets performance-based criteria (4 elements and 133 sub-
elements) for a managed safety and health system, invites sites to
apply, then assesses these sites against these criteria. OSHA's
verification includes an application review and a rigorous onsite
evaluation by a team of OSHA safety and health experts. This team
usually includes Special Government Employees (SGEs) who are people
like myself, who are familiar with the VPP model and have attended
training to assist on these audits. VPP company employees who become
SGEs do so on a voluntary basis.
Once the audit is complete, the team recommends the site for one of
three programs (this recommendation is approved by the National OSHA
office at the Department of Labor).
Star--this site meets all criteria and injury and illness
rates are below the BLS industry average.
Merit--this site meets the criteria, but some of the
elements may need improvement and injury rates may be a bit high, but
the trend is toward reduction. A site may remain in Merit status for up
to 3 years, at which time, they will have a Merit to Star audit. There
are Merit goals established by the team to move the site to Star
status.
Star Demonstration--this is for companies who may be a
mobile workforce, such as a construction or steel erection project.
VPP sites go above and beyond what OSHA requires. In addition to
the rigorous audit, each VPP company must submit annually a self-
evaluation that analyzes the elements of the program, what they are
doing to meet those elements, how they are doing at meeting the
elements and what improvement they can make to strengthen the program
at their site. This is far greater scrutiny and attention than non-VPP
worksites, which may do little or nothing proactively and, given the
number of OSHA compliance officers and the number of worksites, are not
likely to see an OSHA inspection for decades unless they have a
catastrophic accident.
The companies that participate in the VPP routinely connect with
other sites through mentoring and outreach activities at conferences
and provide resources to OSHA through the SGE program. OSHA does not
reimburse companies for the time and travel of the SGEs--VPP companies
absorb all the costs and expenses for their SGEs to participate in VPP
onsite audits. Participation by SGEs can be as an ``expert'' (i.e.,
Industrial Hygienist) or a generalist (familiar with the VPP model or a
unique standard, such as PSM). They are full team members and audit
records, programs, interview employees and make recommendations on
compliance issues or improvement items. In my experience as an SGE,
employees at sites undergoing a VPP audit seem to be more willing to
speak to a ``non'' OSHA auditor. It isn't anything personal against
OSHA, but it is a matter of talking with someone else who works for a
company, rather than OSHA. SGEs can be managers, supervisors or labor.
It truly provides a unique perspective on the audit and both the
potential VPP company and SGEs can learn from the experience.
Most importantly, the VPP promotes a partnership between Labor,
Management and OSHA.
Participation in VPP has been invaluable to me in my role as
Scott's Liquid Gold Safety Manager. It has given me access to education
(based on real world experience), networks of experts and resources
that I would not have otherwise had the opportunity to access. It has
also given me the ability to engage my workforce in a safety program
that they have ownership of.
My introduction to safety was at the Rocky Flats Plant in Colorado.
It was a scary place. Every Sunday I would drive by the protestors at
the site as I drove back to the University of Colorado. Then I got a
job there. One of the first things I learned was to rely on the
experience of the people I worked with. They took this rookie under
their collective wings and educated me to respect radiation and other
hazards, not to fear them. The second thing I learned was that I am
responsible for my safety and for my co-worker's safety and that I have
the duty to report any hazard. Management is responsible for helping to
correct the hazard and insuring that the hazard is permanently abated
or that I have the proper training to recognize what I need to do to
protect myself. I have carried those lessons for almost 20 years.
Scott's Liquid Gold-Inc. started in a garage about 60 years ago as
a family business. Currently we have about 65 employees at our Denver
facility. Our products are manufactured totally in the USA. We have 13
production employees at our site and it is the only manufacturing
facility we have. We make a conscious effort to purchase U.S.-based raw
materials. If you look at our major competitor's labels, it states
``Distributed by:___.'' That means the product is produced outside the
USA. We manufacture several household chemical products, including our
flagship product, a wood cleaner, an air freshener product and a line
of skin care called Alpha Hydrox. The past year has been challenging
for us as a small company, as it has for everyone. There was one thing
that remained consistent, our safety program.
We entered the VPP in 2003 as a Merit site. Our injury rate was a
bit high and we needed to improve our Process Safety Management program
(PSM). We started working toward VPP in 2002, shortly after I arrived.
Our injury rate was pretty high at that time. In 2001, we had 13
reportable injuries. These injuries ranged from lacerations and
ergonomic problems to a broken arm. At the end of 2002, we had two
reportables and two injuries that required first aid treatment only. In
2008, we had zero injuries. The VPP has a proven track record. Most
companies that participate in the VPP have about 52 percent less
injuries and illnesses than their BLS counterparts. There are
significant direct cost savings with reduced insurance rates and
reduced workers compensation claims. However, the most important change
that I have noticed is our employees' involvement in their own safety.
One of the primary elements in VPP is employee involvement. Our
employees have taken ownership of the program and made a commitment to
safety both at work and at home.
As a small business, we face a number of disadvantages in this
global economy. We don't have access to a lot of resources, we don't
have a large staff of in-house experts and we can't purchase a lot of
new technology, but through the VPP, we have a huge network to turn to
when we need help with a particular issue. There are about 2,300 sites
in the VPP and almost 1 million people are employed by those sites. We
also have a great relationship with the Region 8 OSHA people. I have
appeared on several panels on their behalf, discussing VPP as a viable
solution to unsafe worksites. Even if a company does not want to pursue
the recognition, they can still implement the elements with help from a
mentoring company and establish a good safety program.
I have a personal interest in safety and health excellence. My
grandfather worked for a company, processing uranium ore. He was a
member of the Oil, Chemical and Atomic Worker's Union. This was pre-OSH
Act. He eventually died from a disease I believe was caused by his
exposure to acids and radioactive ore.
My uncle was injured badly in an industrial accident and was out of
work for over a year. Several years later, he was killed in a
construction accident, leaving a wife and two teenagers behind. I am my
grandfather and uncle's legacy. My work in safety may save another
family from going through this grief. I believe enforcement has its
place, but I also believe that being pro-active in safety will prevent
accidents and fatalities from happening in the first place.
VPP not only provides resources to the almost 1 million employees
that participate in the program, but it also provides OSHA with much-
needed support to keep American workers safe. The SGE program is one of
these resources. Mentoring and Outreach by the VPP companies are
another way that they are relieved of the burden of educating companies
that are not safe in how to establish a good health and safety program.
Employees of VPP sites are ambassadors for the VPP. They participate
through mentoring and teaching classes at various safety conferences
throughout the country. Scott's Liquid Gold was named Mentor of the
Year in our region in 2009. Our CEO believes very strongly in the
mentoring program. When I visit another worksite, I usually take two
employees with me who are well versed in the VPP elements and let them
explain the program to the other site. On some occasions, I have found
that employees are not willing to speak their minds when their
management is in the room. I have asked their management to leave and
we have a pretty honest dialogue about what VPP can do. The most common
question is ``We already have a pretty safe site, what are they going
to do for me?'' My response is usually ``How about give you control
over your own destiny?''
VPP has additional benefits for participating companies. Companies
have lower injury and illness rates, they have lower workers
compensation costs and usually their insurance premiums are lower. The
employees at these companies are healthier and more productive. It
affects companies' bottom lines in a good way--not only are costs
lower, workers who are healthy and injury-free are at work, not absent.
Less time is spent replacing them with temporary workers and training
time spent getting those workers up to speed. VPP is very important in
other ways as well. At Scott's Liquid Gold, our employees take a
massive amount of pride in telling others that they achieved VPP Star
status. They take safety seriously and they understand all of the
benefits under VPP. Our CEO is certainly a proponent of the program and
allows whatever time is necessary for safety meetings, safety training,
my time away from the facility and two stretching classes each day. We
have almost 95 percent participation in manufacturing and anywhere from
25-40 percent in the administration building (depending on the day).
The stretching classes have reduced our ergonomic complaints to almost
zero. It's also an opportunity for me to check in with our employees
about any concerns or suggestions they have.
I could go on and on about the benefits of VPP and the great people
who participate in the program, but I am also here as a citizen and an
American worker. I pay my taxes, I vote in all elections and I mailed
my census on time. I am not here as someone with a political agenda, I
don't owe anyone any favors and I don't make promises to special
interest groups or organizations at the expense of a very valuable
program such as VPP. I am here to object to the current
Administration's proposal to cut direct funding to VPP or to seek
``alternative'' funding for this program. It is imperative that
appropriations language be included in the fiscal year 2011 proposal.
The VPP is helping OSHA with their mission of keeping American workers
safe. We have extended help in other ways to alleviate the strain on
OSHA resources. The Agency actually increased their cooperative
programs budget for fiscal year 2010, but has reduced the number of VPP
onsite audits and recertification audits completed. While my company
has done more with less, the Agency has done less with more. The
proposed budget for fiscal year 2011 directs funding to enforcement and
leaves VPP out in the cold, even though it is a proven program for
reducing injuries and illness in the workplace. The alternative funding
being proposed is a fee-based system and I can tell you, Scott's Liquid
Gold vehemently opposes this system. I can assure you that out of the
other 2,300 companies, a majority have the same feeling. This fee-based
system not only adds another layer of cost to our already strained
company budget, it reduces the integrity of the program. I worked for a
company who obtained an ISO certification and as far as I could tell,
it meant nothing except that you had done the proper paperwork and
documentation. I don't want to see that happen to the VPP. In addition,
employees of VPP companies take a great amount of pride in a
cooperative partnership with OSHA. My co-workers noticeably stand
taller when talking to OSHA representatives and it is a source of my
own pride to hear them talk to other worksites about working with OSHA
and obtaining VPP Star. The VPP was intended to be a three-way
partnership between OSHA, Management and Labor. With the Department of
Labor's request to eliminate direct funding for VPP, the Agency
effectively took away that leg of the partnership, violating their own
intention under the OSH Act of assisting employers and employees in
eliminating hazards at the workplace.
With no direct funding, VPP will not survive as the premiere
recognition program for companies. The Administration is not only doing
a disservice to companies that have committed incredible resources--
time, money, employees--to keeping American workers safe, but it is
doing a disservice to the Agency that has been tasked with ensuring the
health and safety of all the Nation's workers.
The proposed alternative funding will exclude small businesses such
as Scott's Liquid Gold. We simply cannot take on any more cost centers.
We have committed to providing our knowledge and expertise on the same
level as a Valero or GE. I spend a lot of time mentoring and
participating in outreach events. I am always available as an SGE in
the event the Region VIII VPP manager needs me. I generally let the
other SGEs in our region have first shot at an audit because I do so
much outreach, but I am certainly available if needed.
Small businesses such as ours don't get many breaks and
establishing a fee-based VPP will be a burden that we will probably
choose not to undertake. OSHA will lose my company's commitment to
helping to educate and train others who may not have the kind of safety
program that VPP requires. We appreciate the VPP for the resources it
provides and the partnership with OSHA, but we cannot support another
cost to our bottom line.
