[House Report 111-579]
[From the U.S. Government Publishing Office]
111th Congress Rept. 111-579
HOUSE OF REPRESENTATIVES
2d Session Part 1
======================================================================
ROBERT C. BYRD MINER SAFETY AND HEALTH ACT OF 2010
_______
July 29, 2010.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. George Miller of California, from the Committee on Education and
Labor, submitted the following
R E P O R T
together with
SUPPLEMENTAL AND MINORITY VIEWS
[To accompany H.R. 5663]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 5663) to improve compliance with mine and
occupational safety and health laws, empower workers to raise
safety concerns, prevent future mine and other workplace
tragedies, establish rights of families of victims of workplace
accidents, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Robert C. Byrd Miner
Safety and Health Act of 2010''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. References.
TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY
Sec. 101. Independent accident investigations.
Sec. 102. Subpoena authority and miner rights during inspections and
investigations.
Sec. 103. Designation of miner representative.
Sec. 104. Additional amendments relating to inspections and
investigations.
TITLE II--ENHANCED ENFORCEMENT AUTHORITY
Sec. 201. Technical amendment.
Sec. 202. A pattern of recurring noncompliance or accidents.
Sec. 203. Injunctive authority.
Sec. 204. Revocation of approval of plans.
Sec. 205. Challenging a decision to approve, modify, or revoke a coal
or other mine plan.
Sec. 206. GAO Study on MSHA Mine Plan Approval.
TITLE III--PENALTIES
Sec. 301. Civil penalties.
Sec. 302. Civil and criminal liability of officers, directors, and
agents.
Sec. 303. Criminal penalties.
Sec. 304. Commission review of penalty assessments.
Sec. 305. Delinquent payments and prejudgment interest.
TITLE IV--WORKER RIGHTS AND PROTECTIONS
Sec. 401. Protection from retaliation.
Sec. 402. Protection from loss of pay.
Sec. 403. Underground coal miner employment standard for mines placed
in pattern status.
TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS
Sec. 501. Pre-shift review of mine conditions.
Sec. 502. Rock dust standards.
Sec. 503. Atmospheric monitoring systems.
Sec. 504. Technology related to respirable dust.
Sec. 505. Refresher training on miner rights and responsibilities.
Sec. 506. Authority to mandate additional training.
Sec. 507. Certification of personnel.
TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS
Sec. 601. Definitions.
Sec. 602. Assistance to States.
Sec. 603. Black lung medical reports.
Sec. 604. Rules of application to certain mines.
TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT
Sec. 701. Enhanced protections from retaliation.
Sec. 702. Victims' rights.
Sec. 703. Correction of serious, willful, or repeated violations
pending contest and procedures for a stay.
Sec. 704. Conforming amendments.
Sec. 705. Civil penalties.
Sec. 706. Criminal penalties.
Sec. 707. Pre-final order interest.
Sec. 708. Review of State Occupational Safety and Health Plans.
Sec. 709. Health Hazard Evaluations by the National Institute for
Occupational Safety and Health.
Sec. 710. Authorization of cooperative agreements by NIOSH Office of
Mine Safety and Health.
Sec. 711. Effective date.
SEC. 2. REFERENCES.
Except in title VII and as otherwise expressly provided, whenever in
this Act an amendment is expressed as an amendment to a section or
other provision, the reference shall be considered to be made to a
section or other provision of the Federal Mine Safety and Health Act of
1977 (30 U.S.C. 801 et seq.).
TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY
SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS.
(a) In General.--Section 103(b) (30 U.S.C. 813(b)) is amended by
striking ``(b) For the purpose'' and inserting the following:
``(b) Accident Investigations.--
``(1) In general.--For all accident investigations under this
Act, the Secretary shall--
``(A) determine why the accident occurred;
``(B) determine whether there were violations of law,
mandatory health and safety standards, or other
requirements, and if such violations are found, issue
citations and penalties, and in cases involving
possible criminal actions, the Secretary may refer such
matters to the Attorney General; and
``(C) make recommendations to avoid any recurrence.
``(2) Independent accident investigations.--
``(A) In general.--There shall be, in addition to an
accident investigation under paragraph (1), an
independent investigation by an independent
investigation panel (referred to in this subsection as
the `Panel') appointed under subparagraph (B) for--
``(i) any accident involving 3 or more
deaths; or
``(ii) any accident that is of such severity
or scale for potential or actual harm that, in
the opinion of the Secretary of Health and
Human Services, the accident merits an
independent investigation.
``(B) Appointment.--
``(i) In general.--As soon as practicable
after an accident described in subparagraph
(A), the Secretary of Health and Human Services
shall appoint 5 members for the Panel required
under this paragraph from among individuals who
have expertise in accident investigations, mine
engineering, or mine safety and health that is
relevant to the particular investigation.
``(ii) Chairperson.--The Panel shall include,
and be chaired by, a representative from the
Office of Mine Safety and Health Research, of
the National Institute for Occupational Safety
and Health (referred to in this subsection as
NIOSH).
``(iii) Conflicts of interest.--Panel
members, and staff and consultants assisting
the Panel with an investigation, shall be free
from conflicts of interest with regard to the
investigation, and be subject to the same
standards of ethical conduct for persons
employed by the Secretary.
``(iv) Composition.--The Secretary of Health
and Human Services shall appoint as members of
the Panel--
``(I) 1 operator of a mine or
individual representing mine operators,
and
``(II) 1 representative of a labor
organization that represents miners,
and may not appoint more than 1 of either such
individuals as members of the Panel.
``(v) Staff and expenses.--The Director of
NIOSH shall designate NIOSH staff to facilitate
the work of the Panel. The Director may accept
as staff personnel on detail from other Federal
agencies or re-employ annuitants. The detail of
personnel under this paragraph may be on a non-
reimbursable basis, and such detail shall be
without interruption or loss of civil service
status or privilege. The Director of NIOSH
shall have the authority to procure on behalf
of the Panel such materials, supplies or
services, including technical experts, as
requested in writing by a majority of the
Panel.
``(vi) Compensation and travel.--All members
of the Panel who are officers or employees of
the United States shall serve without
compensation in addition to that received for
their services as officers or employees of the
United States. Each Panel member who is not an
officer or employee of the United States shall
be compensated at a rate equal to the daily
equivalent of the annual rate of basic pay
prescribed for level IV of the Executive
Schedule under section 5315 of title 5, United
States Code, for each day (including travel
time) during which such member is engaged in
the performance of duties of the Panel. The
members of the Panel shall be allowed travel
expenses, including per diem in lieu of
subsistence, at rates authorized for employees
of agencies under subchapter 1 of chapter 57 of
title 5, United States Code, while away from
their homes or regular places of business in
the performance of services for the Panel.
``(C) Duties.--The Panel shall--
``(i) assess and identify any factors that
caused the accident, including deficiencies in
safety management systems, regulations,
enforcement, industry practices or guidelines,
or organizational failures;
``(ii) identify and evaluate any contributing
actions or inactions of--
``(I) the operator;
``(II) any contractors or other
persons engaged in mining-related
functions at the site;
``(III) any State agency with
oversight responsibilities;
``(IV) any agency or office within
the Department of Labor; or
``(V) any other person or entity
(including equipment manufacturers);
``(iii) review the determinations and
recommendations by the Secretary under
paragraph (1);
``(iv) prepare a report that--
``(I) includes the findings regarding
the causal factors described in clauses
(i) and (ii);
``(II) identifies any strengths and
weaknesses in the Secretary's
investigation; and
``(III) includes recommendations,
including interim recommendations where
appropriate, to industry, labor
organizations, State and Federal
agencies, or Congress, regarding
policy, regulatory, enforcement,
administrative, or other changes, which
in the judgment of the Panel, would
prevent a recurrence at other mines;
and
``(v) publish such findings and
recommendations (excluding any portions which
the Attorney General requests that the
Secretary withhold in relation to a criminal
referral) and hold public meetings to inform
the mining community and families of affected
miners of the Panel's findings and
recommendations.
``(D) Hearings; applicability of certain federal
law.--The Panel shall have the authority to conduct
public hearings or meetings, but shall not be subject
to the Federal Advisory Committee Act. All public
hearings of the Panel shall be subject to the
requirements under section 552b of title 5, United
States Code.
``(E) Memorandum of understanding.--Not later than 90
days after the date of enactment of the Robert C. Byrd
Miner Safety and Health Act of 2010, the Secretary of
Labor and the Secretary of Health and Human Services
shall conclude and publically issue a memorandum of
understanding that--
``(i) outlines administrative arrangements
which will facilitate a coordination of efforts
between the Secretary of Labor and the Panel,
ensures that the Secretary's investigation
under paragraph (1) is not delayed or otherwise
compromised by the activities of the Panel, and
establishes a process to resolve any conflicts
between such investigations;
``(ii) ensures that Panel members or staff
will be able to participate in investigation
activities (such as mine inspections and
interviews) related to the Secretary of Labor's
investigation and will have full access to
documents that are assembled or produced in
such investigation, and ensures that the
Secretary of Labor will make all of the
authority available to such Secretary under
this section, including subpoena authority, to
obtain information and witnesses which may be
requested by such Panel; and
``(iii) establishes such other arrangements
as are necessary to implement this paragraph.
``(F) Procedures.--Not later than 90 days after the
date of enactment of the Robert C. Byrd Miner Safety
and Health Act of 2010, the Secretary of Health and
Human Services shall establish procedures to ensure the
consistency and effectiveness of Panel investigations.
In establishing such procedures, such Secretary shall
consult with independent safety investigation agencies,
sectors of the mining industry, representatives of
miners, families of miners involved in fatal accidents,
State mine safety agencies, and mine rescue
organizations. Such procedures shall include--
``(i) authority for the Panel to use
evidence, samples, interviews, data, analyses,
findings, or other information gathered by the
Secretary of Labor, as the Panel determines
valid;
``(ii) provisions to ensure confidentiality
if requested by any witness, to the extent
permitted by law, and prevent conflicts of
interest in witness representation; and
``(iii) provisions for preservation of public
access to the Panel's records through the
Secretary of Health and Human Services.
``(G) Authorization of appropriations.--There is
authorized to be appropriated to carry out this
subsection such sums as may be necessary.
``(3) Powers and processes.--For the purpose''.
(b) Reporting Requirements.--Section 511(a) (30 U.S.C. 958(a)) is
amended by inserting after ``501,'' the following: ``the status of
implementation of recommendations from each independent investigation
panel under section 103(b) received in the preceding 5 years''.
SEC. 102. SUBPOENA AUTHORITY AND MINER RIGHTS DURING INSPECTIONS AND
INVESTIGATIONS.
Section 103(b) (as amended by section 101) (30 U.S.C. 813(b)) is
further amended by adding at the end the following:
``(4) Additional powers.--For purposes of making inspections
and investigations, the Secretary or the Secretary's designee,
may sign and issue subpoenas for the attendance and testimony
of witnesses and the production of information, including all
relevant data, papers, books, documents, and items of physical
evidence, and administer oaths. Witnesses summoned shall be
paid the same fees that are paid witnesses in the courts of the
United States. In carrying out inspections and investigations
under this subsection, authorized representatives of the
Secretary and attorneys representing the Secretary are
authorized to question any individual privately. Under this
section, any individual who is willing to speak with or provide
a statement to such authorized representatives or attorneys
representing the Secretary may do so without the presence,
involvement, or knowledge of the operator or the operator's
agents or attorneys. The Secretary shall keep the identity of
an individual providing such a statement confidential to the
extent permitted by law. Nothing in this paragraph prevents any
individual from being represented by that individual's personal
attorney.''.
SEC. 103. DESIGNATION OF MINER REPRESENTATIVE.
Section 103(f) (30 U.S.C. 813(f)) is amended by inserting before the
last sentence the following: ``If any miner is entrapped or otherwise
prevented as the result of an accident in such mine from designating
such a representative directly, such miner's closest relative may act
on behalf of such miner in designating such a representative. If any
miner is not currently working in such mine as the result of an
accident in such mine, but would be currently working in such mine but
for such accident, such miner may designate such a representative. A
representative of miners shall have the right to participate in any
accident investigation the Secretary initiates pursuant to subsection
(b), including the right to participate in investigative interviews and
to review all relevant papers, books, documents and records produced in
connection with the accident investigation, unless the Secretary in
consultation with the Attorney General excludes such representatives
from the investigation on the grounds that inclusion would interfere
with or adversely impact a criminal investigation that is pending or
under consideration.''.
SEC. 104. ADDITIONAL AMENDMENTS RELATING TO INSPECTIONS AND
INVESTIGATIONS.
(a) Hours of Inspections.--Section 103(a) (30 U.S.C. 813(a)) is
amended by inserting after the third sentence the following: ``Such
inspections shall be conducted during the various shifts and days of
the week during which miners are normally present in the mine to ensure
that the protections of this Act are afforded to all miners working all
shifts.''.
(b) Review of Mine Pattern Status.--Section 103(a) is further amended
by inserting before the last sentence the following: ``The Secretary
shall, upon request by an operator, review with the appropriate mine
officials the Secretary's most recent evaluation for pattern status (as
provided in section 104(e)) for that mine during the course of a mine's
regular quarterly inspection of an underground mine or a biannual
inspection of a surface mine, or, at the discretion of the Secretary,
during the pre-inspection conference.''.
(c) Injury and Illness Reporting.--Section 103(d) (30 U.S.C. 813(d))
is amended by striking the last sentence and inserting the following:
``The records to be kept and made available by the operator of the mine
shall include man-hours worked and occupational injuries and illnesses
with respect to the miners in their employ or under their direction or
authority, and shall be maintained separately for each mine and be
reported at a frequency determined by the Secretary, but at least
annually. Independent contractors (within the meaning of section 3(d))
shall be responsible for reporting accidents, occupational injuries and
illnesses, and man-hours worked for each mine with respect to the
miners in their employ or under their direction or authority, and shall
be reported at a frequency determined by the Secretary, but not less
than annually. Reports or records of operators and contractors required
and submitted to the Secretary under this subsection shall be signed
and certified as accurate and complete by a knowledgeable and
responsible person possessing a certification, registration,
qualification, or other approval, as provided for under section 118.
Knowingly falsifying such records or reports shall be grounds for
revoking such certification, registration, qualification, or other
approval under the standards established under subsection (b)(1) of
such section.''.
(d) Orders Following an Accident.--Section 103(k) (30 U.S.C. 813(k))
is amended by striking ``, when present,''.
(e) Conflict of Interest in the Representation of Miners.--Section
103(a) (30 U.S.C. 813(a)) is amended by adding at the end the
following: ``During inspections and investigations under this section,
and during any litigation under this Act, no attorney shall represent
or purport to represent both the operator of a coal or other mine and
any other individual, unless such individual has knowingly and
voluntarily waived all actual and reasonably foreseeable conflicts of
interest resulting from such representation. The Secretary is
authorized to take such actions as the Secretary considers appropriate
to ascertain whether such individual has knowingly and voluntarily
waived all such conflicts of interest. If the Secretary finds that such
an individual cannot be represented adequately by such an attorney due
to such conflicts of interest, the Secretary may petition the
appropriate United States District Court which shall have jurisdiction
to disqualify such attorney as counsel to such individual in the
matter. The Secretary may make such a motion as part of an ongoing
related civil action or as a miscellaneous action.''.
TITLE II--ENHANCED ENFORCEMENT AUTHORITY
SEC. 201. TECHNICAL AMENDMENT.
Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amended--
(1) in the first sentence--
(A) by striking ``any mandatory health or safety
standard'' and inserting ``any provision of this Act,
including any mandatory health or safety standard or
regulation promulgated under this Act''; and
(B) by striking ``such mandatory health or safety
standards'' and inserting ``such provisions,
regulations, or mandatory health or safety standards'';
and
(2) in the second sentence, by striking ``any mandatory
health or safety standard'' and inserting ``any provision of
this Act, including any mandatory health or safety standard or
regulation promulgated under this Act,''.
SEC. 202. A PATTERN OF RECURRING NONCOMPLIANCE OR ACCIDENTS.
Section 104(e) (30 U.S.C. 814(e)) is amended to read as follows:
``(e) Pattern of Recurring Noncompliance or Accidents.--
``(1) Pattern status.--
``(A) In general.--For purposes of this subsection, a
coal or other mine shall be placed in pattern status if
such mine has, as determined based on the regulations
promulgated under paragraph (8)--
``(i) a pattern of--
``(I) citations for significant and
substantial violations;
``(II) citations and withdrawal
orders issued for unwarrantable failure
to comply with mandatory health and
safety standards under section 104(d);
``(III) citations for flagrant
violations within the meaning of
section 110(b);
``(IV) withdrawal orders issued under
any other section of this Act (other
than orders issued under subsections
(j) or (k) of section 103); and
``(V) accidents and injuries; or
``(ii) a pattern consisting of any
combination of citations, orders, accidents, or
injuries described in subclauses (I) through
(V).
``(B) Mitigating circumstances.--Notwithstanding
subparagraph (A), if the Secretary, after conducting an
assessment of a coal or other mine that otherwise
qualifies for pattern status, certifies that there are
mitigating circumstances wherein the operator has
already implemented remedial measures that have reduced
risks to the health and safety of miners to the point
that such risks are no longer elevated and has taken
sufficient measures to ensure such elevated risk will
not recur, the Secretary may deem such mine to not be
in pattern status under this subsection. The Secretary
shall issue any such certification of such mitigating
circumstances that would preclude the placement of a
mine in pattern status as a written finding, which
shall, not later than 10 days after the certification
is made, be--
``(i) made available on the public website of
the Mine Safety and Health Administration; and
``(ii) transmitted to the Committee on
Education and Labor of the House of
Representatives and the Committee on Health,
Education, Labor, and Pensions of the Senate.
``(C) Frequency.--Not less frequently than every 6
months, the Secretary shall identify any mines which
meet the criteria set forth in paragraph (8).
``(2) Actions following placement of mine in pattern
status.--For any coal or other mine that is in pattern status,
the Secretary shall--
``(A) notify the operator of such mine that the mine
is being placed in pattern status;
``(B) issue an order requiring such operator to cause
all persons to be withdrawn from such mine, except
those persons referred to in subsection (c) or
authorized by an order of the Secretary issued under
this subsection;
``(C) issue a remediation order described in
paragraph (3) to such operator within 3 days; and
``(D) require that the number of regular inspections
of such mine required under section 103 be increased to
8 per year while the mine is in pattern status.
Notice advising operators that they face potential placement in
pattern status shall not be a requirement for issuing a
withdrawal order to operators under this subsection.
``(3) Remediation order.--
``(A) In general.--A remediation order issued to an
operator under paragraph (2)(C) may require the
operator to carry out one or more of the following
requirements, pursuant to a timetable for commencing
and completing such actions or as a condition of miners
reentering the mine:
``(i) Provide specified training, including
training not otherwise required under this Act.
``(ii) Institute and implement an effective
health and safety management program approved
by the Secretary, including--
``(I) the employment of safety
professionals, certified persons, and
adequate numbers of personnel for the
mine, as may be required by the
Secretary;
``(II) specific inspection,
recordkeeping, reporting and other
requirements for the mine as the
Secretary may establish; and
``(III) other requirements to ensure
compliance and to protect the health
and safety of miners or prevent
accidents or injuries as the Secretary
may determine are necessary.
``(iii) Facilitate any effort by the
Secretary to communicate directly with miners
employed at the mine outside the presence of
the mine operators or its agents, for the
purpose of obtaining information about mine
conditions, health and safety practices, or
advising miners of their rights under this Act.
``(B) Modification of and failure to comply with
remediation order.--The Secretary may modify the
remediation order, as necessary, to protect the health
and safety of miners. If the mine operator fails to
fully comply with the remediation order during the time
a mine is in pattern status, the Secretary shall
reinstate the withdrawal order under paragraph (2)(B).
``(C) Extension of deadlines.--An extension of a
deadline under the remediation order may be granted on
a temporary basis and only upon a showing that the
operator took all feasible measures to comply with the
order and only to the extent that the operator's
failure to comply is beyond the control of the
operator.
``(4) Conditions for lifting a withdrawal order.--A
withdrawal order issued under paragraph (2)(B) shall not be
lifted until the Secretary verifies that--
``(A) any and all violations or other conditions in
the mine identified in the remediation order have been
or are being fully abated or corrected as outlined in
the remediation order; and
``(B) the operator has completed any other actions
under the remediation order that are required for
reopening the mine.
``(5) Performance evaluation.--
``(A) Performance benchmarks.--The Secretary shall
evaluate the performance of each mine in pattern status
every 90 days during which the mine is producing and
determine if, for such 90-day period--
``(i) the rate of citations at such mine for
significant and substantial violations--
``(I) is in the top performing 35th
percentile of such rates, respectively,
for all mines of similar size and type;
or
``(II) has been reduced by 70 percent
from the date on which such mine was
placed in pattern status, provided that
the rate of such violations is not
greater than the mean for all mines of
similar size and type;
``(ii) the accident and injury rates at such
mine are in the top performing 35th percentile
of such rates, respectively, for all mines of
similar size and type; and
``(iii) no citations or withdrawal orders for
a violation under section 104(d), no withdrawal
orders for imminent danger under section 107
(issued in connection with a citation), and no
flagrant violations within the meaning of
section 110(b), were issued for such mine.
``(B) Reissuance of withdrawal orders.--If an
operator being evaluated fails to achieve the
performance benchmarks described in subparagraph (A),
the Secretary may reissue a withdrawal order under
paragraph (2)(B) to remedy any recurring conditions
that led to pattern status under this subsection, and
may modify the remediation order, as necessary, to
protect the health and safety of miners.
``(6) Termination of pattern status.--
``(A) Performance benchmarks.--The Secretary shall
remove a coal or other mine from pattern status if, for
a 1-year period during which the mine is producing--
``(i) the rate of citations at such mine for
significant and substantial violations--
``(I) is in the top performing 25th
percentile of such rates, respectively,
for all mines of similar size and type;
or
``(II) has been reduced by 80 percent
from the date on which such mine was
placed in pattern status, provided that
the rate of such violations is not
greater than the mean for all mines of
similar size and type;
``(ii) the accident and injury rates at such
mine are in the top performing 25th percentile
of such rates, respectively, for all mines of
similar size and type; and
``(iii) no citations or withdrawal orders for
violations under section 104(d), no withdrawal
orders for imminent danger under section 107
(issued in connection with a citation), and no
flagrant violations within the meaning of
section 110(b), were issued for such mine.
``(B) Continuation of pattern status.--Should the
mine operator fail to meet the performance benchmarks
described in subparagraph (A), the Secretary shall
extend the mine's placement in pattern status until
such benchmarks are achieved.
``(C) Construction.--A withdrawal order issued as the
result of a condition that was entirely beyond the
operator's ability to prevent or control shall not
preclude the operator from being removed from pattern
status, provided the operator did not cause or allow
miners to be exposed to the condition in violation of
any provision of this Act or a mandatory health or
safety standard or regulation promulgated under this
Act.
``(7) Expedited review.--If any order under this subsection
is contested, the review of such order shall be conducted on an
expedited basis, in accordance with section 105(d).
``(8) Regulations.--
``(A) In general.--Not later than 120 days after the
date of enactment of the Robert C. Byrd Miner Safety
and Health Act of 2010, the Secretary shall issue
interim final regulations that shall define--
``(i) the threshold benchmarks to trigger
pattern status under paragraph (1) and cause a
withdrawal order to be issued or reissued; and
``(ii) the performance benchmarks described
in paragraphs (5)(A) and (6)(A).
``(B) Threshold benchmarks.--In establishing
threshold benchmarks to trigger pattern status for
mines with significantly poor compliance that
contributes to unsafe or unhealthy conditions, the
Secretary--
``(i) shall--
``(I) consider rates of citations and
orders described in paragraph (1)(A)
and rates of reportable accidents and
injuries within the preceding 180-day
period; and
``(II) assign appropriate weight to
various types of citations, orders,
accidents, injuries, or other factors;
and
``(ii) may include--
``(I) factors such as mine type,
production levels, number of miners,
hours worked by miners, number of
mechanized mining units (or similar
production characteristics), and the
presence of a representative of miners
at the mine for purposes of collective
bargaining;
``(II) the mine's history of
citations, violations, orders, and
other enforcement actions, or rates of
reportable accidents and injuries, over
any period determined relevant by the
Secretary; and
``(III) other factors the Secretary
may determine appropriate to protect
the safety and health of miners.
``(C) Final regulation.--Not later than 2 years after
the date of enactment of the Robert C. Byrd Miner
Safety and Health Act of 2010, the Secretary shall
promulgate a final regulation implementing this
paragraph.
``(9) Public database and information.--The Secretary shall
establish and maintain a publically available electronic
database containing the data used to determine pattern status
for all coal or other mines which shall be updated as
frequently as practicable. Such database shall be searchable
and have the capacity to provide comparative data about the
health and safety at mines of similar sizes and types. The
Secretary shall also make publicly available--
``(A) a list of all mines the Secretary places in
pattern status, updated within 7 days of placing an
additional mine in pattern status;
``(B) the metrics, including percentile information,
used for the purposes of the performance benchmarks and
threshold benchmarks described in paragraphs (5), (6),
and (8); and
``(C) guidance for the use of such metrics and
benchmarks to assist operators in determining the
performance their mines under criteria established by
the Secretary.
``(10) Operator fees for additional inspections.--
``(A) Assessment and collection.--Beginning 120 days
after the date of enactment of the Robert C. Byrd Miner
Safety and Health Act of 2010, the Secretary shall
assess and collect fees, in accordance with this
paragraph, from each coal or other mine in pattern
status for the costs of additional inspections under
this subsection. The Secretary shall issue, by rule, a
schedule of fees to be assessed against coal or other
mines of varying types and sizes, and shall collect and
assess amounts under this paragraph based on the
schedule.
``(B) Use.--Amounts collected as provided in
subparagraph (A) shall only be available to the
Secretary for making expenditures to carry out the
additional inspections required under paragraph (2)(D).
``(C) Authorization of appropriations.--In addition
to any other amounts authorized to be appropriated
under this Act, there is authorized to be appropriated
to the Assistant Secretary for Mine Safety and Health
for each fiscal year in which fees are collected under
subparagraph (A) an amount equal to the total amount of
fees collected under such subparagraph during that
fiscal year. Such amounts are authorized to remain
available until expended. If on the first day of a
fiscal year a regular appropriation to the Commission
has not been enacted, the Commission shall continue to
collect fees (as offsetting collections) under this
subsection at the rate in effect during the preceding
fiscal year, until 5 days after the date such regular
appropriation is enacted.
``(D) Collection and crediting of fees.--Fees
authorized and collected under this paragraph shall be
deposited and credited as offsetting collections to the
account providing appropriations to the Mine Safety and
Health Administration and shall not be collected for
any fiscal year except to the extent and in the amount
provided in advance in appropriation Acts.''.
SEC. 203. INJUNCTIVE AUTHORITY.
Section 108(a)(2) (30 U.S.C. 818(a)(2)) is amended by striking ``a
pattern of violation of'' and all that follows and inserting ``a course
of conduct that in the judgment of the Secretary constitutes a
continuing hazard to the health or safety of miners, including
violations of this Act or of mandatory health and safety standards or
regulations under this Act.''.
SEC. 204. REVOCATION OF APPROVAL OF PLANS.
Section 105 (30 U.S.C. 815) is amended--
(1) by redesignating subsection (d) as subsection (e); and
(2) by inserting after subsection (c) the following:
``(d) Revocation of Approval of Plans.--
``(1) Revocation.--If the Secretary finds that any program or
plan of an operator, or part thereof, that was approved by the
Secretary under this Act is based on inaccurate information or
that circumstances that existed when such plan was approved
have materially changed and that continued operation of such
mine under such plan constitutes a hazard to the safety or
health of miners, the Secretary shall revoke the approval of
such program or plan.
``(2) Withdrawal orders.--Upon revocation of the approval of
a program or plan under subsection (a), the Secretary may
immediately issue an order requiring the operator to cause all
persons, except those persons referred to in section 104(c), to
be withdrawn from such mine or an area of such mine, and to be
prohibited from entering such mine or such area, until the
operator has submitted and the Secretary has approved a new
plan.''.
SEC. 205. CHALLENGING A DECISION TO APPROVE, MODIFY, OR REVOKE A COAL
OR OTHER MINE PLAN.
Section 105(e) (as redesignated by section 204(1)) (30 U.S.C. 815(e))
is amended by adding at the end the following: ``In any proceeding in
which a party challenges the Secretary's decision to approve, modify,
or revoke a coal or other mine plan under this Act, the Commission and
the courts shall affirm the Secretary's decision unless the challenging
party establishes that such decision was arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.''.
SEC. 206. GAO STUDY ON MSHA MINE PLAN APPROVAL.
Not later than 1 year after the date of enactment of this Act, the
Comptroller General shall provide a report to Congress on the
timeliness of the Mine Safety and Health Administration's approval of
underground coal mines' required plans and plan amendments, including--
(1) factors that contribute to any delays in the approval of
these plans; and
(2) as appropriate, recommendations for improving timeliness
of plan review and for achieving prompt decisions.
TITLE III--PENALTIES
SEC. 301. CIVIL PENALTIES.
(a) Technical Correction.--Section 110(a)(1) (30 U.S.C. 820(a)(1)) is
amended by inserting ``including any regulation promulgated under this
Act,'' after ``this Act,''.
(b) Increased Civil Penalties During Pattern Status.--Section 110(b)
(30 U.S.C. 820(b)) is amended by adding at the end the following:
``(3) Notwithstanding any other provision of this Act, an operator of
a coal or other mine that is in pattern status under section 104(e) and
that fails to meet the performance benchmarks set forth by the
Secretary under section 104(e)(5)(A) during any performance review of
the mine following the first performance review shall be assessed an
increased civil penalty for any violation of this Act, including any
mandatory health or safety standard or regulation promulgated under
this Act. Such increased penalty shall be twice the amount that would
otherwise be assessed for the violation under this Act, including the
regulations promulgated under this Act, subject to the maximum civil
penalty established for the violation under this Act. This paragraph
shall apply to violations at such mine that occur during the time
period after the operator fails to meet the performance benchmarks in
this paragraph, and ending when the Secretary determines at a
subsequent performance review that the mine meets the performance
benchmarks under section 104(e)(5)(A).''.
(c) Civil Penalty for Retaliation.--Section 110(a) (30 U.S.C. 820(a))
is further amended--
(1) by redesignating paragraph (4) as paragraph (5); and
(2) by inserting after paragraph (3) the following:
``(4) If any person violates section 105(c), the Secretary shall
propose, and the Commission shall assess, a civil penalty of not less
than $10,000 or more than $100,000 for the first occurrence of such
violation, and not less than $20,000 or more than $200,000 for any
subsequent violation, during any 3-year period.''.
SEC. 302. CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DIRECTORS, AND
AGENTS.
Section 110(c) (30 U.S.C. 820(c)) is amended to read as follows:
``(c) Civil and Criminal Liability of Officers, Directors, and
Agents.--Whenever an operator violates a provision of this Act,
including any mandatory health or safety standard or regulation
promulgated under this Act, or knowingly violates or fails or refuses
to comply with any order issued under this Act or any order
incorporated in a final decision issued under this Act, any director,
officer, or agent of such operator who knowingly authorized, ordered,
or carried out such violation, failure, or refusal, or any policy or
practice that resulted in such violation, failure, or refusal, shall be
subject to the same civil penalties, fines, and imprisonment that may
be imposed upon a person under this section.''.
SEC. 303. CRIMINAL PENALTIES.
(a) In General.--Section 110(d) (30 U.S.C. 820(d)) is amended--
(1) by inserting ``(1)'' before ``Any operator'';
(2) by striking ``willfully'' and inserting ``knowingly'';
and
(3) by striking ``by a fine of not more than'' and all that
follows and inserting ``as follows:
``(A) By a fine of not more than $250,000, or by imprisonment
for not more than 1 year, or both.
``(B) If the conviction is for a violation committed after a
previous conviction of such operator for a violation of the
same mandatory health or safety standard, by a fine of not more
than $1,000,000, or by imprisonment for not more than 5 years,
or both.
``(C) If the conviction is for a violation committed after a
previous conviction of such operator for a violation of an
order, by a fine of not more than $1,000,000, or by
imprisonment for not more than 5 years, or both.
``(D) If the operator's actions knowingly exposed miners to a
significant risk of serious injury or illness or death, by a
fine of not more than $1,000,000, or by imprisonment for not
more than 5 years, or both.
``(E) If the operator knowingly tampered with or disabled a
required safety device which exposed miners to a significant
risk of serious injury or illness or death, or if the
conviction is for a violation described in subparagraph (D)
committed after a previous conviction of such operator for a
such a violation, by a fine of not more than $2,000,000, or by
imprisonment for not more than 10 years, or both.''.
(b) Criminal Penalty for Retaliation.--Section 110(d) (as amended by
subsection (a)) is further amended by adding at the end the following:
``(2) Whoever knowingly takes any action that is directly or
indirectly harmful to any person, including action that interferes with
the lawful employment or livelihood of any person, because such person
has provided an authorized representative of the Secretary, a State or
local mine safety or health officer or official, or any other law
enforcement officer with any information related to the existence of a
health or safety violation or an unhealthful or unsafe condition,
policy, or practice under this Act shall be fined under title 18,
United States Code, imprisoned for not more than 10 years, or both.''.
(c) Advance Notice of Inspections.--
(1) In general.--Section 110(e) (30 U.S.C. 820(e)) is amended
to read as follows:
``(e) Unless otherwise authorized by this Act, any person that
knowingly gives, causes to give, or attempts to give or cause to give,
advance notice of any inspection conducted under this Act with the
intention of impeding, interfering with, or adversely affecting the
results of such inspection, shall be fined under title 18, United
States Code, imprisoned for not more than 5 years, or both.''.
(2) Posting of advance notice penalties.--Section 109 (30
U.S.C. 819) is amended by adding at the end the following:
``(e) Posting of Advance Notice Penalties.--Each operator of a coal
or other mine shall post, on the bulletin board described in subsection
(a) and in a conspicuous place near each staffed entrance onto the mine
property, a notice stating, in a form and manner to be prescribed by
the Secretary--
``(1) that giving, causing to give, or attempting to give or
cause to give advance notice of any inspection to be conducted
under this Act with the intention of impeding, interfering
with, or adversely affecting the results of such inspection is
unlawful pursuant to section 110(e); and
``(2) the maximum penalties for a violation under such
subsection.''.
SEC. 304. COMMISSION REVIEW OF PENALTY ASSESSMENTS.
Section 110(i) (30 U.S.C. 820(i)) is amended by striking ``In
assessing civil monetary penalties, the Commission shall consider'' and
inserting the following: ``In any review of a citation and proposed
penalty assessment contested by an operator, the Commission shall
assess not less than the penalty derived by using the same methodology
(including any point system) prescribed in regulations under this Act,
so as to ensure consistency in operator penalty assessments, except
that the Commission may assess a penalty for less than the amount that
would result from the utilization of such methodology if the Commission
finds that there are extraordinary circumstances. If there is no such
methodology prescribed for a citation or there are such extraordinary
circumstances, the Commission shall assess the penalty by
considering''.
SEC. 305. DELINQUENT PAYMENTS AND PREJUDGMENT INTEREST.
(a) Pre-Final Order Interest.--Section 110(j) (30 U.S.C. 820(j)) is
amended by striking the second and third sentences and inserting the
following: ``Pre-final order interest on such penalties shall begin to
accrue on the date the operator contests a citation issued under this
Act, including any mandatory health or safety standard or regulation
promulgated under this Act, and shall end upon the issuance of the
final order. Such pre-final order interest shall be calculated at the
current underpayment rate determined by the Secretary of the Treasury
pursuant to section 6621 of the Internal Revenue Code of 1986, and
shall be compounded daily. Post-final order interest shall begin to
accrue 30 days after the date a final order of the Commission or the
court is issued, and shall be charged at the rate of 8 percent per
annum.''.
(b) Ensuring Payment of Penalties.--
(1) Amendments.--Section 110 (30 U.S.C. 820) is further
amended--
(A) by redesignating subsection (l) as subsection
(m); and
(B) by inserting after subsection (k) the following:
``(l) Ensuring Payment of Penalties.--
``(1) Delinquent payment letter.--If the operator of a coal
or other mine fails to pay any civil penalty assessment that
has become a final order of the Commission or a court within 45
days after such assessment became a final order, the Secretary
shall send the operator a letter advising the operator of the
consequences under this subsection of such failure to pay. The
letter shall also advise the operator of the opportunity to
enter into or modify a payment plan with the Secretary based
upon a demonstrated inability to pay, the procedure for
entering into such plan, and the consequences of not entering
into or not complying with such plan.
``(2) Withdrawal orders following failure to pay.--If an
operator that receives a letter under paragraph (1) has not
paid the assessment by the date that is 180 days after such
assessment became a final order and has not entered into a
payment plan with the Secretary, the Secretary shall issue an
order requiring such operator to cause all persons, except
those referred to in section 104(c), to be withdrawn from, and
to be prohibited from entering, the mine that is covered by the
final order described in paragraph (1), until the operator pays
such assessment in full (including interest and administrative
costs) or enters into a payment plan with the Secretary. If
such operator enters into a payment plan with the Secretary and
at any time fails to comply with the terms specified in such
payment plan, the Secretary shall issue an order requiring such
operator to cause all persons, except those referred to in
section 104(c), to be withdrawn from the mine that is covered
by such final order, and to be prohibited from entering such
mine, until the operator rectifies the noncompliance with the
payment plan in the manner specified in such payment plan.''.
(2) Applicability and effective date.--The amendments made by
paragraph (1) shall apply to all unpaid civil penalty
assessments under the Federal Mine Safety and Health Act of
1977 (30 U.S.C. 801 et seq.), except that, for any unpaid civil
penalty assessment that became a final order of the Commission
or a court before the date of enactment of this Act, the time
periods under section 110(n) of the Federal Mine Safety and
Health Act of 1977 (as amended) (30 U.S.C. 820(n)) shall be
calculated as beginning on the date of enactment of this Act
instead of on the date of the final order.
