[Congressional Record Volume 156, Number 132 (Tuesday, September 28, 2010)]
[Senate]
[Pages S7607-S7608]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              ROBERT C. BYRD MINE AND WORKPLACE SAFETY ACT

  Mr. HARKIN. Mr. President, I rise to express my strong support for 
the Robert C. Byrd Mine and Workplace Safety Act. This bill establishes 
vital new workplace safety measures and it deserves consideration here 
on the Senate floor.
  In 2009, there were 4,340 workplace fatalities. In my home State of 
Iowa, 78 people were killed on the job. This year, we have already 
witnessed the horrific mine catastrophe that killed 29 people in West 
Virginia, the fire at the Tesoro oil refinery in Washington State that 
killed 7 workers, and the BP Deepwater Horizon platform explosion that 
killed 11 people and was an environmental catastrophe for the Gulf of 
Mexico.
  As the son of a coal miner, I feel these losses very deeply, on a 
very personal level. My heart goes out to the family and coworkers of 
every worker who is killed or injured on the job. Too many of these 
tragedies are preventable, and we should not rest until the day that no 
hardworking American has to sacrifice his or her life for a paycheck.
  History teaches us that stronger laws protecting worker safety make a 
big difference, but our current laws are not doing the job. That is why 
I strongly support the Robert C. Byrd Mine and Workplace Safety Act, 
which would make long overdue improvements to our workplace safety laws 
and save the lives of many thousands of hardworking Americans.
  For months, we have been negotiating with Republicans trying to agree 
to a bipartisan bill that improves workplace safety. I think it is fair 
to say there have been setbacks in our discussions recently, but we 
want and intend to keep working with our Republican colleagues to craft 
a bipartisan bill--in this Congress or early in the next--that we can 
get to the President's desk.
  This has been a long and difficult process as we try to reconcile 
policy differences between Democrats and Republicans on these important 
issues. Nevertheless, we will keep working to bridge those differences 
because it is critical that we find a way to agree on legislation that 
is consistent with certain core principles:
  Every American deserves to go to work without fearing for his or her 
life;
  Responsible businesses that put safety first shouldn't have to 
compete with businesses that prioritize a quick buck over the safety of 
their employees;
  Employers who put workers' lives at risk should face serious 
consequences that will force them to change their ways;
  Companies shouldn't be able to hide behind high priced lawyers and 
convoluted corporate forms to avoid being held accountable for their 
actions;
  Critical agencies charged with protecting workers' lives should have 
all the tools they need to get the job done; and
  Whistleblowers are the first line of defense in safe workplaces, and 
deserve strong protection from discrimination and retaliation.
  While there may be many ways to achieve these goals, the Robert C. 
Byrd Mine and Workplace Safety Act clearly reflects these core 
principles, and its passage would be a major step forward for workplace 
safety. That is why I am proud to be a cosponsor of the bill, and that 
is why I would ask my Republican colleagues to give us an opportunity 
to debate this legislation on the floor.
  This legislation makes common sense reforms to the Occupational 
Safety and Health Act, which has not been significantly updated since 
it was passed 40 years ago. For example, whistleblower protection under 
the act is toothless and unfairly tilted against workers who risk their 
career to protect the public welfare. This bill makes essential changes 
to ensure that workers are protected, including lengthening OSHA's 30-
day statute of limitation for whistleblowers, providing for 
reinstatement while the legal process unfolds for cases with an initial 
finding of merit, and giving the worker the right to file their own 
claim in court if the government does not investigate the claim in a 
timely manner.
  The bill also strengthens criminal and civil penalties that, at 
present, are too weak to protect workers. Under current law, an 
employer may be charged--at most--with a misdemeanor when a willful 
violation of OSHA leads to a worker's death. Under the Robert C. Byrd 
Mine and Workplace Safety Act, felony charges are available for an 
employer's repeated and willful violations of OSHA that result in a 
worker's death or serious injury. The bill also updates OSHA civil 
penalties, which have been unchanged since 1990, and sets a minimum 
penalty of $50,000 for a worker's death caused by a willful violation.
  In addition to toughening sanctions for employers who needlessly 
expose their employees to risk, the bill makes sure that the government 
is responsive to the worker when investigating the charges. It 
guarantees victims the right to meet with the person investigating the 
claim, to be notified of and receive copies of reports or citations 
issued in the investigation, and to be notified of and have the right 
to appear at proceedings related to their case. Victims of retaliation 
should not suffer the double indignity of being ignored by government 
officials charged with protecting them.
  The bill also makes critical changes in our mine safety laws. We 
still don't know exactly what caused the tragic death of 29 miners at 
Upper Big Branch, but we do know that the mine had an appalling safety 
record, and that the tragedy might have been prevented had the Mine 
Safety Health Administration, MSHA, had effective tools to target such 
a chronically unsafe mine.
  We have provisions in our laws that are supposed to target repeat 
offenders--called the ``pattern of violations'' process--but this 
system is broken and badly needs to be revamped.
  As bad as Upper Big Branch's record was, the law has been interpreted 
to allow it to continue operating without ``pattern of violation'' 
treatment as long as its operators can reduce their violations by more 
than one third in response to a written warning. With a record as 
spotty as Upper Big Branch's, a partial reduction in its numerous 
citations is hardly a sign of a safe mine, and it should not be a ``get 
out of jail free'' card to escape the intent of the law.
  Operators are also finding creative ways to ensure that the system 
cannot work as Congress intended. 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 there is a substantial backlog of cases the 
Federal Mine Safety and Health Review Commission, repeat offenders are 
able to evade pattern of violations 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. These appeals can take up to three years to resolve, virtually 
guaranteeing that mines are never placed on pattern status.
  MSHA needs to be able to respond to safety concerns in real time, not 
3 years later. This legislation changes the pattern of violation system 
so that MSHA will be able to address unsafe conditions as they occur, 
and gives MSHA the enforcement tools it needs to put dangerous mines 
back on track.
  Let me respond to recent suggestions that Democrats have been playing 
political theatre with important safety and health legislation. We want 
to pass bipartisan legislation based on a shared commitment to 
workplace safety. I am thoroughly committed to that process, and I hope 
it continues. But we will not support weak or ineffective reforms in 
the name of bipartisanship.
  Workplace accidents--whether in a mine, an oil refinery, or 
wherever--are preventable. All we are asking for is an opportunity to 
debate, amend, and vote

[[Page S7608]]

on a bill that will make real progress in improving the safety of our 
most dangerous workplaces. If we are not allowed that opportunity 
today, I plan to keep pressing forward on this issue until we get that 
chance. It is far too important, and too many lives are at stake, to 
give up now.

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