Two of the goals of the Agency are to ensure safe and healthy
workplaces for the Nation's workers and to give workers a voice in the
workplace. Enforcement does not give a voice to the workers, the
elements of VPP specifically give that voice to the employees by
requiring employee participation. OSHA has a huge tool box with a
variety of tools. By committing most of the cooperative programs budget
to enforcement, they have effectively gotten rid of most of their tools
except a hammer. One of the first things that you learn is that you
need to use the right tool for the job at hand. By only having a
hammer, they are excluding tools for educating companies who have less
than stellar safety programs. Hammers are reactive, not proactive. In
seeking ``alternative'' funding, the Agency is keeping that tool, but
locking it up and making it available only to those who pay to use it.
This seems to directly conflict with Section 2(b)(1) of the OSH Act.
VPP is not just one tool, it provides many tools for OSHA. It provides
manpower through SGEs. It provides education through outreach and
mentoring. It provides the thoughts and expertise of over 900,000
American workers--giving a VOICE to workers about their safety, which
is one of the stated goals of the Agency. Why would they rely on
enforcement actions only? They could never have the staffing required
for worksite inspections of every work place in the United States.
There are approximately 2,300 companies who participate in the VPP,
covering over 900,000 workers with more sites indicating interest every
day. Those 900,000 workers are full participants in workplace safety
and can educate other companies and show them what can be accomplished.
Most sites will never see an OSHA compliance officer and will continue
to put employees at risk with unabated hazards. Enforcement actions are
usually after the fact--reactive--and usually is in response to loss of
life or imminently hazardous situations. Wouldn't the Agency rather
save lives than respond to the aftermath of a catastrophic event?
OSHA needs a complete tool box and VPP is part of that. Please
reject the fiscal year 2011 budget until it includes funding for this
very important program.
Thank you.
The Chairman. Thank you, Ms. Heflin. So, you're opposed to
a fee-based system?
Ms. Heflin. Yes, sir. I am.
[Laughter.]
The Chairman. Well, we're looking at that. It's sort of
closely akin to other proposals that have been made for fee-
based systems in the past. I don't know that I can say in
``every'' situation, but mostly I've been opposed to fee-based
systems, because what you're trying to do is either protect the
public or do something that inures to the benefit of society
at-large, that type of thing. Therefore, it ought to be picked
up by society at-large, rather than just the individual
company, or whatever it is that you're looking at for the fee.
I'd have to think about it in this context.
One thing, looking at your testimony, you stated that VPP
companies go above and beyond what OSHA requires. If that's the
case, it would seem to me that you have nothing to fear from
increased penalties for violations, especially for knowing or
willful violations. Is that so? I mean, tell me how you feel
about increasing the penalties for knowing and willful
violations.
Ms. Heflin. We're not perfect. VPP companies are not
perfect. We have violations. They're usually very minor. VPP
companies are very familiar with the regulations and the
standards, chapter and verse, and we generally try and go
beyond what OSHA requires.
I'll give you an example of a not-too-hazardous situation--
forklift operator training. The standard only requires that it
be done every 3 years. My company does it every year. That's
going beyond what the standard requires. Most companies go
beyond that.
The Chairman. Again, it just seems to me that, since you're
doing, obviously, good things, and all of these VPP companies
are--you've heard the statements made before, and in the
previous panel, about how the penalties for environmental
violations are millions of times more than it is for violation
of safety.
Ms. Heflin. Right. I wouldn't object to increased
penalties. When you hear stories, like Ms. Shaw's or the miners
in West Virginia. My own family members were killed on a
construction accident. I don't object to that at all. That's
definitely not what my objection is.
The Chairman. Oh, OK.
Ms. Heflin. My objection is--you need to keep direct
funding in for a program that actually reaches out to other
companies.
The Chairman. I understand that now. OK, fine. I get it.
OK. Thank you.
Dr. Brandt----
Dr. Brandt. Yes.
The Chairman. [continuing]. Could you expand on how
increasing penalties for those who deliberately ignore our
health and safety laws will change what you call, ``the
economics of safety?''
Dr. Brandt. Our association had sponsored a study in which
we examined the practices of various employers around the
country. What we discovered is that those companies that invest
in health and safety saw a positive return on that investment.
I'll give you an example. One of our case studies was a
helicopter manufacturer. That manufacturer decided to eliminate
a chromium (VI)-based compound in the primer paint used for
painting aircraft parts. They were able to substitute that very
hazardous and toxic material with a less toxic material. As a
result, they were able to--and together with some work
practices and personal protective equipment--eliminate worker
exposure to chromium; and they were able to improve product
quality, so the parts didn't need to experience rework, they
didn't have to re-sand the parts; and with the time saved over
the course of the year--because this was a very critical step
in the manufacturing process--that organization was able to
produce one additional aircraft over the course of the year.
In this case, investing in work--the point is, in the 21st-
century we no longer have to choose between worker health-and-
safety and making money. Employers need workers, workers need
employers. We heard that today, where the miners were concerned
about--if it's a nonrepresented mine, they're concerned that
they might lose their jobs or the mines might be shut down. And
then what? How were they going to provide for their families?
Well, in America today, we don't need to make that choice,
because we can realistically and thoughtfully invest in good
health and safety practices, and companies can benefit, with
various benefits, not only financial, but the intangibles, as
well.
The Chairman. Thank you very much.
Dr. Brandt. You're welcome.
The Chairman. Senator Enzi.
Senator Enzi. Thank you, Mr. Chairman.
I have to agree with what I've heard here. I would mention
that, in the Budget Committee last week, the Administration
plan to defund the VPP program was unanimously rejected. Again,
it was just $3.5 million, and we were dealing with several
trillion dollars, so I don't know how significant that was.
Kind of the way I got started in safety. I'm the accountant
in the Senate. And I went to see the president of this company,
and I said, ``You know, if you had a safety program, you'd have
more people available for work, and you'd save a lot of
money.'' And he said, ``OK, do it.'' I said, ``No, no''----
[Laughter.]
Senator Enzi [continuing]. ``I'm the accountant. I'm not
the safety guy.'' But, he couldn't find anybody else to do it,
so I did a safety program, and it did just exactly that, it
reduced the cost tremendously, and he had more people available
to do the work. I've been a firm believer in that, and I've
worked on it ever since I got here.
Now, we talked about repeat violations and increasing the
fines. One of the things that's always disturbed me is that if
a person is cited twice by OSHA, then they're a repeat offender
and they fall into a different category. One of the things that
I noted, when I was doing the safety program, is that there are
a lot of employees, on a hot day, that just don't like to wear
a hard hat. Now, there's a reason for wearing a hard hat, and
it's actually to keep you from being killed. If the person
doesn't wear the hard hat, it's not the employee that gets
fined, it's the employer that gets fined. And if two people
aren't wearing their hard hat, they're a repeat offender.
We have to be careful, when we devise these penalties, so
that the person most in control of the situation is the one who
has to have some responsibility for the situation. I don't know
exactly how to do that. I've proposed that before.
Another thing that I noted was that, if there was drug and
alcohol testing, it brought down worksite accidents
dramatically, as well--doing that in some businesses.
Mr. Brandt, do you support workplace drug and alcohol
testing programs as a way to maintain safer workplaces?
Dr. Brandt. Yes, I do, Senator.
Senator Enzi. OK. Thank you. Thank you for brevity of the
answer, too.
[Laughter.]
I was glad to see that you supported VPP. What do you think
is responsible for the considerable growth of new VPP members
over the last decade? And does that build a culture of safety
in the workplace?
Dr. Brandt. A culture of safety reflects the values,
traditions, and beliefs of any organization. To have a safety
culture requires participation, management leadership, and I
just don't mean, well, I write a slogan--that doesn't represent
leadership--but leaders who walk the spaces, who walk the talk,
who support workers. Similarly, workers need to participate
collaboratively with management to solve those problems.
So, problems in the workplace--if we can identify them
early, find, and fix--you heard Dr. David Michaels mention,
earlier--that's a culture that we need to instill in all
workplaces across the United States. We need to find and fix.
There's joint accountability, just as you were talking
about. There's accountability, on the part of workers, to work
with management, but also accountability on the part of
management to work together with the employees to
constructively collaborate to solve problems.
The first principle of public health is, intervening early
reduces the severity of a problem. Particularly when we look at
permissible exposure limits, health hazards, the airborne
standards. Those are 40 years old. What we need to do is to
change those, because they're obsolete. Early intervention
reduces severity. That's what we need to do in the workplaces
across this country. Intervene early to protect workers.
Senator Enzi. To followup on that a little bit, Do you
believe that the rank-and-file OSHA employees, who are out
working every day to do inspections, support VPP?
Dr. Brandt. I really don't know that many OSHA inspectors,
so I really can't comment. I would state that anything that can
reduce the workload in a meaningful way for any government
agency, and produces positive results, would be hard to reject.
Ms. Heflin. Senator Enzi, I work with----
Senator Enzi. Yes.
Ms. Heflin. [continuing]. A lot of OSHA people in my
region--through phone conversations, I meet them at
conferences, I work with them on other panels. I believe that
they really do believe in the VPP, but I believe that it's our
role, as VPP companies, to continue the education, because it
brings other sites in, it educates our OSHA folks, what we can
do for them. And I really, really do believe that the more they
learn, the more they will support the program.
Senator Enzi. Thank you.
I have more questions for all of you. I'll submit those in
writing, and would appreciate an answer.
This has been very helpful. I know we've kept you around a
long time.
The Chairman. Yes. It is getting late. I know we have to
go, but I did want to ask Ms. Seminario just one thing.
In your testimony, you discussed the need to strengthen
Section 11(c) of the OSH Act and increase whistleblower
protections. That has come up in our discussions today, on both
the previous MSHA panel and on this OSHA panel, too.
Just tell me a little bit about how you feel about that,
about the whistleblower protections. Do we need a unified
whistleblower protection policy through everything?
Ms. Seminario. The whistleblower provisions of the OSH Act
are 40 years old. They were some of the first ones that were
enacted. I think there have been two dozen statutes enacted
since that time that have some kind of protections related to
the environment, safety and health, and other statutes that
provide protections for people who speak up, either in the
workplace or to the government.
When you compare those statutes, what you see is that the
original OSH Act is the weakest of all of them, because it was
never changed. So, we've learned, over the years, as to what
needs to be done.
For example, under the OSH Act, there's a very short
statute of limitations. It's 30 days. If you don't get your
claim filed in 30 days, you're out of luck.
The only person who can take up the claim is the Secretary
of Labor, and they have to do it in court. There are a lot of
resource issues here. I mean, there are, I don't know, 1,400
11(c) complaints that were filed with Federal OSHA; they've got
75 whistleblower inspectors.
The fact of the matter is, the resources haven't existed at
the Federal Government to take up those cases. The ability for
somebody to take up the case on their own would be a very, very
helpful provision.
There aren't any rights in the OSH Act for preliminary re-
instatement. Even if there's a finding that the person really
was retaliated against, while the litigation's going forward,
they're out of luck. What we would like to see is the OSH Act
brought in line with the very best practice--some of which this
committee has recently adopted and recommended, to put those
protections in place under the basic safety and health law.