TITLE IV--WORKER RIGHTS AND PROTECTIONS
SEC. 401. PROTECTION FROM RETALIATION.
Section 105(c) (30 U.S.C. 815(c)) is amended to read as follows:
``(c) Protection From Retaliation.--
``(1) Retaliation prohibited.--
``(A) Retaliation for complaint or testimony.--No
person shall discharge or in any manner discriminate
against or cause to be discharged or cause
discrimination against or otherwise interfere with the
exercise of the statutory rights of any miner or other
employee of an operator, representative of miners, or
applicant for employment, because--
``(i) such miner or other employee,
representative, or applicant for employment--
``(I) has filed or made a complaint,
or is about to file or make a
complaint, including a complaint
notifying the operator or the
operator's agent, or the representative
of the miners at the coal or other mine
of an alleged danger or safety or
health violation in a coal or other
mine;
``(II) instituted or caused to be
instituted, or is about to institute or
cause to be instituted, any proceeding
under or related to this Act or has
testified or is about to testify in any
such proceeding or because of the
exercise by such miner or other
employee, representative, or applicant
for employment on behalf of him or
herself or others of any right afforded
by this Act, or has reported any injury
or illness to an operator or agent;
``(III) has testified or is about to
testify before Congress or any Federal
or State proceeding related to safety
or health in a coal or other mine; or
``(IV) refused to violate any
provision of this Act, including any
mandatory health and safety standard or
regulation; or
``(ii) such miner is the subject of medical
evaluations and potential transfer under a
standard published pursuant to section 101.
``(B) Retaliation for refusal to perform duties.--
``(i) In general.--No person shall discharge
or in any manner discriminate against a miner
or other employee of an operator for refusing
to perform the miner's or other employee's
duties if the miner or other employee has a
good-faith and reasonable belief that
performing such duties would pose a safety or
health hazard to the miner or other employee or
to any other miner or employee.
``(ii) Standard.--For purposes of clause (i),
the circumstances causing the miner's or other
employee's good-faith belief that performing
such duties would pose a safety or health
hazard shall be of such a nature that a
reasonable person, under the circumstances
confronting the miner or other employee, would
conclude that there is such a hazard. In order
to qualify for protection under this paragraph,
the miner or other employee, when practicable,
shall have communicated or attempted to
communicate the safety or health concern to the
operator and have not received from the
operator a response reasonably calculated to
allay such concern.
``(2) Complaint.--Any miner or other employee or
representative of miners or applicant for employment who
believes that he or she has been discharged, disciplined, or
otherwise discriminated against by any person in violation of
paragraph (1) may file a complaint with the Secretary alleging
such discrimination not later than 180 days after the later
of--
``(A) the last date on which an alleged violation of
paragraph (1) occurs; or
``(B) the date on which the miner or other employee
or representative knows or should reasonably have known
that such alleged violation occurred.
``(3) Investigation and hearing.--
``(A) Commencement of investigation and initial
determination.--Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the
respondent, and shall commence an investigation within
15 days of the Secretary's receipt of the complaint,
and, as soon as practicable after commencing such
investigation, make the determination required under
subparagraph (B) regarding the reinstatement of the
miner or other employee.
``(B) Reinstatement.--If the Secretary finds that
such complaint was not frivolously brought, the
Commission, on an expedited basis upon application of
the Secretary, shall order the immediate reinstatement
of the miner or other employee until there has been a
final Commission order disposing of the underlying
complaint of the miner or other employee. If either the
Secretary or the miner or other employee pursues the
underlying complaint, such reinstatement shall remain
in effect until the Commission has disposed of such
complaint on the merits, regardless of whether the
Secretary pursues such complaint by filing a complaint
under subparagraph (D) or the miner or other employee
pursues such complaint by filing an action under
paragraph (4). If neither the Secretary nor the miner
or other employee pursues the underlying complaint
within the periods specified in paragraph (4), such
reinstatement shall remain in effect until such time as
the Commission may, upon motion of the operator and
after providing notice and an opportunity to be heard
to the parties, vacate such complaint for failure to
prosecute.
``(C) Investigation.--Such investigation shall
include interviewing the complainant and--
``(i) providing the respondent an opportunity
to submit to the Secretary a written response
to the complaint and to present statements from
witnesses or provide evidence; and
``(ii) providing the complainant an
opportunity to receive any statements or
evidence provided to the Secretary and rebut
any statements or evidence.
``(D) Action by the secretary.--If, upon such
investigation, the Secretary determines that the
provisions of this subsection have been violated, the
Secretary shall immediately file a complaint with the
Commission, with service upon the alleged violator and
the miner or other employee or representative of miners
alleging such discrimination or interference and
propose an order granting appropriate relief.
``(E) Action of the commission.--The Commission shall
afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without
regard to subsection (a)(3) of such section) and
thereafter shall issue an order, based upon findings of
fact, affirming, modifying, or vacating the Secretary's
proposed order, or directing other appropriate relief.
Such order shall become final 30 days after its
issuance. The complaining miner or other employee,
representative, or applicant for employment may present
additional evidence on his or her own behalf during any
hearing held pursuant to this paragraph.
``(F) Relief.--The Commission shall have authority in
such proceedings to require a person committing a
violation of this subsection to take such affirmative
action to abate the violation and prescribe a remedy as
the Commission considers appropriate, including--
``(i) the rehiring or reinstatement of the
miner or other employee with back pay and
interest and without loss of position or
seniority, and restoration of the terms,
rights, conditions, and privileges associated
with the complainant's employment;
``(ii) any other compensatory and
consequential damages sufficient to make the
complainant whole, and exemplary damages where
appropriate; and
``(iii) expungement of all warnings,
reprimands, or derogatory references that have
been placed in paper or electronic records or
databases of any type relating to the actions
by the complainant that gave rise to the
unfavorable personnel action, and, at the
complainant's direction, transmission of a copy
of the decision on the complaint to any person
whom the complainant reasonably believes may
have received such unfavorable information.
``(4) Notice to and action of complainant.--
``(A) Notice to complainant.--Not later than 90 days
of the receipt of a complaint filed under paragraph
(2), the Secretary shall notify, in writing, the miner
or other employee, applicant for employment, or
representative of miners of his determination whether a
violation has occurred.
``(B) Action of complainant.--If the Secretary, upon
investigation, determines that the provisions of this
subsection have not been violated, the complainant
shall have the right, within 30 days after receiving
notice of the Secretary's determination, to file an
action in his or her own behalf before the Commission,
charging discrimination or interference in violation of
paragraph (1).
``(C) Hearing and decision.--The Commission shall
afford an opportunity for a hearing (in accordance with
section 554 of title 5, United States Code, but without
regard to subsection (a)(3) of such section), and
thereafter shall issue an order, based upon findings of
fact, dismissing or sustaining the complainant's
charges and, if the charges are sustained, granting
such relief as it deems appropriate as described in
paragraph (3)(D). Such order shall become final 30 days
after its issuance.
``(5) Burden of proof.--In adjudicating a complaint pursuant
to this subsection, the Commission may determine that a
violation of paragraph (1) has occurred only if the complainant
demonstrates that any conduct described in paragraph (1) with
respect to the complainant was a contributing factor in the
adverse action alleged in the complaint. A decision or order
that is favorable to the complainant shall not be issued
pursuant to this subsection if the respondent demonstrates by
clear and convincing evidence that the respondent would have
taken the same adverse action in the absence of such conduct.
``(6) Attorneys' fees.--Whenever an order is issued
sustaining the complainant's charges under this subsection, a
sum equal to the aggregate amount of all costs and expenses,
including attorney's fees, as determined by the Commission to
have been reasonably incurred by the complainant for, or in
connection with, the institution and prosecution of such
proceedings shall be assessed against the person committing
such violation. The Commission shall determine whether such
costs and expenses were reasonably incurred by the complainant
without reference to whether the Secretary also participated in
the proceeding.
``(7) Expedited proceedings; judicial review.--Proceedings
under this subsection shall be expedited by the Secretary and
the Commission. Any order issued by the Commission under this
subsection shall be subject to judicial review in accordance
with section 106. Violations by any person of paragraph (1)
shall be subject to the provisions of sections 108 and
110(a)(4).
``(8) Procedural rights.--The rights and remedies provided
for in this subsection may not be waived by any agreement,
policy, form, or condition of employment, including by any pre-
dispute arbitration agreement or collective bargaining
agreement.
``(9) Savings.--Nothing in this subsection shall be construed
to diminish the rights, privileges, or remedies of any employee
who exercises rights under any Federal or State law or common
law, or under any collective bargaining agreement.''.
SEC. 402. PROTECTION FROM LOSS OF PAY.
Section 111 (30 U.S.C. 821) is amended to read as follows:
``SEC. 111. ENTITLEMENT OF MINERS.
``(a) Protection From Loss of Pay.--
``(1) Withdrawal orders.--If a coal or other mine or area of
such mine is closed by an order issued under section 103, 104,
107, 108, or 110, all miners working during the shift when such
order was issued who are idled by such order shall be entitled,
regardless of the result of any review of such order, to full
compensation by the operator at their regular rates of pay for
the period they are idled, but for not more than the balance of
such shift. If such order is not terminated prior to the next
working shift, all miners on that shift who are idled by such
order shall be entitled to full compensation by the operator at
their regular rates of pay for the period they are idled, but
for not more than four hours of such shift. If a coal or other
mine or area of such mine is closed by an order issued under
section 104, 107 (in connection with a citation), 108, or 110,
all miners who are idled by such order shall be entitled,
regardless of the result of any review of such order, to full
compensation by the operator at their regular rates of pay and
in accordance with their regular schedules of pay for the
entire period for which they are idled, not to exceed 60 days.
``(2) Closure in advance of order.--If the Secretary finds
that such mine or such area of a mine was closed by the
operator in anticipation of the issuance of such an order, all
miners who are idled by such closure shall be entitled to full
compensation by the operator at their regular rates of pay and
in accordance with their regular schedules of pay, from the
time of such closure until such time as the Secretary
authorizes reopening of such mine or such area of the mine, not
to exceed 60 days, except where an operator promptly withdraws
miners upon discovery of a hazard, and notifies the Secretary
where required, and within the prescribed time period.
``(3) Refusal to comply.--Whenever an operator violates or
fails or refuses to comply with any order issued under section
103, 104, 107, 108, or 110, all miners employed at the affected
mine who would have been withdrawn from, or prevented from
entering, such mine or area thereof as a result of such order
shall be entitled to full compensation by the operator at their
regular rates of pay, in addition to pay received for work
performed after such order was issued, for the period beginning
when such order was issued and ending when such order is
complied with, vacated, or terminated.
``(b) Enforcement.--
``(1) Commission orders.--The Commission shall have authority
to order compensation due under this section upon the filing of
a complaint by a miner or his representative and after
opportunity for hearing subject to section 554 of title 5,
United States Code. Whenever the Commission issues an order
sustaining the complaint under this subsection in whole or in
part, the Commission shall award the complainant reasonable
attorneys' fees and costs.
``(2) Failure to pay compensation due.--Consistent with the
authority of the Secretary to order miners withdrawn from a
mine under this Act, the Secretary shall order a mine that has
been subject to a withdrawal order under section 103, 104, 107,
108, or 110, and has reopened, to be closed again if
compensation in accordance with the provisions of this section
is not paid by the end of the next regularly scheduled payroll
period following the lifting of a withdrawal order.
``(c) Expedited Review.--If an order is issued which results in
payments to miners under subsection (a), the operators shall have the
right to an expedited review before the Commission using timelines and
procedures established pursuant to section 316(b)(2)(G)(ii).''.
SEC. 403. UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED
IN PATTERN STATUS.
The Federal Mine Safety and Health Act of 1977 is further amended by
adding at the end of title I the following:
``SEC. 117. UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED
IN PATTERN STATUS.
``(a) In General.-- For purposes of ensuring miners' health and
safety and miners' right to raise concerns thereof, when an underground
coal mine is placed in pattern status pursuant to section 104(e), and
for 3 years after such placement, the operator of such mine may not
discharge or constructively discharge a miner who is paid on an hourly
basis and employed at such underground coal mine without reasonable
job-related grounds based on a failure to satisfactorily perform job
duties, including compliance with this Act and with mandatory health
and safety standards or other regulations issued under this Act, or
other legitimate business reason, where the miner has completed the
employer's probationary period, not to exceed 6 months.
``(b) Cause of Action.--A miner aggrieved by a violation of
subsection (a) may file a complaint in Federal district court in the
district where the mine is located within 1 year of such violation.
``(c) Remedies.--In an action under subsection (b), for any
prevailing miner the court shall take affirmative action to further the
purposes of the Act, which may include reinstatement with backpay and
compensatory damages. Reasonable attorneys' fees and costs shall be
awarded to any prevailing miner under this section.
``(d) Pre-Dispute Waiver Prohibited.--A miner's right to a cause of
action under this section may not be waived with respect to disputes
that have not arisen as of the time of the waiver.
``(e) Construction.--Nothing in this section shall be construed to
limit the availability of rights and remedies of miners under any other
State or Federal law or a collective bargaining agreement.''.
TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS
SEC. 501. PRE-SHIFT REVIEW OF MINE CONDITIONS.
Section 303(d) (30 U.S.C. 863(d)) is amended by adding at the end the
following:
``(3)(A) Not later than 30 days after the issuance of the interim
final rules promulgated under subparagraph (C), each operator of an
underground coal mine shall implement a communication program at the
underground coal mine to ensure that each miner is orally briefed on
and made aware of, prior to traveling to or arriving at the miner's
work area and commencing the miner's assigned tasks--
``(i) any conditions that are hazardous, or that violate a
mandatory health or safety standard or a plan approved under
this Act, where the miner is expected to work or travel; and
``(ii) the general conditions of that miner's assigned
working section or other area where the miner is expected to
work or travel.
``(B) Not later than 180 days after the date of enactment of the
Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall
promulgate interim final rules implementing the requirements of
subparagraph (A). The Secretary shall issue a final rule not later than
2 years after such date.''.
SEC. 502. ROCK DUST STANDARDS.
(a) Standards.--Section 304(d) (30 U.S.C. 864(d)) is amended--
(1) by striking ``Where rock'' and inserting the following:
``Rock Dust.--
``(1) In general.--Where rock'';
(2) by striking ``65 per centum'' and all that follows and
inserting ``80 percent. Where methane is present in any
ventilating current, the percentage of incombustible content of
such combined dusts shall be increased 0.4 percent for each 0.1
percent of methane.''; and
(3) by adding at the end the following:
``(2) Methods of measurement.--
``(A) In general.--Each operator of an underground
coal mine shall take accurate and representative
samples which shall measure the total incombustible
content of combined coal dust, rock dust, and other
dust in such mine to ensure that the coal dust is kept
below explosive levels through the appropriate
application of rock dust.
``(B) Direct reading monitors.--By the later of June
15, 2011, or the date that is 30 days after the
Secretary of Health and Human Services has certified in
writing that direct reading monitors are commercially
available to measure total incombustible content in
samples of combined coal dust, rock dust, and other
dust and the Department of Labor has approved such
monitors for use in underground coal mines, the
Secretary shall require operators to take such dust
samples using direct reading monitors.
``(C) Regulations.--The Secretary shall, not later
than 180 days after the date of enactment of the Robert
C. Byrd Miner Safety and Health Act of 2010, promulgate
an interim final rule that prescribes methods for
operator sampling of total incombustible content in
samples of combined coal dust, rock dust, and other
dust using direct reading monitors and includes
requirements for locations, methods, and intervals for
mandatory operator sampling.
``(D) Recommendations.--Not later than 1 year after
the date of enactment of the Robert C. Byrd Miner
Safety and Health Act of 2010, the Secretary of Health
and Human Services shall, based upon the latest
research, recommend to the Secretary of Labor any
revisions to the mandatory operator sampling locations,
methods, and intervals included in the interim final
rule described in subparagraph (B) that may be
warranted in light of such research.
``(3) Limitation.--Until a final rule is issued by the
Secretary under section 502(b)(2) of the Robert C. Byrd Miner
Safety and Health Act of 2010, any measurement taken by a
direct reading monitor described in paragraph (2) shall not be
admissible to establish a violation in an enforcement action
under this Act.''.
(b) Report and Rulemaking Authority.--
(1) Report.--Not later than 2 years after the date of
enactment of this Act, the Secretary of Health and Human
Services, in consultation with the Secretary of Labor, shall
prepare and submit, to the Committee on Education and Labor of
the House of Representatives and the Committee on Health,
Education, Labor, and Pensions of the Senate, a report--
(A) regarding whether any direct reading monitor
described in section 304(d)(2)(B) of the Federal Mine
Safety and Health Act of 1977 (30 U.S.C. 864(d)(2)(B))
is sufficiently reliable and accurate for the
enforcement of the mandatory health or safety standards
by the Secretary of Labor under such Act, and whether
additional improvement to such direct reading monitor,
or additional verification regarding reliability and
accuracy, would be needed for enforcement purposes; and
(B) identifying any limitations or impediments for
such use in underground coal mines.
(2) Authority.--If the Secretary determines that such direct
reading monitor is sufficiently reliable and accurate for the
enforcement of mandatory health and safety standards under the
Federal Mines Safety and Health Act of 1977 following such
report or any update thereto, the Secretary shall promulgate a
final rule authorizing the use of such direct reading monitor
for purposes of compliance and enforcement, in addition to
other methods for determining total incombustible content. Such
rule shall specify mandatory operator sampling locations,
methods, and intervals.
SEC. 503. ATMOSPHERIC MONITORING SYSTEMS.
Section 317 (30 U.S.C. 877) is amended by adding at the end the
following:
``(u) Atmospheric Monitoring Systems.--
``(1) NIOSH recommendations.--Not later than 1 year after the
date of enactment of the Robert C. Byrd Miner Safety and Health
Act of 2010, the Director of the National Institute for
Occupational Safety and Health, acting through the Office of
Mine Safety and Health Research, in consultation, including
through technical working groups, with operators, vendors,
State mine safety agencies, the Secretary, and labor
representatives of miners, shall issue recommendations to the
Secretary regarding--
``(A) how to ensure that atmospheric monitoring
systems are utilized in the underground coal mining
industry to maximize the health and safety of
underground coal miners;
``(B) the implementation of redundant systems, such
as the bundle tubing system, that can continuously
monitor the mine atmosphere following incidents such as
fires, explosions, entrapments, and inundations; and
``(C) other technologies available to conduct
continuous atmospheric monitoring.
``(2) Atmospheric monitoring system regulations.--Not later
than 1 year following the receipt of the recommendations
described in paragraph (1), the Secretary shall promulgate
regulations requiring that each operator of an underground coal
mine install atmospheric monitoring systems, consistent with
such recommendations, that--
``(A) protect miners where the miners normally work
and travel;
``(B) provide real-time information regarding methane
and carbon monoxide levels, and airflow direction, as
appropriate, with sensing, annunciating, and recording
capabilities; and
``(C) can, to the maximum extent practicable,
withstand explosions and fires.''.
SEC. 504. TECHNOLOGY RELATED TO RESPIRABLE DUST.
Section 202(d) (30 U.S.C. 842(d)) is amended--
(1) by striking ``of Health, Education, and Welfare''; and
(2) by striking the second sentence and inserting the
following: ``Not later than 2 years after the date of enactment
of the Robert C. Byrd Miner Safety and Health Act of 2010, the
Secretary shall promulgate final regulations that require
operators, beginning on the date such regulations are issued,
to provide coal miners with the maximum feasible protection
from respirable dust, including coal and silica dust, that is
achievable through environmental controls, and that meet the
applicable standards.''.
SEC. 505. REFRESHER TRAINING ON MINER RIGHTS AND RESPONSIBILITIES.
(a) In General.--Section 115(a)(3) (30 U.S.C. 825(a)(3)) is amended
to read as follows:
``(3) all miners shall receive not less than 9 hours of
refresher training not less frequently than once every 12
months, and such training shall include one hour of training on
the statutory rights and responsibilities of miners and their
representatives under this Act and other applicable Federal and
State law, pursuant to a program of instruction developed by
the Secretary and delivered by an employee of the
Administration or by a trainer approved by the Administration
that is a party independent from the operator;''.
(b) National Hazard Reporting Hotline.--Section 115 (30 U.S.C. 825)
is further amended--
(1) by redesignating subsections (c) through (e) as
subsections (d) through (f), respectively; and
(2) by inserting after subsection (b) the following:
``(c) Any health and safety training program of instruction provided
under this section shall include distribution to miners of information
regarding miners' rights under the Act, as well as a toll-free hotline
telephone number, which the Secretary shall maintain to receive
complaints from miners and the public regarding hazardous conditions,
discrimination, safety or health violations, or other mine safety or
health concerns. Information regarding the hotline shall be provided in
a portable, convenient format, such as a durable wallet card, to enable
miners to keep the information on their person.''.
(c) Timing of Initial Statutory Rights Training.--Notwithstanding
section 115 of the Federal Mine Safety and Health Act (as amended by
subsection (a)) (30 U.S.C. 825) or the health and safety training
program approved under such section, an operator shall ensure that all
miners already employed by the operator on the date of enactment of
this Act shall receive the one hour of statutory rights and
responsibilities training described in section 115(a)(3) of such Act
not later than 180 days after such date.
SEC. 506. AUTHORITY TO MANDATE ADDITIONAL TRAINING.
(a) In General.--Section 115 (30 U.S.C. 825) is further amended by
redesignating subsections (e) and (f) (as redesignated) as subsections
(f) and (g) and inserting after subsection (d) (as redesignated) the
following:
``(e) Authority To Mandate Additional Training.--
``(1) In general.--The Secretary is authorized to issue an
order requiring that an operator of a coal or other mine
provide additional training beyond what is otherwise required
by law, and specifying the time within which such training
shall be provided, if the Secretary finds that--
``(A)(i) a serious or fatal accident has occurred at
such mine; or
``(ii) such mine has experienced accident and injury
rates, citations for violations of this Act (including
mandatory health or safety standards or regulations
promulgated under this Act), citations for significant
and substantial violations, or withdrawal orders issued
under this Act at a rate above the average for mines of
similar size and type; and
``(B) additional training would benefit the health
and safety of miners at the mine.
``(2) Withdrawal order.--If the operator fails to provide
training ordered under paragraph (1) within the specified time,
the Secretary shall issue an order requiring such operator to
cause all affected persons, except those persons referred to in
section 104(c), to be withdrawn, and to be prohibited from
entering such mine, until such operator has provided such
training.''.
(b) Conforming Amendments.--Section 104(g)(2) (30 U.S.C. 814(g)(2))
is amended by striking ``under paragraph (1)'' both places it appears
and inserting ``under paragraph (1) or under section 115(e)''.
SEC. 507. CERTIFICATION OF PERSONNEL.
(a) In General.--Title I is further amended by adding at the end the
following:
``SEC. 118. CERTIFICATION OF PERSONNEL.
``(a) Certification Required.--Any person who is authorized or
designated by the operator of a coal or other mine to perform any
duties or provide any training that this Act, including a mandatory
health or safety standard or regulation promulgated pursuant to this
Act, requires to be performed or provided by a certified, registered,
qualified, or otherwise approved person, shall be permitted to perform
such duties or provide such training only if such person has a current
certification, registration, qualification, or approval to perform such
duties or provide such training consistent with the requirements of
this section.
``(b) Establishment of Certification Requirements and Procedures.--
``(1) In general.--Not later than 1 year after the date of
enactment of the Robert C. Byrd Miner Safety and Health Act of
2010, the Secretary shall issue mandatory standards to
establish--
``(A) requirements for such certification,
registration, qualification, or other approval,
including the experience, examinations, and references
that may be required as appropriate;
``(B) time limits for such certifications and
procedures for obtaining and renewing such
certification, registration, qualification, or other
approval; and
``(C) procedures and criteria for revoking such
certification, registration, qualification, or other
approval, including procedures that ensure that the
Secretary (or a State agency, as applicable) responds
to requests for revocation and that the names of
individuals whose certification or other approval has
been revoked are provided to and maintained by the
Secretary, and are made available to appropriate State
agencies through an electronic database.
``(2) Coordination with states.--In developing such
standards, the Secretary shall consult with States that have
miner certification programs to ensure effective coordination
with existing State standards and requirements for
certification. The standards required under paragraph (1) shall
provide that the certification, registration, qualification, or
other approval of the State in which the coal or other mine is
located satisfies the requirement of subsection (a) if the
State's program of certification, registration, qualification,
or other approval is no less stringent than the standards
established by the Secretary under paragraph (1).
``(c) Operator Fees for Certification.--
``(1) Assessment and collection.--Beginning 180 days after
the date of enactment of the Robert C. Byrd Miner Safety and
Health Act of 2010, the Secretary shall assess and collect
fees, in accordance with this subsection, from each operator
for each person certified under this section. Fees shall be
assessed and collected in amounts determined by the Secretary
as necessary to fund the certification programs established
under this section.
``(2) Use.--Amounts collected as provided in paragraph (1)
shall only be available to the Secretary, as provided in
paragraph (3), for making expenditures to carry out the
certification programs established under this subsection.
``(3) Authorization of appropriations.--In addition to funds
authorized to be appropriated under section 114, there is
authorized to be appropriated to the Assistant Secretary for
Mine Safety and Health for each fiscal year in which fees are
collected under paragraph (1) an amount equal to the total
amount of fees collected under paragraph (1) during that fiscal
year. Such amounts are authorized to remain available until
expended. If on the first day of a fiscal year a regular
appropriation to the Commission has not been enacted, the
Commission shall continue to collect fees (as offsetting
collections) under this subsection at the rate in effect during
the preceding fiscal year, until 5 days after the date such
regular appropriation is enacted.
``(4) Collecting and crediting of fees.--Fees authorized and
collected under this subsection shall be deposited and credited
as offsetting collections to the account providing
appropriations to the Mine Safety and Health Administration and
shall not be collected for any fiscal year except to the extent
and in the amount provided in advance in appropriation Acts.
``(d) Citation; Withdrawal Order.--Any operator who permits a person
to perform any of the health or safety related functions described in
subsection (a) without a current certification which meets the
requirements of this section shall be considered to have committed an
unwarrantable failure under section 104(d)(1), and the Secretary shall
issue an order requiring that the miner be withdrawn or reassigned to
duties that do not require such certification.''.
(b) Conforming Amendments.--Section 318 (30 U.S.C. 878) is amended--
(1) by striking subsections (a) and (b);
(2) in subsection (c), by redesignating paragraphs (1)
through (3) as subparagraphs (A) through (C), respectively;
(3) in subsection (g), by redesignating paragraphs (1)
through (4) as subparagraphs (A) through (D), respectively; and
(4) by redesignating subsections (c) through (j) as
paragraphs (1) through (8), respectively.
TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS
SEC. 601. DEFINITIONS.
(a) Definition of Operator.--Section 3(d) is amended to read as
follows:
``(d) `operator' means--
``(1) any owner, lessee, or other person that--
``(A) operates or supervises a coal or other
mine; or
``(B) controls such mine by making or having
the authority to make management or operational
decisions that affect, directly or indirectly,
the health or safety at such mine; or
``(2) any independent contractor performing services
or construction at such mine;''.
(b) Definition of Agent.--Section 3(e) (30 U.S.C. 802(e)) is amended
by striking ``the miners'' and inserting ``any miner''.
(c) Definition of Miner.--Section 3(g) (30 U.S.C. 802(g)) is amended
by inserting after ``or other mine'' the following: ``, and includes
any individual who is not currently working in a coal or other mine but
would be currently working in such mine, but for an accident in such
mine''.
(d) Definition of Significant and Substantial Violations.--Section 3
(30 U.S.C. 802) is further amended--
(1) in subsection (m), by striking ``and'' after the
semicolon;
(2) in subsection (n), by striking the period at the end and
inserting a semicolon;
(3) in subsection (o), by striking the period at the end and
inserting ``; and''; and
(4) by adding at the end the following:
``(p) `significant and substantial violation' means a
violation of this Act, including any mandatory health or safety
standard or regulation promulgated under this Act, that is of
such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or
health hazard as described in section 104(d).''.
SEC. 602. ASSISTANCE TO STATES.
Section 503 (30 U.S.C. 953(a)) is amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1), by
striking ``, in coordination with the Secretary of
Health, Education, and Welfare and the Secretary of the
Interior,'';
(B) in paragraph (2), by striking ``and'' after the
semicolon;
(C) in paragraph (3), by striking the period and
inserting ``; and''; and
(D) by adding at the end the following:
``(4) to assist such State in developing and implementing any
certification program for coal or other mines required for
compliance with section 118.''; and
(2) in subsection (h), by striking ``$3,000,000 for fiscal
year 1970, and $10,000,000 annually in each succeeding fiscal
year'' and inserting ``$20,000,000 for each fiscal year''.
SEC. 603. BLACK LUNG MEDICAL REPORTS.
Title IV of the Black Lung Benefits Act (30 U.S.C. 901 et seq.) is
amended by adding at the end the following:
``SEC. 435. MEDICAL REPORTS.
``In any claim for benefits for a miner under this title, an operator
that requires a miner to submit to a medical examination regarding the
miner's respiratory or pulmonary condition shall, not later than 14
days after the miner has been examined, deliver to the claimant a
complete copy of the examining physician's report. The examining
physician's report shall be in writing and shall set out in detail the
examiner's findings, including any diagnoses and conclusions and the
results of any diagnostic imaging techniques and tests that were
performed on the miner.''.
SEC. 604. RULES OF APPLICATION TO CERTAIN MINES.
(a) Inapplicability of Amendments to Certain Mines.--
(1) Special rule.--The amendments made by this Act shall not
apply to--
(A) surface mines, except for surface facilities or
impoundments physically connected to--
(i) underground coal mines; or
(ii) other underground mines which are gassy
mines; or
(B) underground mines which are neither coal mines
nor gassy mines.
(2) Definition.--For purposes of this section, the term
``gassy mine'' means a mine, tunnel, or other underground
workings in which a flammable mixture has been ignited, or has
been found with a permissible flame safety lamp, or has been
determined by air analysis to contain 0.25 percent or more (by
volume) of methane in any open workings when tested at a point
not less than 12 inches from the roof, face of rib.
(b) Rule of Construction Relating to Applicability of Certain
Provisions to Surface Mines.--Title I is further amended by adding at
the end the following:
``SEC. 119. APPLICABILITY OF CERTAIN PROVISIONS TO CERTAIN MINES.
``(a) Rule of Construction.--With respect to the mines described in
subsection (b), this Act as in effect on the date before the date of
enactment of the Robert C. Byrd Miner Safety and Health Act of 2010,
shall continue to apply to such mines as then in effect.
``(b) Applicable Mines.--
``(1) In general.--The mines referred to in subsection (a)
are--
``(A) surface mines, except for surface facilities or
impoundments physically connected to--
``(i) underground coal mines; or
``(ii) other underground mines which are
gassy mines; and
``(B) underground mines which are neither coal mines
nor gassy mines.
``(2) Definition.--As used in paragraph (1), the term `gassy
mine' means a mine, tunnel, or other underground workings in
which a flammable mixture has been ignited, or has been found
with a permissible flame safety lamp, or has been determined by
air analysis to contain 0.25 percent or more (by volume) of
methane in any open workings when tested at a point not less
than 12 inches from the roof, face of rib.
``(c) Savings Provision.--Nothing in this section shall impact the
authority of the Secretary to promulgate or modify regulations pursuant
to the authority under any such provisions as in effect on the date
before the date of enactment of the Robert C. Byrd Miner Safety and
Health Act of 2010, or shall be construed to alter or modify precedent
with regards to the Commission or courts.''.
TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT
SEC. 701. ENHANCED PROTECTIONS FROM RETALIATION.
(a) Employee Actions.--Section 11(c)(1) of the Occupational Safety
and Health Act of 1970 (29 U.S.C. 660(c)(1)) is amended--
(1) by striking ``discharge'' and all that follows through
``because such'' and inserting the following: ``discharge or
cause to be discharged, or in any manner discriminate against
or cause to be discriminated against, any employee because--
``(A) such'';
(2) by striking ``this Act or has'' and inserting the
following: ``this Act;
``(B) such employee has'';
(3) by striking ``in any such proceeding or because of the
exercise'' and inserting the following: ``before Congress or in
any Federal or State proceeding related to safety or health;
``(C) such employee has refused to violate any provision of
this Act; or
``(D) of the exercise''; and
(4) by inserting before the period at the end the following:
``, including the reporting of any injury, illness, or unsafe
condition to the employer, agent of the employer, safety and
health committee involved, or employee safety and health
representative involved''.
(b) Prohibition of Retaliation.--Section 11(c) of such Act (29 U.S.C.
660(c)) is amended by striking paragraph (2) and inserting the
following:
``(2) Prohibition of retaliation.--(A) No person shall
discharge, or cause to be discharged, or in any manner
discriminate against, or cause to be discriminated against, an
employee for refusing to perform the employee's duties if the
employee has a reasonable apprehension that performing such
duties would result in serious injury to, or serious impairment
of the health of, the employee or other employees.
``(B) For purposes of subparagraph (A), the circumstances
causing the employee's good-faith belief that performing such
duties would pose a safety or health hazard shall be of such a
nature that a reasonable person, under the circumstances
confronting the employee, would conclude that there is such a
hazard. In order to qualify for protection under this
paragraph, the employee, when practicable, shall have
communicated or attempted to communicate the safety or health
concern to the employer and have not received from the employer
a response reasonably calculated to allay such concern.''.
(c) Procedure.--Section 11(c) of such Act (29 U.S.C. 660(c)) is
amended by striking paragraph (3) and inserting the following:
``(3) Complaint.--Any employee who believes that the employee
has been discharged, disciplined, or otherwise discriminated
against by any person in violation of paragraph (1) or (2) may
seek relief for such violation by filing a complaint with the
Secretary under paragraph (5).
``(4) Statute of limitations.--
``(A) In general.--An employee may take the action
permitted by paragraph (3)(A) not later than 180 days
after the later of--
``(i) the date on which an alleged violation
of paragraph (1) or (2) occurs; or
``(ii) the date on which the employee knows
or should reasonably have known that such
alleged violation occurred.
``(B) Repeat violation.--Except in cases when the
employee has been discharged, a violation of paragraph
(1) or (2) shall be considered to have occurred on the
last date an alleged repeat violation occurred.
``(5) Investigation.--
``(A) In general.--An employee may, within the time
period required under paragraph (4)(B), file a
complaint with the Secretary alleging a violation of
paragraph (1) or (2). If the complaint alleges a prima
facie case, the Secretary shall conduct an
investigation of the allegations in the complaint,
which--
``(i) shall include--
``(I) interviewing the complainant;
``(II) providing the respondent an
opportunity to--
``(aa) submit to the
Secretary a written response to
the complaint; and
``(bb) meet with the
Secretary to present statements
from witnesses or provide
evidence; and
``(III) providing the complainant an
opportunity to--
``(aa) receive any statements
or evidence provided to the
Secretary;
``(bb) meet with the
Secretary; and
``(cc) rebut any statements
or evidence; and
``(ii) may include issuing subpoenas for the
purposes of such investigation.
``(B) Decision.--Not later than 90 days after the
filing of the complaint, the Secretary shall--
``(i) determine whether reasonable cause
exists to believe that a violation of paragraph
(1) or (2) has occurred; and
``(ii) issue a decision granting or denying
relief.
``(6) Preliminary order following investigation.--If, after
completion of an investigation under paragraph (5)(A), the
Secretary finds reasonable cause to believe that a violation of
paragraph (1) or (2) has occurred, the Secretary shall issue a
preliminary order providing relief authorized under paragraph
(14) at the same time the Secretary issues a decision under
paragraph (5)(B). If a de novo hearing is not requested within
the time period required under paragraph (7)(A)(i), such
preliminary order shall be deemed a final order of the
Secretary and is not subject to judicial review.
``(7) Hearing.--
``(A) Request for hearing.--
``(i) In general.--A de novo hearing on the
record before an administrative law judge may
be requested--
``(I) by the complainant or
respondent within 30 days after
receiving notification of a decision
granting or denying relief issued under
paragraph (5)(B) or paragraph (6)
respectively;
``(II) by the complainant within 30
days after the date the complaint is
dismissed without investigation by the
Secretary under paragraph (5)(A); or
``(III) by the complainant within 120
days after the date of filing the
complaint, if the Secretary has not
issued a decision under paragraph
(5)(B).
``(ii) Reinstatement order.--The request for
a hearing shall not operate to stay any
preliminary reinstatement order issued under
paragraph (6).
``(B) Procedures.--
``(i) In general.--A hearing requested under
this paragraph shall be conducted expeditiously
and in accordance with rules established by the
Secretary for hearings conducted by
administrative law judges.
``(ii) Subpoenas; production of evidence.--In
conducting any such hearing, the administrative
law judge may issue subpoenas. The respondent
or complainant may request the issuance of
subpoenas that require the deposition of, or
the attendance and testimony of, witnesses and
the production of any evidence (including any
books, papers, documents, or recordings)
relating to the matter under consideration.
``(iii) Decision.--The administrative law
judge shall issue a decision not later than 90
days after the date on which a hearing was
requested under this paragraph and promptly
notify, in writing, the parties and the
Secretary of such decision, including the
findings of fact and conclusions of law. If the
administrative law judge finds that a violation
of paragraph (1) or (2) has occurred, the judge
shall issue an order for relief under paragraph
(14). If review under paragraph (8) is not
timely requested, such order shall be deemed a
final order of the Secretary that is not
subject to judicial review.
``(8) Administrative appeal.--
``(A) In general.--Not later than 30 days after the
date of notification of a decision and order issued by
an administrative law judge under paragraph (7), the
complainant or respondent may file, with objections, an
administrative appeal with an administrative review
body designated by the Secretary (referred to in this
paragraph as the `review board').
``(B) Standard of review.--In reviewing the decision
and order of the administrative law judge, the review
board shall affirm the decision and order if it is
determined that the factual findings set forth therein
are supported by substantial evidence and the decision
and order are made in accordance with applicable law.
``(C) Decisions.--If the review board grants an
administrative appeal, the review board shall issue a
final decision and order affirming or reversing, in
whole or in part, the decision under review by not
later than 90 days after receipt of the administrative
appeal. If it is determined that a violation of
paragraph (1) or (2) has occurred, the review board
shall issue a final decision and order providing relief
authorized under paragraph (14). Such decision and
order shall constitute final agency action with respect
to the matter appealed.
``(9) Settlement in the administrative process.--
``(A) In general.--At any time before issuance of a
final order, an investigation or proceeding under this
subsection may be terminated on the basis of a
settlement agreement entered into by the parties.
``(B) Public policy considerations.--Neither the
Secretary, an administrative law judge, nor the review
board conducting a hearing under this subsection shall
accept a settlement that contains conditions
conflicting with the rights protected under this Act or
that are contrary to public policy, including a
restriction on a complainant's right to future
employment with employers other than the specific
employers named in a complaint.
``(10) Inaction by the review board or administrative law
judge.--
``(A) In general.--The complainant may bring a de
novo action described in subparagraph (B) if--
``(i) an administrative law judge has not
issued a decision and order within the 90-day
time period required under paragraph
(7)(B)(iii); or
``(ii) the review board has not issued a
decision and order within the 90-day time
period required under paragraph (8)(C).
``(B) De novo action.--Such de novo action may be
brought at law or equity in the United States district
court for the district where a violation of paragraph
(1) or (2) allegedly occurred or where the complainant
resided on the date of such alleged violation. The
court shall have jurisdiction over such action without
regard to the amount in controversy and to order
appropriate relief under paragraph (14). Such action
shall, at the request of either party to such action,
be tried by the court with a jury.
``(11) Judicial review.--
``(A) Timely appeal to the court of appeals.--Any
party adversely affected or aggrieved by a final
decision and order issued under this subsection may
obtain review of such decision and order in the United
States Court of Appeals for the circuit where the
violation, with respect to which such final decision
and order was issued, allegedly occurred or where the
complainant resided on the date of such alleged
violation. To obtain such review, a party shall file a
petition for review not later than 60 days after the
final decision and order was issued. Such review shall
conform to chapter 7 of title 5, United States Code.
The commencement of proceedings under this subparagraph
shall not, unless ordered by the court, operate as a
stay of the final decision and order.
``(B) Limitation on collateral attack.--An order and
decision with respect to which review may be obtained
under subparagraph (A) shall not be subject to judicial
review in any criminal or other civil proceeding.
``(12) Enforcement of order.--If a respondent fails to comply
with an order issued under this subsection, the Secretary or
the complainant on whose behalf the order was issued may file a
civil action for enforcement in the United States district
court for the district in which the violation was found to
occur to enforce such order. If both the Secretary and the
complainant file such action, the action of the Secretary shall
take precedence. The district court shall have jurisdiction to
grant all appropriate relief described in paragraph (14).
``(13) Burdens of proof.--
``(A) Criteria for determination.--In making a
determination or adjudicating a complaint pursuant to
this subsection, the Secretary, administrative law
judge, review board, or a court may determine that a
violation of paragraph (1) or (2) has occurred only if
the complainant demonstrates that any conduct described
in paragraph (1) or (2) with respect to the complainant
was a contributing factor in the adverse action alleged
in the complaint.
``(B) Prohibition.--Notwithstanding subparagraph (A),
a decision or order that is favorable to the
complainant shall not be issued in any administrative
or judicial action pursuant to this subsection if the
respondent demonstrates by clear and convincing
evidence that the respondent would have taken the same
adverse action in the absence of such conduct.
``(14) Relief.--
``(A) Order for relief.--If the Secretary,
administrative law judge, review board, or a court
determines that a violation of paragraph (1) or (2) has
occurred, the Secretary or court, respectively, shall
have jurisdiction to order all appropriate relief,
including injunctive relief, compensatory and exemplary
damages, including--
``(i) affirmative action to abate the
violation;
``(ii) reinstatement without loss of position
or seniority, and restoration of the terms,
rights, conditions, and privileges associated
with the complainant's employment, including
opportunities for promotions to positions with
equivalent or better compensation for which the
complainant is qualified;
``(iii) compensatory and consequential
damages sufficient to make the complainant
whole, (including back pay, prejudgment
interest, and other damages); and
``(iv) expungement of all warnings,
reprimands, or derogatory references that have
been placed in paper or electronic records or
databases of any type relating to the actions
by the complainant that gave rise to the
unfavorable personnel action, and, at the
complainant's direction, transmission of a copy
of the decision on the complaint to any person
whom the complainant reasonably believes may
have received such unfavorable information.
``(B) Attorneys' fees and costs.--If the Secretary or
an administrative law judge, review board, or court
grants an order for relief under subparagraph (A), the
Secretary, administrative law judge, review board, or
court, respectively, shall assess, at the request of
the employee against the employer--
``(i) reasonable attorneys' fees; and
``(ii) costs (including expert witness fees)
reasonably incurred, as determined by the
Secretary, administrative law judge, review
board, or court, respectively, in connection
with bringing the complaint upon which the
order was issued.
``(15) Procedural rights.--The rights and remedies provided
for in this subsection may not be waived by any agreement,
policy, form, or condition of employment, including by any pre-
dispute arbitration agreement or collective bargaining
agreement.
``(16) Savings.--Nothing in this subsection shall be
construed to diminish the rights, privileges, or remedies of
any employee who exercises rights under any Federal or State
law or common law, or under any collective bargaining
agreement.
``(17) Election of venue.--
``(A) In general.--An employee of an employer who is
located in a State that has a State plan approved under
section 18 may file a complaint alleging a violation of
paragraph (1) or (2) by such employer with--
``(i) the Secretary under paragraph (5); or
``(ii) a State plan administrator in such
State.
``(B) Referrals.--If--
``(i) the Secretary receives a complaint
pursuant to subparagraph (A)(i), the Secretary
shall not refer such complaint to a State plan
administrator for resolution; or
``(ii) a State plan administrator receives a
complaint pursuant to subparagraph (A)(ii), the
State plan administrator shall not refer such
complaint to the Secretary for resolution.''.
(d) Relation to Enforcement.--Section 17(j) of such Act (29 U.S.C.
666(j)) is amended by inserting before the period the following: ``,
including the history of violations under section 11(c)''.
SEC. 702. VICTIMS' RIGHTS.
The Occupational Safety and Health Act of 1970 is amended by
inserting after section 9 (29 U.S.C. 658) the following:
``SEC. 9A. VICTIMS' RIGHTS.
``(a) Rights Before the Secretary.--A victim or the representative of
a victim, shall be afforded the right, with respect to an inspection or
investigation conducted under section 8 to--
``(1) meet with the Secretary regarding the inspection or
investigation conducted under such section before the
Secretary's decision to issue a citation or take no action;
``(2) receive, at no cost, a copy of any citation or report,
issued as a result of such inspection or investigation, at the
same time as the employer receives such citation or report;
``(3) be informed of any notice of contest or addition of
parties to the proceedings filed under section 10(c); and
``(4) be provided notification of the date and time or any
proceedings, service of pleadings, and other relevant
documents, and an explanation of the rights of the employer,
employee and employee representative, and victim to participate
in proceedings conducted under section 10(c).
``(b) Rights Before the Commission.--Upon request, a victim or
representative of a victim shall be afforded the right with respect to
a work-related bodily injury or death to--
``(1) be notified of the time and date of any proceeding
before the Commission;
``(2) receive pleadings and any decisions relating to the
proceedings; and
``(3) be provided an opportunity to appear and make a
statement in accordance with the rules prescribed by the
Commission.
``(c) Modification of Citation.--Before entering into an agreement to
withdraw or modify a citation issued as a result of an inspection or
investigation of an incident under section 8, the Secretary shall
notify a victim or representative of a victim and provide the victim or
representative of a victim with an opportunity to appear and make a
statement before the parties conducting settlement negotiations. In
lieu of an appearance, the victim or representative of the victim may
elect to submit a letter to the Secretary and the parties.
``(d) Secretary Procedures.--The Secretary shall establish
procedures--
``(1) to inform victims of their rights under this section;
and
``(2) for the informal review of any claim of a denial of
such a right.
``(e) Commission Procedures and Considerations.--The Commission
shall--
``(1) establish procedures relating to the rights of victims
to be heard in proceedings before the Commission; and
``(2) in rendering any decision, provide due consideration to
any statement or information provided by any victim before the
Commission.
``(f) Family Liaisons.--The Secretary shall designate at least 1
employee at each area office of the Occupational Safety and Health
Administration to serve as a family liaison to--
``(1) keep victims informed of the status of investigations,
enforcement actions, and settlement negotiations; and
``(2) assist victims in asserting their rights under this
section.
``(g) Definition.--In this section, the term `victim' means--
``(1) an employee, including a former employee, who has
sustained a work-related injury or illness that is the subject
of an inspection or investigation conducted under section 8; or
``(2) a family member (as further defined by the Secretary)
of a victim described in paragraph (1), if--
``(A) the victim dies as a result of a incident that
is the subject of an inspection or investigation
conducted under section 8; or
``(B) the victim sustains a work-related injury or
illness that is the subject of an inspection or
investigation conducted under section 8, and the victim
because of incapacity cannot reasonably exercise the
rights under this section.''.
SEC. 703. CORRECTION OF SERIOUS, WILLFUL, OR REPEATED VIOLATIONS
PENDING CONTEST AND PROCEDURES FOR A STAY.
Section 10 of the Occupational Safety and Health Act of 1970 (29
U.S.C. 659) is amended by adding at the end the following:
``(d) Correction of Serious, Willful, or Repeated Violations Pending
Contest and Procedures for a Stay.--
``(1) Period permitted for correction of serious, willful, or
repeated violations.--For each violation which the Secretary
designates as serious, willful, or repeated, the period
permitted for the correction of the violation shall begin to
run upon receipt of the citation.
``(2) Filing of a motion of contest.--The filing of a notice
of contest by an employer--
``(A) shall not operate as a stay of the period for
correction of a violation designated as serious,
willful, or repeated; and
``(B) may operate as a stay of the period for
correction of a violation not designated by the
Secretary as serious, willful, or repeated.
``(3) Criteria and rules of procedure for stays.--
``(A) Motion for a stay.--An employer that receives a
citation alleging a violation designated as serious,
willful, or repeated and that files a notice of contest
to the citation asserting that the time set for
abatement of the alleged violation is unreasonable or
challenging the existence of the alleged violation may
file with the Commission a motion to stay the period
for the abatement of the violation.
``(B) Criteria.--In determining whether a stay should
be issued on the basis of a motion filed under
subparagraph (A), the Commission may grant a stay only
if the employer has demonstrated--
``(i) a substantial likelihood of success on
the areas contested under subparagraph (A); and
``(ii) that a stay will not adversely affect
the health and safety of workers.
``(C) Rules of procedure.--The Commission shall
develop rules of procedure for conducting a hearing on
a motion filed under subparagraph (A) on an expedited
basis. At a minimum, such rules shall provide:
``(i) That a hearing before an administrative
law judge shall occur not later than 15 days
following the filing of the motion for a stay
(unless extended at the request of the
employer), and shall provide for a decision on
the motion not later than 15 days following the
hearing (unless extended at the request of the
employer).
``(ii) That a decision of an administrative
law judge on a motion for stay is rendered on a
timely basis.
``(iii) That if a party is aggrieved by a
decision issued by an administrative law judge
regarding the stay, such party has the right to
file an objection with the Commission not later
than 5 days after receipt of the administrative
law judge's decision. Within 10 days after
receipt of the objection, a Commissioner, if a
quorum is seated pursuant to section 12(f),
shall decide whether to grant review of the
objection. If, within 10 days after receipt of
the objection, no decision is made on whether
to review the decision of the administrative
law judge, the Commission declines to review
such decision, or no quorum is seated, the
decision of the administrative law judge shall
become a final order of the Commission. If the
Commission grants review of the objection, the
Commission shall issue a decision regarding the
stay not later than 30 days after receipt of
the objection. If the Commission fails to issue
such decision within 30 days, the decision of
the administrative law judge shall become a
final order of the Commission.
``(iv) For notification to employees or
representatives of affected employees of
requests for such hearings and shall provide
affected employees or representatives of
affected employees an opportunity to
participate as parties to such hearings.''.
SEC. 704. CONFORMING AMENDMENTS.
Section 17(d) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 666(d)) is amended to read as follows:
``(d) Any employer who fails to correct a violation designated by the
Secretary as serious, willful, or repeated and for which a citation has
been issued under section 9(a) within the period permitted for its
correction (and a stay has not been issued by the Commission under
section 10(d)) may be assessed a civil penalty of not more than $7,000
for each day during which such failure or violation continues. Any
employer who fails to correct any other violation for which a citation
has been issued under section 9(a) of this title within the period
permitted for its correction (which period shall not begin to run until
the date of the final order of the Commission in the case of any review
proceeding under section 10 initiated by the employer in good faith and
not solely for delay of avoidance of penalties) may be assessed a civil
penalty of not more than $7,000 for each day during which such failure
or violation continues.''.
SEC. 705. CIVIL PENALTIES.
(a) In General.--Section 17 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 666) is amended--
(1) in subsection (a)--
(A) by striking ``$70,000'' and inserting
``$120,000'';
(B) by striking ``$5,000'' and inserting ``$8,000'';
and
(C) by adding at the end the following: ``In
determining whether a violation is repeated, the
Secretary or the Commission shall consider the
employer's history of violations under this Act and
under State occupational safety and health plans
established under section 18. If such a willful or
repeated violation caused or contributed to the death
of an employee, such civil penalty amounts shall be
increased to not more than $250,000 for each such
violation, but not less than $50,000 for each such
violation, except that for an employer with 25 or fewer
employees such penalty shall not be less than $25,000
for each such violation.'';
(2) in subsection (b)--
(A) by striking ``$7,000'' and inserting ``$12,000'';
and
(B) by adding at the end the following: ``If such a
violation caused or contributed to the death of an
employee, such civil penalty amounts shall be increased
to not more than $50,000 for each such violation, but
not less than $20,000 for each such violation, except
that for an employer with 25 or fewer employees such
penalty shall not be less than $10,000 for each such
violation.'';
(3) in subsection (c), by striking ``$7,000'' and inserting
``$12,000'';
(4) in subsection (d), as amended, by striking ``$7,000''
each place it occurs and inserting ``$12,000'';
(5) by redesignating subsections (e) through (i) as
subsections (f) through (j), and subsections (j) through (l) as
subsections (l) through (n) respectively; and
(6) in subsection (j) (as so redesignated) by striking
``$7,000'' and inserting ``$12,000''.
(b) Inflation Adjustment.--Section 17 is further amended by inserting
after subsection (d) the following:
``(e) Amounts provided under this section for civil penalties shall
be adjusted by the Secretary at least once during each 4-year period
beginning January 1, 2015, to account for the percentage increase or
decrease in the Consumer Price Index for all urban consumers during
such period.''.
SEC. 706. CRIMINAL PENALTIES.
(a) In General.--Section 17 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 666) (as amended by section 705) is further
amended--
(1) by amending subsection (f) (as redesignated by section
705) to read as follows:
``(f)(1) Any employer who knowingly violates any standard, rule, or
order promulgated under section 6 of this Act, or of any regulation
prescribed under this Act, and that violation caused or significantly
contributed to the death of any employee, shall, upon conviction, be
punished by a fine in accordance with title 18, United States Code, or
by imprisonment for not more than 10 years, or both, except that if the
conviction is for a violation committed after a first conviction of
such person under this subsection or subsection (i), punishment shall
be by a fine in accordance title 18, United States Code, or by
imprisonment for not more than 20 years, or by both.
``(2) For the purpose of this subsection, the term `employer' means,
in addition to the definition contained in section 3 of this Act, any
officer or director.'';
(2) by amending subsection (g) (as redesignated by section
705) to read as follows:
``(g) Unless otherwise authorized by this Act, any person that
knowingly gives, causes to give, or attempts to give or cause to give,
advance notice of any inspection conducted under this Act with the
intention of impeding, interfering with, or adversely affecting the
results of such inspection, shall be fined under title 18, United
States Code, imprisoned for not more than 5 years, or both.''.
(3) in subsection (h) (as redesignated by section 705), by
striking ``fine of not more than $10,000, or by imprisonment
for not more than six months,'' and inserting ``fine in
accordance with title 18, United States Code, or by
imprisonment for not more than 5 years,'';
(4) by inserting after subsection (j) (as redesignated by
section 705) the following:
``(k)(1) Any employer who knowingly violates any standard, rule, or
order promulgated under section 6, or any regulation prescribed under
this Act, and that violation caused or significantly contributed to
serious bodily harm to any employee but does not cause death to any
employee, shall, upon conviction, be punished by a fine in accordance
with title 18, United States Code, or by imprisonment for not more than
5 years, or by both, except that if the conviction is for a violation
committed after a first conviction of such person under this subsection
or subsection (e), punishment shall be by a fine in accordance with
title 18, United States Code, or by imprisonment for not more than 10
years, or by both.
``(2) For the purpose of this subsection, the term `employer' means,
in addition to the definition contained in section 3 of this Act, any
officer or director.
``(3) For purposes of this subsection, the term `serious bodily harm'
means bodily injury or illness that involves--
``(A) a substantial risk of death;
``(B) protracted unconsciousness;
``(C) protracted and obvious physical disfigurement; or
``(D) protracted loss or impairment, either temporary or
permanent, of the function of a bodily member, organ, or mental
faculty.''.
(b) Jurisdiction for Prosecution Under State and Local Criminal
Laws.--Such section is further amended by adding at the end the
following:
``(o) Nothing in this Act shall preclude a State or local law
enforcement agency from conducting criminal prosecutions in accordance
with the laws of such State or locality.''.
SEC. 707. PRE-FINAL ORDER INTEREST.
Section 17(n) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 666) (as redesignated by section 706(a)(4)) (29 U.S.C. 666(n))
is amended by adding at the end the following: ``Pre-final order
interest on such penalties shall begin to accrue on the date the party
contests a citation issued under this Act, and shall end upon the
issuance of the final order. Such pre-final order interest shall be
calculated at the current underpayment rate determined by the Secretary
of the Treasury pursuant to section 6621 of the Internal Revenue Code
of 1986, and shall be compounded daily. Post-final order interest shall
begin to accrue 30 days after the date a final order of the Commission
or the court is issued, and shall be charged at the rate of 8 percent
per year.''.
SEC. 708. REVIEW OF STATE OCCUPATIONAL SAFETY AND HEALTH PLANS.
Section 18 of the Occupational Safety and Health Act of 1970 (29
U.S.C. 668) is amended--
(1) by amending subsection (f) to read as follows:
``(f)(1) The Secretary shall, on the basis of reports submitted by
the State agency and the Secretary's own inspections, make a continuing
evaluation of the manner in which each State that has a plan approved
under this section is carrying out such plan. Such evaluation shall
include an assessment of whether the State continues to meet the
requirements of subsection (c) of this section and any other criteria
or indices of effectiveness specified by the Secretary in regulations.
Whenever the Secretary finds, on the basis of such evaluation, that in
the administration of the State plan there is a failure to comply
substantially with any provision of the State plan (or any assurance
contained therein), the Secretary shall make an initial determination
of whether the failure is of such a nature that the plan should be
withdrawn or whether the failure is of such a nature that the State
should be given the opportunity to remedy the deficiencies, and provide
notice of the Secretary's findings and initial determination.
``(2) If the Secretary makes an initial determination to reassert and
exercise concurrent enforcement authority while the State is given an
opportunity to remedy the deficiencies, the Secretary shall afford the
State an opportunity for a public hearing within 15 days of such
request, provided that such request is made not later than 10 days
after Secretary's notice to the State. The Secretary shall review and
consider the testimony, evidence, or written comments, and not later
than 30 days following such hearing, make a determination to affirm,
reverse, or modify the Secretary's initial determination to reassert
and exercise concurrent enforcement authority under sections 8, 9, 10,
13, and 17 with respect to standards promulgated under section 6 and
obligations under section 5(a). Following such a determination by the
Secretary, or in the event that the State does not request a hearing
within the time frame set forth in this paragraph, the Secretary may
reassert and exercise such concurrent enforcement authority, while a
final determination is pending under paragraph (3) or until the
Secretary has determined that the State has remedied the deficiencies
as provided under paragraph (4). Such determination shall be published
in the Federal Register. The procedures set forth in section 18(g)
shall not apply to a determination by the Secretary to reassert and
exercise such concurrent enforcement authority.
``(3) If the Secretary makes an initial determination that the plan
should be withdrawn, the Secretary shall provide due notice and the
opportunity for a hearing. If based on the evaluation, comments, and
evidence, the Secretary makes a final determination that there is a
failure to comply substantially with any provision of the State plan
(or any assurance contained therein), he shall notify the State agency
of the withdrawal of approval of such plan and upon receipt of such
notice such plan shall cease to be in effect, but the State may retain
jurisdiction in any case commenced before the withdrawal of the plan in
order to enforce standards under the plan whenever the issues involved
do not relate to the reasons for the withdrawal of the plan.
``(4) If the Secretary makes a determination that the State should be
provided the opportunity to remedy the deficiencies, the Secretary
shall provide the State an opportunity to respond to the Secretary's
findings and the opportunity to remedy such deficiencies within a time
period established by the Secretary, not to exceed 1 year. The
Secretary may extend and revise the time period to remedy such
deficiencies, if the State's legislature is not in session during this
1 year time period, or if the State demonstrates that it is not
feasible to correct the deficiencies in the time period set by the
Secretary, and the State has a plan to correct the deficiencies within
a reasonable time period. If the Secretary finds that the State agency
has failed to remedy such deficiencies within the time period specified
by the Secretary and that the State plan continues to fail to comply
substantially with a provision of the State plan, the Secretary shall
withdraw the State plan as provided for in paragraph (3).''; and
(2) by adding at the end the following new subsection:
``(i) Not later than 18 months after the date of enactment of this
subsection, and every 5 years thereafter, the Comptroller General shall
complete and issue a review of the effectiveness of State plans to
develop and enforce safety and health standards to determine if they
are at least as effective as the Federal program and to evaluate
whether the Secretary's oversight of State plans is effective. The
Comptroller General's evaluation shall assess--
``(1) the effectiveness of the Secretary's oversight of State
plans, including the indices of effectiveness used by the
Secretary;
``(2) whether the Secretary's investigations in response to
Complaints About State Plan Administration (CASPA) are
adequate, whether significant policy issues have been
identified by headquarters and corrective actions are fully
implemented by each State;
``(3) whether the formula for the distribution of funds
described in section 23(g) to State programs is fair and
adequate; and
``(4) whether State plans are as effective as the Federal
program in preventing occupational injuries, illnesses and
deaths, and investigating discrimination complaints, through an
evaluation of at least 20 percent of approved State plans, and
which shall cover--
``(A) enforcement effectiveness, including handling
of fatalities, serious incidents and complaints,
compliance with inspection procedures, hazard
recognition, verification of abatement, violation
classification, citation and penalty issuance,
including appropriate use of willful and repeat
citations, and employee involvement;
``(B) inspections, the number of programmed health
and safety inspections at private and public sector
establishments, and whether the State targets the
highest hazard private sector work sites and facilities
in that State;
``(C) budget and staffing, including whether the
State is providing adequate budget resources to hire,
train and retain sufficient numbers of qualified staff,
including timely filling of vacancies;
``(D) administrative review, including the quality of
decisions, consistency with Federal precedence,
transparency of proceedings, decisions and records are
available to the public, adequacy of State defense, and
whether the State appropriately appeals adverse
decisions;
``(E) anti discrimination, including whether
discrimination complaints are processed in a timely
manner, whether supervisors and investigators are
properly trained to investigate discrimination
complaints, whether a case file review indicates merit
cases are properly identified consistent with Federal
policy and procedure, whether employees are notified of
their rights, and whether there is an effective process
for employees to appeal the dismissal of a complaint;
``(F) program administration, including whether the
State's standards and policies are at least as
effective as the Federal program and are updated in a
timely manner, and whether National Emphasis Programs
that are applicable in such States are adopted and
implemented in a manner that is at least as effective
as the Federal program;
``(G) whether the State plan satisfies the
requirements for approval set forth in this section and
its implementing regulations; and
``(H) other such factors identified by the
Comptroller General, or as requested by the Committee
on Education and Labor of the House of Representatives
or the Committee on Health, Education, Labor and
Pensions of the Senate.''.
SEC. 709. HEALTH HAZARD EVALUATIONS BY THE NATIONAL INSTITUTE FOR
OCCUPATIONAL SAFETY AND HEALTH.
Section 20(a)(6) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 669(a)(6)) is amended by striking the second sentence and
inserting the following: ``The Secretary shall determine following a
written request by any employer, authorized representative of current
or former employees, physician, other Federal agency, or State or local
health department, specifying with reasonable particularity the grounds
on which the request is made, whether any substance normally found in
the place of employment has potentially toxic effects in such
concentrations as used or found or whether any physical agents,
equipment, or working condition found or used has potentially hazardous
effects; and shall submit such determination both to employers and
affected employees as soon as possible.''.
SEC. 710. AUTHORIZATION OF COOPERATIVE AGREEMENTS BY NIOSH OFFICE OF
MINE SAFETY AND HEALTH.
Section 22(h)(3) of the Occupational Safety and Health Act of 1970
(29 U.S.C. 671(h)(3)) is amended--
(1) in subparagraph (B), by striking ``and'' at the end;
(2) by redesignating subparagraph (C) as subparagraph (D);
and
(3) by inserting after subparagraph (B) the following:
``(C) enter into cooperative agreements or contracts
with international institutions and private entities to
improve mine safety and health through the development
and evaluation of new interventions; and''.
SEC. 711. EFFECTIVE DATE.
(a) General Rule.--Except as provided for in subsection (b), this
title and the amendments made by this title shall take effect not later
than 90 days after the date of the enactment of this Act.
(b) Exception for States and Political Subdivisions.--A State that
has a State plan approved under section 18 (29 U.S.C. 667) shall amend
its State plan to conform with the requirements of this Act and the
amendments made by this Act not later than 12 months after the date of
the enactment of this Act. The Secretary of Labor may extend the period
for a State to make such amendments to its State plan by not more than
12 months, if the State's legislature is not in session during the 12-
month period beginning with the date of the enactment of this Act. Such
amendments to the State plan shall take effect not later than 90 days
after the adoption of such amendments by such State.
I. Purpose
The purpose of H.R. 5663, the Robert C. Byrd Miner Safety
and Health Act of 2010, is to strengthen the nation's mine and
occupational safety and health laws in order to toughen
enforcement of such laws, improve compliance, and prevent miner
and other worker fatalities, injuries, and illnesses.
II. Committee Action Including Legislative History
OCCUPATIONAL SAFETY AND HEALTH REFORM
LEGISLATIVE HISTORY
The passage of the Occupational Safety and Health Act of
1970 (OSHA or OSH Act) radically transformed the workplace. The
American labor movement had advocated for workplace reforms
since the arrival of the Industrial Revolution, but worker
health and safety had long been the purview of state
regulation. Massachusetts passed the nation's first safety and
health legislation in 1877, and by 1890, nine states followed
suit.
The OSH Act was passed following spirited debate among
labor, government and business. The purpose of the Act was to
develop and enforce mandatory federal safety and health
standards to protect workers from workplace hazards. In the
year the OSH Act was passed, 13,800 workers were killed by
workplace hazards in the United States. In 2008, 5,071 fatal
work injuries and 3.7 million nonfatal occupational injuries
and illnesses were recorded. In the nearly forty years of its
existence, the Act has saved hundreds of thousands of lives and
millions more of avoided exposure to preventable illnesses and
injuries.
The OSH Act has not been significantly amended since its
passage with the exception of the 1990 Omnibus Budget
Reconciliation Act. The Reconciliation Act increased the
maximum penalties for workplace health and safety violations
and imposed minimum penalties for willful violations.
110TH CONGRESS (2007-2008)
HEARINGS IN THE HOUSE OF REPRESENTATIVES
Committee on Education and Labor
On March 22, 2007, the Committee on Education and Labor
held a hearing entitled ``The BP Texas City Disaster and Worker
Safety,'' which reflected on an explosion in a Texas British
Petroleum refinery two years before. The panel included:
Admiral Frank ``Skip'' Bowman, President of the Nuclear Safety
Institute and member of the Baker Panel; Red Cavaney, President
and CEO of the American Petroleum Institute; Hon. Carolyn W.
Merritt, Chair of the U.S. Chemical Safety and Hazard
Investigation Board; Kim Nibarger, health and safety specialist
at the United Steelworkers International Union; and Eva Rowe, a
relative of a BP Texas City disaster victim. At the hearing,
the Committee examined what could be done to improve the safety
of refineries and chemical facilities and increase OSHA's
effectiveness.
On January 14, 2008, the Subcommittee on Workforce
Protections of the Committee on Education and Labor held a
field hearing in Linden, New Jersey, entitled ``Workplace
Tragedies: Examining Problems and Solutions.'' The Subcommittee
heard testimony relating to the deaths of three industrial
laundry facility employees in Linden. Witnesses included Rick
Engler, Director of the New Jersey Work Environment Council;
Eric Frumin, Director of Occupational Safety and Health at
UNITE HERE; David J. Socolow, Commissioner of the New Jersey
Department of Labor and Workforce Development; James W.
Stanley, President of FDRsafety; and Charles Wowkanech,
President of the New Jersey State AFL-CIO.
On June 19, 2008, the Committee on Education and Labor held
a hearing entitled ``Hidden Tragedy: Underreporting of
Workplace Injuries and Illnesses.'' The panel included: Baruch
Fellner, Esq. of Gibson, Dunn & Crutcher, LLP, on behalf of the
U.S. Chamber of Commerce; Robert K. McLellan, M.D., MPH,
FACOEM, representing the American College of Occupational and
Environmental Medicine; Kenneth D. Rosenman, M.D., FACPM, FACE,
and Professor of Medicine at Michigan State University College
of Human Medicine; John Ruser, Assistant Commissioner for
Safety and Health Statistics of the Bureau of Labor Statistics;
A.C. Span, former employee of Bashas' Distribution Center; and
Bob Whitmore, former Chief of the OSHA Division of
Recordkeeping, U.S. Department of Labor.
On June 24, 2008, the Committee on Education and Labor held
a hearing entitled ``Is OSHA Failing to Adequately Enforce
Construction Safety Rules?'' The panel included: Mark H. Ayers,
President of the Building and Construction Trades Department of
the AFL-CIO; George Cole, former ironworker; Hon. Edwin G.
Foulke, Jr., Assistant Secretary of OSHA, U.S. Department of
Labor; Mike Kallmeyer, Senior Vice President for Construction
at Denier Electric; and Robert LiMandri, Acting Buildings
Commissioner of the City of New York.
HEARINGS IN THE SENATE
Committee on Health, Education, Labor and Pensions
On April 26, 2007, the Senate Committee on Health,
Education, Labor and Pensions held a hearing entitled ``Is OSHA
Working for Working People?'' The panel included: David
Michaels, Ph.D., Research Professor and Associate Chairman of
the Department of Environmental and Occupational Health, George
Washington University; Peg Seminario, Director of Occupational
Safety and Health, AFL-CIO; Konnie Compagna, Registered Nurse,
Valley Medical Center, Kent, WA; and Thomas Cecich, CIH, CSP,
President of TFC and Associates in Apex, NC.
On April 1, 2008, the Subcommittee on Employment and
Workplace Safety of the Senate Committee on Health, Education,
Labor and Pensions held a hearing entitled ``Serious OSHA
Violations: Strategies for Breaking Dangerous Patterns.'' The
panel included: Eric Frumin, Health and Safety Expert, Change
to Win; Doris Morrow, Member, UFCW Local Union 227, Robards,
KY; Gerard F. Scannell, Former OSHA Director and Former Chair
of the National Safety Council; and Carmen Bianco, Executive
Consultant, Behavioral Science Technology, Inc., Ojai, CA.
On April 29, 2008, the Senate Committee on Health,
Education, Labor and Pensions held a hearing entitled ``When a
Worker is Killed: Do OSHA Penalties Enhance Workplace Safety?''
The panel included: Peg Seminario, Director of Occupational
Safety and Health, AFL-CIO; David Uhlmann, Director of the
Environmental Law and Policy Program, University of Michigan
Law School; Ron Hayes, Director, Fight Project, Fairhope, AL;
Donald Coit Smith, Resident, Temple, TX; and George Jenson,
III, Owner, Jenson Fire Protection, Inc., Ellicott City, MD.
111TH CONGRESS (2009-2010)
HEARINGS IN THE HOUSE OF REPRESENTATIVES
Committee on Education and Labor
On April 28, 2009, the Committee on Education and Labor
held a hearing entitled ``Are OSHA's Penalties Adequate to
Deter Health and Safety Violations?'' in response to the
introduction by Rep. Lynn Woolsey of H.R. 2067, Protecting
America's Workers Act. The panel included: Becky Foster, mother
of Jeremy Foster, a fatally injured employee of a timber
company; Lawrence P. Halprin, partner at Keller and Heckman,
LLP; Peg Seminario, Director of Safety and Health at the AFL-
CIO; and David M. Uhlmann, the Jeffrey F. Liss Professor and
Director of the environmental law and policy program at the
University of Michigan Law School.
On October 29, 2009, the Committee on Education and Labor
held a hearing entitled, ``Nevada's Workplace Health and Safety
Enforcement Program: OSHA's Findings and Recommendations,''
after concerns surfaced regarding the enforcement of Nevada's
worker safety laws. The panel included: Jordan Barab, Acting
Assistant Secretary for Occupational Safety and Health of the
U.S. Department of Labor; Donald E. Jayne, Administrator of the
Division of Industrial Relations of the Nevada Department of
Business and Industry; Debi Koehler-Fergen, mother of Travis
Koehler, a worker who died in a preventable workplace accident;
Franklin E. Mirer, Ph.D., CIH, and professor of environmental
and occupational health sciences of the Urban Public Health
Program of Hunter College, City University of New York; and
Hon. Harry Reid, Majority Leader, U.S. Senate.
On March 16, 2010, the Workforce Protections Subcommittee
of the Committee on Education and Labor held a hearing
entitled, ``Protecting America's Workers Act: Modernizing OSHA
Penalties,'' where it examined H.R. 2067, introduced by Rep.
Lynn Woolsey. The panel included: John Cruden, Acting Assistant
Attorney General of the Environment and Natural Resources
Division of the Department of Justice; David Michaels,
Assistant Secretary of Labor for OSHA; Eric Frumin, Health and
Safety Coordinator at Change to Win; and Jonathan Snare;
partner at Morgan, Lewis & Bockius LLP, on behalf of the U.S.
Chamber of Commerce.
On April 28, 2010, the Workforce Protections Subcommittee
of the Committee on Education and Labor held a hearing entitled
``Whistleblower and Victim's Rights Provisions of H.R. 2067,
the Protecting America's Workers Act.'' The hearing considered
a proposal to strengthen protections for workers who report
dangerous working conditions. The panel included: Jordan Barab,
Deputy Assistant Secretary of Labor for Occupational Safety and
Health; Lloyd B. Chinn, partner at Proskauer Rose LLP; Tonya
Ford, niece of Robert Fitch, a worker killed at an Archer
Daniels Midland plant; Neal Jorgensen, a whistleblower formerly
employed at Plastic Industries; Dr. Celeste Monforton, and
Assistant Research Professor at the Department of Environmental
and Occupational Health of the George Washington University;
Dennis J. Morikawa of Morgan, Lewis & Bockius LLP; and Lynn
Rhinehart, General Counsel of the AFL-CIO.
On June 28, 2010, the Workforce Protections Subcommittee of
the Committee on Education and Labor held a field hearing
entitled ``Examining the Tragic Explosion at the Kleen Energy
Power Plant in Middletown, Connecticut.'' The panel included:
Edward Badamo, Fire Chief of the South Fire District of
Middletown, CT; Hon. John Bresland, Board Member of the U.S.
Chemical Safety and Hazard Investigation Board; Glenn Corbett,
Associate Professor and Chair of the Department of Protection
Management at John Jay College of Criminal Justice; Hon.
Sebastian Giuliano, Mayor of Middletown, CT; Hon. Alan Nevas,
Chair of the Governor's Kleen Energy Systems and Explosion
Origin and Cause Panel; and Jodi Thomas, wife of Ron Crabb, a
pipefitter who died in the explosion.
HEARINGS IN THE SENATE
Committee on Health, Education, Labor and Pensions
On April 28, 2009, the Subcommittee on Employment and
Workplace Safety of the Senate Committee on Health, Education,
Labor and Pensions held a hearing entitled ``Introducing
Meaningful Incentives for Safe Workplaces and Meaningful Roles
for Victims and Their Families.'' The panel included: Dr.
Celeste Monforton, Ph.D., MPH, Lecturer and Researcher, Project
on Scientific Knowledge and Public Policy, George Washington
University; Jim Frederick, Assistant Director for Safety and
Health, United Steelworkers; Tammy Miser, Founder, United
Support Memorial for Workplace Fatalities; and Warren Brown,
President, American Society of Safety Engineers.
MINE SAFETY AND HEALTH REFORM
LEGISLATIVE HISTORY
Following the Scotia Mine disaster in 1976, Congress
enacted the Federal Mine Safety and Health Act of 1977 (Mine
Act), which transferred responsibility for regulation of coal
and metal and non metal mines from the Interior Department to
the Department of Labor and established the Mine Safety and
Health Administration with its own Assistant Secretary to
enforce the Mine Act. The Mine Act consolidates federal
regulation of the mining industry, covering coal and non coal
facilities, that had previously been covered under the Federal
Metal and Nonmetallic Mine Act of 1966 and the 1969 Coal Act,
however, it maintained different health and safety standards
for the two sectors. The Mine Act established the five-member
Federal Mine Safety and Health Review Commission to review
citations and orders. The Mine Act expanded miners rights and
prescribed new enforcement remedies, such as Pattern of
Violation.
In the wake of a series of 3 serious mine disasters in
2006, including an explosion at the Sago Mine in West Virginia
where 12 men lost their lives, Congress enacted the Mine
Improvement and New Emergency Response Act of 2006 (MINER Act),
P.L. 109-236). This legislation required mine operators to
develop emergency response plans, install tracking and
communications which will allow miners to communicate and be
found after an accident, provide post accident breathable air
to trapped miners in the event of an accident, and have two
rescue teams not less than an hour away. The legislation
established minimum civil penalties for unwarrantable failure
violations, and established flagrant violations as a new
category.