The Chairman. Very good. Thank you.
Senator Enzi.
Senator Enzi. Mr. Chairman, in light of that question, I
have a followup question for Ms. Seminario.
Just last week, the National Labor Relations Board decided
a case, in which a Missouri Labor Union had fined one of its
members $2,500 for reporting a safety violation by another
employee union member to the employer of the hydroelectric
facility where they worked. This case involved the setting up
of a telebelt, which is a freestanding conveyor-belt that spans
130 feet and transfers material, such as rolled concrete and
coarse aggregate. The employee was complying with the
employer's safety rules by reporting the violation, and
protecting himself and all of his coworkers.
The union in the case is the International Union of
Operating Engineers Local 5-13 AFL-CIO. As safety and health
director for the AFL-CIO, did you advise the local to fine this
member?
Ms. Seminario. I'm not----
Senator Enzi. What kind of message does it send to penalize
members?
Ms. Seminario. I have no knowledge of this case or the
facts. I'm happy to take a look at it and respond to your
question in writing.
Senator Enzi. OK.
Ms. Seminario. Unfortunately, I really don't have the
information to respond today.
Senator Enzi. OK. Thank you.
The Chairman. I'd like to know, too. Respond to us on that.
Just in closing, again, Ms. Shaw thank you very much for
being here. I know I speak for my friend Mike, and all of us
who are here, that we are sorry about the loss of your husband.
Ms. Shaw. Thank you.
The Chairman. We appreciate how much you've done to make
sure that others don't follow the same fate. I thank you for
your leadership in that area and for continuing to speak out
and to advocate----
Ms. Shaw. Thank you.
The Chairman [continuing]. The changes that we need. Thank
you very, very much for being here.
Does anyone have any last thing that they need to say or
get on the record at all?
[No response.]
Going once. Going twice.
[Laughter.]
Again, I want to thank all of the people here who brought
the pictures of their family members. Again, a very poignant
way of reminding all of us that there's real people behind all
the things we're doing here. These are real people, with real
families, with real children, with real wives and kids. It
always just does us good to be reminded of that. I thank you
very much for being here.
With that, the HELP Committee will stand adjourned.
[Additional material follows.]
ADDITIONAL MATERIAL
Prepared Statement of Senator Byrd
Mr. Chairman, I thank you and Senator Enzi for the
invitation to attend this hearing. I thank you, Senator Harkin,
for your commitment to schedule a hearing next month before the
Senate Labor-HHS Appropriations Subcommittee.
MSHA inspectors must have had some suspicion, after
numerous citations and withdrawal orders for repeat offenses,
that the management at the Upper Big Branch Mine was
endangering the lives of its miners. As coal production
escalated rapidly and drastically, and employment remained
relatively constant, MSHA inspectors must have had nagging
concerns that conventional enforcement tools like citations and
withdrawal orders were not working. Rumors abound about mine
company officials tampering with methane detectors, and
cleaning up safety problems shortly before inspectors entered a
working section. MSHA inspectors must have had some suspicion
that when inspectors forced corrective actions in one part of
the mine, more egregious violations might be eluding them in
other parts.
1. Given the disturbing safety record and the reputation of
this particular mine, why did MSHA not do more to force
compliance with the law? Why were dangerous mining conditions
allowed to fester? Why did MSHA wait until after the tragedy to
launch an inspection blitz at coal mines with a history of
pattern violations? Why did MSHA wait until after the tragedy
to pursue changes regarding patterns of violations? Why did
MSHA not seek injunctive relief to force compliance with health
and safety standards?
2. What does MSHA do when conventional tools like citations
and withdrawal orders prove ineffective? What unconventional
tools can MSHA use to force compliance? What does it presently
take to close a mine?
3. Aside from the health and safety laws, what remedies
exist to deal with a recalcitrant operator who has a reputation
for flouting the law, and for putting profits ahead of safety?
4. How many mines have records of violations similar to the
Upper Big Branch, and a pattern of frustrating MSHA efforts to
enforce compliance? What actions have been taken to address
these evasive activities?
5. Is there a culture at MSHA which tends to inhibit the
robust enforcement of mining safety laws? What can be done to
guard against MSHA inspectors developing relationships with
mining companies that tend to impede tough enforcement of the
law?
6. Can we better empower mine inspectors? Some have
suggested streamlining the citation process (by clarifying the
classification of gravity and negligence), or handicapping the
burden of proof in inspectors' favor when they defend contested
citations and orders.
7. Can we restore public confidence in the Mine Act's
system of whistleblower protections, both for hazard complaints
and for ``Part 90'' situations in which miners attempt to exert
their right to be moved to a less dusty area of the mine?
8. MSHA is strengthening its efforts to ensure that pre-
shift examinations uncover violations of the Mine Act. If the
law were to require that each crew leave the mine before
subsequent crews enter, could this provide additional time to
conduct more robust pre-shift examinations? If an MSHA
inspector entered the mine at the time of a shift change, so
that the inspector could observe mine conditions exactly as
they were at the end of the previous shift, would that help to
insure that hazardous conditions are caught and addressed
before a new shift began?
9. Please provide a detailed plan and time line for the
investigative process. What hearings will be planned? How will
they be structured? Who will participate?
10. According to news reports, Massey Energy officials have
said the company had employed a full-time, two-person safety
team at the Upper Big Branch mine. How did MSHA interact with
this safety team?
11. According to news reports, Massey officials have said
that MSHA required them to change their ventilation plan, over
the resistance of Massey engineers, and that the new
ventilation plan inhibited fresh air from getting into the
mine. Is there any truth to that?
12. How could the Mine Act be amended to expand the
universe of stakeholders that can seek injunctions or other
relief (including ordinary citizens who may be adversely
affected by unsafe or unhealthy mining conditions)?
13. Please describe your views about revising 30 CFR Part
104. How will you prevent operators from repeatedly receiving a
notice of a potential pattern of violations, without ever
incurring the consequences for an actual pattern of violations
under Sec. 104(e) of the Mine Act? Does MSHA have the
technological wherewithal to monitor for pattern violators on a
continuous basis, and move to notify operators of a pattern the
moment one is detected? If so, will you commit to commencing a
system of continuous monitoring and notice?
14. Could MSHA streamline the process for referring
potentially criminal violations for prosecution by the
Department of Justice? Can MSHA or the Congress make it easier
for miners or others to initiate the referral process?
15. According to press reports, MSHA negotiated an
agreement with Massey Energy in 2006 to waive filing deadlines
for contesting citations. Is there any truth to that? Were
other operators offered similar waivers? How many times were
deadlines waived?
16. Why is MSHA not issuing an Emergency Temporary Standard
to expedite its rulemaking agenda, specifically with regard to
pattern violations?
17. Recently, a hazard complaint at the Road Fork #51 Mine
triggered eight 104(d)(2) withdrawal orders, in connection with
the operation of two continuous mines on inadequate ventilation
(i.e. two mines were ventilated using a single stream or
``split'' of fresh air). Please discuss how MSHA evaluates
ventilation plans on so-called ``super sections'' (in which two
mechanized mining units are operated on a single set of
entries) and on similar mining sections. What type of
additional oversight does MSHA conduct to ensure ongoing
compliance with safe ventilation practices on these sections?
How can you strengthen your evaluation of ventilation plans,
and associated enforcement, in this regard? If you could
generalize, how many mine workers are ideally required to
operate a ``super section'' in a safe fashion?
Prepared Statement of Senator Webb
I would like to thank Chairman Harkin and Ranking Member
Enzi for holding this hearing on strengthening enforcement and
creating a culture of compliance at mines and other dangerous
workplaces.
It was with great sorrow that our Nation learned of the
tragedy at the Upper Big Branch coal mine in Sago, WV, where 29
miners lost their lives. That devastating explosion earlier
this month reminded us all of the risks our coal miners
undertake each day. It also reminds us of the responsibilities
of our own office as Members of Congress. We have a continuing
duty to establish, and insist upon, proper standards of safety
for those who work in this industry. We must never forget that.
I want to extend my personal condolences to the families,
coworkers, and others who were impacted by this tragedy, and to
express my commitment to working to help ensure it does not
happen again.
Coal has been, and will continue to be for the foreseeable
future, the foundation of our Nation's energy resources. Coal's
continued strategic and economic importance only highlights the
need to protect those who work to extract it.
Virginia is a coal State, ranking No. 13 in the Nation in
coal production. In 2008, 24.7 million short tons of coal were
produced from an estimated recoverable reserve base of 750
million short tons.
According to the National Mining Association, direct and
indirect employment generated by U.S. coal mining in Virginia
accounts for 31,660 jobs, for a combined payroll of $1.43
billion. Coal is integral to the economic activity of southwest
Virginia. We can--and must--do better by our miners when it
comes to enforcing safety regulations and ensuring that
companies don't walk away from their responsibility to their
workers.
It is also essential that the Mine Safety Administration
have the proper resources to ensure the safety of the
hardworking men and women laboring in our mines every day.
I look forward to the analysis and recommendations of this
committee with regard to how we at the Federal level can
improve mine safety, and I pledge to work with my Senate
colleagues to implement needed reforms. I believe that improved
technology is one area we should be looking at, which is why
last Congress I introduced legislation to improve tracking and
communications technology for underground coal mines.
There is more we must do, as the tragedy in West Virginia
reminds us.
Thank you, Mr. Chairman, for the opportunity to address the
committee on this important issue.
Prepared Statement of the Coalition For Workplace Safety (CWS)*
The Coalition for Workplace Safety (CWS) is a broad coalition
comprised of associations and employers who believe in improving
workplace safety through cooperation, assistance, transparency,
clarity, and accountability. The Coalition believes that workplace
safety is everyone's concern. Improving safety can only happen when all
parties--employers, employees, and OSHA--have a strong working
relationship. We thank you for this opportunity to express our views on
the Protecting America's Workers Act (PAWA), and, specifically, the
proposed changes being discussed here today.
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* The CWS is comprised of associations and employers who believe in
improving workplace safety through cooperation, assistance,
transparency, clarity, and accountability.
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workplace safety is improving
Workplace safety has steadily improved over the last 40 years and
BLS data shows that workplaces are safer now than they have ever been.
Workplace fatalities have declined 23 percent since 1994. This drop
occurred even as the workforce expanded, with the economy adding 23
million new jobs over the same time period. Workplace injury and
illness rates have shown a similar drop. Since 1994, the total case
rate has declined by 50 percent and the lost days from work rate has
declined by 44 percent. While the government's reporting system may not
capture every workplace injury or illness, the data undeniably reveals
the trend of declining workplace injury and illness rates.
This decline is the product of various factors, including
employers, employees, OSHA, insurers, safety experts and business and
professional associations working together to increase understanding
about safe work practices and their importance and how employers and
employees can reduce workplace accidents. The advent of modern
communications and the Internet have also facilitated sharing
information and safety-related guidance.