110TH CONGRESS (2007-2008)
HEARINGS IN THE HOUSE OF REPRESENTATIVES
Committee on Education and Labor
On March 28, 2007, the Committee on Education and Labor
held a hearing entitled ``Protecting the Health and Safety of
America's Mine Workers.'' The panel included: Jim Dean,
Director of Extension and Outreach of the West Virginia
University College of Engineering and Mineral Resources;
Deborah Hamner, wife of a deceased miner; Charles Scott Howard,
miner; Chuck Knisell, miner; Melissa Lee, wife of a deceased
miner; Tony Oppegard, attorney; Cecil Roberts, President of the
United Mine Workers of America; and Bruce Watzman, Vice
President of Safety and Health at the National Mining
Association. At the hearing, the Committee examined the role of
MSHA in the enforcement of health and safety standards in
mines.
On May 15, 2007, the Subcommittee on Workforce Protections
of the Committee on Education and Labor heard testimony
relating to ``Private Sector Whistleblowers: Are There
Sufficient Legal Protections?'' in response to reports of the
blacklisting of miners who spoke up about workplace safety
prior to the Sago mine disaster in March, 2007. Witnesses at
the hearing included: Lloyd Chinn, partner, Proskauer Rose LLP;
Thomas Devine, Legal Director of the Government Accountability
Project; Richard Fairfax, Director of Enforcement at OSHA;
Richard E. Moberly, Assistant Professor and Cline Williams
Research Chair at the University of Nebraska College of Law;
John Simon, truck driver; and Dr. Jeffrey Wigand, former
employee of Brown & Williamson.
On May 16, 2007, the Committee on Education and Labor held
a hearing on ``Evaluating the Effectiveness of MSHA's Mine
Safety and Health Programs.'' Witnesses included: Reps. Nick
Rahall and Shelley Moore Capito of the Third and Second
Districts of Virginia, respectively; Dan Bertoni, Director of
the Education, Workforce, and Income Security Team of the
Government Accountability Office; Richard Stickler, Assistant
Secretary of Mine Safety and Health at the U.S. Department of
Labor; Jonathan Snare, Acting Solicitor of Labor of the U.S.
Department of Labor; Larry Grayson, Chair of the Department of
Mining and Nuclear Engineering of the University of Missouri;
and J. Davitt McAteer, Vice President for Sponsored Programs at
Wheeling-Jesuit University. At the hearing, the Committee
considered whether MSHA responded adequately to mine health and
safety hazards.
On July 26, 2007, the Subcommittee on Workforce Protections
of the Committee on Education and Labor held a hearing on
``H.R. 2768, the S-MINER Act, and H.R. 2769, the Miner Health
Enhancement Act of 2007.'' The Subcommittee heard testimony
from Kevin Strickland, Administrator of Coal Mine Safety and
Health at MSHA; Dennis O'Dell, Safety and Health Director of
the United Mine Workers of America; James L. Weeks, ScD, CIH,
of Potomac, Maryland; and Mike Wright, Director of Health,
Safety and Environment at the United Steelworkers.
On October 3, 2007, the Committee on Education and Labor
held a hearing entitled ``The Perspective of the Families at
Crandall Canyon'' concerning a tragic explosion at the Crandall
Canyon Mine where six miners lost their lives. The Committee
heard testimony from Steve Allred, brother of miner Kerry
Allred; Wendy Black, wife of miner Dale ``Bird'' Black; Michael
Marasco, son-in-law of miner Kerry Allred; Sheila Phillips,
mother of miner Brandon Phillips; Cesar Sanchez, brother of
miner Manuel Sanchez; Jon Huntsman, Jr., Governor of the State
of Utah; Wayne Holland, International Staff Representative of
the United Steelworkers; Cecil Roberts, President of the United
Mine Workers of America; and Bruce Watzman, Vice President of
Safety, Health, and Human Services at the National Mining
Association.
HEARINGS IN THE SENATE
Committee on Appropriations
On February 28, 2007, the Subcommittee on Labor, Health and
Human Services, Education, and Related Agencies of the Senate
Committee on Appropriations held a hearing entitled,
``Improving Mine Safety: One Year After Sago and Alma.'' The
panel included: Richard E. Stickler, Assistant Secretary, Mine
Safety and Health Administration, Department of Labor; Dr. John
Howard, Director, National Institute for Occupational Safety
and Health, Department of Health and Human Services; Cecil
Roberts, President, United Mine Workers of America; Bruce
Watzman, Vice President, Safety, Health and Human Resources,
National Mining Association; J. Davitt McAteer, Esq., Vice
President of Sponsored Programs, Wheeling Jesuit University;
and Chris R. Hamilton, Senior Vice President, West Virginia
Coal Association.
On September 5, 2007, the Subcommittee on Labor, Health and
Human Services, Education, and Related Agencies of the Senate
Committee on Appropriations held a hearing entitled, ``Utah
Mine Disaster and Preventing Future Tragedies.'' The panel
included: Richard E. Stickler, Assistant Secretary of Labor,
Mine Safety and Health Administration, Department of Labor; J.
Davitt McAteer, Esq., Vice President of Sponsored Programs,
Wheeling Jesuit University; Cecil E. Roberts, President, United
Mine Workers of America; and Bruce Watzman, Vice President,
Safety, Health and Human Resources, National Mining
Association.
Committee on Health, Education, Labor and Pensions
On May 22, 2007, the Subcommittee on Employment and
Workplace Safety of the Senate Committee on Health, Education,
Labor and Pensions held a hearing entitled ``Promises or
Progress: The Miner Act One Year Later.'' The panel included:
Jeffrey Kohler, Ph.D., Associate Director for Mining, National
Institute for Occupational Safety and Health; Dennis O'Dell,
Administrator, Department of Health and Safety, United Mine
Workers of America; S.L. Bessinger, Ph.D., P.E., Engineering
Manager, BHP Billiton, San Juan Coal Company, Waterflow, NM;
and Bruce Watzman, Vice President, Safety, Health and Human
Resources, National Mining Association.
On October 2, 2007, the Senate Committee on Health,
Education, Labor and Pensions held a hearing entitled ``Current
Mine Safety Disasters: Issues and Challenges.'' The panel
included: Kevin Stricklin, Administrator for Coal Mine Safety
and Health, Mine Safety and Health Administration; Jeffrey
Kohler, Associate Director for Mine Safety and Health Research;
Joseph Osterman, Managing Director, National Transportation
Safety Board; Dennis O'Dell, Administrator for Health and
Safety, United Mine Workers of America; Robert Ferriter,
Director of Mine Safety and Health Program, Colorado School of
Mines; and Bruce Watzman, Vice President for Safety and Health,
National Mining Association.
On June 19, 2008, the Subcommittee on Employment and
Workplace Safety of the Senate Committee on Health, Education,
Labor and Pensions held a hearing entitled ``Two Years After
the Miner Act: How Safe is Mining Today?'' The panel included:
Richard E. Stickler, Acting Assistant Secretary of Labor for
Mine Safety and Health; Jeffrey Kohler, Ph.D., Associate
Director for Mining and Construction, National Institute for
Occupational Safety and Health (NIOSH); Dennis O'Dell,
Administrator of Occupational Health and Safety, United Mine
Workers of America; and Bruce Watzman, Vice President, Safety
and Health, National Mining Association.
111TH CONGRESS (2009-2010)
HEARINGS IN THE HOUSE OF REPRESENTATIVES
Committee on Education and Labor
On February 23, 2010, the Committee on Education and Labor
held a hearing entitled, ``Reducing the Growing Backlog of
Contested Mine Safety Cases.'' The panel included: Mary Lu
Jordan, Chair of the Federal Mine Safety and Health Review
Commission; Joe Main, Assistant Secretary of Labor for MSHA,
U.S. Department of Labor; Cecil Roberts, President of the
United Mine Workers of America; and Bruce Watzman, Senior Vice
President of Regulatory Affairs at the National Mining
Association.
On May 24, 2010, the Education and Labor Committee held a
field hearing in Beckley, West Virginia, concerning the
explosion at the Upper Big Branch coal mine that killed twenty-
nine workers. The hearing was entitled ``The Upper Big Branch
Mine Tragedy: Testimony of Family Members,'' and the panel
included: Hon. Joe Manchin III, Governor of West Virginia;
Eddie Cook, uncle of Adam Morgan; Gary Quarles, father of Gary
Wayne Quarles; Alice Peters, mother-in-law of Edward ``Dean''
Jones; Steve Morgan, father of Adam Morgan; Clay Mullins,
brother of Rex Mullins; and Stanley ``Goose'' Stewart, Upper
Big Branch miner.
HEARINGS IN THE SENATE
Committee on Appropriations
On May 20, 2010, the Subcommittee on Labor, Health and
Human Services, Education, and Related Agencies of the Senate
Committee on Appropriations held a hearing entitled ``Investing
in Mine Safety: Preventing Another Disaster.'' The panel
included: Mary Lu Jordan, Chair, Federal Mine Safety and Health
Review Commission; Cecil Roberts, President, United Mine
Workers of America; Don L. Blankenship, Chairman and CEO,
Massey Energy Company; John Howard, M.D., Director, National
Institute for Occupational Safety and Health; Joe Main,
Assistant Secretary of Labor for Mine Safety and Health; and M.
Patricia Smith, Solicitor of Labor.
Committee on Health, Education, Labor and Pensions
On April 27, 2010, the Senate Committee on Health,
Education, Labor and Pensions held a hearing entitled ``Putting
Safety First: Strengthening Enforcement and Creating a Culture
of Compliance at Mines and Other Dangerous Workplaces.'' The
panel included: Joe Main, Assistant Secretary of Labor for Mine
Safety and Health; Cecil Roberts, President, United Mine
Workers of America; Jeff Harris, Mine Worker, Fraley, WV; Wes
Addington, Deputy Director, Appalachian Citizens' Law Center;
Bruce Watzman, Senior Vice President, Regulatory Affairs,
National Mining Association; David Michaels, Assistant
Secretary of Labor for Occupational Safety and Health; Peg
Seminario, Director of Occupational Safety and Health, AFL-CIO;
Holly Shaw, Chairperson, Philaposh Tri-state Family Support
Group; Dr. Michael Brandt, Board President, American Industrial
Hygiene Association; and Kelli Heflin, Coordinator of
Regulatory Compliance and Safety Manager, Scott's Liquid Gold,
Denver, CO.
INTRODUCTION AND CONSIDERATION OF THE ROBERT C. BYRD MINER SAFETY AND
HEALTH ACT, H.R. 5663
On July 1, 2010, Congressman George Miller (D-CA), along
with Congresswoman Lynn Woolsey (D-CA) and Congressman Nick
Rahall (D-WV) introduced H.R. 5663, a bill containing major
reforms responding to the serious health and safety concerns
raised by workers and families of Massey Energy's Upper Big
Branch Mine tragedy that killed 29 miners and other recent
workplace tragedies.
Committee on Education and Labor Consideration of H.R. 5663
On July 13, 2010, the Committee on Education and Labor held
a hearing on H.R. 5663, the Robert C. Byrd Miner Safety and
Health Act. The Committee heard testimony concerning the
ability of MSHA to effectively protect miners' lives, hold mine
operators accountable for putting miners in unnecessary danger,
and expanding protections to all workers by strengthening OSHA.
The hearing was entitled ``H.R. 5663, Miner Safety and Health
Act of 2010,'' and the panel included: Joe Main, Assistant
Secretary of Labor for Mine Safety and Health, U.S. Department
of Labor; David Michaels, Assistant Secretary of Labor for
Occupational Safety and Health, U.S. Department of Labor;
Patricia Smith, Solicitor of Labor, U.S. Department of Labor;
R. Larry Grayson, Professor of Mine Engineering at Penn State
University; Lynn Rhinehart, General Counsel of the AFL-CIO;
Cecil Roberts, President of the United Mine Workers of America;
Jonathan Snare, partner at Morgan Lewis, on behalf of the
Coalition for Workplace Safety; Stanley ``Goose'' Stewart, a
West Virginia coal miner; and Bruce Watzman, Senior Vice
President for Regulatory Affairs at the National Mining
Association.
Committee on Education and Labor Mark-up of H.R. 5663
The Full Committee met on July 21, 2010 to mark up H.R.
5663. The Committee passed by voice vote an amendment in the
nature of a substitute offered by Chairman George Miller (D-
CA). There were seven other amendments offered and debated. Of
the amendments offered, four passed and three failed.
The Robert C. Byrd Miner Safety and Health Act
By a vote of 30-17, H.R. 5663 was reported favorably to the
House with an amendment in the nature of a substitute.
The Miller amendment in the nature of a substitute contains
the following modifications to the introduced version of H.R.
5663:
Title I: Slightly narrows the scope of Secretary's subpoena
authority from ``any function under this Act'' to
``investigations and inspections;'' allows miner
representatives to participate in any accident investigation
conducted by the Secretary, including the right to participate
in interviews, unless the Secretary, in consultation with the
Attorney General, concludes that such involvement ``would
interfere with or adversely impact a criminal investigation
that is pending or under investigation;'' provides mine
operators with the right to have mine inspector review recent
evaluation for pattern status during the course of a regular
inspection; eliminates the obligation for operators to report
the injuries and hours of work for its contractors and instead
contractors will be obligated to report hours of work and
injuries broken out by each mine where they work.
Title II: Eliminates the statutory definition of an S&S
violation as one which has ``a reasonable possibility of an
injury, illness or death; requires that accidents as well as
citations and orders must be counted in any designation of a
mine for pattern status; requires MSHA to screen mines for
pattern status not less than once every 6 months; expands
transparency on methods used to determine pattern status; fee
provisions are modified; and GAO will study the timeliness of
MSHA mine plan approvals and make recommendations.
Title III: Eliminates the increase in civil penalties for
significant and substantial (S&S) violations; adds a new felony
provision for instances where the operator's actions knowingly
exposed miners to a significant risk of serious injury or
illness or death, which is punishable by a fine of not more
than $1,000,000, or by imprisonment for not more than 5 years,
or both; if the operator is found to have knowingly tampered
with or disabled a required safety device which exposed miners
to a significant risk of serious injury or illness or death, or
if the conviction is for a violation committed after the first
conviction, punishment shall be by a fine of not more than
$2,000,000, or by imprisonment for not more than 10 years, or
both; modifies the provision on civil and criminal liability of
officers, directors and agents, so that liability will apply
when an operator's policies or practices ``result in''
violations, instead of merely ``contribute to'' a violation;
expands criminal penalty for retaliation to cover reporting
safety violations to state mine safety agencies, as well as
MSHA or law enforcement officials; modifies provision that
makes advance notice of an inspection a felony by requiring a
showing of intent to impede, interfere with or adversely affect
the outcome of an inspection for any person who knowingly gives
or causes to give advance notice.
Title IV: Expands protected activity for whistleblowers to
cover a miner reporting any injury or illness to an operator;
narrowed payment to miners idled by a MSHA-ordered mine
closure: first, for first two shifts, miners are paid for
balance of the shift when mine is closed, and four hours pay
for subsequent shift; second, limits payments to idled miners
to a maximum 60 days; third, operators will not have to pay
miner if they closed mine in advance of an MSHA order, if the
operator withdrew miners promptly after discovering a hazard
and notified MSHA as required, however, if they did not
promptly withdraw miners, and waited until MSHA was about to
issue a closure order, they must pay miners for up to 60 days;
and expedites mine operators due process rights by providing
mine operators with an expedited hearing and judgment within 30
days on any order which closes a mine and triggers payments to
miners.
Title V: Provides added flexibility to coal mine operators
on implementing a mandatory pre-shift review of mine conditions
to incoming miners; extends time for MSHA to issue interim rule
from 90 days to 180 days, and requires MSHA to issue a final
rule in 2 years; prevents MSHA from using measurements of rock
dust using these new monitors as a basis for enforcement until
the new technology is certified as accurate and reliable for
enforcement purposes and MSHA issues a final rule; establishes
a consultation process for operators, vendors, states and labor
to have input into a NIOSH study on the feasibility of using
continuous atmospheric monitoring systems in underground mines;
extends time for study from 180 days to one year; clarifies
requirement related to technology to control respirable dust,
to accommodate concerns that this would mandate reductions
beyond that established by MSHA regulations; and modifies fee
collection for certifications to ensure it is budget neutral.
Title VI: Provides that reforms to the pattern of
violations and the increased civil penalties for mines on
pattern of violations will only apply to underground coal mines
and other underground mines which are gassy.
Title VII: Reduces the burden of proof on employers to
obtain a stay of an OSHA order to abate serious or willful
violation that could cause serious bodily injury or death;
modifies the nexus required between a violation and bodily harm
in the criminal provision by requiring the employer to have
knowingly violated a safety standard which ``caused or
significantly contributed to'' the injury or death; expands the
list of those individuals who can request that NIOSH conduct a
Health Hazard Evaluation (HHE) from only employers and employee
representatives to also include representatives of ``former
workers, physicians, another federal agency, or a state or
local health department'' and also expands the issues that can
be covered in a HHE to cover to include ``physical agents,
equipment, or working conditions.''
AMENDMENTS CONSIDERED IN COMMITTEE
The amendment offered by Representative Kline (R-MN) would
have served as a substitute amendment. It would have
circumscribed the reforms in the bill such that a number of
issues would have gone unaddressed. It did not include any
reforms to the Occupational Safety and Health Act and did not
address a number of mine safety and health issues, including
the need for whistleblower reforms and a variety of improved
enforcement authorities for the agency. The amendment was
defeated by a roll call vote of 17-30.
The amendment offered by Representative Shea-Porter (D-NH)
would codify the MSHA whistleblower hotline and related
informational materials and would require those materials to be
distributed as part of the new annual training required under
Section 505 of the bill. The amendment was passed by voice
vote.
The amendment offered by Representative McMorris Rodgers
(R-WA) would have struck Title VII of the bill i.e., the
Amendments to the Occupational Safety and Health Act. The
amendment was defeated by a roll call vote of 17-30.
The amendment offered by Representative Woolsey (D-CA)
would authorize NIOSH to enter into collaborative agreements
with international organizations to explore additional means to
protect miners. The amendment was passed by voice vote.
The amendment offered by Representative Price (R-GA) would
have struck Section 302 and replaced ``knowing'' with
``willful'' in regards to employer liability. The amendment was
defeated by a roll call vote of 17-30.
The amendment offered by Representative Hare (D-IL) would
dissuade the underreporting of accidents and injuries by
operators by requiring that accident, injury and illness
reports to MSHA must be signed by a ``knowledgeable and
responsible person possessing a certification as determined by
the Secretary or a state certification program,'' and also
provide a mechanism for accountability with the person signing
the report or log by instating that an individual's
certifications can be revoked for knowingly falsifying reports
or logs under the bill. The amendment was passed by voice vote.
The amendment offered by Representative Titus (D-NV) would
provide OSHA with additional tools to ensure that state plans
are in compliance by establishing a formal mechanism for OSHA
to identify a problem with a state plan and compel a remedy
without beginning the process for withdrawing approval.
Additionally, the amendment ensures continued application of
health and safety regulations by providing OSHA with concurrent
enforcement authority for the duration of the time that a state
plan is formally remedying deficiencies or being withdrawn and
provide an opportunity for a public hearing after 30 days
notice of official federal action. Lastly, the amendment would
hold federal OSHA accountable for providing strong oversight
and guidance to state plans by establishing a regular GAO study
once every five years to look at the effectiveness of state
plans and the Secretary of Labor's oversight of such plans.
III. Summary of the Bill
H.R. 5663, as amended with the Miller Amendment in the
Nature of a Substitute, amends the Federal Mine Safety and
Health Act and the Occupational Safety and Health Act to do the
following:
Make Mines with Serious and Repeated Violations
Safe: Criteria for `pattern of violations' sanctions would be
revamped for underground coal mines and other `gassy' mines to
ensure that operators which chronically and repeatedly violate
mine safety standards or have high accident rates improve
safety dramatically.
Ensure Irresponsible Operators are Held
Accountable: Maximum criminal penalties would be increased for
underground coal mines, and a sanction is established for mine
operators who knowingly tamper with or disable safety equipment
that could kill miners. Operators would be required to pay
penalties in a timely manner.
Give MSHA Better Enforcement Tools: MSHA would be
given the authority to subpoena documents and testimony. The
agency could seek a court order to close a mine when there is a
continuing threat to the health and safety of miners. MSHA
could require more training of miners in unsafe mines. MSHA
will require contractors, in addition to operators, to report
accidents and injuries, and hours of work at each mine, and
those filing reports would be held responsible for their
accuracy.
Protect Miners Who Speak out on Unsafe Conditions:
Protections for workers who speak out about unsafe conditions
in underground coal and other gassy mines would be strengthened
and would guarantee that miners wouldn't lose pay for safety-
related closures. In addition, miners would receive protections
allowing them to speak freely during investigations.
Modernize Safety Requirements in Coal Mines:
Increased rock dusting would be required to prevent coal dust
explosions. Pre-shift reviews of hazards and violations in the
mine must be communicated to incoming miners to ensure that
they are not caught unaware. Protocols for continuous
atmospheric monitoring for methane and carbon monoxide will be
developed by NIOSH and adopted by MSHA through regulations.
Increase MSHA's Accountability: The bill provides
for an independent investigation of the most serious accidents,
which includes an assessment of whether there are gaps in
MSHA's oversight or regulation. It asks the Government
Accountability Office to assess whether there are problems with
timeliness of mine plan reviews.
Guarantee Basic Protections in All Other
Workplaces under OSHA: To ensure that all workplaces have basic
protections, whistleblower protections would be strengthened,
criminal and civil penalties would be increased, and hazard
abatement would be sped up. In addition, victims of accidents
and their family members would be provided greater rights
during investigations and enforcement actions. OSHA would be
allowed to assert concurrent enforcement jurisdiction in states
with OSHA state plans, if the state is failing to maintain
protections for workers that is at least as effective as
federal OSHA.
IV. Statement and Committee Views
This bill provides solutions to four major sets of problems
in the area of workplace health and safety:
(1) IMPROVING SAFETY STANDARDS AND PRACTICES TO PREVENT FATALITIES AND
INJURIES
The Mine Act and the OSH Act were designed to require
employers to take responsibility for the safety and health of
their employees. But some employers have found ways to exploit
weaknesses in the law or view existing penalties as merely a
cost of doing business. Any serious attempt to prevent
fatalities and injuries must start with strengthening
employers' incentives to protect workers from safety and health
hazards.
(2) IDENTIFYING DANGEROUS PRACTICES AND VIOLATIONS BEFORE FATALITIES
AND INJURIES OCCUR
MSHA and OSHA cannot be present at every mine or every
workplace at all times and identify every potential safety or
health hazard. They must rely, in part, on employees to report
dangerous conditions. Workers who report hazards to their
employer or the government all too often risk losing their
jobs, sacrificing career advancement, or suffering other
adverse actions. The incentive structure needs to be reformed
so that workers are empowered to identify problems and insist
that they be fixed--and to do so free from fear. Both MSHA and
OSHA must have the tools they need to obtain information to
adequately conduct inspections and protect workers.
(3) IMPROVING RULES AND ADJUDICATIVE PROCEDURES TO COMPEL EMPLOYERS TO
REMEDY PROBLEMS
MSHA and OSHA lack the authority they need to cause
employers who continually put workers' lives at risk to change
their behavior. For example, the well-documented shortcomings
of the current pattern of violations process for underground
mines show that it is too easy for even the worst offenders to
avoid the heightened enforcement regime envisioned by Congress
in enacting the Mine Act in 1977. Indeed, no mine has ever been
placed in pattern status.
(4) USING CIVIL AND CRIMINAL PENALTIES TO BRING CHRONIC SCOFFLAWS TO
JUSTICE
Congress must increase and refine the civil and criminal
penalty regime to ensure that employers do not knowingly or
persistently put the lives of their workers at risk. These
penalties should extend to individuals, including high-level
management, who make decisions about the safety of workers, and
the penalties must be significant enough to deter employers
from putting their workers' safety and health at risk.
Problems and Solutions Addressed by Selected Sections of H.R. 5663
The sections below lay out the problems in health and
safety enforcement identified by the bill, including how the
bill addresses each problem. The description of the solutions
refers to H.R. 5663 as amended in Committee, with the Miller
Amendment in the Nature of a Substitute. It should be noted
from the outset that the Amendment in the Nature of a
Substitute limited the applicability of H.R. 5663 to
underground coal mines and underground metal/non-metal mines,
which are gassy, as well as any surface mines physically
connected to such underground mines. These classes of mines,
with their lethal mix of combustible gas or coal dust, enclosed
spaces, and myriad ignition sources, are the most dangerous in
terms of their potential for breakdowns with catastrophic
consequences, like that at Upper Big Branch mine on April 5,
2010. Thus, the changes in the law proposed below would apply
only to such mines.
Title I--Additional Inspection and Investigation Authority
SEC. 101--INDEPENDENT ACCIDENT INVESTIGATIONS
Problem: The Mine Safety and Health Administration (MSHA)
conducts investigations of mine accidents, including actions or
inactions by the agency's own employees. Unless a state
convenes an independent investigative panel, there is no agency
which conducts independent review of the root cause and
assessment of whether there were regulatory or organizational
failures. In other sectors, independent agencies, such as the
Chemical Safety Board, conducts root cause investigations for
accidents at chemical plants and oil refineries which are
covered by the Occupational Safety and Health Administration
(OSHA). For major accidents, public confidence is enhanced by
an independent assessment of the accident's root cause, a
review of MSHA's investigation, an evaluation of whether
actions or inaction by MSHA could have been a contributing
factor, and independent recommendations to prevent a
recurrence.
Solution: H.R. 5663 requires a panel independent of MSHA--
appointed by the Secretary of Health and Human Services (HHS)
and chaired by staff from the Office of Mine Safety and Health
within the National Institute for Occupational Safety and
Health (NIOSH)--to conduct an investigation of any mine
accident involving 3 or more deaths, or for other accidents
that the HHS Secretary deems warranted. Each 5-member panel
must include members with expertise in accident investigations,
mine engineering, or mine safety and health; and include one
individual who represents mine operators and one representative
of a labor organization that represents miners. The panel is
charged with investigating the root causes and contributing
factors of the accident, including acts or omissions by MSHA;
identifying the strengths and weaknesses in MSHA's accident
investigation; and making recommendations to prevent
recurrence. These investigations will be conducted concurrently
with MSHA's accident investigations. Within 90 days of
enactment, the Secretary of HHS must establish procedures to
ensure the consistency and effectiveness of these
investigations. Within 90 days of enactment HHS and the
Secretary of Labor shall enter into a Memorandum of
Understanding to coordinate functions and provide the Panel
with access to the Secretary's subpoena powers, as needed.
SEC. 102--SUBPOENA AUTHORITY AND MINER RIGHTS DURING INSPECTIONS AND
INVESTIGATIONS
Problem: MSHA lacks general authority to subpoena witnesses
or documents under the Federal Mine Safety and Health Act of
1977 (Mine Act). The agency may only issue subpoenas as part of
a public hearing related to an accident investigation. When
MSHA is able to speak with miners, mine operators have sought
to inject themselves into the process--chilling the flow of
information.
Solution: H.R. 5663 would authorize MSHA to subpoena
documents and testimony in carrying out investigations or
inspections. It also clarifies that MSHA (or DOL attorneys) can
interview mine employees and other individuals with relevant
information privately without the presence, involvement, or
knowledge of the operator, his agent, or attorney, provided
that an individual may bring his own attorney to any interview.
OSHA already has both of these authorities.\1\
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\1\OSHA's subpoena powers and the right to privately interview
employees are provided in Section 8(a) and 8(b) of the Occupational
Safety and Health Act of 1970, 29 U.S.C. 657(a) and 29 U.S.C. 657(b).
---------------------------------------------------------------------------
SEC. 103--DESIGNATION OF MINER REPRESENTATIVE
Problem: Only a miner can designate someone to be his or
her representative under current law. Over the years, many
miners have been trapped in mine accidents, such as the 2002
accident at the Quecreek mine in which 9 miners were trapped
underground for 77 hours. All of the miners survived, but the
miners were trapped incommunicado, so they and their families
were left out of the decisions directing their recovery.
Similarly, the families of the six miners trapped in the
Crandall Canyon mine in Utah after the roof collapsed had
little involvement in the decisions made during the rescue
operations. Although the miners died (their bodies are still in
the mine today), their families deserved to have a say in the
rescue and recovery process.
Solution: H.R. 5663 allows the closest relative of a miner
who is trapped in an underground mine to designate a
representative on behalf of the trapped miner.
SEC. 104--ADDITIONAL AMENDMENTS RELATING TO INSPECTIONS AND
INVESTIGATIONS
Problem: In hearings before the Committee, miners testified
that MSHA inspectors routinely inspect mines during regular
business hours, rarely during late night shifts or on weekends.
Mine operators know this, and those who are unscrupulous will
take more risks during the hours when they are not likely to be
inspected in order to increase production. Witnesses at the
July 13, 2010, Committee hearing raised questions about the
reliability of the accident and injury reports from
operators.\2\ Moreover, reliable accident and injury reporting
is needed from both operators and contractors, if MSHA is going
to rely upon accident rates as one criteria to trigger pattern
status at a mine. MSHA must be physically present at a mine to
issue a ``control order'' under Section 103(k) of the Mine Act,
which is needed to protect the lives of miners after an
accident. Mine inspectors cannot always be close by a mine site
right after an accident, and should be able to phone in a
control order until they arrive at the mine site.
---------------------------------------------------------------------------
\2\H.R. 5663, the Miner Safety and Health Act: Hearing before the
H. Comm on Education and Labor, 111th Cong. (2010) (testimony of Cecil
Roberts and testimony of Stanley ``Goose'' Stewart), http://
edlabor.house.gov/hearings/2010/07/hr-5663-miner-safety-and-
healt.shtml.
---------------------------------------------------------------------------
Solution: H.R. 5663 requires MSHA to regularly inspect
mines during all shifts and days of the week when miners are
present; mandates that contractors and operators report
accidents, injuries, and man-hours worked at each mine; and
requires operators and contractors to have a knowledgeable and
certified individual sign reports as accurate and complete,
under penalties of revocation of a certification. Section
103(k) of the Mine Act removes the requirement for MSHA to be
present when issuing a control order.
Title II--Enhanced Enforcement Authority
SEC. 202--A PATTERN OF RECURRING NONCOMPLIANCE OR ACCIDENTS
Problem: In the last decade, over 600 miners have been
killed while working in coal and metal/nonmetal mines,\3\
including 190 underground coal miners.
---------------------------------------------------------------------------
\3\Http://www.msha.gov/stats/charts/coaldaily.asp; http://
www.msha.gov/statscenturystats/mnmstats.asp.
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Twenty-nine (29) miners were killed on April 5, 2010, at
the Upper Big Branch Mine (UBB)\4\ operated by Massey Energy in
Montcoal, West Virginia in the worst coal mine disaster in
America in 40 years. The blast killed miners over a 2-mile area
and twisted rail car tracks like pretzels. The death toll is
the highest in an American mine since a 1970 explosion killed
38 at Finley Coal Company, in Hyden, KY. In 2009, there were 34
mining deaths in coal and metal/non metal mines, a record
low.\5\ Through July 12 of this year, there have been a total
of 52 mining deaths.\6\
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\4\In addition to UBB, 2 other miners were killed at Massey mines
so far this year. The UBB mine produced 1.2 million tons of high-value
metallurgical coal (met coal) in 2009. Production had been ramping at
this mine, as the demand from China and India for met coal had
increased. In the first quarter of 2010, UBB produced 432,000 tons
compared with 182,000 tons for the same period in 2009. UBB had
approximately 200 mine employees, excluding contractors. Source: Mine
Quarterly Production Information, Mine Safety and Health
Administration,
http://www.msha.gov/drs/ASP/MineAction70002.asp (accessed 7/25/2010).
\5\Stephen Power, ``Mine Cited on Safety Issues,'' Wall Street
Journal, April 7, 2010.
\6\MSHA, ``2010 Comparison of Year-to-Date and Total Fatalities for
M/NM & Coal,'' last updated 7/12/2010, http://www.msha.gov/STATS/DAILY/
D2010BAR.PDF.
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The blast at Upper Big Branch was preceded by a series of
tragedies in 2006 and 2007--an explosion at the ICG-operated
Sago mine that trapped 13 mines and killed 12 miners; an
explosion at the Darby Mine which killed 5 and injured one; the
Crandall Canyon Mine disaster, which killed 9 (including 3
rescuers); and a fire that killed two at the Massey-operated
Aracoma Alma coal mine. In 2008, the Aracoma Coal Company, a
subsidiary of Massey, agreed to pay $4.2 million in criminal
fines and civil penalties, and to plead guilty to safety
violations related to Massey's inadequate response to the
fire.\7\
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\7\Ken Ward, Jr., ``Aracoma Assessed Record Fine,'' West Virginia
Gazette, December 23, 2008.
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The UBB Mine Had a History of Repeated and Serious Safety Violations
While the precise cause of the UBB mine explosion is
unknown, this mine, and the controlling entity, Massey Energy,
have a long history of serious safety and health violations,
which involved high degrees of negligence:
MSHA cited the UBB mine for 515 violations in 2009
and 124 in the first 3 months of 2010, with proposed penalties
totaling $1.1 million. Most of these penalties are being
contested by Massey. Over 39% of citations issued at UBB in
2009 were for S&S violations.\8\
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\8\Briefing by the Department of Labor, Mine Safety and Health
Administration, on Disaster at Massey Energy's Upper Big Branch Mine-
South, April 2010, http://www.msha.gov/PerformanceCoal/DOL-
MSHA_president_report.pdf.
---------------------------------------------------------------------------
More troubling, MSHA issued 54 ``closure'' orders
at this mine in 2009, including 49 for ``unwarrantable
failure'' to correct violations and one for an ``imminent
danger.'' The mine's rate for these kinds of violations is
nearly 19 times the national rate, according to MSHA.\9\
---------------------------------------------------------------------------
\9\Id.; MSHA data, ``Summary of Citations and Orders issued at
Upper Big Branch Mine-South,'' http://www.msha.gov/PerformanceCoal/
Violation_Summary.pdf.
---------------------------------------------------------------------------
In 2010, MSHA issued 7 closure orders at UBB,
including 6 for unwarrantable failure related to improper mine
ventilation.\10\ For example:
---------------------------------------------------------------------------
\10\MSHA data, ``Summary of Citations and Orders issued at Upper
Big Branch Mine-South,'' http://www.msha.gov/PerformanceCoal/
Violation_Summary.pdf.
---------------------------------------------------------------------------
On January 7, 2010, MSHA found that the mine
foreman knew and failed to correct a condition for
three weeks which misrouted air so that miners would
not have fresh air to escape the mine section in the
event of an accident, and could have caused deaths.
On March 2, 2010, according to MSHA, the
mine was not following its ventilation plan to prevent
methane build up. The plan required 15,000 cubic feet
of air per minute (cfm) flowing through the mine, but
MSHA inspectors only found 7,448 cfm.
In the 12 months prior to the explosion, MSHA
found 52 violations related to ventilation standards and
controls and 37 related to accumulations of combustible
materials. Violations involving mine ventilation and
combustible materials increase the likelihood of an
explosion.\11\
---------------------------------------------------------------------------
\11\Department of Labor data, April 2010.
---------------------------------------------------------------------------
Between 2005 and 2009, there were 1,298 violations
and orders issued by MSHA at UBB, and over this time period,
MSHA increased its inspection hours from 923 to 1,854 per
year.\12\
---------------------------------------------------------------------------
\12\Id.
---------------------------------------------------------------------------
Mine explosions are preventable, and are usually caused by
the combustion of accumulations of methane combined with coal
dust.
Methane gas occurs naturally in coal seams and is
liberated when coal is mined. The UBB mine released
approximately 1 million cubic feet per day of methane.
Sufficient mine ventilation will remove combustible levels of
methane. Equipment, such as continuous miners, must have
methane detectors which are designed to automatically turn off
machinery if methane levels exceed 1%.
Coal dust is produced by the mining process and is
10 times as explosive as methane. The Mine Act requires rock
dusting of the mine floors, roof and walls to prevent coal dust
from propagating an explosion. However, existing standards
insufficiently mitigate the risks of coal dust explosions.
Current Mine Act Civil Enforcement Scheme
The Mine Act authorizes MSHA to cite and issue fines for
violations of the Act or mandatory health or safety standards.
A citation usually fixes a time for abatement. If, upon
subsequent inspection, the mine fails to abate, MSHA can issue
a withdrawal order directing miners to leave the area until the
mine abates the violation.
Level of MSHA Enforcement Actions: In 2009, MSHA issued a
total of 175,079\13\ citations and orders to all coal and
metal/nonmetal mines. During this period, MSHA assessed $141.2
million\14\ in fines, and operators contested 66.3% of these
monetary penalties.\15\
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\13\102,660 of the total citations and orders were for coal mines.
\14\$103.3 million were for coal mines.
\15\MSHA, ``Mine Safety and Health at a Glance,'' May 16, 2010,
http://www.msha.gov/MSHAINFO/FactSheets/MSHAFCT10.pdf.
---------------------------------------------------------------------------
Significant and Substantial Violations. MSHA inspectors can
cite a violation as ``significant and substantial'' (S&S) which
``is of such a nature as could significantly and substantially
contribute to the cause and effect of a coal or other mine
safety and health hazard.'' S&S violations are a building block
for escalated enforcement action under the Mine Act.
Approximately 33% of all citations are S&S.\16\
---------------------------------------------------------------------------
\16\Id.
---------------------------------------------------------------------------
In the event that an operator fails to correct an S&S
violation of a mandatory health and safety standard, and it is
determined that the failure is ``unwarrantable,'' which is
aggravated conduct characterized by more than ordinary
negligence, MSHA can issue an ``unwarrantable failure'' order
(under Section 104(d)(1)) directing the mine to immediately
withdraw miners from the affected part of the mine until the
violation is abated.
Imminent Danger Orders: MSHA has the authority to issue
imminent danger orders under Section 107 of the Mine Act to
order operators to withdraw miners if the inspector determines
``the existence of any condition or practice in a coal or other
mine which could be reasonably expected to cause death or
serious physical harm'' before such condition can be abated.
Pattern of Violations (POV): Congress enacted a remedy to
address operators that continually and repeatedly pile up
citations for dangerous conditions, following the Scotia Mine
Disaster in Letcher County, Kentucky, which killed 23 miners
and 3 mine inspectors over a 60 hour period in 1976. This mine,
which was the most gassy mine in Eastern Kentucky, had a long
and chronic history of safety violations: it had been ordered
closed 110 times between 1970 and 1976, including 39 times for
imminent danger conditions. This was the most inspected coal
mine in Eastern Kentucky, but according to a House Education
and Labor Committee staff report, ``inspection efforts had
little impact on correcting Scotia's chronic health and safety
problems.''\17\
---------------------------------------------------------------------------
\17\Staff of H. Comm. on Education and Labor, Scotia Coal Mine
Disaster, March 9 and 11, 1976: A Staff Report ( October 15, 1976), p.
26.
---------------------------------------------------------------------------
A new section 104(e) of the 1977 Mine Act set forth
sanctions for any operator that has a ``pattern of
violations.'' The Senate committee report on the legislation
explained:
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.\18\
---------------------------------------------------------------------------
\18\S. Rep. No. 95-181, 95th Cong. 1st Sess. 36 (1977).
Even though the POV provision ``was intended to provide
MSHA a powerful tool to deal with mine operators who
demonstrated, through significant and substantial health or
safety violations, a disregard for the health and safety of
miners,'' MSHA did not implement the POV provision for 30
years--until 2007. MSHA took 13 years to promulgate two pages
of procedural regulations, and another 17 years to establish
screening guidelines to identify mines with a ``potential''
POV.
Under this screening guidance issued in 2007, MSHA ``looks
back'' over a 24-month period to assess whether there is an
elevated pattern of ``final orders'' for S&S violations. If the
operator's compliance record indicates repeated and elevated
S&S violations, then MSHA notifies the operator of a
``potential'' POV and requests a plan to improve compliance. If
an operator reduces its S&S violation rate by at least 30% over
a 90-day period, MSHA allows mines to avoid the statutory POV
sanction. Otherwise, the operator faces the statutory POV
sanction: withdrawal order from the affected area of the mine
for each and every future S&S violation until the mine has a
90-day period free from any new S&S violations.
Virtually all mines placed on the potential POV reduced
their S&S violations by at least 30% in the 90-day period
following receipt of a potential POV notice.\19\ In 2009, mines
receiving a potential POV letter reduced their S&S violation
rate by 72% over this 90-day period.\20\ After the 90-day
review period, many mines, including UBB, allowed safety
conditions to sharply deteriorate, suggesting that improvements
over such a short period of time were transient and mine
operators were gaming the system. Moreover, a 30% reduction in
the rate of S&S violations did not mean that the mine had
eliminated a pattern of violations, or that its safety
performance was above average for the industry.
---------------------------------------------------------------------------
\19\Jessica Y. Lilly, ``Massey mine faces `pattern of violations'
status,'' WV Public Broadcasting, May 13, 2010.
\20\Jean Tarbett Hardiman, ``Area mines show code violations,''
Herald-Dispatch, May 1, 2010.
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Final Orders and Backlog at the Review Commission: MSHA's
POV regulations require ``final orders'' to determine whether a
mine's compliance history triggers a POV sanction.\21\
``Citations and orders that are under contest, no matter how
egregious, are not considered when enforcing'' the POV
provisions of the Mine Act.\22\ Due to this requirement, MSHA
must wait for the Federal Mine Safety & Health Review
Commission (Review Commission) to adjudicate citations or
review settlements. The Review Commission currently has a
backlog of over 17,000 cases; it now takes an average of 30
months before the Review Commission issues a final order.\23\
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\21\30 CFR Part 104.3(b) states: ``Only citations and orders . . .
that have become final shall be used to identify mines with a potential
pattern of violation under this section.''
\22\Hearing, supra note 2 (testimony of Joe Main).
\23\The Review Commission has 14 Administrative Law Judges (ALJs),
which was increased in FY 10 from only 10 ALJs in FY 2009. The Review
Commission estimates that 32 ALJs are needed to reduce the backlog over
an 18 month period. The House and Senate Appropriations Committees are
working on options to increase funding for the number of ALJs and the
requisite number of DOL staff necessary to reduce the backlog over an
18-24 month period.
---------------------------------------------------------------------------
Many mines with degraded safety records can escape POV
sanctions by contesting many or all of their S&S citations
because they know that, due to the delays at the Review
Commission, their past history of S&S violations will never be
counted over the 24-month look-back period used by MSHA. Mine
operators increased their contests of S&S citations from 13% to
46% between 2006 and 2009, which coincided with MSHA's belated
implementation of its POV policy and a new civil penalty policy
which raised the size of fines. ``[S]ome operators contesting
S&S violations may be doing so because it delays the finding of
a pattern, adding to the backlog and delaying MSHA from using
this enhanced enforcement tool at their mines. As a result
there are mines that might be on a potential pattern of
violations, but the backlog has prevented their cases from
becoming final orders.''\24\
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\24\Reducing the Growing Backlog of Contested Mine Safety Cases
before the H. Comm. on Education and Labor, 111th Cong. (2010)
(testimony of Joseph A. Main).
---------------------------------------------------------------------------
MSHA identified at least 48 mines that were not subjected
to a potential POV in August 2009 due to the absence of final
orders for S&S violations (assuming the violations were
sustained). Massey's UBB mine, which exploded on April 5, was
on this list of 48 mines.\25\
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\25\Committee on Education and Labor press release, ``Chair Miller
Releases List of Dangerous Mines Escaping Tighter Scrutiny,'' April 14,
2010.
---------------------------------------------------------------------------
Given the ease with which operators can avoid placement on
the POV through a combination of temporary improvements to
their compliance record and an aggressive legal posture that
challenges each and every S&S violation, MSHA has never placed
a single mine on the POV since the provision was enacted in
1977.\26\ MSHA's Assistant Secretary, Joe Main, has
acknowledged that the current ``POV provision is an empty
vessel'' and it is ``broken by all accounts including
MSHA's.''\27\
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\26\As of July 2010, MSHA has only twice attempted to place a mine
on full POV status--once with Rockhouse Energy Mining in December 2008
and once with Massey-owned Knox Creek Coal's Tiller No. 1 Mine in June
2010.
\27\Hearing, supra note 2 (testimony of Joseph A. Main).
---------------------------------------------------------------------------
Some career MSHA staff believe the current POV sanction--a
withdrawal order for each subsequent S&S violation--is so
severe that it could force mines to close. Requirements to get
off POV--zero S&S violations in a 90 day period--is nearly
impossible to achieve for many underground coal mines. This may
explain why MSHA was slow to implement, and why mine operators,
when threatened with a POV sanction, spare no legal resources.
Case Study: UBB Mine Repeatedly Escaped Pattern of Violations (POV)
Sanctions
In December 2007, MSHA notified Massey that the UBB mine
had a potential ``pattern of violations'' (POV) because it had
204 S&S citations over the previous 24 months.\28\ However,
MSHA did not impose a POV sanction. Instead, it gave the mine
90 days to reduce its rate of S&S violations by 30%, consistent
with agency guidance.
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\28\Briefing by the Department of Labor, Mine Safety and Health
Administration, on Disaster at Massey Energy's Upper Big Branch Mine-
South, April 2010, http://www.msha.gov/PerformanceCoal/DOL-
MSHA_president_report.pdf.
---------------------------------------------------------------------------
The mine reduced its S&S violations per inspection hour by
44% during the next 90 days. In a March 25, 2008, letter,
MSHA's District Manager wrote that a pattern of violations
``does not exist'' at the mine, even though the mine continued
to have an S&S violation rate higher than the industry average.
Despite subpar performance, MSHA's letter concluded:
``congratulations on your achievements.''
After the S&S violation rate dropped in the first few
months of 2008, the rate more than doubled the following year.
UBB had 495 S&S citations in 2009, a number that would have
readily put this mine on a potential POV, except that an error
in MSHA's computer program prevented it from flagging several
final orders that would have tipped this mine over the
thresholds established in MSHA's POV guidance.\29\
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\29\Id. MSHA contends UBB was the only mine that was not flagged
for a potential POV. The Education and Labor Committee asked the DOL
Inspector General to review the reasons the computer program failed,
and determine if this is the only mine the program failed to flag.
---------------------------------------------------------------------------
Even without this error, this mine should have been placed
on a potential POV; however, it escaped this sanction because
too many S&S violations in the 24-month look back period were
caught up in the Review Commission's backlog and could not be
counted. Massey contested 91% of the dollar amount of its
assessments for S&S violations in 2008 and 74% in 2009.\30\
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\30\Source: MSHA data provided to the Committee on Education and
Labor.
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UBB was not the only Massey-operated mine with a history of
repeated violations. Massey mines have been placed on the
potential POV status 13 times since MSHA started POV screening
in 2007.\31\ This represents 25% of the 53 coal operations sent
potential POV notices. In October 2009, 3 of the 10 mines that
received potential POV notices were controlled by Massey.\32\
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\31\Briefing by the Department of Labor, Mine Safety and Health
Administration, on Disaster at Massey Energy's Upper Big Branch Mine-
South, April 2010, http://www.msha.gov/PerformanceCoal/DOL-
MSHA_president_report.pdf.
\32\Id.
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Solution: MSHA needs new tools to address serial
recidivists to ensure that mine operators implement safety
management systems which build a culture of prevention rather
than a practice of playing catch-me-if-you-can with regulators
or allowing production to trump safety. Key elements of a new
system to deal with a pattern of recurring non compliance or
accidents (hereinafter, the new system is referred to as
``pattern status'') include:
(1) Mines with ``significantly poor compliance that results
in unsafe or unhealthy conditions'' shall be placed in
``pattern status'' if the mine has a pattern of:
(i) citations for S&S violations;
(ii) citations and withdrawal orders caused by an
unwarrantable failure to comply with mandatory health
and safety standards;
(iii) withdrawal orders for imminent danger or
withdrawal orders under any other section of the Act;
(iv) citations for flagrant violations; and
(v) accidents or injuries; or
(vi) any combination of these citations, orders,
accidents and injuries.
(2) History of violations will be based on citations,
instead of final orders. The current system of requiring final
orders encourages operators to contest their S&S citations as a
way to avoid consideration of their past history of
noncompliance. Operator's rights to contest citations related
to ``pattern status'' will be addressed through an expedited
review of citations and orders, if such review is sought, once
on pattern status. This will ensure that MSHA's efforts to
protect miners are not handcuffed by delays in the adjudicative
process.
(3) Mines with a degraded safety record will be placed in
pattern status without delays associated with giving notice of
a potential POV. Instead of advance notice, mine operators (and
the public) will be provided access to a data base with each
mine's compliance record and information on how to compare this
record relative to benchmarks for placing a mine on pattern
status. During regular inspections, MSHA inspectors, upon
request from the operator, will review the most recent
evaluation for pattern status with the operator. This will
provide operators with sufficient transparency about their
standing relative to pattern status to avoid having to issue
potential pattern status letters.
(4) Once a mine is placed in pattern status, MSHA is
required to (1) notify the mine operator that it must withdraw
all miners from the mine; and (2) issue a remediation order
tailored to the problems at the particular mine within 3 days.
The remediation order will spell out the scope of mandatory
improvements, such as implementing safety management systems
that are effective in sustaining compliance, increased fire
bossing, additional training or staffing, and pre-requisites to
restoring production such as correcting violations and
addressing hazardous conditions.
(5) The mine-wide withdrawal order will be lifted when the
Secretary verifies that all violations or conditions have been
or are being fully corrected as outlined in the remediation
order and the operator has completed requirements in the
remedial order, as appropriate, that are prerequisites for
reopening the mine.
(6) MSHA will double the number of inspections during
pattern status from 4 to 8 per year. These mines will be
subject to performance reviews every 90 days, and must sustain
improved performance for a full year.\33\ Mines in pattern
status will pay a fee for these added inspections to cover
MSHA's costs.
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\33\Hearing, supra note 2 (testimony of Larry Grayson). Professor
Grayson testified that the ``one year remediation process [in H.R.
5663] coupled with quarterly monitoring of performance should inculcate
in pattern mines adoption of practices and processes aimed at building
a safety culture of prevention, which is necessary to eliminate mine
disasters and ultimately all mine fatalities and injuries.''
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(7) Within 90 days, mines placed in pattern status must
have zero high negligence violations, such as an unwarrantable
failure violation, and no imminent danger orders, and improve
compliance so that they meet or exceed the top performing 35th
percentile for the rate of accidents and S&S violations by
mines of similar size and type. Alternatively, mines can reduce
S&S violations by 70% provided that such rate is not greater
than the mean for mines of similar size and type. If mines do
not achieve or exceed these benchmarks within 90 days, they may
be subject to a mine-wide withdrawal order until conditions are
corrected that led to pattern status, and/or MSHA may modify
the remediation order. Within 180 days, civil penalties will
double until these performance benchmarks are subsequently met.
(8) Mines will be removed from pattern status if they have
zero withdrawal and imminent danger orders, and improve
compliance to meet or exceed the top performing 25th percentile
for the rate of S&S violations and accidents at mines of
similar size and type. Alternatively, mines can reduce S&S
rates by 80%, provided that such rate is not greater than the
mean for mines of similar size and type. Mines must sustain
this level of performance, on average, for a one year period to
get off the pattern status. If the mines do not meet this
threshold, the pattern status is extended. The goal is to have
sustained improved safety performance at a level that is well
above average.
Rulemaking: To address the urgent problem of establishing a
credible process to address mines that are endangering miners
due to consistently poor compliance, MSHA is directed to issue
an interim final rule within 120 days that contains the
benchmark criteria to trigger placement of a mine on pattern
status and to remove a mine from pattern status.
In developing this rule, MSHA shall calculate and weight
the rates of accidents, injuries, citations for S&S violations,
citations and orders for unwarrantable failure, imminent danger
orders and citations for flagrant violations over the previous
180 days. MSHA's rule may also consider other criteria such as
the mines history of violations, citations, orders and rates of
accident and injuries outside of the 180 day look back period.
To establish a consistent basis for comparison, MSHA may
evaluate these safety indicators relative to inspection hours,
the number of miners, miner hours worked, the number of
mechanized mining units, production levels, and whether the
miners are represented for purposes of collective bargaining.
The latter factor may disproportionately impact the number of
citations actually received by a mine relative to other mines,
to the extent that miners at unionized mines tend to accompany
MSHA inspectors on inspections and have the added protection of
just cause employment under a collective bargaining agreement
against retaliation for identifying safety concerns or
violations.
Larry Grayson, a professor of mine engineering at the
University of Pennsylvania, developed a ``safe performance
index'' which can help identify high risk underground coal
mines using rates of citations, S&S violations, unwarrantable
failure and imminent danger orders (relative to inspection
hours) and accident and injuries weighted by severity.\34\
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\34\Hearing, supra note 2.
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Professor Grayson analyzed the 40 operating long wall coal
mines in the U.S. using this model for 2009. His model ranked
the Upper Big Branch mine as the highest risk of any long wall
mines in his analysis by a wide margin, based largely on a high
rate of high negligence and imminent danger orders. The
analysis found that 25% of the long wall mines had received no
orders for high negligence violations or imminent danger. Given
the fact that these are high production coal mines, it is clear
that a zero rate of unwarrantable failure and imminent danger
orders is an achievable target for mines when placed on pattern
status. Criteria for placing mines on pattern status in this
legislation mirror criteria used in the ``safe performance
index.''
The safe performance index weighted fatalities and injuries
equally with violations of safety standards. H.R. 5663
intentionally refrained from establishing specific weights for
the criteria used to trigger pattern status. A prescriptive
one-size-fits-all model specified in legislation may cause MSHA
to overlook factors that may be relevant. Weighting of criteria
should account for criteria that serve as advance warning of
high risk mines. In developing its interim and final
regulations, the Committee recommends that the Secretary review
mine accident reports over the past 30 years, and assess which
indicators would have been helpful in predicting the occurrence
of accidents or catastrophes. The Secretary should consider the
methodology and weighting used in the ``safe performance
index'' as a helpful starting place in developing its threshold
criteria and weighting.
MSHA must promulgate a final rule 2 years after the date of
enactment, which will give the agency 20 months experience in
implementing its interim final regulation, and such experience,
coupled with input from the public during rulemaking, can help
inform any proposed changes in a final rule.
Not less than once every six months, MSHA must identify
mines which meet the criteria to trigger pattern status.
MSHA has the discretion to not place an otherwise
qualifying mine in pattern status if it certifies that there
are mitigating circumstances wherein the operator has already
implemented remedial measures that have reduced risks to the
point that such risks are not longer elevated, and has taken
sufficient measures to ensure that elevated risk will not
recur. To provide transparency, MSHA must publish the written
finding that there are mitigating circumstances that would
preclude placing the mine on pattern status within 10 days on
the web site for MSHA and provide copies to the House Committee
on Education and Labor and the Senate HELP Committee.
MSHA may reinstate a withdrawal order if an operator fails
to comply with the remediation order while in pattern status.
MSHA can modify the remediation order or extend deadlines, but
only on a showing by the operator that the operator took all
measures to comply with the order and only if it was prevented
from doing so by factors outside its control.
During pattern status, MSHA is authorized to communicate
with miners (outside the presence of operators) about
conditions in the mine, and also to advise them of their rights
under the Act. Mine operators can obtain an expedited review
from the Review Commission.
MSHA must establish and maintain a publicly available,
easily searchable, electronic database with the information the
Secretary uses to establish pattern status and disclose mines
placed in pattern status within 7 days of such placement, and
provide guidance to assist operators and the public in
assessing each mine's performance relative to criteria set
forth in regulations.
SEC. 203--INJUNCTIVE AUTHORITY
Problem: The Secretary currently has some authority to seek
an injunction against a recalcitrant mine operator under
Section 108(a)(2) of the Mine Act. The existing injunctive
provision authorizes MSHA to ask a federal court for injunctive
relief if it believes that a mine operator was engaged in a
``pattern of violations of . . . health or safety standards''
that, in MSHA's judgment, constitutes a continuing hazard to
miner health or safety. However, because of the provision's
interaction with the Mine Act's administrative law provisions,
this potentially useful authority has never been invoked. The
provision presents several difficulties in that it 1) could be
construed to require MSHA to establish a ``pattern'' which,
using the existing POV provisions of Section 104(e), has proved
difficult for MSHA to apply at all, and 2) limits the basis for
a ''pattern'' to violations of health or safety standards. The
flexible tool of an injunction, freed from any confusion
associated with administrative law provisions, is needed to
allow MSHA to propose and enforce remedial and preventive
measures to address the unique circumstances at a particular
mine. Such flexibility would allow MSHA to act quickly when
problems arise and allow a tailored, reasonable response to
unsafe conditions. Such dynamic response could save lives, even
when other aspects of the Mine Act do not apply, are not
triggered, or are otherwise insufficient. The Secretary should
be authorized to seek, and courts should be authorized to
grant, appropriate injunctive relief.
Solution: Section 203 of the Act would amend and clarify
the Secretary's authority to seek and obtain injunctive relief
from a federal court under Section 108(a)(2) of the Mine Act.
This revision would allow this relief in cases where the mine
operator is a habitual violator of health and safety standards.
The bill addresses both difficulties cited above. First, it
replaces the term ``pattern'' with the term ``course of
conduct,'' which is clearer, simpler, and more accurate in
describing the kind of operator behavior that MSHA's injunctive
authority is intended to correct. Second, it specifies that the
kind of behavior that will support injunctive relief is not
limited to violations of health or safety standards. Any time a
mine operator's course of conduct presents a ``continuing
hazard,'' the Secretary would be authorized to obtain equitable
relief on behalf of miners. This change would make clear that
injunctive relief is a separate track that may be invoked in
appropriate cases without regard to any administrative
proceedings that may or may not be ongoing. The Secretary would
have full use of a flexible tool, while the due process rights
of mine operators would be fully protected, because the tool
would only be invoked through a proceeding in U.S. District
Court.
SEC. 204.--REVOCATION OF APPROVAL OF PLANS
Currently, even when MSHA finds that crucial data used to
approve a mine plan is inaccurate, or that some post-approval
event has significantly altered the assumptions upon which the
plan was based, it does not have the authority to require an
operator to modify the plan. This authority and flexibility is
needed to prevent catastrophes before they occur. For example,
four days prior to the roof collapse at the Crandall Canyon
mine in 2007 in which six miners and three rescue workers were
killed, there was a massive ``bounce'' (the shifting of the
earth above a mine that relieves the pressure produced when a
seam of coal is removed).\35\ Although the bounce significantly
altered the conditions at the mine, and may not have been
properly reported, even had MSHA known about the severity of
the bounce and its implications for the mine's roof control and
other plans, MSHA would not have been able to require the mine
to alter its plans.
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\35\Mike Gorrell, ``Mine Disaster: What Really Happened Inside
Crandall Canyon?'' Salt Lake Tribune, August 1, 2008.
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When MSHA can no longer accept a provision of an approved
plan, cannot approve a provision in a new plan, or cannot
approve a proposed change to an approved plan, its
representatives discuss the identified plan deficiency with the
mine operator in an effort to obtain their agreement to
voluntarily modify the plan. The bill would not eliminate these
communications or other efforts to informally reach agreement
on changes to mine plans. However, if a mine operator is
unwilling to make modifications that MSHA finds are necessary,
current case law requires MSHA to go through a burdensome
process involving two formal notices of insufficiency before it
can issue a citation for a violation of the Mine Act and begin
to rectify the problem.
Solution: This section authorizes the Secretary to revoke
mine plans and order miners withdrawn from a mine if the
original plan contained inaccurate information, or there have
been material changes in circumstances at the mine, and the
inaccuracies or changes constitutes a health or safety hazard
to miners. It also provides for a more expedient revocation
process when the health and safety of miners is at risk due to
a plan that is out of compliance with applicable standards or
does not address current conditions in a mine. The bill does
not eliminate a mine operator's right to contest MSHA's
determination that a mine plan should be revoked.
SEC. 205--CHALLENGING A DECISION TO APPROVE, MODIFY, OR REVOKE A COAL
OR OTHER MINE PLAN
Problem: Although case law has established the ``arbitrary
and capricious'' standard as the basis for review of MSHA's
regulations,\36\ the Mine Act does not specify what legal
standard applies to MSHA decisions to approve, modify, or
revoke mine plans. There has been disagreement about what
standard of review the Review Commission should apply. In
reviewing MSHA's mine plan decisions, the D.C. Circuit Court of
Appeals found that MSHA's decision to impose certain
requirements in a ventilation plan was subject to the arbitrary
and capricious standard. In Peabody Coal Company v Federal Mine
Safety and Health Review Commission, 111 F.3d 963 (1997),\37\
the Court upheld MSHA's decision to require ventilation during
roof bolting in the mine's plan, and denied the coal company's
petition to overturn MSHA's decision because it was not
``arbitrary and capricious.''
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\36\See: National Mining Association v. Mine Safety and Health
Administration and Secretary of Labor, 116 F.3d 520 (DC Cir. 1997)
\37\This D.C. Circuit opinion was not published, but has been
included in the record for the July 13, 2010 legislative hearing.
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Solution: H.R. 5663 codifies that the standard of review
for MSHA's mine plan decisions is the ``arbitrary and
capricious'' standard, the same standard used to review health
and safety standards. This standard gives appropriate deference
to MSHA's expertise while preserving mine operators' due
process rights.
Title III--Penalties
SEC. 301--CIVIL PENALTIES
Penalties for Failure to Improve Performance While on Pattern Status
Problem: Mine operators, whose mines are placed in pattern
status because they repeatedly violate safety and health
standards and place the lives of miners in jeopardy, must be
given strong financial incentives to change their behavior.
Solution: H.R. 5363 requires that operators of mines in
pattern status be assessed double penalties for any violations
if, after 180 days in pattern status, the mine fails to improve
its safety performance to meet the benchmarks established in
Section 202 of this legislation.
Penalties for Retaliation Against Miners for Raising Safety Concerns or
Exercising Rights under the Act
Problem: Testimony presented by five miners and a family
member of a miner at the Committee's May 24, 2010, field
hearing in Beckley, West Virginia highlighted the extent to
which miners fear they will lose their jobs if they report
unsafe conditions in their mines. This was similar to testimony
given at the Committee's October 3, 2007, hearing with the
families of the miners killed in the Crandall Canyon mine
disaster in Utah and the Committee's Forum on Mine Safety held
on February 13, 2006. Miners were extremely concerned about
mine conditions, but they did not feel empowered enough to act.
These concerns have been repeated by various miners,
representatives of miners, and others in testimony and
correspondence. The culture of ignoring and hiding problems in
mines, coupled with the culture of fear driven by the threat of
job loss, must be changed. To change this culture, there must
be sanctions for retaliation against individuals who report
unsafe conditions or exercise their rights in violation of
Section 105(c) under the Mine Act.
Solution: Section 301(c) provides that the Secretary shall
propose and the Commissions shall assess a civil penalty of not
less than $10,000 and not more than $100,000 for a violation of
the anti-retaliation provisions under in Section 105(c) of the
Mine Act. For any subsequent violation of the anti-retaliation
provisions, the minimum civil penalty shall be $20,000 and the
maximum not more than $200,000 during any 3-year period.
SEC. 302--CIVIL AND CRIMINAL LIABILITY OF OFFICERS, DIRECTORS AND
AGENTS
Problem: In dealing with the liability of officers,
directors, and agents, Section 110(c) of the Mine Act is not
written broadly or clearly enough to encompass all types of
business arrangements, and it excludes policies under which
some mine operators may operate. For example, the current law
refers to ``corporate operators'' but there are other business
arrangements, such as limited liability corporations (LLCs), to
which some have argued that this provision does not apply.
Under the current law, company agents could knowingly institute
policies or practices that result in a violation, and then
shield themselves from liability by claiming that they did not
actually commit the violation. The existing provisions of
section 110(c) already make company agents liable if they did
not carry out the violations but knowingly authorized or
ordered them.
Solution: The bill replaces the term ``corporate operator''
with ``operator'' so that directors, officers, and agents of
business entities other than corporations can be found liable
for violations of mandatory standards or regulations
promulgated under the Mine Act. It also requires these entities
to be found liable when such director, officer or agent
knowingly violates or fails or refuses to comply with any order
issued under the Act or any order in a final decision under the
Act. The bill also adds the phrase ``policy or practice'' to
the activities of the director, officer, or agent that could be
found to be unlawful. This provision will help protect miners
from unscrupulous mine directors, officers, or agents who, even
though they may not directly violate a provision of the Act or
a mandatory safety or health standard, set in place policies or
practices at the mine that result in violations. The new,
expanded version of section 110(c) embodies the same concept as
the existing provisions--a concept that is crucial to ensuring
that operator officials who have the authority to affect miner
safety and health exercise that authority in a way that
protects the health and safety of miners.
SEC. 303--CRIMINAL PENALTIES
Problem: The current criminal penalties have been
insufficient to deter irresponsible mine operators who place
production ahead of safety, provide tip offs about mine
inspections to alter mine conditions before the inspector
arrives, or retaliate against miners who raise safety concerns.
Currently, section 110(d) of the Mine Act makes a first
instance of a willful violation of a health and safety standard
a misdemeanor, regardless of the seriousness of the violation.
Because of the insignificance of this penalty, this provision
is rarely prosecuted, and the minimal fine a mining company
faces pales in comparison to the revenue generated each year.
Effective criminal provisions should be weighted to the
severity of the potential harm. The current system fails in
this regard.
Solution: A new tiered system of criminal penalties for
knowing violations would come into play under Section 303(a).
This subsection amends Section 110(d) of the Mine Act. First,
the intent requirement would change from a ``willful'' (which
has been interpreted to remove the presumption that ignorance
of the law is no excuse and in this context is redundant) to a
``knowing'' violation of a standard. Whether a mine operator
meant to harm a miner or not and whether the mine operator knew
about the criminal provision or not, if that operator knew it
was violating a health or safety standard and did it anyway,
the law would be violated.
Keeping with the Committee's goal of punishing wrongdoers
(and only wrongdoers) in proportion to the possibility that
their actions or inactions will harm miners, the violators are
punished using a multi-tiered system. If the operator knowingly
exposed miners to ``a significant risk of serious injury or
illness or death,'' then such violation would be a felony
punishable by a fine of up to $1,000,000, or 5 years
imprisonment, or both. For a repeat violation of this
provision, the maximum penalty is increased to $2,000,000, or
imprisonment for not more than 10 years, or both.
In addition, if the operator is found to have knowingly
tampered with or disabled a required safety device which
exposed miners to a significant risk of serious injury or
illness or death, or if the conviction is for a violation
committed after the first conviction of such operator, the
penalty is up to $2,000,000, or imprisonment for not more than
10 years, or both.
If the operator's violation of a health or safety standard
or MSHA order was not so severe as to have exposed miners to
``a significant risk of serious injury or illness or death'' or
to have related to device tampering, then the first conviction
of a knowing violation would be a misdemeanor punishable by a
fine of up to $250,000, imprisonment for up to a year, or both.
Subsequent violations of the same standard or order, however,
would be felonies punishable by a fine of up to $1,000,000, or
imprisonment for not more than 5 years, or both.
Advance Notice of Inspections
Problem: The Committee's May 24, 2010, and July 13, 2010,
hearings highlighted a problem the Committee has heard about
with startling frequency: too many mines view MSHA inspections
as a ``catch-us-if-you-can'' game. All too often, mine
management instructs employees to notify the miners underground
when an MSHA inspector arrives at a mine, or even before then,
so that the miners can (and do) quickly hide troubling
conditions, implement normally neglected safety measures, or
otherwise prevent the inspector from getting a true picture of
conditions at the mine. Gary Quarles, a miner who is employed
at the Parker Peerless Mine operated by Massey and the father a
miner killed at UBB, testified on May 24: ``When an MSHA
inspector comes onto a Massey mine property, the code words go
out `we've got a man on the property.' Those words are radioed
from the guard gates and relayed to all working operations in
the mine. The mine superintendent and foreman communicate
regularly by phone, and there are signals that require the
foreman who is underground to answer the phone. That is one way
that the message is conveyed that an inspector is on the
property. When the word goes out, all effort is made to correct
any deficiencies or direct the inspector's attention away from
any deficiencies.''
Currently, Section 110(e) of the Mine Act prohibits advance
notice of an inspection, which is punishable as a misdemeanor,
with a fine of $1,000, or imprisonment of up to 6 months, or
both. The Committee understands that the existing criminal
provision has been rarely, if ever, invoked.
Solution: Section 303(c) adds a new provision to Section
110 of the Mine Act to make it a felony for anyone to give
another person advance notice of an MSHA inspection with the
intent to impede, interfere with, or otherwise adversely affect
the inspection. This applies to the person who gave notice and
to anyone who caused that person to give such notice. This
felony would be punishable by up to 5 years imprisonment, or a
fine of $250,000 for an individual, or $500,000 for an
organization. This intent standard is consistent with other
obstruction of justice statutes.\38\
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\38\See: Obstruction of Justice: an Overview of Some of the Federal
Statutes that Prohibit Interference with Judicial, Executive, or
Legislative Activities, Congressional Research Service (December 27,
2007).
---------------------------------------------------------------------------
To help prevent anyone from unwittingly violating this law
and to further support a culture of safety, this section also
would require mine operators to conspicuously post notices of
this new felony provision.
Problem: The culture of retaliation against workers who
report safety hazards is pervasive in our most dangerous
workplaces. This notion was made abundantly clear in the May
24, 2010 field hearing on the Upper Big Branch mine tragedy in
which miners expressed considerable reluctance about bringing
safety and health concerns to the attention of MSHA,
particularly in non-union mines, because they feared
retaliation.
Solution: Section 303(b) would make it a felony for anyone
to knowingly retaliate (e.g., fire, demote, refuse to hire)
against a person who has reported unsafe conditions or
violations to appropriate federal or state government officials
or law enforcement officers. Because this new section would
criminalize indirect as well as direct harm to miners, a bad
actor would also violate the law if such person knowingly
harmed a miner's family, such as through blacklisting, or other
indirect interest in retaliation for a report the miner made.
This new crime would be punishable by up to 10 years
imprisonment and/or a fine of $250,000 for an individual, and
$500,000 for an organization.
SEC. 304--COMMISSION REVIEW OF PENALTY ASSESSMENTS
Problem: The Review Commission does not use the same method
MSHA uses (applying a standard formula prescribed in
regulations) to assess penalties. As a result, in reviewing
citations contested by mine operators and the associated
penalties, the Review Commission often reduces the penalties
proposed by the Secretary and may do so in unpredictable ways.
The consequent uncertainty over appellate outcomes provides an
incentive for operators to contest most every citation in the
hopes of obtaining a more favorable formula for penalty
assessment, regardless of the merits of the appeal itself. GAO
noted in a 2007 report that, from 1996 to 2006, about 47% of
the penalties for citations contested by mine operators were
reduced by the Commission, attorneys from the Department of
Labor's Solicitor's Office, and MSHA's Conference Litigation
Representatives (CLRs).\39\ On average, the penalties were
reduced by about half. Committee staff reviewed several cases
in which the Commission significantly reduced MSHA's penalties
and found that the penalties were reduced from 44 percent to 75
percent. For example, in a case involving a mine operated by
the Georgia Marble Company, the Commission lowered the
penalties assessed from $4,015 to $1,600--a 60 % reduction--
although the MSHA inspector determined that, for one citation,
an injury was ``reasonably likely'' and would result in more
than one fatality. In his decision, the ALJ stated that,
``Under the Mine Act, the Secretary's penalty proposals are not
binding on the Commission's administrative law judges.''
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\39\GAO, Better Coordination and Oversight by MSHA and Other
Federal Agencies Could Improve Safety for Underground Coal Miners, GAO-
07-622 (2007), p. 39. Note: MSHA's data did not allow the number and
amount of the penalties reduced only by the Commission to be separated
from the total data on penalties.
---------------------------------------------------------------------------
Solution: Require the Commission to use the same
methodology to set penalties that the Secretary uses to assess
them, except in extraordinary circumstances or where MSHA has
no point system or other methodology in regulation for a
penalty assessment (such as special assessments). H.R. 5663
does this.
SEC. 305--DELINQUENT PAYMENTS AND PREJUDGMENT INTEREST
Problem: Mine operators currently have an incentive to
contest MSHA's citations because they are not required to pay
interest on the penalties assessed until the violations have
been adjudicated, and there is a 30 month delay in adjudicating
cases on average. Mine operators owe over $27 million in
overdue fines to MSHA, the majority of which are owed by mine
operators which are still operating the mine for which fines
are overdue.\40\
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\40\``Proposed Legislative Changes to Protect the Safety of All
Workers and Prevent Future Disasters,'' White Paper prepared by the
offices of Rep. George Miller, Rep. Lynn Woolsey, Rep. Nick Rahall,
Sen. Harkin, Sen. Murray, Sen. Rockefeller, June 29, 2010. Source: MSHA
data.
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Solution: H.R. 5663 provides prejudgment interest on
contested fines based on IRS's interest rates. Operators who
fail to pay finally-adjudicated penalties within 180 days face
a withdrawal order until they pay their overdue fines or make
timely payments on a payment plan.
Title IV--Worker Rights and Protections
SEC. 401--PROTECTION FROM RETALIATION
Problem: The culture of retaliation against workers who
report safety hazards is pervasive in our most dangerous
workplaces. This notion was made abundantly clear in the May
24, 2010 field hearing on the Upper Big Branch mine tragedy in
which miners and family members of those killed in the
explosion testified that the miners expressed considerable
reluctance about bringing safety and health concerns to the
attention of mine operators or MSHA because they feared
retaliation.\41\ Witnesses stated that there was a constant
sense of intimidation and retribution if miners raised safety
concerns or questioned whether corrections were going to be
made. ``If you're going to be that scared of your job [at the
mine] there, you need to rethink your career, because that's
the way we do things,'' was a common theme. Eddie Cook, the
uncle of Adam Morgan, a novice miner who died in the explosion
at Upper Big Branch, recounted his nephew's stories about the
practices that were going on at the mine, including ``[y]ou
don't have the right to refuse [to do work we think is unsafe].
If you refuse, they tell you to get your bucket and go home . .
. If you don't want to work here; we've got people out on the
street wanting your jobs. And [your supervisor tells you] if
you don't like the way we run it, you can go home.''\42\ When
miners expressed safety concerns and requested transfers,
management often denied these requests, and eventually they are
fired. ``[M]anagement would look for ways to fire us. Maybe not
that day or that week, but somewhere down the line, we'd
disappear,'' said Stanley ``Goose'' Stewart, who worked at
Upper Big Branch and was three hundred feet underground on his
way to mine coal the day the explosion occurred.\43\
---------------------------------------------------------------------------
\41\The Upper Big Branch Mine Tragedy: Testimony of Family Members:
Hearing before the H. Comm. on Education and Labor, 111th Cong. (2010),
http://edlabor.house.gov/hearings/2010/05/the-upper-big-branch-mine-
trag.shtml.
\42\Hearing, supra note 41 (testimony of Eddie Cook).
\43\Hearing, supra note 41 (testimony of Stanley ``Goose''
Stewart).
---------------------------------------------------------------------------
Alice Peters, the mother-in-law of Edward ``Dean'' Jones
who was killed in the explosion, shared the story of miners who
continued to work in the mine despite knowing it was unsafe.
Her son-in-law particularly feared losing his health insurance
benefits if he was fired because he had a son who suffers from
cystic fibrosis and requires constant medical care. According
to Mrs. Peters, ``[Massey] knew about his son and that Dean
needed to keep his job to make sure his son could get the
medical care he needed.''\44\ She went on to say that, ``On
more than one occasion, I called the mine and told them there
was an emergency regarding his son that he had to come home in
order to get him out of the mine because I feared for his
safety.''\45\
---------------------------------------------------------------------------
\44\Hearing, supra note 41 (testimony of Alice Peters).