CWS applauds OSHA for its role in decreasing injuries, illnesses
and fatalities, in particular its work in the last 15 years to promote
workplace safety through outreach and education. Since its inception,
OSHA has established standards employers must meet through its
regulations and enforcement activities. For the first 25 years, the
agency did not, however, focus on assisting employers and employees to
understand OSHA standards and related safe work practices. Beginning in
the Clinton administration, this changed and OSHA developed an array of
approaches that focused on educating and working cooperatively with
employers to improve workplace safety. The CWS is committed to
supporting these approaches as they have contributed to the increase in
workplace safety, as indicated by the BLS workplace injuries and
illness rates.
pawa will not improve workplace safety
CWS is concerned about several of the provisions in the Protecting
America's Workers Act (S. 1580/H.R. 2067). PAWA is unnecessary and will
not improve workplace safety. It focuses on increasing penalties and
enforcement and does nothing to assist employers in their efforts to
make workplaces safer. Increasing penalties on employers will only
serve to increase litigation, drain OSHA and DOL resources and harm our
economy and hinder job growth.
Experience with the Mine Safety and Health Administration (MSHA)
reinforces this point. A hearing in the Education and Labor Committee
on February 23, revealed that as a result of the increased penalties
from the MINER Act passed in 2006 and MSHA's regulations taking effect
in 2007, the backlog at the review commission is now 16,000 cases worth
$195 million, and expected to rise further as the current policy at
MSHA is to not engaged in settlements. This backlog has impacted safety
in the mining industry by absorbing an unprecedented amount of MSHA
resources which would otherwise be devoted to field and other
activities. Increasing OSHA's penalty regimes in a similar way will
neither increase safety in the workplace nor give employers the tools
necessary to create solutions towards workplace safety. Our concerns
with some of the specific aspects of PAWA that are being discussed
today are set forth below in more detail.
Abatement of Hazards Pending Contest
The change to Title III, Abatement of Hazards Pending Contest,
eliminates the employers' right to use the administrative appeals
process to thoroughly investigate its obligation to abate serious
hazards. This is a dangerous diminishment, if not outright elimination,
of due process protections for employers. Mandating abatement before a
review process can be completed is like asking a defendant in a court
case to pay a fine or serve a sentence before the completion of the
trial. Additionally, requiring abatement prior to a full investigation
may lead to inaccurate changes being made, which can lead to
unnecessary costs for employers. Conversely, allowing due process to
proceed in the normal order will allow employers, especially small
businesses, the time and resources needed to find solutions to any
workplace safety issues. This is the best way to keep workers safe on
the job. As a hearing in the House on March 16 revealed, OSHA already
has the ability to shut a workplace down in as little as 1 hour when
they determine there is an imminent hazard.
Penalty Changes
There has been much discussion of proposing further changes to this
legislation's criminal penalties under title III that would alter the
mental state requirements for criminal penalties from ``willful'' to
``knowing.'' This is a significant change to 40 years of settled law
that will cause uncertainty among employers, employees, compliance
officers, prosecutors and adjudicators. The uncertainty about potential
liability would cause employers to engage in a more defensive posture
with OSHA and on workplace safety issues. Not only will this
inevitability result in increased litigation, but it would severely
disrupt the cooperative approach towards workplace safety that has been
so successful over the past 15 years.
Furthermore, PAWA defines an employer as ``any responsible
corporate officer'' which will create unprecedented confusion and
disincentives to being a corporate officer. This proposed change would
have a chilling effect on how employers dedicate staff and resources
that maintain safety programs. These changes do nothing to give
employers, especially small businesses, the tools to stay well-informed
of safety concerns in the workplace. Increasing penalties and lawsuits
does not get to the heart of the problem necessary to find solutions in
the workplace.
The bill would also increase civil penalties dramatically which
will also lead to more contested cases with the associated impacts
already noted above.
PAWA: Not the Right Approach
This legislation goes counter to efforts commenced under the
Clinton administration to promote cooperation between employers and
OSHA. In order to be effective in making workplaces safer, employers
need OSHA to be as much of a resource as it is an enforcement agency.
However, we are troubled that many of these effective employer
compliance assistance programs are losing funding while the agency
focuses on expanding punitive measures like the Severe Violators
Enforcement Program. Congress should recognize the improving trends of
injury and illness rates and better under current programs that have
been successful in bringing about this progress. Lawmakers should look
to promoting effective programs that make workplaces safer rather than
considering drastic overhauls of OSHA's approach to enforcement. To
this end, we hope that Congress will consider codifying and protecting
compliance programs like the VPP that have protected millions of
American workers.
conclusion
The Coalition on Workplace Safety continues to stand ready to work
with OSHA and Congress to enhance workplace safety. However, PAWA--and
the changes presented here--undermine efforts to promote cooperative
engagement between employers and the agency, and will not assist
employers in making workplaces safer. We will continue to work towards
the goal of increasing workplace safety by working together through
cooperation, assistance, transparency, clarity, and accountability.
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Refinery Safety at a Glance
Personnel and Process safety are cornerstones of petroleum refining
facilities nationwide.
personnel safety
The domestic refining industry continues to improve its workplace
safety record, despite a work environment that often complex process
equipment, hazardous materials, and handling materials under high
pressures and temperatures. This strong industry safety record is
reflected by declines in the industry's rate of injury and illnesses--a
rate significantly lower than the total recordable incident rate for
the entire manufacturing industry.
process safety
The petroleum manufacturing industry is regulated by the
Occupational Safety and Health Administration (OSHA) Process Safety
Management Standard (PSM) for Highly Hazardous Chemicals (29 CFR
1910.119) and the U.S. Environmental Protection Agency (EPA) Chemical
Accident Prevention Program (40 CFR 68) as well as several other OSHA
General Industry standards. Individual sites are required by law to
conduct a PSM audit of all 14 facility safety elements \1\ every 3
years and to resubmit their Risk Management Plans (RMP) every 5 years.
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\1\ Fourteen elements include Employee Participation, Process
Safety Information (PSI), Process Safety Analysis (PSA), Operating
Procedures, Training, Contractors, Pre-Start-up Safety Review (PSSR),
Mechanical Integrity, Hot Work Permits, Management of Change (MOC),
Incident Investigation, Emergency Planning and Response, Compliance
Audits, Trade Secrets.
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NPRA and the American Petroleum Institute (API) \2\ continue to
work jointly on several new industry recommended practices that will
enhance workplace safety. In 2010, the industry released several
standards, including: Management of Hazards Associated with Location of
Process Plant Permanent Buildings, Fatigue Risk Management Systems for
the Refining and Petrochemical Industries, and Process Safety
Performance Indicators for the Refining and Petrochemical Industries.
NPRA and API worked closely with the Chemical Safety Board on the
creation of these recommended practices.
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\2\ API is an American National Standards Institute (ANSI)
accredited standards developing organization. They operate with
approved standards development procedures and undergo regular audits of
their process.
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There are approximately 30 safety and fire protection standards and
recommended practices maintained by API that refining companies
voluntarily comply with in order to promote a safe working environment.
In addition to refining industry standards, companies also comply with
standards established by the American National Standards Institute
(ANSI), American Society of Mechanical Engineers (ASME), the
Instrumentation, Systems, and Automation Society (ISA), and National
Fire Protection Association (NFPA). Many of these standards are
considered Recognized and Generally Available Good Engineering
Practices (RAGAGEP) and are enforced by OSHA's General Duty Clause.
quick facts
According to the 2008 Bureau of Labor Statistics (BLS),\3\ the
total recordable incident rate for the manufacturing sector as a whole
is 5.0 job-related injuries and illnesses per 100 full-time employees.
The 2008 BLS total recordable incident rate for petroleum refining
facilities is 1.1 incidents per 100 full-time employees.
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\3\ BLS rates are based on a sample rather than a census of the
entire population and do not include contractor injury & illnesses
numbers in their calculations.
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Based on the 2008 NPRA Occupational Injury & Illness Report that
surveys 90 percent of NPRA member refineries, the total recordable
incident rate was 0.83 for company employees, 0.53 for contractors that
work at those refineries, and 0.67 for both company employees and
contractors per 100 full-time employees.
In 2009, 60 percent of NPRA member refineries received the NPRA
Merit Award for having a Total Recordable Incident Rate of 1.0 or less
in 2008.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Prepared Statement of The National Stone, Sand & Gravel Association
On behalf of the National Stone, Sand and Gravel Association
(NSSGA), we offer this testimony for the hearing on ``Putting Safety
First: Strengthening Enforcement and Creating a Culture of Compliance
at Mines and Other Dangerous Workplaces.''
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 percent of the crushed stone and 75 percent of the sand
and gravel consumed annually in the United States. There are more than
10,000 construction aggregates operations nationwide. Almost every
congressional district is home to a crushed stone, sand or gravel
operation. Proximity to market is critical due to high transportation
costs, so 70 percent of our Nation's counties include an aggregates
operation. Of particular relevance to this hearing is the fact that 70
percent of NSSGA members are considered small businesses.
Unlike coal mines, underground stone mines produce material that is
non-combustible and non-flammable. No combustible gas, such as methane
is present, and no underground stone mine is categorized as liberating
methane or containing a combustible ore. MSHA-approved
(``permissible'') equipment is not required in underground stone mines
because mine fires or explosions cannot occur due to electrical
equipment contacting an explosive gas, since explosive gas is not
present. Mining methods create cavernous chambers for access by large
equipment and to accommodate emergency equipment used by non-mine
emergency services. More stable mineral formations result in stable
mine roofs, minimizing the need for additional roof supports and
emergency escape is easier due to the large mine openings. Because of
the large open spaces and mining methods, mechanical mine ventilation
generally is not required since natural ventilation provides an
atmosphere in which people can work.
NSSGA and its member companies go to great lengths to provide safe
and healthful environments for aggregates workers. Implicit in this
effort is the industry's commitment to comply with all MSHA regulations
and standards tied to worker safety and health.
The first priority of the aggregates industry is, and continues to
be, the safety and health of its workers. The safety record of the
aggregates industry has improved due to the heightened level of effort
invested by the industry to sustain an improved performance. Since
2000, the rate of injury-illness incidence for aggregates operators has
been reduced by 41 percent, to 2.46. While fatalities in the aggregates
industry continue to decline--seven in 2009--we believe even one
fatality is too many and we are working tirelessly to take that number
to zero.
The improvement in the aggregates industry safety record is
attributable to several factors. The first is that aggregate companies
understand that to stay competitive in today's business environment,
they must provide a safe and healthful workplace or they will not be
able to attract the best workforce possible. Companies know that to
remain competitive in America today, you must first care about your
people.
NSSGA developed and agreed to a set of safety principles to assist
member companies in their efforts to instill safety consciousness as a
top priority in their individual organizations as well as to the
industry as a whole. In addition, a safety pledge was developed in 2008
incorporating the safety guiding principles. More than 70 percent of
the NSSGA member company facilities are managed by CEOs who signed the
NSSGA Safety Pledge, thus signifying the importance of safety and a
commitment toward ensuring the safety and health of all their
employees.