\45\Hearing, supra note 41 (testimony of Alice Peters).
---------------------------------------------------------------------------
Miners and relatives of those who died in the UBB explosion
provided chilling evidence of how a corporate culture of
producing coal over ensuring safety can lead to disaster.
Solution: If the nation's mine safety and health program is
to be truly effective, miners will have to play an active part
in the enforcement of the Act. 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. The bill strengthens
the anti-retaliation provisions of the Mine Act by prohibiting
any person from discharging or taking adverse action against a
miner, other employee, or applicant for employment because that
person has (1) complained about any unsafe condition in a mine;
(2) instituted any proceeding related to this Act, or testified
or is about to testify in any such proceeding, or exercised any
right provided by this Act; (3) testified or is about to
testify to Congress or any federal or state proceeding related
to safety or health in a mine, or has reported an injury or
illness to an operator or agent; (4) refused to violate any
provision of this Act (including a mandatory health and safety
standard, a regulation, an order or a plan); or (5) such miner
is the subject to a medical evaluation and potential transfer.
In addition, a miner or other employee cannot be retaliated
against for refusing to work if the employee has a ``good-faith
and reasonable belief'' that performing his duties would pose a
safety or health hazard to himself or any other miner or
employer.\46\
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\46\The belief must be based on what a ``reasonable person'' would
conclude confronted with the same circumstances. The miner or other
employee, when practicable, is required to communicate or attempt to
communicate the concern to the operator and have not received a
response that allays the concern.
---------------------------------------------------------------------------
This section also extends the statute of limitations for
filing a complaint from 60 to 180 days. The legislation
clarifies the existing law which requires that within 15 days
of receipt of a complaint, the Secretary is required to begin
an investigation and make a determination whether or not the
complaint was frivolously brought. If the Secretary finds the
complaint was not frivolously brought, she shall, on an
expedited basis, apply to the Review Commission for an order of
immediate reinstatement of the miner. The Secretary must
complete the investigation, and if she finds retaliation, must
immediately file a complaint with the Review Commission along
with a proposed order for permanent relief. If the Secretary
finds that a violation has not occurred, the miner (or
applicant) has the option of filing a complaint with the Review
Commission.
Under this section, the Review Commission's existing
authority to order ``make whole'' remedies is expanded to
provide for exemplary damages.
SEC. 402--PROTECTION FROM LOSS OF PAY
Problem: Under the current Mine Act, operators cited by
MSHA for violations that require them to withdraw miners from
the entire mine or certain sections of the mine (withdrawal
orders issued under section under Sections 103, 104, 107, 108,
or 110 of the Mine Act) are required to pay idled miners for
the remainder of their shift after the withdrawal order is
issued and for 4 hours of pay of their next scheduled shifts.
However, if a mine is idled for longer than this period, miners
are not paid. This provides a powerful disincentive for miners
who want to report safety and health problems at their mines to
MSHA from doing so because it can result in loss of pay for
them and their coworkers. In addition, mine operators sometimes
close mines in anticipation of receiving a withdrawal order
from MSHA in order to prevent having to pay idled miners. Such
actions by miner operators are not prohibited under current
law, and miners idled as a result of such action have no
recourse.
Solution: H.R. 5663 retains the existing provision of
Section 111 of the Mine Act providing balance of shift pay for
the first shift, and not more than 4 hours of pay for the
second shift following a MSHA withdrawal order. However, this
legislation changes existing law to require operators to pay
miners who are idled their full pay for up to 60 days, provided
that the miners were idled due to an order issued under
Sections 104, 107 (in connection with a citation), 108, or 110.
Payments shall be made regardless of the result of any review
of such order. This section also authorizes payments to miners
who are idled for up to 60 days when the operator closes the
mine in anticipation of an MSHA withdrawal order, except in
those circumstances when the operator promptly withdraws miners
due to a hazard and notifies MSHA, if required, within the
prescribed time period. This is intended to ensure that mine
operators who try to ``game the system'' by keeping miners
exposed to a hazard until just before MSHA issues a withdrawal
order will have to pay miners who are idled. However, if a mine
operator promptly withdraws miners rather than continue to
expose them to a hazard, notifies MSHA as required, and MSHA
subsequently issues an order, the mine operator will not be
liable for paying idled miners. The section also provides an
expedited proceeding and decision before the Review Commission
using the same time frames provided for the review of emergency
response plans. If a miner or other employee is not paid,
current law provides that he can file a complaint with the
Review Commission, which can order payment. This legislation
authorizes reasonable attorney fees and costs to be paid to a
miner who prevails in whole or in part. Further, this section
authorizes the Secretary to close a mine that fails to pay its
miners pursuant to this section by the next regular payroll
period.
SEC. 403--UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED
IN PATTERN STATUS
Problem: Currently, miners are employed under an
``employment-at-will'' doctrine, which means that a mine
operator can discharge a worker without providing any reason.
Although HR 5663 provides stronger whistleblower protections
for miners, even the strongest protections are not by
themselves sufficient to ensure employees' freedom to speak out
on health and safety concerns. Whistleblower laws, like other
non-discrimination protections, require the employee or
government to prove the employer's motive in an employment
action. But proof of another's motive is no simple matter.
Often, the only available evidence is circumstantial, and the
``nexus'' (cause and effect connection) between an employee's
complaint to MSHA and his subsequent discharge can be easily
obscured by time and subterfuge.
At the Committee's Beckley, West Virginia, field hearing on
May 24, 2010, miners expressed skepticism that whistleblower
provisions alone were enough to protect them. A whistleblower
is not necessarily discharged immediately. Rather, he can be
marked for later retaliation.\47\ Months may pass before the
unscrupulous employer takes action and nexus is difficult, if
not impossible, to establish. But action is taken, and the
message to the targeted miner and his colleagues is
unmistakable: do not raise safety concerns that could slow coal
production, or identify violations that could place a mine on
pattern status or extend the duration of pattern status. These
concerns could take the form of identifying violations to MSHA
inspectors, or reporting an accident or injury that could
impact the mine's accident rates, both of which could lead to
higher penalties for mines on pattern status, or the extension
of time on pattern status.
---------------------------------------------------------------------------
\47\Hearing, supra note 41.
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This skepticism is difficult to overcome. At best, the
promise of a whistleblower statute is that of providing one's
``day in court''--an opportunity to make one's case--however
difficult, and relief in the form of complete reinstatement and
back pay may not come for many months or years. In the
meantime, the whistleblower is rewarded with unemployment and/
or significant uncertainty while the matter is being litigated.
Since whistleblower protections constitute mere exceptions
to a general employment-at-will doctrine, the law sends mixed
signals to any would-be whistleblowers. On the one hand, they
may not be fired for blowing the whistle. On the other hand,
they may be fired for no reason whatsoever. The employment-at-
will doctrine is not consistent with a policy of encouraging
employees to actively press for health and safety compliance,
especially when an employer is focused singularly on production
in a potentially ultra hazardous workplace.
The most potentially deadly workplaces in the mining
industry are underground coal and other underground gassy
mines. Explosive dust or gas is prevalent in these mines.
Possible ignition sources are plentiful. Casualties can be
significant. Here, more than anywhere else, workers need
additional rights not only to protect, but to encourage,
whistleblowing.
Solution: In the most dangerous mines, where whistleblowing
and the right to raise safety concerns up the management chain
without fear of retaliation is most critical to saving workers'
lives, miners should be given the highest level of protection.
In these workplaces, the employment-at-will doctrine should not
apply. The burden of proof should not be placed on the
discharged employee to prove the employer's internal motivation
for the discharge or any constructive discharge. Rather, the
burden should be shifted to the party which knows its own
motivation. The employer should prove that it had just cause--a
legitimate business reason--to discharge the employee. By
providing this added protection, the law will help assure
skeptical miners that they have some modicum of meaningful,
enforceable employment rights months or even years after
blowing the whistle.
In the new safety regime for these most dangerous mines,
H.R. 5663 would provide just-cause employment protection for
miners when a mine enters pattern status and for 3 years
thereafter. Mines in pattern status have proved themselves the
most in need of watchdogs. Miners are the ``eyes and ears'' of
safety enforcement, since MSHA cannot be in the mines at all
times. To help MSHA evaluate whether a new culture of safety
has truly taken at a mine in pattern status, miners should be
given the necessary legal rights to freely blow the whistle and
inform the enforcement agency of any ongoing problems. Since an
employer's retaliation may lag behind the whistleblower's
action to avoid the appearance of impropriety, the period of
just-cause protection should be long enough to account for such
lags.
The bill's ``Employment Standard for Underground Coal
Miners'' is modeled after a state law, the Montana Wrongful
Discharge Act of 1987.\48\ For nearly quarter of a century,
this state statute has provided workers in Montana with just
cause protection. This law has had no impact on Montana's
business climate. A 2008 study released by the American
Constitution Society found that, since the law went into
effect, Montana has seen no discernible impact on its
employment rates.\49\ Jobs have grown there at rates similar to
those in neighboring states which have retained employment-at-
will.
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\48\Mont. Code 39-2-904.
\49\Barry D. Roseman, Just Cause in Montana: Did the Big Sky Fall?
Issue Brief, American Constitution Society (September 2, 2008).
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Title V--Modernizing Health and Safety Standards
SEC. 501--PRE-SHIFT REVIEW OF MINE CONDITIONS
Problem: The Coal Mine Safety and Health Act of 1969 and
the Mine Act of 1977 required pre-shift examinations of areas
of mines where miners were expected to work or travel to be
conducted within 3 hours of the beginning of each shift.
Violations that were discovered were to be written in mine
records and warning signs placed in the area of the violations.
Under the 1969 law, this applied to any ``condition which
constitutes a violation of a mandatory health or safety
standard'' or ``any condition which is hazardous'' to workers.
In 1992, the first Bush administration weakened MSHA
regulations, requiring mine safety checks to look for
violations only if they posed an immediate hazard to miners. In
testimony before the Senate in April 2010, the Assistant
Secretary of Labor for Mine Safety and Health stated he plans
to issue a new rule reinstating this requirement in order to
help prevent hazardous conditions that can threaten miners.\50\
The Committee, however, is concerned this important requirement
remains subject to weakening, administration by administration,
thus unnecessarily jeopardizing miners' health and safety.
---------------------------------------------------------------------------
\50\Putting Safety First: Strengthening Enforcement and Creating a
Culture of Compliance at Mines and Other Dangerous Workplaces before
the S. Comm. on Health, Education, Labor and Pensions, 111th Cong.
(2010), (testimony of Joseph A. Main).
---------------------------------------------------------------------------
Solution: The bill codifies the requirement for underground
coal mine operators to implement communication programs that
ensure that, prior to beginning their work, miners are told
about any violations, hazardous conditions and the general
conditions of sections of the mine where miners are expected to
work or travel.
SEC. 502--ROCK DUST STANDARDS
Problem: Currently, underground mines are only required to
meet a standard of 80% total incombustible content (the amount
of rock dust that needs to be mixed with coal dust in order to
prevent explosions) for the return entries of the mine. For
intakes and neutral areas of the mine, mines must meet a
standard of only 65%. The 65% standard was based on research
conducted in the 1920s. With the advent of modern mining
machinery, coal dust is much finer today and presents a greater
explosive risk. NIOSH has conducted experiments on coal dust
from every region of the country and recommended that the law
be changed to require 80% total incombustible content.\51\ In
addition, direct reading monitors that could assess total
incombustible content levels of dust in underground mines and
provide real time results may soon be commercially
available.\52\ Currently, samples have to be sent to a lab and
it can take 2 weeks to obtain the results.
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\51\Cashdollar, Sapko, et al., National Institute for Occupational
Safety and Health, Recommendations for a New Rock Dusting Standard to
Prevent Coal Dust Explosions in Intake Airways, Report of
Investigations 9679 (May 2010)
\52\Sapko (NIOSH) and Verakis (MSHA), Technical Development of the
Coal Dust Explosibility Meter.
---------------------------------------------------------------------------
Solution: H.R. 5663 increases the standard for the amount
of rock dust that needs to be mixed with coal dust in all
working areas of underground bituminous coal mines in order to
prevent explosions from 65% to 80% in non-return entries. It
also requires operators to take accurate samples of dust in
active working areas of mines to ensure that dust is kept below
explosive levels. And, once the Secretary of Health and Human
Services (HHS) has certified that direct reading monitors are
commercially available, and MSHA has approved them for use in
underground coal mines, sampling will have to be done using
direct reading monitors. The Secretaries of Labor and HHS must
submit a report to the House and Senate labor committees within
2 years on whether direct reading devices are sufficiently
reliable and accurate to be used for enforcement of the rock
dust standard. Furthermore, measurements taken by operators or
MSHA using the direct reading devices cannot be used in
enforcement actions under this Act, until after a finding has
been made that such direct reading devices are sufficiently
reliable and accurate to be used for enforcement, and a final
rule is promulgated setting forth methods for its use.
SEC. 503--ATMOSPHERIC MONITORING SYSTEMS
Problem: Explosive-resistant and other redundant
atmospheric monitoring systems inside mines would improve upon
current technology in providing real-time data about
atmospheric conditions to mine operators, and would provide a
valuable tool for monitoring mine gases to prevent catastrophes
like the explosion at Upper Big Branch. Atmospheric monitoring
would also provide invaluable information about atmospheric
conditions inside a mine to rescue personnel on the surface in
a situation where time is of the essence and information is
critical in making life-or-death decisions.
Solution: A technical assessment must be conducted and
recommendations issued by NIOSH's Office of Mine Safety and
Health Research regarding (1) how to ensure that atmospheric
monitoring systems (AMS) are utilized in the underground coal
mining industry to maximize miners' health and safety; (2) the
implementation of redundant systems, such as bundle tubing
systems, that can continuously monitor the mine atmosphere
following fires, explosions, entrapments, and inundations; and
(3) the availability of other technologies to conduct
continuous atmospheric monitoring. The technical assessment
needs to be developed in consultation with operators, labor
representatives, vendors, state mine safety agencies and other
experts. Following receipt of these recommendations, the
Secretary must promulgate regulations requiring underground
coal mine operators to install AMS systems consistent with the
NIOSH recommendations that protect miners; provide real-time
information; and can, to the maximum extent practicable,
withstand explosions and fires.
SEC. 505--REFRESHER TRAINING ON MINER RIGHTS AND RESPONSIBILITIES
Problem: In passing the Mine Act, Congress realized that
miners play a crucial role in maintaining a safe and healthy
workplace and enforcement of the Act. Because miners know the
day-to-day work conditions of the mines as well as or better
than anyone, and they are in a unique position to monitor
workplace conditions when inspectors are absent. However, MSHA
only requires statutory rights training 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. As noted in testimony by an attorney
from the Appalachian Law Center before a Senate Committee in
April 2010, a large number of miners do not have a thorough
understanding of their numerous statutory rights and as a
consequence they are unable to exercise such rights.\53\ 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 also 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. The method in which miners receive this training may
also pose a problem. Operators and management personnel should
not be permitted to provide any of the required training
because they have a strong 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.
---------------------------------------------------------------------------
\53\Hearing, supra note 50 (testimony of Wes Addington).
---------------------------------------------------------------------------
Solution: Section 505, which amends Section 115(a)(3) of
the Mine Act, adds an hour of miners' rights training to the
yearly refresher training already required by the Mine Act. In
addition, miners must receive this training only from MSHA or
MSHA approved trainers who are independent of mine operators.
SEC. 506--AUTHORITY TO MANDATE ADDITIONAL TRAINING
Problem: Mine operators that have experienced accidents or
have elevated rates of injuries, citations (particularly S&S)
or withdrawal orders may need to provide personnel with
additional training to help improve safety performance.
Similarly, after accident investigations, MSHA often issues
alerts to the industry regarding compliance and best practices
to prevent similar accidents. This may require added training.
Solution: Authorize MSHA to issue an order requiring that
an operator provide additional training if the Secretary finds
that additional training would benefit the health and safety of
miners at the mine where the mine has experienced accident and
injury rates, citations for violations of the Act, citations
for significant and substantial violations, or withdrawal
orders at a rate above the average for mines of similar size
and type. H.R. 5663 does this.
SEC. 507--CERTIFICATION OF PERSONNEL
Problem: The Mine Act does not require MSHA to certify most
miners or ensure that states certify mine personnel, other than
miners who perform certain tasks specified in the Mine Act,
such as miners who perform electrical work, and miners who
operate or maintain hoisting and diesel powered equipment.
Although most states have certification requirements, they vary
substantially. Some states do not require personnel to, once
they are certified, update their certifications. The positions
certified by the states and the reciprocity provisions that
allow miners certified in one state to work in another state
also differ substantially. Several states do not have a process
for revoking miners' certifications once they have been issued.
As a result, the safety and health of miners may be jeopardized
by working with personnel who have not been properly trained.
Finally, there is no central data base of individuals whose
certifications have been revoked. This could allow state that
does not have reciprocity to unwittingly provide a
certification to individual who had his certification revoked
for improper conduct.
Solution: The bill requires MSHA to establish minimum
requirements for the certification of miners, including
periodic recertification and a process for revoking miners'
certifications, and ensure that all state certification
programs meet these minimum requirements. If a state does not
meet the minimum standards or cover certain mine
classifications (e.g., mine superintendants), MSHA's
certification processes will apply in that state. In
establishing standards, the Secretary must consult with the
states that have miner certification programs to assure
effective coordination with existing state standards and
requirements for certification. Further, the standards shall
provide that a state's program of certification satisfies the
standard set forth by the Secretary if it is no less stringent
than that set forth under MSHA's standards. The Secretary is
also authorized to assess and collect a fee from operators to
cover the costs of testing and certifying miners and is
required MSHA to establish a database of miners whose
certification has been revoked, either by MSHA or a state. This
section requires MSHA to set up a data base of individuals
whose certifications have been revoked and to provide state
certification agencies with access to that information. Section
104 (c) of this legislation (Injury and Illness Reporting)
establishes that knowing falsification of accident, illness and
injury reports to MSHA is grounds for revocation of a
certification.
Title VI--Additional Mine Safety Provisions
SEC. 601--DEFINITIONS
Problem: Currently, entities that do not directly operate
the mine but control managerial decisions for the mine may not
be subject to the civil and criminal enforcement provisions of
the Mine Act.
Solution: H.R. 5663 expands the definition of the term
``operator'' to include those who directly or indirectly
``control'' management decisions which impact health and safety
at a mine.
SEC. 602--ASSISTANCE TO STATES
Problem: Authorized funding levels for funding to state
mine safety agencies by MSHA has remained static at $10 million
per year since 1971. States will need assistance in upgrading
their mine certification programs.
Solution: Increase authorization for funding to $20 million
per year, and authorize MSHA to provide grants to states to
improve their certification programs to comply with the new
certification requirements.
SEC. 603--BLACK LUNG MEDICAL REPORTS
Problem: When a coal operator requires a miner who has
filed a claim for black lung benefits to submit to a medical
exam, there is no requirement for the operator to provide the
doctor's medical reports to the claimant, unless the claimant
specifically requests those documents. Regulations governing
the black lung program state, at 29 CFR 18.19(c)(4), that ``A
report of examining physician shall be made in accordance with
Rule 35(b) of the Federal Rules of Civil Procedure.'' Rule
35(b) goes on to say that ``The party who moved for the
examination must, on request, deliver to the requester a copy
of the examiner's report. . .'' However, the Committee is aware
of cases where pro se claimants did not know of their right to
request a copy of their medical examination records. In these
cases, the claimants only received partial information, which
excluded relevant medical findings that supported the merits of
their claims and misled the claimants. Thus, it is imperative
that claimants receive full and complete medical reports
without having to request them or make a discovery request.
Solution: If a miner is required to submit to a medical
exam, he should receive a complete copy of the results of that
exam in a timely manner without having to ask for one or make a
discovery request. H.R. 5633 adds this requirement to the Mine
Act.
Title VII--Amendments to the Occupational Safety and Health Act
Introduction
In 1970, Congress enacted the Occupational Safety and
Health Act (OSH Act) and declared its purpose ``to assure so
far as possible every working man and woman in the Nation safe
and healthful working conditions.''\54\ For the last 40 years,
this legislative milestone has helped saved the lives of more
than 410,000 workers, and the number of yearly workplace
fatalities has dropped from 13,800 in 1970 to 5,214 in
2008.\55\ However, with an average of 14 workers a day being
killed in workplace accidents, workers are still at risk.\56\
These numbers do not include the 50,000 to 60,000 deaths that
occur from occupational diseases each year.\57\
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\54\29 U.S.C. 651(b).
\55\AFL-CIO, Death on the Job: The Toll of Neglect, 6, 34 (19th ed.
2010). These fatality statistics are based on data from the National
Safety Council Accident Facts (1971-1991) and from the Bureau of Labor
Statistics, Census of Fatal Occupational Injuries (1992-2008).
\56\Id. at 6.
\57\Id.
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This continuing risk to workers is underscored by a string
of multi-facility workplace accidents in the first months of
2010 that killed 52 workers. In February, 6 workers were killed
at the Kleen Energy Plant in Middletown, Connecticut in a
natural gas explosion. On April 2, a blast at the Tesoro Oil
Refinery in Anacortes, Washington caused the deaths of 7
workers who were engulfed in a ``firewall.'' On April 5, 29
miners were killed in a massive explosion at the Upper Big
Branch mine in Montcoal, Virginia, and on April 20, 11 workers
were lost following an explosion on the Transocean Deepwater
Horizon Drilling rig leased by BP in the Gulf of Mexico.
Workplace injury and illness rates among private sector
employees have also declined from 10.9 per 100 workers in 1972
to 3.9 per 100 workers in 2008.\58\ However, a minimum of 4.6
million workers (3.7 million private sector and 938,000 state
and local government workers) a year, or about 13,000 a day,
are injured or become ill on the job.\59\ Sadly, these are only
the reported cases, and according to several studies performed
in recent years, actual injuries and illnesses are far
greater.\60\ One such study published in 2004 found that that
the occupational injury and illness statistics published by the
U.S. Bureau of Labor Statistics (BLS) are underestimated by as
much as 69%.\61\ In addition, the AFL-CIO in its annual Death
on the Job: The Toll of Neglect report estimates that in 2008,
there were actually 11.1 million workplace injuries and
illnesses in private industries.\62\
---------------------------------------------------------------------------
\58\Id. at 47.
\59\Id. at 8.
\60\Id. at 10-11.
\61\J. Paul Leigh et al., An Estimate of the U.S. Government's
Undercount of Nonfatal Occupational Injuries, 46 J.Ocupational & Envtl.
Med. 10 (January 2004).
\62\AFL-CIO, supra note 55 at 59.
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In the 111th Congress, Congress has paid particular
attention to the underreporting of illnesses and injuries, and
in June 2008, this Committee held an oversight hearing to
explore the causes and impact of underreporting.\63\ One of the
witnesses--Dr. John Ruser, the Assistant Commissioner for
Safety, Health and Working Conditions at the Bureau of Labor
Statistics--acknowledged that the employer survey BLS uses to
determine annual illnesses and injuries has limitations and
does not capture the full extent of illnesses and injuries.\64\
The survey does not count long latent occupational illnesses
like cancer; workers outside of the survey scope, including the
self-employed, workers in small farms and households; and
illnesses and injuries that are not reported.\65\
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\63\Hidden Tragedy: Underreporting of Workplace Injuries and
Illnesses: Hearing Before the H. Comm. on Education and Labor, 110th
Cong. (2008), http://edlabor.house.gov/hearings/full-committee. The
Senate Labor, HHS Appropriations Subcommittee also reviewed this issue
and included funding for this issue in its FY09 bill.
\64\Hearing, supra note 63 (testimony of John Ruser).
\65\Id.
---------------------------------------------------------------------------
In conjunction with the hearing, the Committee released a
report entitled Hidden Tragedy: The Underreporting of Illnesses
and Injuries\66\ outlining the enormity of the problem. In
addition, in October 2009, the Government Accountability Office
(GAO) released a report substantiating that underreporting of
illnesses and injuries exists and outlining the disincentives
to reporting.\67\ It found that employees may not report an
injury or illness because they fear losing their jobs or
jeopardizing rewards based on having low injury and illness
rates. On the employer side, there is underreporting to avoid
workers' compensation costs or in order to win contract bids.
Through a survey of occupational health professionals,
including physicians, GAO discovered that many workers were
under significant pressure not to report illnesses and
injuries. More than one-third of the health professionals
surveyed had been asked by employers or workers not to provide
necessary medical treatment so their injuries would not be
reported.\68\
---------------------------------------------------------------------------
\66\Staff of H. Comm. on Education and Labor, Report on
Underreporting of Workplace Injuries and Illnesses, 110th Congress,
(June 2008). http://edlabor.house.gov/publications/
20080619WorkplaceInjuriesReport.pdf.
\67\GAO, Workplace Safety and Health: Enhancing OSHA's Records
Audit Process Could Improve the Accuracy of Worker Injury and Illness
Data GAO-10-10, (2009). http://www.gao.gov/new.items/d1010.pdf.
\68\Id.
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Experts say that the overwhelming majority of these
fatalities and on-the-job injuries and illnesses, which are
tragedies for workers and to their families, are preventable.
They also impose enormous financial burdens on employers. In
2007, employers paid over $85 billion in direct workers'
compensation costs.\69\ However, these direct costs would have
been even higher if all of these workers with injuries
requiring medical care or lost work time actually sought these
benefits.\70\
---------------------------------------------------------------------------
\69\National Academy of Social Insurance, Workers' Compensation:
Benefits, Coverage and Costs, 2007, 2, 27 (2010).
\70\Id. at 31-33. Studies have found that only 52 to 60% of injured
and ill workers receive workers' compensation benefits.
---------------------------------------------------------------------------
Data from Liberty Mutual's Workplace Safety Index indicate
that employers pay between $156 and $312 billion in both direct
and indirect costs when workers are injured. Direct costs
include medical and loss wage payments; indirect costs include
overtime, training and loss of productivity. These numbers are
understated as well because they are based on BLS data (which
relies on reported injuries) and include only the most serious
injuries.\71\
---------------------------------------------------------------------------
\71\AFL-CIO, supra note 55, at 13. In addition, for 2008, the
National Safety Council reported that the economic cost of deaths and
disabling injuries was $183 billion. National Safety Council, Summary
from Injury Facts (2010 ed.), http://www.nsc.org/news_resources/
injury_and_death_statistics/Pages/InjuryDeathStatistics.aspx.
---------------------------------------------------------------------------
OSHA is responsible for protecting the safety and health of
over 100 million workers at 7.5 million private sector
workplaces and 200,000 construction sites. The agency also
covers 2.8 million Federal employees.\72\ Nationally, there are
approximately 2,200 Federal and State inspectors,\73\ one for
every 60,000 workers.\74\
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\72\U.S. Department of Labor, FY 2011 Budget in Brief 58, http://
www.dol.gov/dol/budget/2011/PDF/bib.pdf
\73\In FY 2009, there were 1,300 state inspectors and 885 federal
inspectors. See AFL-CIO, supra note 2, at 13.
\74\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
With a $559 million budget in FY 2010, (a $46 million
increase compared with FY 2009), OSHA expects to inspect 41,700
worksites in 2010. With this level of resources, federal OSHA
only has the capacity to inspect each American workplace in its
jurisdiction once every 137 years.\75\
---------------------------------------------------------------------------
\75\AFL-CIO, supra note 55, at 13.
---------------------------------------------------------------------------
According to the AFL-CIO, in 7 states, (Arkansas, Delaware,
Florida, Georgia, Louisiana, South Dakota and Texas), it would
take 150 or more years for federal OSHA to inspect each
worksite. And in 18 states, it would take between 100 and 149
years to inspect each site.\76\
---------------------------------------------------------------------------
\76\Id.
---------------------------------------------------------------------------
Inspections are more frequent in the 27 states that have
their own state plans, but are still insufficient.\77\ State
inspectors are expected to inspect 63,800, an increase of
2,800.
---------------------------------------------------------------------------
\77\Id.
---------------------------------------------------------------------------
Due to the large number of workplace it covers and
constraints on the number of inspectors, OSHA is limited in its
ability to significantly reduce fatalities, injuries and
illnesses. Updated legal tools are necessary to deal with the
safety and health problems confronting American workers.
SEC. 701--ENHANCED PROTECTIONS FROM RETALIATION
Problem: Since OSHA's ability to reach every workplace is
severely restricted, it is critical that workers be its ``eyes
and ears'' by reporting unsafe conditions, illnesses and
injuries and other violations of the OSH Act to their employers
and OSHA. However, providing healthy and safe workplaces
depends on the willingness of workers to come forward, and if
they are afraid they will lose their jobs, they are much less
likely to do so.\78\
---------------------------------------------------------------------------
\78\Hearing, supra, note 2 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
When the OSH Act was originally passed in 1970, Congress
recognized that workers must be protected from retaliation and
created section 660(c) (commonly known as 11(c)) for that
purpose. It provides:
No person shall discharge or in any manner
discriminate against any employee because such employee
has filed any complaint or instituted or caused to be
instituted any proceeding under or related to this
chapter or has testified or is about to testify in any
such proceeding, or because of the exercise by such
employee on behalf of himself or others of any right
afforded by this chapter.
Protected activity includes filing a complaint with OSHA or
another agency relating to workplace safety and health; raising
workplace safety or health concerns to an employer;
participating in an OSHA inspection; filing a notice of contest
with respect to abatement of safety or health hazards;
participating in a judicial proceeding challenging a safety and
health standard; and, in some cases, refusing to work in a
unsafe and unhealthy workplace.\79\
---------------------------------------------------------------------------
\79\Occupational Safety and Health Law 590-95 (Randy Rabinowitz
ed., 2nd ed., 2002). With regard to the refusal to work, see also 29
C.F.R. 1977.12(b)(2), which provides that: ``If the employee, with no
reasonable alternative, refuses in good faith to expose himself to the
dangerous condition, he would be protected against subsequent
discrimination. The condition causing the employee's apprehension of
death or injury must be of such a nature that a reasonable person,
under the circumstances then confronting the employee, would conclude
that there is a real danger of death or serious injury and that there
is insufficient time, due to the urgency of the situation, to eliminate
the danger through resort to regular statutory enforcement channels. In
addition, in such circumstances, the employee, where possible, must
also have sought from his employer, and been unable to obtain, a
correction of the dangerous condition.''
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Protections under 11(c) apply to all forms of retaliation,
including reprimands, suspension, pay changes, discharges, or
refusals to hire.\80\ While successful complainants are
entitled to ``all appropriate relief,'' including
reinstatement, back pay, and exemplary or punitive damages--
sometimes interpreted to include double back pay--\81\ the OSH
Act does not provide for preliminary relief, including
preliminary reinstatement, pending the final disposition of a
case.
---------------------------------------------------------------------------
\80\Id. at 591-592.
\81\Id. at 600-601. Also see: Reich v Cambridgeport Air Systems, 26
F.3d 1187 (1st Cir.1994), which found that the OSHA Act's provision for
``all appropriate relief'' allows for the award of exemplary damages.
---------------------------------------------------------------------------
The Section 11 (c) program is administered by OSHA's
Whistleblower Protection Program (WPP), which also has the
responsibility for investigating complaints under 17 other
federal whistleblower statutes.\82\ Section 11(c) whistleblower
cases account for a majority of the complaints filed under the
WPP program, and in 2009, 1,280, or 59%, out of the 2,161 cases
filed were 11(c) cases.
---------------------------------------------------------------------------
\82\These statutes include: Surface Transportation Assistance Act,
49 U.S.C. 31105; Asbestos Hazard Emergency Response Act, 15 U.S.C.
2651; International Safe Container Act, 46 App. U.S.C. 1506; Safe
Drinking Water Act, 42 U.S.C. 300(j)-9(i); Federal Water Pollution
Control Act, 33 U.S.C. 1367; Toxic Substances Control Act, 15 U.S.C.
2622; Solid Waste Disposal Act, 42 U.S.C. 6971; Clean Air Act, 42
U.S.C. 7622; Comprehensive Environmental Response, Compensation and
Liability Act (CERCLA), 42 U.S.C. 9610; Energy Reorganization Act, 42
U.S.C. 5851; Wendell Ford Aviation Investment and Reform Act (AIR21),
49 U.S.C. 42121; Corporate Criminal and Fraud Accountability Act (SOX),
18 U.S.C. 1514a; Pipeline Safety Improvement Act, 42 U.S.C. 60129;
Federal Rail Safety Act, 49 U.S.C. 20109; National Transit Systems
Security Act, 6 U.S.C.1142; Consumer Product Safety Improvement Act, 15
U.S.C. 2087; and Patient Protection and Affordable Care Act, PL 111-
148.
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Section 11(c) dates back to the original enactment of the
OSH Act in 1970 and is the oldest of the whistleblower statutes
administered by WPP. It lacks the protections afforded to
whistleblowers under modern whistleblower laws enacted since
1970.\83\ In addition, 11(c) imposes numerous hurdles that
result in meritorious claims being unfairly dismissed. For
example, unlike such laws as the Federal Railroad Safety Act
and the Consumer Product Safety Improvement Act, where
complainants have up to 180 days, 11(c) complainants have just
30 days from the day of the discrimination to file a complaint.
Deputy Assistant Secretary for OSHA Jordan Barab, testifying
before the Subcommittee on Workforce Protections on April 28,
2010, described a textile worker who was fired for reporting to
his employer that he had become ill from smoke exposure during
the production process. OSHA dismissed his case because he
filed his claim 62 days after being terminated.\84\ Many
workers do not learn that the protected activity motivated the
personnel action until much later than the 30 day filing
period. Further, they often do not learn of their legal rights
until after the filing deadline has expired.
---------------------------------------------------------------------------
\83\Whistleblower and Victim's Rights Provisions of H.R. 2067, the
Protecting America's Workers Act: Hearing before the Subcomm. on
Workforce Protections of the H. Comm. on Education and Labor, 111th
Cong. (2010) (testimony of Jordan Barab). He testified: ``Section 11(c)
was innovative and forward looking in 1970, but 40 years later it is
clearly antiquated and in dire need of substantial improvement. . . .
There is no reason that workers speaking up about threats to their
safety and health should enjoy less protection than workers speaking up
about securities fraud or transportation hazards.'' See also, GAO,
Workplace Safety and Health: Enhancing OSHA's Records Audit Process
Could Improve the Accuracy of Worker Injury and Illness Data, supra
note 67.
\84\Hearing, supra note 83 (testimony of Jordan Barab).
---------------------------------------------------------------------------
Moreover, unlike many other whistleblower statutes,
claimants under 11(c) have a minimal review process and lack
any right to a hearing before an impartial body. Within 90 days
after a complaint is filed, the Secretary of Labor is obliged
to ``notify the complainant of his determination.'' According
to OSHA's Whistleblower Investigations Manual,\85\ an OSHA
regional office is responsible for conducting the
investigation.\86\ Each OSHA Regional Administrator (RA) has
the authority to make determinations and approve settlement
agreements.\87\ While 11(c) provides that this determination
must be made within 90 days, OSHA usually takes longer, and in
2009, averaged 151 days.\88\ If an RA finds that a case has
``merit'' and cannot settle it between the parties, it refers
it to the Solicitor of Labor (SOL). In 2009, RAs referred 2% or
24 cases to SOL.\89\
---------------------------------------------------------------------------
\85\Occupational Safety and Health Agency, Whistleblower
Investigations Manual, Directive No. DIS0-0.9 (August 22, 2003), http:/
/www.osha.gov/OshDoc/Directive_pdf/DIS_0-0_9.pdf.
\86\Section 11(c) is not ceded to states under Section 18 of the
OSH Act. Complaints filed in states in which federal OSHA enforces the
OSH Act are investigated by federal OSHA; those filed in state-plan
states are investigated by the state. Even though federal OSHA has
concurrent jurisdiction with state plans, the policy in federal OSHA
when it receives an 11(c) complaint involving an employer in a state
plan state, is to refer such complaint back to the state.
\87\If the RA finds that a case has ``merit,'' it is referred to
the Department of Labor's Office of the Solicitor (SOL). If the RA
finds that the case has no merit, the only recourse the complainant has
is to appeal the matter to OSHA headquarters for an informal review.
Attorneys from the SOL and OSHA then review the case and decide whether
to return it to the RA for additional investigation, recommend that the
RA refer the case for litigation, or deny the appeal. Such decisions,
including a decision to deny an appeal, are final and cannot be
reviewed by a court.
\88\In addition, a January 2009 report by the U.S. Government
Accountability Office found that OSHA's program lacks internal
controls, including conducting independent audits of the program to
ensure that the various Regional Administrators consistently apply its
policies and procedures. See GAO, Workplace Safety and Health:
Enhancing OSHA's Records Audit Process Could Improve the Accuracy of
Worker Injury and Illness Data, supra note 67.
\89\In 2009, federal OSHA dismissed 60% (729) of 1,205 cases it
completed that year. Sixteen percent (188 cases) were withdrawn, 22%
(264 cases) were settled, and 2% (24 cases ) were found to have merit.
Of the 999 cases complete by state-plan states that same year, 66% (662
cases) were dismissed, 15% (15 cases) were withdrawn, 14% (136 cases)
were settled, and 5% (50) were found to have merit.
---------------------------------------------------------------------------
Even fewer cases referred to the SOL are actually
litigated. Between October 1, 1995, and October 1, 2009, less
than 7% of the referred merit cases were filed in court. The
specific reasons for this vary from case to case, but given the
demands on the SOL, it is clear that it is interested in taking
only those cases that have a high likelihood of success. In
addition, because the prosecutor bears a high a burden of proof
in 11(c) cases,\90\ the SOL is reluctant to litigate them.
---------------------------------------------------------------------------
\90\In 11(c) cases, the prosecutor must establish by a
preponderance of the evidence that: (1) the complainant engaged in a
protected activity; (2) the employer had knowledge of the protected
activity at the time the discriminatory action took place; and (3) the
discriminatory activity was taken because of the employee's protected
activity. Oftentimes, the employer will offer a non-discriminatory
reason for its adverse action. To prove that articulated reason is not
the real reason for the action, the burden shifts back to the
prosecutor to show that the reason given is merely a pretext. See
Rabinowitz, supra at note 59, citing Reich v. Hoy Shoe Co., 32 F.3d 361
(8th Cir. 1994).