NSSGA was one of the first organizations that formalized an
alliance with MSHA. While some argue that these alliances have aligned
the agency too closely with the regulated community, we would argue the
opposite. In 2002, NSSGA and MSHA set forth a cooperative agreement to
develop programs and tools for the improvement of safety and health in
the aggregates industry. The reduced incidence rates that resulted
speak for themselves. Through these alliances, individual working
miners have gained access to more educational materials from their
companies, and MSHA has been able to enhance its mission of protecting
worker safety and health.
Another collaborative effort resulted in the MSHA Part 46
``Training and Retraining of Miners'' regulation in 2000. This
effective regulation ensures that every miner knows and understands how
to perform their job safely by covering the important safety and health
information prior to starting work and annually thereafter. This
regulation was developed collaboratively, with input from both labor
and industry groups, guaranteeing support of the rule by all involved
stakeholders and assuring their commitment to the ultimate goal of
injury reduction. The Coalition for Effective Miner Training included
many industry groups working in a joint industry/labor arrangement in
conjunction with MSHA to develop an effective standard for the
aggregates industry, and the part 46 miner training resulted from the
group's combined efforts.
Another example of an effective collaboration between MSHA and
NSSGA is a cooperative workplace-based training program of 3-day-long
workshops on monitoring for both noise and dust, and diesel particulate
matter. Agency and association leadership developed and signed an
agreement, and the training workshop program launched on December 1,
1997. These workshops have been given every year since 1997, and
training specialists from the Mine Safety Academy have educated miners
in dust and noise issues. The joint venture aimed at reducing hearing
loss and silicosis through a program of recognition, evaluation and
control of workplace hazards has won two awards from Innovations in
American Government.
Because there's been much discussion of the Federal Mine Safety and
Health Review Commission since the coal mining tragedy of April 5, we
offer a number of suggestions for alleviating the case backlog at the
Commission.
NSSGA is concerned about the delay in producers' ability to obtain
from the Federal Mine Safety and Health Review Commission (FMSHRC) a
timely hearing on alleged violations.
We applaud Assistant Secretary of Labor for Mine Safety & Health
Joseph Main for his goal of improving training for inspectors on behalf
of enforcement consistency. We understand that a number of contests
from aggregates companies are due to strong disagreement on the basis
of the severity finding on a citation. Inspectors need to do a proper
job of evaluating and clearly identifying what is ``Significant and
Substantial'' (S&S). NSSGA hears repeated expressions of concern that
S&S is being over-written.
Also, we would like to see the agency communicate more proactively
with stakeholders about agency changes in enforcement interpretations.
Citations should not serve as first notice to stakeholders that there
has been a change in the agency's interpretation of what is required to
be in compliance. Rather, the agency should notify all stakeholders of
such changes in interpretation before enforcement begins so that
companies and their workforces are afforded adequate information needed
for compliance.
Additionally, we recommend that MSHA re-institute the process of
conferencing citations before assessment of penalties. Before it was
changed, pre-penalty conferencing enabled operators to close out on
inspections satisfactorily without having to add to the Commission's
docket.
Further, we encourage the agency to consider changes in civil
penalty procedures hastily put in place contemporaneously with
enactment of the MINER Act. A major concern, for example, is the
regulatory provision specifying how an operator's history should be
brought into calculation of civil penalties. While we understand the
importance of scrutiny of every company's history in reviewing
violations for assessment, the present procedure of assigning maximum
penalty points for a 15-month average of 2.1 violations per inspection
day is having a disparate and unfair impact on many companies. Take a
small company, for example, that in its last two inspections of 1 day
each in the previous 15 months, has a total of five violations for a
total of 2 days of inspections. This will cause 25 points to be added
to this small company's civil penalty calculation, which can translate
into very big fines. Twenty-five points will convert a $555 penalty to
$4,099 and it will convert a $4,099 penalty to $30,288. There are small
companies that have been assessed penalties as high as $200,000 in a
single inspection.
It is understandable that companies will not want a single
underserved violation in their history and that they will do everything
in their power to contest questionable citations.
We are committed to the notion that operators have every right and
need to contest citations with which they do not agree. We hasten to
add that history is by no means the sole issue. Every undeserved
subjective finding by an inspector will add underserved points to the
company's penalty calculations. These are unaudited findings and they
represent big money liability. Only by seeking review before the
Federal Mine Safety and Health Review Commission--the agency with
exclusive authority to assess penalties--can an operator have a voice
in the process. Indeed, even MSHA now is telling operators that if they
want a conference regarding a citation, they will have to contest the
citation formally before the Commission. We have mentioned only some of
the concerns of operators that are prompting contests, but the system
as a whole is deemed unfair and the only avenue that operators have to
bring issues to light is through the contest process. NSSGA would be
pleased to work with MSHA to address this and possible solutions.
Also, we offer the attached article, which was published in Mine
Safety and Health News on Jan. 25, 2010. It was authored by an NSSGA
Manufacturers and Services Division member and discusses the background
of the backlog, relevant legal issues and includes suggestions for
addressing the backlog. For your information, the author participated
in an Energy and Mineral Law Foundation Special Institute (March 23 and
24) in Washington, DC, with attorneys from the Solicitor of Labor's
office and Judges from the Federal Mine Safety and Health Review
Commission. The goal of the panel was to constructively address civil
penalty case backlog issues and how they might be resolved for
everyone's benefit.
Additionally, we cannot mention--either our commitment to or
achievements in--worker safety and health without citing the importance
of effective compliance assistance by MSHA. In that vein, we
respectfully urge that the Administration change course on plans to
shut down the Small Mine Office (SMO): we believe the provision of
quality compliance assistance geared to smaller operations adds
significantly to the safety and health of our workforce.
SMO compliance assistance has helped operators: (1) provide safer
and more healthful work environments; (2) boost compliance; and (3)
experience smoother inspections because the operation and workforce
were better prepared. Moreover, we're pleased that SMO works on a key
priority of yours, the development of a written safety and health plan
for every operator. As illustrated at www.msha.gov, SMO's compliance
assistance correlates to more rapid reductions in injury/illness
incidence rates than for those of the overall aggregates industry.
NSSGA and our State aggregate association partners find SMO's work
to be critically important to continuing improvements in safety and
health among aggregates industry workers.
This guidance was considered most useful when it could be provided
without ``coordination'' or immediate follow-on by an inspector.
Operators are concerned that, if compliance assistance visits are
followed immediately by enforcement action, inspections will target the
very issues focused upon in the compliance assistance visit before
adequate time allows for resolution of deficiencies. Presently, it is
our understanding that SMO provides compliance assistance without
specific knowledge of when an inspection may be forthcoming. This
allows the development of greater trust that the assistance is offered
for the safety and health benefit of the workers, and with the purpose
of enhancing compliance.
SMO's work has enabled companies to more readily comply with
pertinent regulations and standards, the enforcement of which has
dramatically increased since enactment of the MINER Act. This is
critical. Given that many NSSGA member companies--replete with strong
staffs involved in safety and health training and compliance--are
themselves facing increased compliance pressures. One can only imagine
the burdens weighing on small operators.
NSSGA is in receipt of more than 100 stories of SMO personnel
having delivered effective compliance assistance. Outlined below are
just a few testimonials from around the country:
Small mines officer helped us quickly bring our operations
up to speed on safety.
Assistance on training plans made for a thorough
understanding; for instance, he delivered easy-to-understand
explanations.
Officer conducted a thorough examination via a courtesy
walk-through on the range of things inspectors would be checking for.
Because of our visit with the SMO representative, we had a
zero citation inspection.
The SMO representative provided guidance on updating
records and training materials.
The instruction was so helpful that our contractors have
called to express thanks.
One inspector took the trouble to make a second visit to
our facility because the first day's provision of information had been
so overwhelming.
Officer helped us organize all of our training
information.
Officer made my safety training work much more efficient.
Officer streamlined our paperwork organization so that
there will be fewer headaches in the future.
These testimonials describe the qualities of SMO representatives,
reflecting favorably on the agency and its mission:
Very professional, and business-like and added a measure
of personal concern.
Helped us realize that our full compliance was possible.
Helped us solve our safety problems on numerous occasions.
After our meeting, I feel really good about spreading the
good news.
I feel that you could not put a monetary value on the
small mine program because it does what it is designed for, to save
lives, reduce accidents, and help improve operator awareness.
I can feel comfortable calling this person, instead of an
inspector; he was genuinely interested in helping.
Materials he provided are my new best friends.
Don't know what small miners would do without you.
[on courtesy walk-through] It's not easy being picky and
polite at the same time, but the SMO representative did.
In closing, we respectfully urge continuation of SMO's critical
work to boost compliance in smaller operations that are unlikely
otherwise have the staff complement sufficient to oversee in-house
compliance assistance with the same level of expertise. Most
importantly, SMO's continued existence will help us continue our 9
consecutive years of improvements in the aggregates industry's injury-
illness incidence rates.
Thank you for the opportunity to submit these views.
Response to Questions of Senator Harkin by Bruce Watzman
Question 1. I agree with your statement that a safety culture
starts from the top down and that it is recognized across all
organizations, both mine and non-mine workplaces. Unfortunately, there
are a minority of operators that wantonly disregard our health and
safety laws, using a myriad of tactics to avoid paying penalties and
otherwise complying with the law.
Focusing on operators that show a record of egregious health and
safety violations, does your organization agree that a strong
enforcement structure is necessary to hold companies accountable for
repeatedly placing their employees at risk of injury or death?
Answer 1. We believe that strong, vigorous enforcement of the law
and regulations is integral to ensuring that workers, in mining and
non-mining workplaces alike, are provided a safe and healthful
workplace. As noted in our April 27, 2010 testimony, ``mine safety is
the operator's obligation and must be their highest priority but both
operators and MSHA have a shared responsibility to ensure a safe
workplace.'' The Mine Act and its escalating enforcement scheme are
designed to hold accountable operators that place their employees at
risk of injury or death.
Question 2. Should companies be penalized for chronically
accumulating serious job safety violations that can potentially cause
serious injury and death?
Answer 2. Under the Mine Act and its escalating enforcement scheme
companies are penalized for accumulating serious job safety violation.
Question 3. Would you and your organization support changes in the
law in order to discourage unscrupulous operators from pursing
frivolous appeals solely for the purpose of delay? If not, why not?
Answer 3. The underlying premise of the question is the belief that
some operators' are employing dilatory tactics to prevent MSHA from
being able to initiate heightened enforcement actions based upon final
resolution of safety violations. We do not agree with this premise.
However, it must be noted that MSHA, even in the absence of final
resolution of challenged citations, has the ability to escalate
enforcement when they believe it is warranted.
As discussed during the April 27 hearing, MSHA has never used the
injunctive relief authority provided by the Congress in Section 108 of
the Federal Mine Safety and Health Act and has sparingly used the
imminent danger authority provided for in section 107. We support
legislation to provide additional appropriations to the Federal Mine
Safety and Health Review Commission and the Department of Labor, Office
of the Solicitor, to eliminate the backlog of cases pending
adjudication as continued delay serves neither miners or mine
operators.
Response by David Michaels, PhD, MPH to Questions of Senator Harkin,
Senator Enzi, Senator Burr, and Senator Isakson
questions of senator harkin
Question 1. You mention that most Federal crimes under current
environmental and regulatory laws use the term ``knowingly,'' rather
than ``willfully,'' and recommend amending the OSH Act to change its
criminal provision to be consistent with other statutes.
Please explain for us the distinction between the ``knowing''
standard and ``willful'' standard and the significance this change
would have to the agency's enforcement efforts.
Answer 1. Most Federal statutes, including most environmental
statutes, contain a ``knowing'' mens rea standard rather than a
``willful'' standard.
DOL supports the efforts to amend the criminal provisions of the
OSH Act by changing the mens rea standard from ``willful'' to
``knowing.'' Doing so would bring those provisions into the mainstream
of Federal criminal laws.
Congress has consistently used the ``knowing'' standard in criminal
provisions in public welfare statutes and in other contexts where, as
in the workplace, activities are highly regulated. It is reasonable to
assume that anyone involved in such areas is aware of that high degree
of regulation. Indeed, in such contexts, courts have recognized a
presumption of knowledge of the law. Cf. United States v. Int'l
Minerals & Chem. Corp., 402 U.S. 558 (1971) (explaining that when
dangerous or harmful devices or products, or obnoxious waste materials,
are involved, ``the probability of regulation is so great that anyone
who is aware that he is in possession of them or dealing with them must
be presumed to be aware of the regulation''). The justification for
this presumption has been described as follows: ``[t]o admit the excuse
at all would be to encourage ignorance where the lawmaker has
determined to make men know and obey.'' Holmes, The Common Law (Howe,
ed. 1963). Use of the knowing standard in OSHA's criminal penalty
provision would be consistent with this rationale, as employers can
hardly be surprised to learn of the existence of standards, rules, and
orders pertaining to workplace safety, and the knowing standard places
an appropriate and fair burden on them to ``know and obey'' these
standards, rules, and orders.
Question 2a. Compared to our environmental laws, both civil and
criminal OSHA penalties under current law seem very low.
Because OSHA penalties are only misdemeanors, in what circumstances
would the Department of Justice be able to prosecute cases involving a
willful violation that led to a workplace fatality?
Answer 2a. Under PAWA, criminal OSHA violations would be deemed
felonies rather than misdemeanors. The Department of Justice has
testified that it is more likely to prosecute felonies than
misdemeanors. In addition, potential criminal liability is expanded to
any responsible corporate officer or director. Both the Clean Water Act
(CWA) and the Clean Air Act (CAA) already expressly include
``responsible corporate officer'' in their definitions of persons to
whom the statutes apply. 33 U.S.C. 1319(c)(6) (CWA); 42 U.S.C.
7413(c)(6) (CAA). The term is often defined as a person who is in a
position to stop the conduct and has knowledge of the facts, but does
nothing to stop the conduct. Similar liability would be appropriate
under the OSH Act.
Question 2b. In addition to increasing penalty amounts, what are
other ways to ensure that companies whose corporate management
knowingly ignores health and safety laws throughout multiple facilities
face appropriate consequences for these actions?
Answer 2b. In April, OSHA announced the new Severe Violators
Enforcement Program (SVEP), a critical tool that will help the Agency
improve its ability to deter safety and health violations, particularly
among recalcitrant employers who knowingly and repeatedly put their
employees in harms way. The SVEP, which replaces OSHA's existing
Enhanced Enforcement Program (EEP), is intended to focus increased
enforcement attention and resources on employers who have demonstrated
indifference to their obligations under the Occupational Safety and
Health (OSH) Act. In particular, the SVEP targets the most egregious
and persistent violators who have willful, repeated, or failure-to-
abate violations in one or more of the following circumstances: (1) a
fatality or catastrophe situation; (2) in industry operations or
processes that expose employees to the most severe occupational hazards
and those identified as ``High-Emphasis Hazards; '' (3) exposing
employees to hazards related to the potential release of a highly
hazardous chemical; or (4) all egregious enforcement actions.
Under OSHA's definition, employers that behave in a way that
indicates they may be indifferent to their legal obligations and
thereby endanger their workers would become an SVEP case. The SVEP
actions, consisting of more inspections, public notification, and other
measures, are intended to increase attention on the correction of the
hazards or recordkeeping deficiencies found in these workplaces and,
where appropriate, in other worksites of the same employer where
similar hazards and deficiencies are present.
The changes the Protecting America's Workers Act (PAWA) would make
to the OSH Act's criminal provisions are another way OSHA could better
ensure companies whose corporate management knowingly ignores health
and safety laws throughout multiple facilities face appropriate
consequences for these actions. PAWA would change the burden of proof
from ``willfully'' to ``knowingly.'' Section 311 states that any
employer who ``knowingly'' violates any standard, rule, or order and
that violation results in the death of an employee is subject to a fine
and not more than 10 years in prison. Currently, the maximum period of
incarceration upon conviction of a violation that costs a worker's life
is 6 months in prison, making these crimes a misdemeanor. Nothing
focuses attention more than the threat of going to prison and we
believe this change would better hold corporate feet to the fire when
it comes to safety and health.
In addition, potential criminal liability is expanded to any
responsible corporate officer or director, which addresses Federal
court rulings that limited liability for OSHA violations to
corporations and high-level corporate officials. This section is aimed
at the small minority of corporate officials who have behaved
irresponsibly, resulting in the death or maiming of their employees.
OSHA currently has no penalties adequate to deter such conduct.
questions of senator enzi
Question 1. How many inspections does the average OSHA inspector
conduct per year? How many of those are programmed inspections, and how
many are in response to an accident or complaint?
Answer 1. In fiscal year 2009, OSHA inspectors conducted an average
of 39.6 inspections. Of those, approximately 28.9 inspections were
programmed, one inspection was the result of a fatality or catastrophe,
and 7.94 were in response to a complaint.
Question 2. Despite your assurances, I have received no information
about the alternative funding mechanisms OSHA is supposed to be
considering for Voluntary Protection Programs (VPP). Please describe
the system you are proposing in detail.
Answer 2. The Agency has been approached by Congress about
exploring a fee-based system for operating VPP. We are currently
exploring the feasibility and benefit of this type of system and its
overall impact on the Agency's effectiveness in achieving its mission
to assure the safety and health of our Nation's workers. As part of
that process, we have reviewed a 2008 study performed by the Government
Accountability Office (GAO), Federal User Fee: A Design Guide, and
found that user fees, if well designed, can promote economic efficiency
and be a viable option to deal with scarce budgetary resources. Our
goal in exploring this possibility is to ensure that VPP and other
Agency programs will function efficiently as a part of OSHA's overall
approach to worker safety and health.
Question 3. Who have you worked with in developing this new VPP
funding proposal?
Answer 3. We were approached by the House Education and Labor
Committee to explore a fee-based system for running the VPP. Some work
will need to be done to determine if it makes sense in this context. In
doing so, OSHA is committed to working with the Voluntary Protection
Program Participants' Association (VPPPA) and other program
stakeholders, to whom we have reached out, to identify the best way to
structure a fee-based proposal or any other viable options for
obtaining non-Federal funding to support this program and the Agency's
overall mission.
Question 4. Who has been briefed on the new VPP funding proposal
and been given the opportunity to provide feedback?
Answer 4. Preliminary information has been provided to Congressman
George Miller on the VPP fee-based proposal.
Question 5. Will the new VPP funding proposal require new
legislative authority?
Answer 5. If we were to pursue this strategy, it would require
legislative authority.
Question 6. How long would it take to put this new VPP funding
system in place?
Answer 6. If the Administration chooses to pursue this option, it
would take some time to establish a system for administering it, after
the necessary authorizing legislation is enacted.
Question 7. The 2011 Budget Request also proposed shifting 35 FTEs
from ``support of VPP and Alliance programs to enforcement activity.''
Has this shift already occurred? If not, when does OSHA plan to make
this shift?
Answer 7. The requested shift of resources is part of the agency's
fiscal year 2011 budget request and will not be effectuated until it is
authorized by Congress in the appropriations process.
Question 8. Does this shift require congressional approval?
Answer 8. Congress sets the total appropriation for OSHA and
designates specific dollar amounts for each of the agency's budget
activities. OSHA then determines how many FTE can be supported with the
funding provided by Congress and if a requested program increase or
decrease was provided within the budget activity threshold approved by
Congress. The President's request for fiscal year 2011 reflects the
requested shift of 35 FTEs.
Question 9. How many new VPP site applications have been processed
since your confirmation on December 3, 2009?
Answer 9. As of May 13, 2010, there have been 76 new VPP
applications processed and approved since Dr. Michaels' confirmation on
December 3, 2009.
Question 10. On 4/19/10, the National Labor Relations Board issued
a decision in International Union of Operating Engineers, Local 513,
AFL-CIO and Ozark Constructors, LLC, A Fred Weber-ASI Joint Venture,
Case 14-CB-10424. In this case a Missouri labor union fined one of its
members for reporting a safety violation by another employee union
member to the employer at the hydroelectric facility where they worked.
The employee was complying with the employer's safety rules by
reporting the violation, and protecting himself and all of his
coworkers. Yet the union fined him $2,500 for ``gross disloyalty or
conduct unbecoming to a member.'' NLRB ordered the union to rescind the
fine and post a notice that stated, in part,
``WE WILL NOT impose a fine on any employee because he or she
reports another employee-member to his or her employer for
safety rule infractions, at a time when doing so is part of the
work duties of the employee who makes the report.''
What kind of message does it send to penalize workers for taking
steps to make their workplaces safer?
Answer 10. It sends an unconscionable message. Under the OSH Act, a
worker has the right to raise concerns about workplace safety or
health, whether or not doing so is part of that employee's work duties.
Question 11. Should a labor union be able to prevent employees from
reporting hazardous conduct or prevent an employer from disciplining an
employee who fails to follow safety rules?
Answer 11. As previously noted, OSHA does not accept restrictions
on a worker's right to participate in the protected activity of
engaging in the process of ensuring workplace safety and health. This
right to raise safety concerns is not conditioned on the worker being
required to do so by official duty.
Question 12. At the hearing, Dr. Brandt, the incoming President of
the American Industrial Hygienists Association, stated his unequivocal
support for workplace alcohol and drug testing programs. Do you support
workplace alcohol and drug testing programs?
Answer 12. As you know Secretary Solis' vision for the Department
of Labor is ``Good Jobs for Everyone.'' Good jobs are safe jobs. This
is why the Department has launched a ``plan, prevent, protect''
strategy in our spring 2010 regulatory agenda to expand and strengthen
worker protections. This program is aimed at efforts to require each
employer to implement an Injury and Illness Prevention Program, one
that not only establishes a plan to identify and correct all workplace
hazards, but also fosters a culture to prevent such hazards from
occurring in the first place.