---------------------------------------------------------------------------
The SOL has sole discretion whether or not to litigate a
case, and it cannot be compelled by a court to prosecute a
merit case.\91\ Under the OSH Act, workers with meritorious
claims have no right to file their own private actions in court
or to seek review of the SOL's decision not to pursue a case in
court.
---------------------------------------------------------------------------
\91\See Roger Wood v. Department of Labor and Elaine Chao, 275 F.3d
107 (D.C. Cir. 2001).
---------------------------------------------------------------------------
The case of Neal Jorgensen, an 11(c) whistleblower, who
testified before the Workforce Protections Subcommittee on
April 28, 2010, illustrates the extreme limitations of 11(c).
Mr. Jorgensen worked as a laborer for Plastic Industries in
Preston, Idaho from October 7, 2003 to April 27, 2004. His
employer is engaged in plastic fabrication, extrusion and
recycling, and Mr. Jorgensen worked in the plastic recycling
unit, where he cleaned plastic and baled plastic and cardboard
for recycling. During his employ, Mr. Jorgensen became
concerned about safety at the plant. He worked with balers that
were not up to code and band saws without machine guards.
On April 19, 2004, Mr. Jorgensen filed a complaint with
OSHA's Boise Area office. The next day OSHA conducted an on-
site visit and cited the company for two serious violations (a
bandsaw had no machine guard and a baler's safety feature had
been overridden) and five other than serious violations. OSHA
initially assessed a fine against the company of $2,550, which
was later reduced to $1,500. Seven days later on April 27,
2004, the company terminated Mr. Jorgensen alleging that he was
a poor performer.
Mr. Jorgensen filed an 11(c) complaint within the 30 day
statute of limitations. The case was investigated, and the
investigator determined that the employer's stated reason for
firing him was a pretext, and that he was actually fired for
filing the complaint with OSHA. The employer refused to settle,
and on December 4, 2004, the investigator referred the case to
SOL for prosecution. In a memorandum dated March 18, 2005, the
SOL declined the case stating:
Given the facts of this case, we believe we have an
approximate 25% chance of success. There are two U.S.
District Court judges in Idaho, one of whom is
routinely well disposed towards the government's cases,
and the other who can go either way. These
circumstances compel us to recommend that this matter
not go forward with litigation.
Under 11(c) Mr. Jorgensen had no ability to seek judicial
review of the Solicitor's decision and was left without
recourse to pursue the case on his own. He had found a new job
but was unable to recover his lost wages of nearly $3,000. As
he testified to the Subcommittee:
I thought I did the right thing, but the system did
not work for me. The OSHA law did not provide the
protections I needed and the only lesson the owner of
the company learned is that he can treat his employees
any way he likes, and then lie about it, and nothing
will happen to him. Nothing. Would I recommend that
someone file a whistleblower complaint with OSHA?
Absolutely not, the way the law is written.\92\
---------------------------------------------------------------------------
\92\Hearing, supra note 83 (testimony of Neal Jorgensen).
OSHA Deputy Assistant Secretary Jordan Barab testified
before the Committee that Mr. Jorgensen's case of the
Department opting not to pursue a meritorious claim ``is not an
isolated case. There are many, many cases of those.''\93\
According to Mr. Barab: ``We're operating in a dysfunctional
system. It just doesn't work.''
---------------------------------------------------------------------------
\93\Id. (testimony of Jordan Barab).
---------------------------------------------------------------------------
As these cases point out, section 11(c)'s whistleblower
provisions, where workers have no ultimate private right of
action, are inadequate to protect workers from retaliation, and
they provide workers with little confidence to come forward to
file complaints about health and safety. There is near
universal agreement among workplace safety and health experts
that 11(c) is seriously deficient.\94\
---------------------------------------------------------------------------
\94\Hearing, supra note 83 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
Some state courts have found that Section 11(c)'s
protections are inadequate. For example, in Flenker v.
Willamette Industries,\95\ the Kansas Supreme Court found that
Section 11(c) did not preclude a complainant from pursuing a
state claim for common law discharge under Kansas' public
policy exception to the at-will employee doctrine. The court
stated:
---------------------------------------------------------------------------
\95\967 P. 2d 295 (1998).
---------------------------------------------------------------------------
Section 11(c) does not provide an adequate remedy for
the following reasons: (1) remedy under this section is
only applicable if the Secretary [of Labor] so elects;
(2) pursuit of such remedy must be made within 30 days;
and (3) this section does not allow for pursuit of a
private claim if the Secretary declines to proceed
(unlike other federal whistleblower laws such as the
Energy Reorganization Act).\96\
---------------------------------------------------------------------------
\96\See Kulch v. Structural Fibers, Inc., 667 N.E. 2d 308 (1997),
where in a dissent in a case before the Ohio Supreme Court Justice Cook
made it clear in dictum that 11(c) provided an insufficient remedy for
a whistleblower, and Shawcross v. Pyro Products Inc., 916 S.W. 342
(1995), where a court found that the 11(c) provision of OSHA did not
provide an adequate remedy.
Section 11(c) currently does not provide for preliminary
reinstatement, and employees, who may wait years for OSHA to
determine whether their case has merit, can suffer severe
financial hardship. Public policy to encourage workers to raise
safety and health concerns to their employers or the
government, should not require these workers to have to bear
the burden of illegal employer conduct when their retaliation
claim is deemed by the Labor Department to have merit. In
contrast to the OSH Act, the Mine Act authorizes the Review
Commission to order temporary reinstatement where a miner's
claim has been found not to be frivolous.David Michaels, the
Assistant Secretary for OSHA, was asked by Representative Kildee at the
Committee's legislative hearing on July 13, 2010, on H.R. 5663 what
elements in the legislation would help OSHA leverage its limited
resources. Along with penalties, Dr. Michaels cited the whistleblower
protections in the bill as very important:
Workers are the eyes and ears of OSHA. They have more
on the line in terms of safety than any of us. They are
the ones whose arms and lungs are in danger, so they
have to feel free to raise issues of safety. And if
they don't have adequate whistleblower protection, and
frankly, under the current OSHA [they don't], then they
can't raise problems without the fear of losing their
jobs, and they can't call OSHA without fear of losing
their jobs. So that alone will have a great impact.\97\
\97\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
Solution: Section 701 expands the scope of statutorily
protected activities by covering an employee's refusal to work
when he reasonably believes that performing such duties would
result in a serious injury to or impairment of health to
himself or other employees. The scope of protected activity
also covers reporting of illnesses, injuries or unsafe
conditions to employers, and 701 provides for this, essentially
codifying regulations promulgated by OSHA.\98\ Section 701
provides that an employee who testifies before Congress in a
matter related to safety and health, or who refuses to violate
any provision of the OSHA Act, is protected from discrimination
or retaliation under Section 11(c).
---------------------------------------------------------------------------
\98\29 C.F.R. 1977.9(c).
---------------------------------------------------------------------------
Section 701 extends the statute of limitations for filing a
complaint of discrimination from 30 days to 180 days--the same
statute of limitations applicable to other modern whistleblower
laws such as the Consumer Product Safety Improvement Act.
Section 701 requires the Secretary of Labor to investigate
all 11(c) cases if it finds that the complaint alleges a prima
facie case. It gives the Secretary the authority to issue
subpoenas in connection with the investigation, and it places
time limits on the Secretary's investigation of charges of
discrimination by requiring that her initial determination
about whether there is reasonable cause to believe that a
violation has occurred be made within 90 days after the filing
of a complaint. If the Secretary issues a decision in favor of
the complainant, she must issue an order, which includes
preliminary reinstatement or other appropriate relief,
including compensatory damages, attorney's fees, and as
appropriate, exemplary damages.
Section 701 sets out an administrative procedure with the
opportunity for a hearing on the record, and review by a review
board. Within 30 days of the Secretary's determination to grant
or deny relief, or to dismiss a case without investigation (or
within 120 days if the Secretary fails to issue a decision), a
complainant may request a de novo hearing on the record before
an administrative law judge (ALJ). The ALJ, who is empowered to
issue subpoenas in order to conduct a hearing, must issue its
decision (along with an order and any appropriate relief)
within 90 days. A complainant or a respondent then has 30 days
from the ALJ's decision to file an appeal with an
administrative review board designated by the Secretary to
review the case to determine if the ALJ's factual findings are
supported by substantial evidence and whether its order was
made in accordance with the law. This decision is required to
be issued within 90 days after the review board's receipt of
the appeal and may be reviewed by the Court of Appeals. If
either the ALJ or review board fails to make its determination
in a timely manner, then the complainant has the right to file
for a de novo proceeding on his case in federal district court.
Section 701 permits an employee, whose employer is located in a
state-plan state, to file a complaint--at his option--with
either the Secretary or a state plan administrator; however,
the Secretary may not refer a complaint filed with federal OSHA
back to the state plan state.
The whistleblower provisions in Section 701 of H.R. 5663 do
not break new ground but merely mirror modern whistleblower
statutes, such as the Consumer Product Safety Improvement Act
of 2008 and the recently passed Patient Protection and
Affordable Care Act. Section 701 establishes a meaningful
administrative procedure for review of cases, including a right
to a hearing before an administrative law judge, appeal to an
administrative review board, and judicial review. In addition,
the bill contains mandatory deadlines within which DOL,
administrative law judges, and the appeals board must act with
regards to complaints and appeals.
Settlement agreements reached between the parties in the
administrative review process cases must comport with the
letter and spirit of the OSH Act and in conformity with good
public policy. As a result, section 701 provides that no
settlement can be accepted by the Secretary, ALJ, or review
board if it conflicts with the rights protected under the OSH
Act or is contrary to public policy. This includes any
restrictions on the complainant's right to future employment
with another employer or on their rights to free speech with
regard to matters pertaining to their employment, such as the
right to testify in any proceeding involving the employer.
A complainant alleging discrimination has the burden of
proving that protected activity was a ``contributing factor''
to the adverse action. The employer can overcome this by
demonstrating by clear and convincing evidence that the
employer would have taken the same adverse action in the
absence of such conduct. The ``contributing factor'' test has
been a feature of whistleblower statutes since 1989.\99\
---------------------------------------------------------------------------
\99\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
A contributing factor is any factor which, alone or in
combination with other factors, tends to affect in any way the
outcome of the decision. To establish that protected activity
was a contributing factor in the decision to take an adverse
action, a complainant may rely on established means of proof
such as timing, disparate treatment, and animus. However, the
traditional Title VII requirement that the complainant prove
that the employer's proffered reason is pretext is irrelevant
in this framework, since in any retaliation there may be
multiple factors, only one of which need be complainant's
protected activity. Thus, a complainant may demonstrate by a
preponderance of the evidence that the employer's reason, while
true, is only one of the reasons for its action, so long as
another factor is the complainant's protected activity.
Moreover, once the complainant proves that his protected
activity was a contributing factor, a decision and order
favorable to the complainant must be issued, unless the
respondent demonstrates by clear and convincing evidence that
it would have taken the same adverse action in the absence of
the protected activity. Clear and convincing evidence is that
which demonstrates that it is highly probable that the
affirmative defense is true.
Several professional health and safety organizations,
including the American Public Health Association, ORC
Worldwide, and the American Industrial Hygiene Association
support these updated whistleblower provisions.
SEC. 702--VICTIMS' RIGHTS
Problem: OSHA is required to investigate all fatalities and
any accident resulting in the hospitalization of three or more
employees.\100\ Victims and family members who suffer grievous
losses can provide very useful information and ideas during the
investigatory stage and into the enforcement process.\101\
However, the OSH Act is currently silent with regard to the
rights of victims and their families. OSHA has guidance that
instructs field staff to keep victims and their families
informed about investigations of fatalities and incidents
involving serious injuries or illnesses.\102\ However, as a
matter of practice, OHSA only keeps victims and family members
informed on a sporadic basis, and in general does not provide
families with any meaningful input into the process. As
Assistant Secretary Michaels testified at the Committee's July
13, 2010, legislative hearing on H.R. 5663: ``No one is more
affected by a workplace tragedy than workers and their
families.''\103\ Victims and their families should be granted
some basic rights to access information during OSHA's
investigatory and enforcement process.
---------------------------------------------------------------------------
\100\29 C.F.R. 1960.29(b).
\101\Hearing, supra note 83 (testimony of Celeste Monforton).
\102\Directorate of Enforcement Programs, OSHA, Fatality/
Catastrophe Investigation Procedure, Directive No. CPL 02-00-137 (April
14, 2005). In addition, under the Directive, the Area Director must
send a standard information letter to the employee's emergency contact
or next of kin and keep them up to date on the investigation, including
providing them with a copy of all citations, settlement agreements, and
decisions of the Occupational Safety and Health Review Commission
(OSHRC) as soon as they are available.
\103\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
Solution: Section 702 amends section 658 of the OSH Act by
giving a seriously injured worker or family member the right
to: meet with OSHA prior to the issuance of a citation; receive
copies of a citation at no cost; be informed of any notice of
contest and receive pleadings regarding appeals before the
Occupational Safety and Health Review Commission (OSHRC); and,
make a statement in the presence of the parties (or provide a
written statement to the parties) before any agreement to
withdraw or modify a citation is finalized. Under section 702,
a family member would be provided the opportunity to appear and
make a statement before the Review Commission, but would not be
conferred formal ``party status''. Before making its decision,
the OSHRC would be required to provide due consideration of the
statement or any other information provided by the victim or a
family member. It is the intent that such statement or
information should be provided the same weight as provided to a
party that was granted permission to participate as an amicus
curae. Section 702 provides for the designation of at least one
employee in each area office to serve as a family liaison to
keep victims and family members informed of the status of
investigations, enforcement actions and settlement
negotiations, and to assist them in asserting their rights
under this section.
SEC. 703--CORRECTION OF SERIOUS, WILLFUL, OR REPEATED VIOLATIONS
PENDING CONTEST AND PROCEDURES FOR A STAY
Problem: Section 9(a) of the OSH Act requires that each
citation ``fix a reasonable time for the abatement of the
violation,'' but it provides little incentive for prompt
abatement because the abatement period does not begin to run
until after litigation before the OSHRC has concluded. Thus, an
employer that challenges an OSHA citation can delay correction
of cited violations for ``months or years after the hazard has
been identified.''\104\ When hazards are not corrected because
of lengthy contest proceedings, there are real consequences for
workers. OSHA recently conducted an analysis and found that
between FY1999 and FY2009, there were 33 contested cases that
had a subsequent fatality at the same site prior to the
issuance of a final order.\105\
---------------------------------------------------------------------------
\104\Id.
\105\Id.
---------------------------------------------------------------------------
Oregon, which has its own OSHA state-plan, requires
employers to abate violations during the contest period for
serious violations. This provision, which was adopted in 1977,
has been in place for over 30 years and has never been
challenged in court. In addition, Oregon's OSHA program has no
record of any employer having sought a formal stay of abatement
even though Oregon provides employers the right to petition for
one. Moreover, according to Michael Wood, the administrator of
the Oregon OSHA state-plan, one of the many advantages of
requiring abatement during contest is that in settlement
negotiations, there is no pressure to settle in order to
achieve corrections of hazards in a timely manner. As such,
Oregon consistently has a relatively high rate of retaining
penalties originally issued.
The overwhelming majority of employers abates violations in
a timely manner and do not contest their OSHA citations. In
fact, in 2009, only 7.1% of inspections with citations were
contested by employers.\106\
---------------------------------------------------------------------------
\106\Hearing, supra note 2 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
There is precedent for requiring prompt abatement. Under
the Mine Act, employers are required to abate hazards
identified by MSHA within a reasonable abatement period. Unless
the operator obtains temporary relief, the operator must abate
the violation while litigation is ongoing. As far back as 1992,
and based on MSHA's experience, GAO suggested that Congress
require protection of workers while employer contests are
pending.\107\
---------------------------------------------------------------------------
\107\GAO, Occupational Safety and Health: Options to Improve Hazard
Abatement Procedures in the Workplace, HRD-92-105 (1992).
---------------------------------------------------------------------------
Solution: Section 703 would amend the OSHA Act to require
that the employer abate all serious, willful or repeat
violations within the period designated by the Secretary and
that an employer's contest to the OSHRC shall not operate to
postpone the requirement to correct the violation. However, the
existing provisions of the OSHA Act, which permit the employer
to toll the requirement to abate violations that are not
serious, willful or repeated, would remain unchanged.
Section 703 provides due process by permitting an employer
to immediately apply to the OSHRC for a stay of the abatement
if it is contesting the violation or if it believes that the
time set for abatement is unreasonable. At a proceeding on the
stay, which must be held on an expedited basis, the employer
must show both that it has a substantial likelihood of success
on the underlying violation and that a stay will not adversely
affect the health and safety of workers. OSHRC is required to
develop rules for conducting a hearing on an expedited basis,
but outlines the minimum requirements for the process: the
hearing must be held within 15 days following the application
and a decision must be provided by an ALJ within 15 days after
the hearing (unless the employer seeks an extension). The
employer is entitled to appeal the ALJ's decision by filing an
objection with the Commission within 5 days of the receipt of
the decision. The Commission, so long as a quorum is present,
must decide whether to grant review within 10 days, and if it
does must issue a decision within 30 days after the receipt of
an objection.
If no decision has been made on whether to grant review, or
the Commission declines the review, or after granting review,
it does not make a decision on a timely basis, the ALJ's
decision becomes the final order of the Commission.
The Committee understands that there is a hypothetical
possibility that requiring abatement of a serious violation
during contest may force a few employers who could ultimately
prevail in their challenge to a citation to spend money to
correct problems that are not ultimately sustained by the
OSHRC. However, based on Oregon's experience, this concern
appears remote, if not entirely misplaced. The expedited stay
proceeding provided in section 704 is available to those
employers who believe that the time set by OSHA for abatement
is unreasonable and should be extended. An employer can
petition for modification of the abatement period in Oregon as
well. The bill ensures both due process rights to challenge a
citation and the timely correction of serious hazards that
could cause serious bodily injury or death.
SEC. 705 AND 706--CIVIL AND CRIMINAL PENALTIES
Problem: Civil penalties for workplace safety and health
violations under the OSH Act are inadequate and often
considered the cost of doing business. The average penalty for
assessed serious violations of the OSH Act is less than $1,000.
In 2009, the median penalty assessment for all OSHA
investigations involving a fatality was $6,750; after
negotiations, the penalty was reduced to $5,000.\108\ Even for
a willful violation that causes the death of a worker, the
median penalty in 2009 was $29,400 less than one half of the
statutory maximum.\109\ In addition, these penalties, which
have not been increased in 20 years, are not adjusted to
account for inflation, which reduces their real dollar value by
nearly 40%. Except for the IRS, OSHA is the only federal
enforcement agency that is not covered by the Federal Civil
Penalties Inflation Adjustment Act of 1990, which mandates that
agencies re-calculate their penalties once every 4 years to
account for inflation. At the Committee's July 13, 2010,
legislative hearing Assistant Secretary Michaels pointed out
since OSHA can visit only a limited number of workplaces,
adequate civil (and criminal) penalties can make employers
``think again'' about ignoring health and safety
standards.\110\
---------------------------------------------------------------------------
\108\Hearing, supra note 2 (testimony of Lynn Rhinehart).
\109\AFL-CIO, supra note 55, at 16.
\110\Hearing, supra note 2 (testimony of David Michaels).
---------------------------------------------------------------------------
He also pointed out how woefully inadequate these penalties
are as compared to other laws:
The Department of Agriculture is authorized to impose
a fine of up to $140,000 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 when a performer curses on air.
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.\111\
\111\Id.
---------------------------------------------------------------------------
Assistant Secretary Michaels also related the story of Jeff
Davis who was killed while working at an oil refinery in
Delaware in 2001. At the refinery, a tank full of sulfuric acid
exploded, and the body of Jeff Davis ``literally dissolved in
the acid.'' OSHA's penalty was $175,000. Yet, in the same
incident, the EPA found thousands of dead fish and crabs and
assessed the employer with a $10 million fine for violations of
the Clean Water Act.
This Committee has also examined the limitations that OSHA
has with regard to enforcement against multi-state employers
with poor safety and health records at more than one of its
establishments.\112\ On March 6, 2007, Mr. Torres-Gomez, a 46-
year old Cintas washroom employee, died in an accident at
Cintas' Tulsa, Oklahoma, plant when he was caught by a large
robotic conveyor used to transfer uniforms from washers to
dryers, and died inside the dryer as it operated for 20 minutes
at 300 degrees.
---------------------------------------------------------------------------
\112\Improving Workplace Safety: Strengthening OSHA Enforcement of
Multi-Site Employers: Hearing Before the Subcomm. on Workforce
Protection of the H. Comm. on Education and Labor, 110th Cong. (2008).
http://edlabor.house.gov/hearings/2008/04/improving-workplace-safety-
str.shtml.
---------------------------------------------------------------------------
Cintas is the largest uniform supplier in North America,
with more than 400 facilities employing more than 34,000
people. About two years before the Tulsa incident, on July 7,
2005, OSHA alerted employers, workers and inspectors about the
need for special protection from robotic laundry shuttle
equipment like the one used at the Tulsa plant. And one month
later, on August 8, 2005, at the request of Cintas employees
concerned about this hazard, OSHA inspectors investigated the
company's Central Islip, NY, facility and cited the company for
the very violations which the bulletin addressed. Cintas
installed commercially-available guarding technology at Islip
but failed to address the same deadly hazard in its Tulsa
plant.
The Committee discovered that failures to address safety
hazards on a company-wide basis was a common problem, and that
OSHA's ``Enhanced Enforcement Program'' (EEP),\113\ which was
adopted for this very purpose, was wholly inadequate.\114\
While the EEP program looked good on paper, it was too limited.
First, it left OSHA with too much discretion on whether to
follow the policy or not, resulting in inconsistency in its use
by area offices. Moreover, OSHA's own data from 2003 to 2008
showed that while the Agency designated about 2,000 cases for
enforcement under EEP, the program was in fact not being used
to target multi-site employers.\115\ Frank White, Vice-
President of ORC Worldwide, a management and consulting
membership firm for business, testified before the Workforce
Protection Subcommittee that the EEP had only been used by OSHA
in a limited fashion.\116\
---------------------------------------------------------------------------
\113\OSHA News Release, March 11, 2003.
\114\Hearing, supra note 112 (testimony of Randy Rabinowitz). Ms.
Rabinowitz testified that, ``The EEP program was adopted in response to
the New York Times/Frontline expose on corporate-wide indifference to
health and safety at the McWane Company, and OSHA's inability to
identify the horrifying pattern of misconduct at the company. Under the
policy, when OSHA identifies high gravity serious violations at a
facility, it considers whether to initiate additional enforcement
action at that facility or at others.''
\115\Id.
\116\Hearing, supra note 112 (testimony of Frank White).
---------------------------------------------------------------------------
OSHA has now recognized that the EEP has not been
effective, and on June 18, 2010, OSHA published Directive CPL
02-00-149\117\ establishing its Severe Violator Enforcement
Program (SVEP), which replaces the EEP. The Directive states
that the SVEP will focus on ``inspecting employers who have
demonstrated indifference to their OSH Act obligations by
committing willful, repeated, or failure-to-abate
violations.''\118\
---------------------------------------------------------------------------
\117\http://www.osha.gov/pls/oshaweb/
owadisp.show_document?p_table=DIRECTIVES&p_
id=4503.
\118\Id.
---------------------------------------------------------------------------
According to OSHA, its SVEP enforcement actions for
``severe violator cases'' include ``mandatory follow-up
inspections, increased company/corporate awareness of OSHA
enforcement, corporate-wide agreements, where appropriate,
enhanced settlement provisions, and federal court enforcement
under Section 11(b) of the OSH Act.''\119\ The new system also
provides for nationwide referral procedures, including for OSHA
state plans. The SVEP, which will target severe violators, is a
step in the right direction in addressing hazards at companies
with multi-state facilities.
---------------------------------------------------------------------------
\119\Id.
---------------------------------------------------------------------------
Finally, under current law, OSHA cannot cite an employer
for a repeat violation if the original violation occurred in
one of the states with its own OSHA state plan. Assistant
Secretary Michaels explained the consequences of this weakness
in the present civil penalty structure:
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.\120\
---------------------------------------------------------------------------
\120\Hearing, supra note 50 (testimony of David Michaels).
If civil OSH Act penalties are too meager to serve as a
deterrent, the threat of criminal prosecution for OSH Act
violations for a fatality is even less of a threat. These
criminal sanctions only apply in the case of a fatality, and
prosecutors are reluctant to spend their limited resources on
these cases, not because they don't have merit, but because
they are misdemeanors and, upon conviction, the penalties--up
to 6 months in jail and a $10,000 fine--are simply a ``slap on
the wrist.'' Under the Resource Conservation and Recovery Act
(RCRA), which regulates the treatment and disposal of hazardous
waste, it is a felony (with up to 15 years in jail/up to
$250,000 for an individual; $1 million for an organization) to
knowingly endanger a person (including a worker) during the
commission of a hazardous waste violation. A death or serious
injury is not required for a conviction. The Clean Water Act
and the Clean Air Act have similar criminal provisions. Even
under the Wild Free-Roaming Horses and Burros Act, 16 U.S.C.
1338, a defendant can receive up to one year in jail for
harassing a wild horse or burro on public lands.\121\
---------------------------------------------------------------------------
\121\Id.
---------------------------------------------------------------------------
In the 40 years since the passage of the OSH Act, fewer
than 80 cases have been criminally prosecuted, resulting in a
total of about 89 months in jail.\122\ During this time over
300,000 employees died in workplace incidents.\123\ By
contrast, in 2009 alone, 387 criminal enforcement cases were
initiated under the criminal environmental laws (including the
Clean Air Act and the Clean Water Act) involving 200
defendants, resulting in 76 years of jail time and $96 million
in fines.\124\ There are more cases, fines and jail time in one
year under these two environmental laws than has ever been
imposed under the OSH Act in its entire 40-year history.
---------------------------------------------------------------------------
\122\Hearing, supra note 2 (testimony of Lynn Rhinehart).
\123\AFL-CIO, supra note 55, at 16.
\124\Id.
---------------------------------------------------------------------------
In addition, the OSH Act applies to ``willful'' violations.
``Willful'' is a mens rea standard which has been interpreted
by the OSHA OSHRC, the administrative body that reviews
contested penalties and assesses civil penalties, to mean ``an
intentional violation of the Act or plain indifference to its
requirements.''\125\ Under the Commission's interpretation of
willful, knowledge of the law is not required to find that an
employer has committed a willful violation; they need only be
aware ``that a condition was hazardous to the safety or health
of employees and made little or no effort to determine the
extent of the problem or take corrective action.''\126\
---------------------------------------------------------------------------
\125\Are OSHA's Penalties Adequate to Deter Health and Safety
Violations? Hearing Before the H. Comm. on Education and Labor, 111th
Cong. (2009) (testimony of David Uhlmann). See United States v. Dye
Construction, 510 F.2d 78 (10th Cir. 1975) (criminal violation); see
also Valdak Corp. v. OSHRC, 73 F.3d 1466 (8th Cir. 1996); and Ensign-
Bickford Co., v. OSHRC, 717 F.2d 1419, 1422 (D.C Cir. 1983), cert.
denied, 104 S. Ct 1909 (1984) (administrative violations).
\126\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------
Some courts have approved this interpretation of
``willful'' in cases reviewing the Commission's administrative
determinations. For example, the 8th and D.C. Circuits found
willful violations of OSHA health and safety standards when the
owner of a car wash knew that a lock on his industrial dryer
was broken but failed to fix it, resulting in the amputation of
an employee's arm,\127\ and when a fireworks company knew of
the dangers of combustible materials being used in certain
procedures but failed to prevent an explosion.\128\ At least
one court has also applied this interpretation in the criminal
context. In United States v. Dye Construction, the 10th Circuit
held that a construction company willfully failed to comply
with an OSHA safety standard when it did not support the sides
of a trench, resulting in the trench's collapse and the death
of an employee.\129\ The Court defined a willful violation as
one ``done knowingly and purposely by an employer who, having a
free will or choice, either intentionally disregards the
standard or is plainly indifferent to its requirement.''\130\
---------------------------------------------------------------------------
\127\Valdak Corp. v. OSHRC, 73 F.3d 1466 (8th Cir. 1996).
\128\Ensign-Bickford Co., v. OSHRC, 717 F.2d 1419, 1422 (D.C Cir.
1983), cert. denied, 104 S. Ct 1909 (1984).
\129\510 F.2d 78 (10th Cir. 1975).
\130\Id. at 81.
---------------------------------------------------------------------------
This administrative definition is similar to the
``knowing'' standard under environmental and other criminal
laws, which requires that a defendant possess knowledge of the
facts that constitute the offense, not knowledge that the
conduct at issue was unlawful. However, in most criminal
contexts, ``willful'' connotes a higher mental state
requirement,\131\ which requires that the defendant ``acted
with the knowledge that his conduct was unlawful.''\132\ Under
those circumstances, a defendant could escape liability if he
committed a willful violation that killed a worker, but was not
aware he was breaking the law. As David Uhlmann, a professor at
the University of Michigan Law School and former Chief of the
Environmental Crimes Division pointed out in testimony to the
Committee in 2009, the requirement of a ``willful'' criminal
standard ``could make ignorance of the law a defense, contrary
to the time-honored maxim of American jurisprudence that
ignorance of the law is not an excuse.''\133\ The Committee
believes that to ensure consistency and the even application of
the OSH Act's criminal provision, the ``willful'' standard
should be changed to a ``knowing'' one.
---------------------------------------------------------------------------
\131\Protecting America's Workers Act: Modernizing OSHA Penalties:
Hearing Before the Subcomm. on Workforce Protections of the H. Comm. on
Education and Labor, 111th Cong. (2010) (testimony of John Cruden).
\132\Hearing, supra note 125 (testimony of David Uhlmann).
\133\Id.
---------------------------------------------------------------------------
In addition, only ``employers'' (which consists of sole
proprietors and corporate entities), and not corporate officers
and directors, can be prosecuted for criminal violations of the
OSH Act. This means that those individuals who engage in the
criminal conduct are immune from prosecution. This is contrary
to the environmental laws and the Mine Act, which provide for
liability for those officials.\134\ The case of United States
v. Hansen,\135\ is instructive on this point. In that matter,
the chief executive officer, vice-president and plant manager
of Hansen, a chemical company that manufactured bleach, soda,
gas, and acid, were charged and convicted under the Clean Water
Act for knowingly endangering workers who often stood in
contaminated water while at work. They were sentenced to prison
(108 months for the CEO; 46 months for the VP; and 78 months
for the plant manager) for their illegal conduct. While the
company had also been cited for willful violations under the
OSH Act, the individual officers could not have been
prosecuted, and no one was killed as a result of their actions.
---------------------------------------------------------------------------
\134\Hearing, supra note 2 (testimony of Lynn Rhinehart).
\135\United States v. Hansen, 262 F. 3d 1217 (11th Cir. 2001).
---------------------------------------------------------------------------
In 2005, the Environmental Crimes Division at the
Department of Justice launched its Worker Endangerment
Initiative (WEI) with the goal of prosecuting those companies
and company officials who systematically violate both federal
environmental and worker safety laws. This initiative has been
very successful only because of the strong criminal enforcement
provisions in the federal environmental and criminal laws; of
the hundreds of cases that have been successfully prosecuted,
only two have involved convictions under the OSH Act.\136\
---------------------------------------------------------------------------
\136\Hearing, supra note 131 (testimony of John Cruden).
---------------------------------------------------------------------------
One of the 2 cases involved McWane, a privately owned
company and one of the largest pipe manufacturers in the world.
During the 1990's and the first part of this decade, its
facilities were extremely dangerous places to work. From 1995
to 2003, 4,600 of its workers were injured. However, despite
McWane's dismal safety record, the only time it had been
convicted criminally was in 2002 when it was found guilty of a
misdemeanor under the criminal provisions of the OSH Act for a
willful violation, which caused the death of worker (he was
crushed to death) at its facility in Tyler, Texas. McWane's
safety issues became the subject of a series of articles in the
New York Times and a story on Frontline.\137\
---------------------------------------------------------------------------
\137\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------
Criminal cases against McWane for violations of the worker
safety and environmental laws at five of its facilities ensued,
including the Atlantic States facility in New Jersey, arguably
the most dangerous of all its plants. McWane had engaged in a
wide-spread conspiracy to violate health and safety laws,
including its concealment of the death of a worker and the
injuries of others. The Justice Department prosecuted the case
under criminal and environmental laws. The company received a
fine of $8 million and four individual defendants were
sentenced from six months to 5 years in prison. No criminal
charges were brought under the OSH Act. As Professor Uhlmann
testified before this Committee in 2009, ``There were no
criminal charges brought under the OSHA Act because there were
no felony charges available, and the one possible misdemeanor
count (for the worker death) would have lengthened the trial
and distracted from the more serious felony charges.''\138\
McWane did plead guilty to criminal charges under the OSH Act
for violations at its Union Foundry facility in Alabama and
received a fine.\139\ However, because it had been convicted
under federal environmental and other criminal laws that had
stiff penalties, McWane and its management paid a high price.
As a result, it has changed its behavior and has made a
significant commitment to safety and to complying with
regulatory laws.\140\
---------------------------------------------------------------------------
\138\Id.
\139\Id. The company (and senior management) was also convicted
under the criminal and environmental laws for crimes committed at its
four other facilities.
\140\Id.
---------------------------------------------------------------------------
This contrast between criminal penalties under the OSH Act
and other laws is also illustrated by the result in United
States vs. Elias.\141\ Allen Elias, the owner of a fertilizer
company, ordered workers to remove cyanide-laced sludge from a
25,000 gallon railroad car. He did not tell his employees what
was in the car and did not provide them any personal protective
equipment. When a worker named Scott Dominguez collapsed inside
the car, Elias lied about the content of the sludge to both the
emergency workers at the scene and the attending physician. The
incident caused Mr. Dominguez to suffer permanent brain injury.
Elias was convicted under RCRA (the Resource Conservation and
Recovery Act),\142\ which regulates hazardous waste, and he
received 17 years in prison and a $6 million fine. He could not
be prosecuted under the OSH Act's criminal provisions because
Mr. Dominguez did not die. And even if he could have been
prosecuted and had been convicted, he would have only served 6
months in jail and paid a $10,000 fine.\143\
---------------------------------------------------------------------------
\141\269 F.3d 1003 (9th Cir. 2001).
\142\42 U.S.C. Sec. Sec. 6901-6992.
\143\Hearing, supra note 131 (testimony of John Cruden).
---------------------------------------------------------------------------
A similar result occurred in the prosecution of BP after an
explosion at its Texas City Refinery in Texas City, Texas in
2005, an accident that killed 15 workers and injured 170
others. For its violations of health and safety laws, BP
settled with OSHA and paid a $21 million civil penalty. The
Justice Department successfully prosecuted BP under its
criminal provisions in the Clean Air Act, and BP agreed to pay
a $50 million fine.\144\
---------------------------------------------------------------------------
\144\Hearing, supra note 2 (testimony of Lynn Rhinehart).
---------------------------------------------------------------------------
Only a small percentage of workplace facilities and serious
injuries involve the release of harmful substances into the
environment. In 2007, for example, only 9% of worker fatalities
involved a violation of an environmental law.\145\ Thus,
environmental laws cannot serve as a replacement for OSHA's
criminal provisions.
---------------------------------------------------------------------------
\145\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------
SEC. 705--CIVIL PENALTIES
Solution: To better deter future violations, Section 705
increases the minimum penalty for a willful violation from
$5,000 to $8,000 and increases its maximum penalty from $70,000
to $120,000. A serious violation, defined as a violation that
causes a substantial probability of death or serious harm,
would be increased from a maximum of $7,000 to $12,000. These
increases are intended to correct for the erosion due to
inflation since 1990.\146\
---------------------------------------------------------------------------
\146\Inflation adjusted penalties for a willful violation would be
a minimum of $8,347 and a maximum of $116,851; for a serious or other
than serious violation, a failure to correct a hazard, and a failure to
post the penalty would be a maximum of $11,785.
---------------------------------------------------------------------------
Under current law, there is no increase in penalty when a
willful or serious violation results in a fatality. Given that
OSHA's penalties are tied to the gravity of the harm, when a
worker loses his or her life due to the employer's conduct, a
higher penalty should apply. A willful violation resulting in a
fatality would carry a minimum penalty of $50,000 and a maximum
penalty of $250,000. An employer with 25 employees or less
would pay a minimum fine of $25,000.
A serious violation resulting in a fatality would carry a
minimum penalty of $20,000 and a maximum of $50,000, and the
minimum for an employer with 25 employees or less would be
$10,000. An ``other than serious'' violation and a failure to
comply with any OSHA posting requirements would be increased by
a maximum of $7,000 to a maximum of $12,000. The failure to
abate a safety or health hazard in the time set for that
abatement, employers could be assessed a maximum daily penalty
of $12,000 up from $7,000 under current law.
Section 705 requires the Secretary and the OSHRC, in
determining whether a violation is repeated, to consider the
employer's history of violations, including violations that
have occurred in state-plan states. Finally, Section 705
mandates that the Secretary indexes these penalties for
inflation at least once every 4 years.
These penalties will not affect the ability of OSHA to
settle cases, because the Agency retains the discretion to
compromise a penalty so long as it is above the minimum
prescribed in Section 705. In addition, while the provisions of
Section 702 give families the right to be heard if a penalty is
withdrawn or reduced, OSHA still has the authority to withdraw,
reduce or re-designate violations.
SEC. 706--CRIMINAL PENALTIES
Problem: While most companies comply with health and safety
standards and other requirements in the OSH Act, they are at a
competitive disadvantage with those that flout the law.\147\
This Committee believes that strong criminal penalties level
the economic playing field for law abiding companies that
devote significant resources to compliance with worker safety
laws.
---------------------------------------------------------------------------
\147\Hearing, supra note 131 (testimony of John Cruden).