There are many different approaches to workplace safety, some of
which include drug and alcohol testing, although in our experience we
have found that drug and alcohol testing programs often have the effect
of discouraging worker participation in the health and safety program,
or from reporting injuries and illnesses.
We have found that the best way to prevent workplace injuries and
illnesses is through this ``plan-prevent-protect'' strategy where
employers and employees work together to prioritize safety and health,
address all hazards that may be present, and build a culture that
involves workers and their employers.
questions of senator burr
Question 1. It has been reported that OSHA plans to remove funds
currently devoted to cooperative compliance programs and devote them to
increased enforcement, with a specific focus on nonunion employers. Can
you confirm whether it is true that funds are being reduced and/or
diverted away from these cooperative programs?
Answer 1. OSHA's fiscal year 2011 Congressional Budget
Justification, which was delivered to Congress on February 1, 2010,
redirects 35 full-time equivalent (FTE) positions to the Federal
Enforcement budget activity from Federal Compliance Assistance,
specifically the Voluntary Protection Program (VPP). The redirection of
resources is not being proposed with a specific focus on nonunion
employers. The budget proposes refocusing OSHA's compliance assistance
work by freeing up the time devoted by compliance safety and health
officers (CSHOs) to cooperative programs to allow for increased
inspections and the detection of hazards in the most dangerous
workplaces. OSHA continues to strongly support VPP, but feels that
Federal funds need to be focused on our top priority, which is
enforcement of the law for those companies who continue to put workers
at risk. OSHA is actively exploring non-Federal funding options such as
a fee-based system in order to continue and strengthen VPP.
Question 2. Second, on what statistical basis does OSHA rely in
diverting funds from effective cooperative programs such as VPP and
STAR and devoting them to increased enforcement activities specifically
against nonunion employers?
Answer 2. OSHA must make hard choices in using our limited
resources where they are most needed. As a result, OSHA is reducing
Federal resources spent on companies that have a proven record of
understanding the importance of worker safety and health to invest
resources in companies that are not doing a good job protecting their
employees. The redirection of resources is not being proposed with a
specific focus on nonunion employers.
Question 3. What criteria has OSHA used in making this decision
that cooperative programs are ineffective and that nonunion employers
are less safe than unionized employers?
Answer 3. One of this Administration's top priorities is effective
compliance assistance. Cooperative programs at union and nonunion
employers play an important role in OSHA's efforts to provide a voice
for workers and to ensure safe and healthy workplaces and worker
rights. The Voluntary Protection Programs (VPP) make a valuable
contribution to workplace safety, including many with workplace safety
and health programs that serve as models for the rest of American
companies.
questions of senator isakson
Question 1. Does the Administration support section 309 of PAWA--
Objections to Modification of Citations--which allows ``affected
employees'' (who are undefined) to interfere with settlement
negotiations and citation modifications if they allege that these
``fail to effectuate the purposes of the act?'' I fear the effect of
this section will be to seriously impede OSHA's ability to negotiate
settlements thus tying up OSHA resources unnecessarily and delaying the
implementation of settlement agreements that benefit workers.
Answer 1. I understand that the committee has redrafted this
section in a way that addresses your concerns. The revised draft would
establish 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. If a case is not settled, the victim will have a
right to make a statement to the Commission, and to have that statement
receive due consideration in any Commission decision. No one is
affected more by a workplace tragedy than workers and their families,
and we fully recognize and appreciate their desire to be more involved
in the remedial process.
Question 2. How does the Administration expect an already
overloaded review system to cope with the combination of many more
whistleblower complaints (the result of extending the deadline from 30
days to 180) and strict deadlines for responses (120 days)?
Answer 2. Protecting workers who suffer retaliation for their
protected safety and health activity will continue to be both a
priority and a challenge for the Department of Labor. We believe that
the current, outmoded filing deadlines unfairly impact these workers
and should be revised.
Question 3. What data does the Administration have that supports
the changes to 11(c) in PAWA (Title II)?
Answer 3. The Department of Labor supports PAWA's modernization of
OSHA's anti-retaliation provisions because it provides a more equitable
process for complainants, more adequately protects whistle blowers, and
conforms the outdated whistleblower provisions of the OSH Act with
other, more modern Federal whistleblower laws. While OSHA does not
track the specific number of cases dismissed for failure to file within
the current, short 30-day deadline, it is clear from our experience
administering 11(c) that this happens all too frequently. We strongly
believe 11(c) complainants should be entitled to the same period for
filing retaliation claims as employees who file complaints under the
other whistleblower laws. The nine most recently enacted or amended
statutes have 180-day filing deadlines; two have 90-day periods; and
one has 60 days. Only the OSH Act and the equally outdated
environmental statutes have 30-day filing deadlines. We also support
harmonizing other aspects of whistleblower law, including burdens of
proof, private rights of action, and de novo review, and believe that
the whistleblower provisions of PAWA achieve this harmonization in a
way that will provide workers with more adequate protections.
Question 4. Does the Administration believe that the approximately
75 percent of claims that are dismissed are meritorious?
Answer 4. In the past 5\1/2\ years, OSHA has dismissed 62 percent
of the 11(c) complaints it investigated. Of the 1.5 percent forwarded
by OSHA to the Office of the Solicitor for litigation, approximately
three quarters of 11(c) complaints were declined for a variety of
reasons, only some of which relate to the underlying merits of
complainant's claim. Some are settled, some are unsuitable for
litigation because crucial witnesses may be unavailable, still others
because of the extremely demanding burdens of proof under the OSH Act's
whistleblower provision.
Question 5. How does PAWA help a small business looking for answers
to the safety questions improve its workplace safety? Why would
increasing penalties make a difference to small employers who will very
likely never see an OSHA inspection unless they have an accident?
Answer 5. PAWA would enable OSHA to continue to support OSHA
outreach initiatives for small businesses through compliance
assistance, cooperative programs, and training. In addition, no changes
are being proposed to services provided to small employers by OSHA On-
site Consultation programs. OSHA will continue to develop and enhance
its Web site and outreach initiatives to support the safety and health
programs of all employers, including small businesses.
While many employers want to do the right thing, others will only
comply with OSHA rules if there are strong incentives to do so. It is
unfair to employers who are doing the right thing, especially small
employers, to allow unscrupulous employers to gain an unfair
competitive advantage by cutting corners on safety and health
investments.
Because OSHA can only visit a limited number of workplaces each
year, we need to strengthen the OSH Act in order to effectively
leverage our resources and encourage voluntary compliance by employers.
Increased penalties will make employers of all sizes who ignore hazards
to their workers' safety and health think again. 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. OSHA penalties must be increased
to provide a real incentive for employers not to accept injuries and
worker deaths as a cost of doing business.
Question 6. On two separate occasions, a bipartisan group of
Senators has written to the Labor Department asking for a safety
standard specific to tree care operations. The Bush administration
responded and pledged to work toward enacting regulations. The Obama
administration has now reversed course, despite the fact that in 2008,
the industry's fatality rate was 62.0, nearly three times that of
mining and over five times that of construction. Please explain this
decision.
Answer 6. OSHA recognizes that hazardous conditions caused by tree
care pose a serious threat to America's workers. However, after careful
deliberation the Agency has determined that the major issues the
proposed rule was intended to correct are already addressed by existing
standards. OSHA issued a directive related to tree care and tree
removal operations on August 21, 2008 (CPL 02-01-045). This directive
provides guidance on existing OSHA general industry standards that
apply to tree care and tree removal operations. Examples of current
general industry standards discussed in the directive, include Personal
Protective Equipment (29 CFR 1910 Subpart I), Material Handling and
Storage (29 CFR 1910.176), Hand and Portable Powered Tools and Other
Hand Held Equipment (29 CFR 1910 Subpart P), Machinery and Machine
Guarding (29 CFR 1910 Subpart O), First Aid Providers and First Aid
Kits (29 CFR 1910.151), Fire Extinguishers (29 CFR 1910.157),
Occupational Noise Exposure (29 CFR 1910.95), and Flammable and
Combustible Liquids (29 CFR 1910 Subpart H). The directive also
provides criteria that will assist in determining whether a particular
removal of trees is the type of operation covered by OSHA's logging
operations standard (29 CFR 1910.266) and the applicability of current
OSHA electrical standards.
OSHA is faced with many difficult safety and health decisions,
including decisions about which standards to pursue. In determining the
best course of action to correct a hazard, OSHA must take a variety of
issues into account including resource limitations and other
commitments. The Agency's new regulatory agenda, which was issued on
April 26, 2010, is intended to reflect an accurate production schedule
with realistic timetables for completing rules. As a result, OSHA made
a decision to withdraw tree care, and several other rulemakings from
the regulatory agenda rather than push the next action dates out for
these standards. OSHA will continue to evaluate tree care as a
candidate for further rulemaking.
Response to Questions of Senator Enzi by Michael Brandt
Question 1. Just last week the National Labor Relations Board
decided a case in which a Missouri labor union had fined one of its
members $2,500 for reporting a safety violation by another employee
union member to the employer at the hydroelectric facility where they
worked. (International Union of Operating Engineers, Local 513, AFL-CIO
and Ozark Constructors, LLC, A Fred Weber-ASI Joint Venture, Case 14-
CB-10424, 4/19/10) The employee was complying with the employer's
safety rules by reporting the violation, and protecting himself and all
of his coworkers. What kind of message does it send to penalize workers
for taking steps to make their workplaces safer?
Answer 1. While there is no simple answer to your question, I will
summarize my opinion and then provide a more detailed explanation of
it.
This specific case (355 NLRB No. 25) involves an employee reporting
an ``unsafe condition'' in the workplace to the site safety officer.
Every organization has conditions of employment that each employee
agrees to obey when they are hired. These workplace rules are typically
designed to codify organizational norms and set behavioral expectations
for employees. Also, the application of workplace policies is
oftentimes subject to interpretation of the specific circumstances
surrounding any violation of policy.
My reading of the Decision indicates that while there is a subtext
of discord within the union local, the union chose to penalize the
worker for reporting the unsafe condition in the workplace. The
employee had an obligation to act to report an observed safety hazard
to protect himself and his coworkers. The union officials chose to
place fidelity to union rules over safety, which is akin to an often
used argument that ``management places production schedules over
safety'' when an injury occurs. Both approaches fail to consider the
risks to workers resulting from uncorrected, unsafe or unhealthy
conditions in the workplace. Doing so could result in a serious injury
and a work stoppage. The union's decision to penalize this worker for
reporting an observed safety hazard sends the message that will very
likely result in silencing other union members who may observe a safety
hazard and result in an increased risk in the workplace.
As I stated in my testimony to the HELP Committee, each employee
has a reasonable expectation to return home healthy and safe. I also
stated that a precondition for a safe workplace is shared
responsibility and accountability between labor and management. I will
briefly elaborate. A central principle of occupational health and
safety is to identify potential hazards and intervene early to
eliminate the hazard and reduce the risk. This requires that various
defenses be implemented to:
Create an understanding and awareness of the hazards
associated with a given work activity through anticipation and
recognition of potential hazards associated with a work
activity;
Give clear guidance on how to work safely through work
instructions;
Eliminate the hazard at the design stage or by
implementing controls to mitigate the hazard such as
engineering solutions, personal protective equipment, or
administrative measures (warning signs, work procedures);
Evaluate the effectiveness of the control measures in
eliminating or reducing the risk associated with the hazard as
low as reasonably achievable.
Question 2. Should a labor union be able to prevent employees from
reporting hazardous conduct or prevent an employer from disciplining an
employee who fails to follow safety rules?
Answer 2. Given the topic of the recent HELP Committee hearing on
unsafe workplaces, it does not make any sense for a union to prevent
workers from reporting hazardous conduct or unsafe conditions. Each
employee has a reasonable expectation that they will return home safe
at the end of their work day. Programs such as VPP and other management
systems promote both management and employee participation and
involvement in a workplace safety and health program. Workplace rules
that prevent reporting, and thereby prevent correcting, unsafe
conditions are not likely to be found in organizations with good safety
records. Such workplace rules violate the basic public health and
safety principle that intervening early in an unsafe or unhealthy
workplace will reduce the severity of the outcome or eliminate the
observed risk to workers. Finally, organizations with a just and
positive safety culture encourage workers to ``find and fix'' workplace
hazards as a routine behavior.
Question 3. I was glad to hear of your support of Voluntary
Protection Programs (VPP). What do you think is responsible for the
considerable growth in new VPP members over the last decade?
Answer 3. VPP has been successful because contemporary high
performing and financially successful organizations recognize that
investing in health and safety is good for both the business and for
the employees. I describe four examples of how health and safety has
been successfully integrated into business; see my response to Senator
Harkin's question below. These examples, while not necessarily from VPP
sites, reflect the basic components of VPP: management and employee
involvement and collaboration toward common goals, work process
analysis using common quality management analytic techniques, hazard
elimination and mitigation with positive business financial and
productivity impacts, and workplace risk reduction.
Health and safety leaders from professional societies such as the
AIHA have been promoting a systems approach to health and safety
management over the past decade. While there are a number of different
management systems being promoted globally each shares these common
features:
management leadership and involvement to lead by
example;
employee participation in work planning, hazard
identification and control, and the safe execution of work;
workplace and work activity analysis to identify
health and safety hazards;
control measure implementation to mitigate or
eliminate identified hazards; and measuring the effectiveness
of the control measures to reduce or eliminate the identified
hazards.
These steps are complimentary and supportive of other workplace
continuous improvement and productivity improvement initiatives that
have been implemented in commercial business, government, and industry
in response to the globalization of markets and the subsequent economic
competition.
Question 4. How does VPP build the culture of safety in workplaces?
Answer 4. In my experience as a labor trades worker, practicing
industrial hygienist, operations manager, and executive, I have found
that operational excellence is derived from a culture of trust and
cooperation. Management provides the leadership and the resources to
support safety and employees plan and perform their work by being
knowledgeable about the potential hazards and take action to eliminate
or mitigate those hazards. employers with good safety records encourage
their employees to ``stop work'' in the event that an unsafe condition
is observed and take action to correct the condition and eliminate the
hazard. Such organizations routinely perform their work safely,
securely, and with high quality because they have established a
cultural expectation of operational excellence. A common thread in such
organizations is a culture of continuous improvement in which work
processes are routinely improved and optimized. By comparison, VPP
provides a framework for building cooperative relationships between
labor and management to improve the health and safety performance of an
organization. VPP and quality management tools and techniques are
complimentary and assist organizations to achieve two common goals of
any business enterprise. The first goal is to perform high quality
work, which means that the workplace will be free of health and safety
hazards or identified hazards are controlled. The second goal is to
execute work to produce high quality products and services that are
valued by customers.
Question 5. Do you support the Administration's request to
appropriate no funds and no staff to VPP in fiscal year 2011?
Answer 5. While I understand OSHA's priority of increasing
enforcement, I do not support moving the $3M of funding of a program
that is designed to create a positive safety culture in which labor and
management collaborate to identify and eliminate health and safety
hazards.
______
United Mine Workers of America (UMWA),
Triangle, VA 22172-1779,
May 7, 2010.
Hon. Tom Harkin, Chairman,
Senate HELP Committee,
731 Hart Senate Office Building,
Washington, DC 20510.
Dear Senator Harkin: This is a followup to some of the issues and
concerns raised during the Senate HELP Committee's April 27, 2010
hearing on chronic enforcement problems that jeopardize workers' health
and safety. We would like to supplement the record with this additional
information to supplement our written statement and comments made
during the hearing.
Many troubling issues have come to light since the Upper Big Branch
mine disaster, one of which has to do with accident reporting. Massey
repeatedly touts its relatively low ``non-fatal lost time'' injury
statistic, and claims that demonstrates its operations are safer than
many comparably-sized competitors. This is wrong. Especially since the
Upper Big Branch disaster, many Massey employees have spoken about the
significant pressure the Company puts on its injured workers to return
to work after suffering work-related injuries, even when the employees
cannot return to their normal jobs. Instead, the Company expects its
employees to return to the mine, where the operator permits its injured
employees to perform ``light duty'' tasks. This practice means that
Massey's lost-time data is misleading, even fraudulent, insofar as the
data suggest that Massey employees are not experiencing many of the
work-related injuries they actually have suffered. This is troublesome
for many reasons: when an injured worker fails to fill out an injury
report, MSHA does not learn about it and a potentially dangerous
condition--one that might injure other workers--escapes its scrutiny;
also, hurt workers don't have the opportunity to heal properly, but are
pressured to return to productive work as soon as possible.
It is also worth noting that Massey's CEO, Don Blankenship is paid
substantial performance bonuses based on the (apparent) reductions in
Massey's lost time accidents! While he is collecting huge sums based on
misleading data, his employees are coerced into returning to work
despite being hurt on the job: for 2008, Mr. Blankenship was credited
with a 13.9 percent reduction in work lost to non-fatal injuries. Yet,
if Massey employees are simply paid to stay in the bathhouse when they
are hurt, the reported data is meaningless (and Blankenship's bonus is
erroneously inflated).
In addition to needed reforms contained in the S-Miner Act, we
suggest there are many procedural changes needed that could serve to
improve miners' health and safety. While MSHA can certainly take action
itself in order to improve miners' health and safety, we believe that
legislation is needed to make a number of these changes.
We urge the following improvements be effected:
1. Improve Pattern of Violation regulations to permit the Assistant
Secretary to act to identify and impose a pattern of violations
regardless of whether violations are under appeal.
2. Fines should be placed in escrow throughout any challenge, until
there is a final order. If an operator is delinquent in paying final
penalties, its operations should be suspended, but with miners
suffering no loss of pay.
3. The Agency should be granted subpoena power for routine
investigations, and all accident investigations.
4. Accident investigations should include the families of any
families killed from the accident under investigation; families of
miners killed should be allowed to designate a miners' representative
for purposes of the accident investigation.
5. MSHA's accident investigations should routinely include an
inquiry into MSHA's own conduct, and the investigation team should
include independent parties who can analyze MSHA's role, if any.
6. MSHA should maintain information about the safety performance of
contractors operating on mine properties and reveal the conduct vis-a-
vis the mine's operator. When data show that operators tolerate
substandard safety performance among their contractors, MSHA should
take action against both the contractor and the operator.
7. Improve whistle-blower protections and enhance penalties for
discrimination against miners who complain about health and safety
conditions. Make it a criminal penalty where prosecution can lead to
loss of mining permit and jail time.
8. MSHA should have greater authority to close all or part of a
mine when conditions warrant. Give MSHA the authority to pull mining
permits when operators become repeat violators and chronically fail to
comply.
9. Penalties for employer violations should be increased to
felonies, and Company principals should not be allowed to escape
prosecution by hiding behind a corporate structure.
10. MSHA should adjust how it evaluates its inspectors (so that
they are not judged by the percentage of citations upheld, which serves
to dissuade them from issuing citations).
11. Require the mine superintendent to sign all underground and
surface examination reports that are required to be recorded in
writing.
12. Expand the rights of designated miners' representatives, such
that they will have the right to participate in conferences and
accident investigations with no loss of pay.
The following substantive improvements are also needed to better
protect miners:
Require continuous monitoring of seals where seals of less
than 120 PSI are used.
Increase rock dusting/incombustible content in intake
entries to 80 percent per NIOSH recommendation.
Improve flame resistant conveyor belts.
Prohibit the use of belt air to ventilate active working
places.
Pre-shift review of mine conditions--establish a
communication program at each operation to ensure that each person
entering the operation is made aware at the start of that person's
shift of the current conditions of the mine in general and of that
person's specific worksite in particular.
Install atmospheric monitoring systems in all underground
areas where miners normally work and travel that provide real-time
information regarding carbon monoxide levels, and that can, to the
maximum extent possible, withstand explosions and fires.
Each miner working alone for even part of a shift must be
equipped with a multi-gas detector that measures current levels of
methane, oxygen, and carbon monoxide.
Require the use of roof screen in belt entries, travel
roads, and designated intake and return escape ways.
Improve scrutiny of barrier reduction or pillar extraction
plans where miners are working at depths of more than 1,500 feet and in
mines with a history of mountain bumps.
Establish a program to randomly remove and have tested by
NIOSH field samples of each model of self-rescue device used in an
underground coal mine in order to ensure that the self-rescue devices
in coal mine inventories are working in accordance with the approval
criteria for such devices. This should be a mandatory program unlike
the voluntary system used today.
Require examiners to sign and date to confirm examinations
have been made of sealed areas when exams are required more often than
the current weekly exams.
Update all PELs and establish a mechanism to periodically
update them if recommended exposures change.
Increase the strength of psi rating currently required for
ventilation controls.
Require mine superintendents to be certified foreman/mine
foreman in the State they are working.
Require a minimum of four (4) entries to be examined and
maintained travelable in all bleeder return entries.
Require two (2) unobstructed intake escape ways for miners
to have access in case of an emergency.
Eliminate approvals of push/pull ventilation systems.
Eliminate approvals of wraparound bleeder systems.
Require all mines classified as gassy to remove methane
prior to mining.
Require machine mounted methane monitors to be calibrated
so that they automatically shut down the machine at one percent (1
percent) methane. The monitors will also be designed to shut down if
they become bridged out or tampered with.
Finally, we wish to alert you to a problem with the facility at
Lake Lynn, which has been shut down for some time due to structural
damage of the roof that occurred while blast-testing seals to meet the
criteria of the MINER Act. This facility is a great resource to miners
for testing new technologies, as well as a great training facility for
mine rescue team members. Currently, the industry is forced to test
products at the mine site. We recently almost lost a Jim Walters
operation in Alabama to a mine fire while doing a test for a mine
sealant. It could have resulted in loss of lives and a mine shutdown.
It would be a huge help to miners across this country if the Senate
could allocate the funds needed to reopen Lake Lynn.
Sincerely yours,
Cecil E. Roberts.
[Whereupon, at 5:39 p.m., the hearing was adjourned.]