---------------------------------------------------------------------------
An aggressive criminal enforcement program provides an
important deterrence to illegal activity. Assistant Secretary
Michaels testified at the July 13, 3010 legislative hearing on
H.R. 5663 that aggressive law enforcement activities in Texas
and California in the 1980's dramatically improved occupational
safety and health. In Texas, ``the number of trenching
fatalities dropped from 15 to 2 in one year when one county
adopted a well-publicized criminal prosecution effort.''\148\
As well, in Los Angeles County, officials established a
criminal prosecution program that improved safety and health
compliance. The Assistant Secretary also cited ongoing efforts
by New York State to swiftly prosecute violators.\149\
---------------------------------------------------------------------------
\148\Hearing, supra note 2 (testimony of David Michaels).
\149\Id.
---------------------------------------------------------------------------
According to Professor Uhlmann, strong criminal enforcement
has other benefits as well. Where there is a ``credible
enforcement threat, companies are quicker to resolve
administrative penalty actions and respond more productively to
regulatory actions.'' He testified that the OSHA inspectors
trained as part of the WEI describe companies that are
``indifferent or hostile to OSHA compliance officers.''
Professor Uhlmann testified ``that would not be the case if the
OSHA enforcement scheme included a more significant criminal
enforcement threat than the current OSHA Act provides.''\150\
---------------------------------------------------------------------------
\150\Hearing, supra note 125 (testimony of David Uhlmann).
---------------------------------------------------------------------------
The penalties for advance notice of an inspection or making
false statements, which apply to individuals as well, are also
misdemeanors, each carrying 6 month prison sentences. An
advance notice of inspection carries a maximum fine of $1,000,
while making a false statement has a maximum fine of $10,000.
This Committee finds it inconceivable that there are only minor
penalties for someone who tips off an employer that an
inspector is on his way to inspect a workplace, particularly
when advance notice allows an employer to temporarily fix
hazards and hide others from view.
Solution: Section 706 expands section 666(e) of the OSH Act
by making ``knowing'' criminal violations a felony that can
carry a maximum penalty of 10 years (and a fine in accordance
with 18 U.S.C. Sec. 3571) for a first offense and 20 years (and
a fine under 18 U.S.C. Sec. 3571) for a repeat offense. To be
convicted the violation must significantly contribute to the
death of an employee. Providing advance notice of an inspection
carries a maximum prison term of 5 years or a fine pursuant to
18 U.S.C. Sec. 3571, or both.
Section 706 allows prosecutions resulting in a maximum
prison term of 5 years for a first offense and 10 years for a
second for knowing violations, which cause or significantly
contribute to serious bodily harm. Under section 706, serious
bodily harm is defined as a ``bodily injury that involves a
substantial risk of death; protracted unconsciousness;
protracted and obvious physical disfigurement; or protracted
loss or impairment, either temporary or permanent, of the
function of a bodily member, organ or mental faculty.'' The
Committee believes that this definition of serious bodily harm
is straightforward, includes only the most serious of harms,
and is capable of objective application by courts, prosecutors,
and juries. The Committee does not intend that routine, minor,
everyday ailments be viewed as seriously bodily injury. These
offenses also carry fines under 18 U.S.C. Sec. 3571.
The Committee believes that the mental state (mens rea)
requirement for criminal prosecutions under the OSH Act should
be clarified so there is no doubt it conforms to the
administrative standard developed by the OSHRC, and follows
other federal criminal and environmental laws. As Assistant
Secretary Michaels testified before this Committee: ``Using a
knowing standard would ease the burden on prosecutors by
harmonizing these worker safety provisions with similar (or
comparable or analogous) crimes.\151\ The Department of Justice
has urged this change as the best way to capture those
employers who knowingly engage in illegal activity and a worker
dies or is seriously injured.\152\
---------------------------------------------------------------------------
\151\Hearing, supra note 2 (testimony of David Michaels).
\152\Hearing, supra note 131 (testimony of John Cruden).
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Section 706 adds the term ``any officer or director'' to
the definition of ``employer'' for purposes of criminal
liability under the Act. This expanded provision is similar to
the provisions of the Clean Air Act (42 U.S.C. Sec. 7401 et
seq.) and Clean Water Act (33 U.S.C. Sec. 1319(c)(6)) that
include ``responsible corporate officers'' among ``persons''
who may be held criminally liable under those statutes. The
Committee intends this provision to criminalize only action or
inaction by corporate officers or senior managers when they (1)
know that the conduct is occurring, (2) have the authority and
ability to correct, or cause the correction, of the act or
condition, and (3) fail to exercise their authority to take
appropriate action to prevent the action or correct the act or
condition. The Committee also subscribes to the position,
articulated in related case law, that the failure of the
corporate official to have actual knowledge of the violative
act or condition will not act as a barrier to criminal
liability where there is evidence that the official knowingly
shielded himself or herself from information necessary to gain
requisite knowledge--in other words, was ``willfully blind'' to
a violative act or condition.
While the Committee believes that enhanced criminal
penalties are a strong deterrent to violations of the OSH Act,
given the hurdles that will still remain to successful
prosecution, the potential universe of criminal OSHA cases will
likely be small. Civil enforcement will remain predominant
under the OSH Act. A criminal conviction is much harder to
obtain than a finding of civil liability under the OSH Act. In
criminal cases, the prosecution must prove each element of the
violation beyond a reasonable doubt, whereas in civil cases
OSHA only must prove the violation by a preponderance of the
evidence. Also, under section 706 criminal cases, the
prosecution must demonstrate that the violation caused or
significantly contributed to the death or serious bodily injury
of an employee. Both of these hurdles will undoubtedly
influence the Secretary's decision in referring cases to the
DOJ and its decision as to whether to seek prosecution.
Finally, the Committee has no intention of impeding state
efforts to criminally prosecute those who flout safety and
health laws. Therefore, Section 706 provides that nothing in
the OSH Act shall preclude criminal prosecution under these
state and local laws of general applicability.
SEC. 707--PRE-FINAL ORDER INTEREST
Problem: There is little in current law to discourage
employers from filing contests to gain the benefit of the time
value of money. One tool that would assist OSHA would be the
authority to assess pre-judgment interest. In addition, to be
consistent with the Mine Act, the same post-judgment interest
rate should apply to OSH penalties.
Solution: The bill authorizes prejudgment interest from the
date of contest to the date of final order at the rate charged
by the IRS. Interest is not payable if the employer prevails.
Post-judgment interest is already authorized, and this
legislation sets an 8% interest rate, the same as the Mine Act.
SEC. 708--REVIEW OF STATE OCCUPATIONAL SAFETY AND HEALTH PLANS
Problem: Currently, under Section 20(a)(6) of the OSH Act,
only an employer or authorized representative of a worker may
request NIOSH to conduct a Health Hazard Evaluation (HHE) of
workers' exposures to toxic substances. Yet physicians and
state or local health departments often are the first to be
made aware of new and emerging health hazards, while other
federal agencies often are made aware of potential occupational
hazards when addressing other issues at a workplace.
Since the enactment of the OSH Act, substances other than
toxic substances, such as ``a physical agent, equipment or
working conditions'' have been recognized as important hazards
to worker health. The HHE Program does not have authority to
address a hazard other than a ``substance'' in a general
working environment (OSH Act), although the program can address
a ``substance or physical agent'' in a mining environment under
the Miner Act.
Solution: As the percentage of workers represented by
organized labor has declined since the passage of the OSH Act,
the need to allow for other entities to request assistance from
NIOSH has become evident. Section 708 expands the list of those
individuals who can request that NIOSH conduct a HHE to include
representatives of former workers, physician, another federal
agency, or a state or local health department. It also expands
the issues that can be covered in a HHE to go beyond toxic
substances to include physical agents, equipment, or working
conditions.
SEC. 711--EFFECTIVE DATE
The Committee intends for the provisions of Title VII to
take effect as soon as possible and provides for an effective
date of 90 days after enactment. In addition, section 711
requires state-plan states to amend their plans to conform to
Title VII within 12 months after enactment. However, the
Committee does recognize that because some state legislatures
do not meet every year, it is possible that a state-plan state
could not meet the 12-month deadline. As such, Section 711
provides that the Secretary may provide an extension to a
state-plan state by an additional 12 months. In that case, the
provisions of Title VII would take place within 90 days after
the state adopts the amendments.
Amendment at Mark-up Related to OSHA
On July 21, 2010, the Committee marked up H.R. 5663, and
one amendment to the OSH Act was voice voted and approved. The
Titus Amendment amends section 667 of the OSH Act by
establishing a formal mechanism for OSHA to identify a problem
with a state plan and compelling a remedy without beginning the
process for withdrawing approval; ensures continued application
of health and safety regulations by providing OSHA with
concurrent enforcement authority for the duration of the time
that a state plan is formally remedying deficiencies or being
withdrawn, after 30 days notice of official federal action and
an opportunity for a public hearing; and holds federal OSHA
accountable for providing strong oversight and guidance to
state plans by establishing a regular Government Accountability
Office (GAO) study--one every five years--to look at the
effectiveness of state plans and the Secretary of Labor's
oversight of such plans.
Worker safety will benefit to the extent that OSHA has
tools to ensure that state OSHA plans are at least as effective
as federal OSHA standards and enforcement, by giving federal
OSHA options other than complete plan termination when a state
plan is found to be underperforming. For the 27 states/
territories with approved state plans, OSHA is very few tools,
short of the threat of termination, to compel a state to better
enforce worker safety and health laws. It can request that the
state do so and hope the state complies or terminate the state
plan altogether, which is an extreme step that would remove
state control, leave state and local government employees
unprotected, and add costs to DOL for funding and running a
health and safety program in the state. The Titus amendment
provides a middle ground between these extremes.
The Committee also recommends that the Secretary, in
consultation with State plans, establish minimum staffing
benchmarks in each State and update these benchmarks at least
every 5 years. The factors to be consider in establishing these
benchmarks should include the number of employers, the heavy
industry population, the number of employees, and the size of
vulnerable worker populations.
V. Section-by-Section Analysis
Sec. 1--Short Title, Table of Contents. The Act may be
cited as the ``Robert C. Byrd Miner Safety and Health Act of
2010.''
Sec. 2--References. Except in Title VII or otherwise
expressly provided, an amendment will be considered made to the
Federal Mine Safety and Health Act of 1977.
TITLE I--ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY
Sec. 101.--Independent Accident Investigations. Requires
independent investigations of any mine accident involving 3 or
more deaths, or for other severe accidents as designated by the
HHS Secretary. The HHS Secretary appoints a 5-member Panel
which is chaired by a representative from National Institute
for Occupational Safety and Health's (NIOSH) Office of Mine
Safety Research. The Panel must include members with expertise
in accident investigations, mine engineering, or mine safety
and health; and include one individual who represents mine
operators and one representative of a labor organization that
represents miners. The Panel is charged with investigating and
preparing a report on the causes and contributing factors of
the accident, including acts or omissions by MSHA itself. The
report must identify the strengths and weaknesses in MSHA's
accident investigation, and include recommendations to prevent
recurrence. Within 90 days of enactment, the Secretary of HHS
must establish procedures to ensure the consistency and
effectiveness of these investigations, and enter into a
Memorandum of Understanding with the Secretary of Labor to
facilitate coordination and provide access for Panel members to
MSHA's investigative activities, interviews and information.
The Committee urges that this Memorandum be made public.
Sec. 102.--Subpoena Authority and Miner Rights During
Inspections and Investigations. Provides MSHA the authority to
subpoena documents and testimony in carrying out inspections
and investigations. MSHA lacks authority to subpoena witnesses
or documents, except when it is conducting an accident
investigation through a public hearing. Clarifies that MSHA (or
a DOL attorney) can interview mine employees and other
individuals with relevant information privately without the
presence, involvement, or knowledge of the operator, his agent,
or attorney, provided that an individual may bring his own
attorney to any interview.
Voluntary safety and health self-audits are conducted by
some mine operators to identify violations or hazards and
establish corrective actions plans. Effective July 28, 2000,
the Occupational Safety and Health Administration issued a
policy which provides that the agency will not routinely
request self-audit reports at the initiation of an inspection,
and the Agency will not use self audit reports as a means of
identifying hazards upon which to focus during an
investigation. In addition, where a voluntary self audit
identifies a hazardous condition and the employer has corrected
the violative condition prior to the initiation of any
inspection and taken steps to prevent the recurrence of the
condition, the Agency will refrain from issuing a citation. To
encourage voluntary self audits and prompt corrective actions,
the Secretary is urged to develop a similar policy with regards
to the Mine Act.
Sec. 103.--Designation of Miner Representative. Provides
that, if a miner is trapped in a mine or is otherwise prevented
as a result of an accident to designate a representative, this
Act authorizes the closest relative of the miner to designate
such a representative (current law says only a miner can
designate a representative). Authorizes a representative of
miners to participate in accident investigations, including
interviews, unless the Secretary in consultation with the
Attorney General excludes such representatives from the
investigation on the grounds that inclusion would interfere
with or adversely impact a criminal investigation that is
pending or under consideration.
Sec. 104.--Additional Amendments Relating to Inspections
and Investigations. Clarifies that inspections are to be
conducted by MSHA inspectors during all shifts and days of the
week when miners are present.
Directs the Secretary of Labor to review the Secretary's
most recent evaluation for a mine's pattern status with
appropriate mine officials during a regular inspection, if so
requested.
Requires that operators and contractors report occupational
injuries, illnesses, deaths, and man-hours worked for miners in
their employ or under their direction or authority for each
mine, and requires that these reports or logs submitted to MSHA
shall be signed and certified as accurate and complete by a
knowledgeable and responsible person possessing a certification
or other approval issued by MSHA or a state agency that issues
miner certifications. Knowingly falsifying such records or
reports shall be grounds for revoking such certification under
standards established by MSHA for certifications issued by
states or MSHA. In establishing mandatory certification
standards for MSHA or the states under Section 118(b)(1), the
section requires that one basis for revocation include knowing
falsification of accident, injury, illness and man-hours
reports required by the Secretary under Section 103 of the Mine
Act.
Following an accident, authorizes MSHA to issue ``control
orders'' under Section 103(k) of the Mine Act without having to
be physically present. Current law requires MSHA to be
physically present to issue such orders.
An operator's attorney is prohibited from representing both
the operator and any other individual, including a miner, in an
accident investigation unless there is a voluntary and knowing
waiver of all foreseeable conflicts of interest by the
individual. Authorizes the Secretary to petition a federal
district court to disqualify such attorney as counsel to an
individual, if the Secretary finds that such individual cannot
be adequately represented due to conflicts of interest.
TITLE II--ENHANCED ENFORCEMENT AUTHORITY
Sec. 201.--Technical Amendment. Clarifies that the
Secretary may cite an employer not only for violations of
mandatory health and safety standards under Section 104(d), but
also for any violations of the Mine Act, or regulations
promulgated under the Mine Act.
Sec. 202.--A Pattern of Recurring Noncompliance or
Accidents. Mines with significantly poor compliance with health
and safety standards that result in unsafe or unhealthy
conditions shall be placed in ``pattern status,'' if the mine
has a pattern of:
(1) citations for S&S violations;
(2) citations and withdrawal orders caused by an
unwarrantable failure to comply with mandatory health
and safety standards;
(3) withdrawal orders for imminent danger or
withdrawal orders under any other section of the Act;
(4) citations for flagrant violations; and
(5) accidents or injuries; or
(6) any combination of these citations, orders,
accidents and injuries.
In establishing regulations to trigger pattern status, MSHA
must consider the frequency and rates of citations, and the
rates of reportable accidents and injuries within the preceding
180-day period, and assign weights to citations, orders,
illnesses or injuries or other factors. In addition, MSHA may
consider other factors, such as mine type, production levels,
number of miners, hours worked, number of mechanized mining
units, and the designation of representatives of miners at the
mine, and the mine's history of noncompliance or rates of
reportable incidents and injuries. Excluded from the orders
counted towards pattern status are the so-called ``control
orders'' under Section 103(j) or 103(k) of the Act, which MSHA
issues after accidents to protect miners' lives and facilitate
rescue and recovery.
Citations are the basis for placing a mine in pattern
status--not final orders. MSHA is required to issue a final
interim regulation that defines the threshold criteria that
triggers pattern status and the performance benchmarks 120 days
after enactment. A final rule is required 2 years after the
date of enactment.
Not less than once every six months, MSHA must identify
mines which meet the criteria to trigger pattern status.
MSHA has the discretion not to place an otherwise
qualifying mine in pattern status if it certifies that there
are mitigating circumstances wherein the operator has already
implemented remedial measures which has eliminated any elevated
risk to the safety and health of miners, and has taken
sufficient measures to ensure that elevated risk will not
recur. To provide transparency, MSHA must publish the written
finding that there are mitigating circumstances that would
preclude placing the mine on pattern status within 10 days on
the web site for MSHA and provide copies to the House Education
and Labor Committee and Senate HELP Committee.
Once a mine is placed in pattern status, MSHA is required
to:
(1) Notify the mine operator that it must withdraw
all miners from the mine; and
(2) Issue a remediation order tailored to conditions
at the particular mine within 3 days.
The remediation order may require additional training, an
effective health and safety management program, the employment
of safety professionals, certified persons or adequate number
of personnel to implement the remediation plan, increased
reporting, and a timetable for completion. MSHA is authorized
to communicate with miners (outside the presence of operators)
about conditions in the mine, and also to advise them of their
rights under the Act. MSHA may reinstate a withdrawal order if
an operator fails to comply with the remediation order while in
pattern status. MSHA can modify the remediation order or extend
deadlines, but only on a showing by the operator that the
operator took all measures to comply with the order and only if
it was prevented from doing so by factors outside its control.
The mine-wide withdrawal order is lifted when the Secretary
verifies that all violations or conditions have been or are
being fully corrected as outlined in the remediation order (or
if other plans or orders have unfulfilled requirements) and the
operator has completed specific requirements in the remedial
order that are prerequisites for reopening the mine.
Once in pattern status, the mine is on probation for at
least 1 year, during which the mine is subject to double the
number of regular inspections: For underground mines that means
8 regular inspections per year instead of 4. MSHA will assess
and collect fees from each mine in pattern status for the cost
of these additional inspections. MSHA will issue a fee schedule
through a rule within 120 days of enactment.
Once a mine is on pattern status, MSHA will review a mine's
performance every 90 days to determine whether it has met
``performance benchmarks.'' Within 90 days, a mine must improve
to the point that it has during the previous 90-day period:
Reduced the rate of citations for S&S
violations by 70% (provided that the rate is not
greater than the mean for mines of similar size and
type), or
The mine has reduced its rate of S&S
violations so that it is in the top performing 35th
percentile for all mines of similar size and type.
Reduced the rate of accidents and injuries
so that it is in the top performing 35th percentile for
mines of similar size and type, and
Has been issued no withdrawal orders,
imminent danger orders, or citations for flagrant
violations during this period.
If a mine fails to meet these benchmarks within any 90-day
period, the Secretary may issue another withdrawal order to
remedy conditions that led to pattern status, and may modify
the remediation order. Section 301(b) provides that, if after
180 days on pattern status, the mine fails to meet these
benchmarks, penalties for violations shall be doubled.
A mine can be removed from pattern status if, for a 1-year
period:
The mine reduced the rate of citations for
S&S violations by 80% (provided that the rate is not
greater than the mean for mines of similar size and
type), or
Reduced its rate of S&S violations so that
it is in the top performing 25th percentile for all
mines of similar size and type.
The mine's rate of accidents and injuries
are in the top performing 25th percentile for all mines
of similar size and type, and
The mine has been issued no withdrawal
orders, imminent danger orders, or citations for
flagrant violations during this period.
If a mine operator fails to meet these performance
benchmarks, MSHA must extend the mine's placement in pattern
status until the benchmarks are achieved for a 1-year period.
If a withdrawal order was issued as a result of factors
entirely beyond the operator's ability to prevent or control
(such as seal leakage due to rapid change in barometric
pressure), and no citation was issued in connection with such
withdrawal order, such withdrawal order shall not be counted as
a disqualifying factor for purposes of removing an operator
from pattern status.
Mine operators can obtain an expedited review by the
Federal Mine Safety and Health Review Commission (Review
Commission). MSHA must establish and maintain a publically
available, easily searchable electronic database with the
information the Secretary uses to establish pattern status and
make publically available mines placed in pattern status within
7 days of such placement, and provide guidance to assist
operators and the public in assessing each mine's performance
relative to criteria set forth in regulations.
Sec. 203.--Injunctive Authority. Provides the Secretary of
Labor with the authority to seek an injunction to close a mine
for a ``course of conduct'' which, in the judgment of the
Secretary, constitutes a continuing hazard to the health and
safety of miners, including violations of the law or health and
safety standards or regulations. Course of conduct means a
pattern of conduct composed of 2 or more acts.
Sec. 204.--Revocation of Approval of Plans. Authorizes the
Secretary to revoke a plan which is based upon inaccurate
information or that circumstances have materially changed from
the time that the plan was approved and continued operation
under such plan constitutes a hazard to miners. The Secretary
is authorized to issue a withdrawal order upon such revocation,
until the operator has submitted and the Secretary has approved
a new plan.
Sec. 205.--Challenging a Decision to Approve, Modify, or
Revoke a Coal or other Mine Plan. Codifies an ``arbitrary and
capricious'' standard of review for the Review Commission or
courts to decide appeals regarding the Secretary's decision to
approve, modify, or revoke a mine plan.
Sec. 206.--GAO Study on MSHA Mine Plan Approval. Directs
the Government Accountability Office to assess factors that
contribute to delays in MSHA's approval of required plans for
underground coal mines, and to make recommendations for
improving timeliness of plan review and for achieving prompt
decisions.
TITLE III--PENALTIES
Sec. 301.--Civil Penalties. Operators in pattern status
will be assessed double penalties for any violations, if the
mine fails to improve enough to meet performance benchmarks
after 180 days in pattern status. Fines may not exceed the
maximum statutory penalty.
Operators who violate the anti-retaliation provisions in
Section 105(c) the Mine Act shall be assessed a civil penalty
of between $10,000 and $100,000 for the first violation, and
between $20,000 and $200,000 for repeat offenses within a 3-
year period. This penalty is in addition to remedies afforded
to miners or employees under Section 105(c).
Sec. 302.--Civil and Criminal Liability of Officers,
Directors and Agents. Clarifies that Section 110(c) of the Mine
Act extends the civil and criminal liability of directors,
officers, or agents to all types of operators regardless of the
legal form of business organization. To eliminate ambiguity,
the legislation replaces the term ``corporate operator'' with
the term ``operator'' to ensure that all types of operators are
covered without regard to form of their business organization.
This change will eliminate any question that limited liability
corporations, partnerships and other forms of business
organization are covered operators. Actions covered in this
section are expanded to cover any officer or director who
knowingly authorizes or carries out a policy or practice that
resulted in a violation of a standard or failure or refusal to
comply with an order.
Sec. 303.--Criminal Penalties. For violations of mandatory
health and safety standards, the intent standard for criminal
conduct in Section 110(d) of the Mine Act is changed from a
``willful'' to a ``knowing'' violation. ``Knowing'' remains the
criminal standard for an operator who violates, fails to or
refuses to comply with an order.
The Mine Act's current criminal misdemeanor is retained for
an operator who knowingly violates a mandatory health and
safety standard, or violates or fails or refuses to comply with
any order. Unchanged is the current fine of not more than
$250,000 for the first instance, or 1 year in prison, or both.
For a subsequent knowing violation of the same mandatory health
and safety standard or order, the fine for a conviction is
increased from $500,000 to $1,000,000, and but the legislation
retains the existing felony provisions of up to 5 years
imprisonment, or both.
New felony provisions are established for instances where
the operator knowingly violates a mandatory health and safety
standard or violates, or fails or refuses to comply with an
order, and knowingly exposed miners to a significant risk of
serious injury or illness or death. In the first instance, such
violation is punishable. For a subsequent conviction of the
same violation, punishment shall be by a fine of not more than
$2,000,000, or by imprisonment for not more than 10 years, or
both. An additional category of felony is added if an operator
knowingly tampers with or disables a required safety device
which exposes miners to a significant risk of serious injury or
illness or death, punishment shall be by a fine of not more
than $2,000,000, or by imprisonment for not more than 10 years,
or both.
Retaliation.--Authorizes criminal penalties against any
person who engages in retaliation that is directly or
indirectly harmful to any person, including action that
interferes with lawful employment or livelihood of any person,
because that person has provided any information related to a
violation of mine safety and health violations or an
unhealthful or unsafe condition, policy or practice under the
Mine Act to MSHA, a federal law enforcement officer or a state
mine safety agency. The penalties include a fine of up to
$250,000 for an individual and up to 10 years imprisonment, or
both, and up to $500,000 for an organization.
Advance Notice of Inspection.--Authorizes criminal
penalties for any person who knowingly gives, causes to give,
or attempts to give or cause to give, advance notice of any
inspection with the intent to impede, interfere with, or
adversely affect the results of any inspection. Penalties are
increased from a misdemeanor to a felony with 5 years/maximum
or $250,000 for an individual, and $500,000 for an
organization. Requires operators to post a notice, in a form
and manner to be prescribed by the Secretary, stating that such
advance notice is unlawful and sets forth maximum penalties for
a violation.
Sec. 304.--Commission Review of Penalty Assessments.
Requires the Review Commission to assess penalties using the
same methodology used by MSHA to calculate proposed fines,
however, the Review Commission can use the statutory penalty
criteria when there are extraordinary circumstances, or the
type of penalty is not based on an MSHA regulation in place
(currently regulations do not specify a methodology for special
assessment). Currently, MSHA uses a formal system of points to
calculate penalty amounts based on statutory factors.
Currently, Review Commission and its administrative law judges
can apply their own discretion using statutory criteria under
Section 110(i) of the Mine Act, but are not bound to use MSHA's
penalty formula.
Sec. 305.--Delinquent Payments and Prejudgment Interest.
Provides for prejudgment interest on contested fines and
penalties based on IRS interest rates. Operators who fail to
pay finally-adjudicated penalties within 180 days face a
withdrawal order until they pay their overdue fines or make
timely payments on a payment plan.
TITLE IV--WORKER RIGHTS AND PROTECTIONS
Sec. 401.--Protection from Retaliation. If the nation's
mine safety and health program is to be truly effective, miners
will have to play an active part in the enforcement of the Act.
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. This provision strengthens anti-retaliation
provisions in Section 105(c) of the Mine Act by prohibiting any
person from discharging or taking adverse action against a
miner, other employee, or applicant for employment because that
person has (1) complained about any unsafe condition in a mine;
(2) instituted any proceeding related to this Act, or testified
or is about to testify in any such proceeding, or exercised any
right provided by this Act; (3) testified or is about to
testify to Congress or any federal or state proceeding related
to safety or health in a mine, or has reported an injury or
illness to an operator or agent; (4) refused to violate any
provision of this Act (including a mandatory health and safety
standard, a regulation, an order or a plan); or (5) such miner
is the subject to a medical evaluation and potential transfer.
In addition, a miner or other employee cannot be retaliated
against for refusing to work if the employee has a ``good-faith
and reasonable belief'' that performing his duties would pose a
safety or health hazard to himself or any other miner or
employer.\153\
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\153\Good faith belief means honest belief that a hazard exists.
The purpose of this requirement to remove the Act's protection work
refusals involving fraud or other forms of deception [such as] lying
about the existence of an alleged hazard, deliberately causing one or
otherwise acting in bad faith. See: Secretary of Labor on behalf of
Robinette v United Castle Coal Co. The belief must be based on what a
``reasonable person'' would conclude confronted with the same
circumstances. The miner or other employee, when practicable, is
required to communicate or attempt to communicate the concern to the
operator and have not received a response that allays the concern.
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This section extends the statute of limitations for filing
a complaint from 60 to 180 days. Within 15 days of receipt of a
complaint, the Secretary is required to begin an investigation
and make a determination whether or not the complaint was
frivolously brought. Under current law, if the Secretary finds
the complaint was not frivolously brought, she shall, on an
expedited basis, apply to the Review Commission or an order of
immediate reinstatement of the miner. The Secretary must
complete the investigation, and if she finds retaliation, must
immediately file a complaint with the Review Commission along
with a proposed order for permanent relief. If the Secretary
finds that a violation has not occurred, the miner (or
applicant) has the option of filing a complaint with the Review
Commission. A complainant alleging discrimination has the
burden of proving that protected activity was a ``contributing
factor'' to the adverse action. The employer can overcome this
by demonstrating by clear and convincing evidence that the
employer would have taken the same adverse action in the
absence of such conduct.
Under this section, the Review Commission's existing
authority to order make whole remedies is expanded to provide
for exemplary damages. This legislation does not alter Review
Commission precedent in Moses v Whitley Development
Corporation, 4 FMSHRC 1475 (1982), that adverse action taken
against a miner because of the mistaken suspicion or belief
that the miner had engaged in protected activity nonetheless
violates Section 105(c) of the Mine Act.
Sec. 402--Protection from Loss of Pay. Retains the existing
provision of Section 111 of the Mine Act which provides
payments to miners who are idled due to an MSHA withdrawal
order for the balance of their shift and for 4 hours on the
next working shift, including orders issued under Sections 103,
104, 107, 108, or 110 of the Mine Act. However, after the 2nd
working shift, the operator shall pay miners their full pay who
are idled for up to 60 days, provided that miners are idled due
to an order issued under Sections 104, 107 (in connection with
a citation), 108 or 110. Payments shall be made regardless of
the result of any review of such order. This section authorizes
payments to miners who are idled for up to 60 days when the
operator closes the mine in anticipation of an MSHA withdrawal
order, except in those circumstances when the operator promptly
withdraws miners due to a hazard and notifies MSHA, if
required, within the prescribed time period. This is intended
to ensure that mine operators, who try to game the system by
keeping miners exposed to a hazard until just before MSHA
issues a withdrawal order will have to pay miners who are
idled. However, if a mine operator promptly withdraws miners
rather than continue to expose them to a hazard, and notifies
MSHA where required, and MSHA subsequently issues an order, the
mine operator will not be liable for the pay of idled miners.
The section provides for an expedited proceeding and decision
before the Review Commission using the same time frames as are
provided for the review of emergency response plans. If a miner
or other employee is not paid, current law provides that he can
file a complaint with the Review Commission which can order
payment, and authorizes reasonable attorney fees and costs to a
miner who prevails in whole or in part. Further, this section
authorizes the Secretary to close a mine which fails to pay its
miners by the next regular payroll period.
Sec. 403--Underground Coal Miner Employment Standard for
Mines Placed in Pattern Status. For three years after an
underground coal mine is placed on pattern status, hourly
workers at an underground coal mine cannot be discharged except
for ``good cause,'' which is defined as ``failure to
satisfactorily perform job duties, including compliance with
this Act . . . or other legitimate business reason,'' following
an employee's probationary period not to exceed 6 months. A
miner who is discharged without good cause has a private right
of action to federal district court within 1 year. If the miner
prevails, a court can take action to further the purposes of
this Act, including ordering reinstatement with back pay and
compensatory damage, and shall award reasonable attorney's fees
and costs to a prevailing miner.
TITLE V--MODERNIZING HEALTH AND SAFETY STANDARDS
Sec. 501.--Pre-shift Review of Mine Conditions. Requires
implementation of a communication program to ensure that each
miner is made aware of the current conditions of the mine at
the start of his shift. This is accomplished by requiring oral
communication between incoming and outgoing miners and shall
include a description of both general conditions and any
specific hazardous conditions or health and safety violations
identified where the miner will be working or traveling. The
intent of this section is for the content of these
communications to be recorded in a log.
Sec. 502.--Rock Dust Standards. Increases the percentage
from 65% to 80% of the amount of rock dust that needs to be
mixed with coal dust in all working areas of underground
bituminous coal mines in order to prevent coal dust explosions.
Currently 80% incombustible content is required in the return
entries, but only 65% is required for intakes and neutral areas
of the mine. This standard was based on research conducted in
the 1920s. However, with the advent of modern mining machinery,
coal dust is much finer today and this fine float dust presents
a greater explosive risk. NIOSH has conducted experiments on
coal dust from every region of the country and recommended that
the law be changed to require 80% total incombustible content
in all entries and returns and neutral areas.
This section also requires operators to take accurate
samples of dust in active working areas of coal mines to ensure
that dust is kept below explosive levels. Sampling will have to
be done using direct reading monitors once the Secretary of
Health and Human Services (HHS) HHS has certified that they are
commercially available and MSHA has approved them as
permissible for use in an underground mine. Currently, samples
have to be sent to a lab and results can take 2 weeks.
Section 502 requires the Secretary of Labor and the
Secretary of HHS to submit a report to the House and Senate
labor committees within 2 years of enactment on whether direct
reading devices are sufficiently reliable and accurate to be
used for enforcement of the rock dust standard. If the report
determines that direct reading devices are sufficiently
reliable and accurate, the Secretary must promulgate a final
rule authorizing the use of direct reading devices for
enforcement purposes. However, measurements taken by operators
or MSHA using the direct reading devices cannot be used in
enforcement actions under this Act, until after such final rule
is promulgated.
Sec. 503--Atmospheric Monitoring Systems. Requires NIOSH to
issue recommendations within 1 year about how atmospheric
monitoring systems could be used in underground coal mines to
improve safety. NIOSH is urged to consult with a technical
working group, and work in partnership with operators, vendors,
state mine safety agencies and labor on opportunities to
install continuous atmospheric monitoring to detect methane, CO
and air flow. Following such report, DOL is required to
promulgate regulations within 1 year requiring operators to
install such systems consistent with NIOSH's recommendations.
Sec. 504--Technology Related to Respirable Dust. Requires
DOL to promulgate regulations requiring operators to use
environmental controls to give miners the maximum feasible
protection from respirable dust, including coal and silica
dust.
Sec. 505--Refresher Training on Miner Rights and
Responsibilities. Requires operators to provide miners with 9
hours of training every 12 months, including one hour of
training on their statutory rights and responsibilities.
Currently the Mine Act only requires instruction in statutory
rights and responsibilities for new miners, and there is no
refresher training requirement. Training on miners' rights and
responsibilities must be conducted by MSHA or an MSHA-approved
trainer independent from the operator, to ensure miners receive
an unbiased explanation of their rights. Requires that MSHA
mandated safety training program must include distribution of
information to miners regarding miners' rights under the Act,
and a toll free hotline telephone number at MSHA to be used for
reporting unsafe conditions or retaliation. Durable wallet
cards with the toll free hotline number shall also be
distributed.
Sec. 506.--Authority to Mandate Additional Training. Gives
the Secretary authority to require an operator to provide
additional training beyond what is normally required if the
mine has experienced a fatal accident or has injury, accident,
S&S citation, or withdrawal order rates that are above the
average for mines of similar size and type.
Sec. 507.--Certification of Personnel. Sets minimum
requirements for states to certify, recertify, and decertify
certain mine personnel. If a state does not meet the minimum
standards for such procedures or cover certain mine
classifications (e.g., mine superintendents), MSHA's
certification processes will apply in that state. Many states
do not have laws covering mandating recertification; others
lack decertification procedures. The Secretary is authorized to
assess and collect a fee from operators to cover the costs for
testing and certification of a miner. MSHA must establish a
database of individuals whose certification, registration or
qualification has been revoked, and to make such information
accessible to states. Section 104 of this legislation
(additional amendments relating to inspections and
investigations) requires that knowingly falsifying a report
under Section 103 of the Mine Act related to accidents,
injuries, illnesses and man-hours worked is grounds for
revoking a certification under this section.
TITLE VI--ADDITIONAL MINE SAFETY PROVISIONS
Sec. 601.--Definitions. Expands the definition of the term
``operator'' to include those who directly or indirectly
``control'' management decisions which impact health and safety
at a mine. This expanded definition will subject entities who
do not directly ``operate'' a mine, but have control over
managerial decisions, to be subject to civil and criminal
enforcement.
Sec. 602--Assistance to States. Expands MSHA's state grant
program to allow grants for upgrading states' miner
certification programs to meet the new requirements established
in this Act. Increases state grant program authorization from
$10 million to $20 million annually.
Sec. 603.--Black Lung Medical Reports. Requires operators
to provide claimants who are required by the mine operator to
submit to a medical examination in connection with a claim
under the Black Lung Program with a complete copy of the
examining physician's report within 14 days, without the need
for the claimant to request the report.
Sec. 604.--Rules of Application to Certain Mines. Section
604 limits the applicability of titles I through VI to all
underground coal mines as well as other underground mines which
are ``gassy'' (including surface mines physically connected to
such mines) Gassy mines emit methane or other flammable gases
and can catch fire or explode. Examples include gilsonite mines
in Utah, trona ore mines in Wyoming, and salt mines in salt
domes in Louisiana The Belle Isle Salt mine in Franklin,
Louisiana caught fire in 1968, killing 21 workers underground.
In June 2010, the Weeks Island salt mine was evacuated due to a
fire.
``Surface facilities . . . physically connected'' to an
underground mine, include surface facilities physically
connected by conveyor belt, and is intended to include surface
lands, shafts, slopes, structures, equipment, coal preparation
and loading facilities, impoundments, retention dams, and
tailings ponds on the surface that are related to mineral
extraction, and private roads and ways so connected. The
application of this section should be applied based on physical
connection, and without regards to whether a surface facility
connected to an underground mine has a different MSHA mine
identification number from the underground mine.
Surface metal/non metal mines and non-gassy underground
metal/non metal mines are exempted from the changes made to the
Mine Act by the Robert C. Byrd Miner Safety and Health Act of
2010, including stone, sand and gravel mines, limestone mines,
cement mines and surface coal mines and coal processing
facilities (except for those surface facilities physically
connected to an otherwise covered underground mine). The
existing provisions of the Mine Act will continue to apply to
these surface and subsurface non-gassy mines. Nothing is
intended to impact the authority of the Secretary to promulgate
or modify regulations pursuant to her authority under the Mine
Act as in effect prior to the enactment of the Robert C. Byrd
Miner Safety and Health Act of 2010 with respect to surface and
non gassy underground mines, nor should this section be
construed to alter or modify any precedent with regards to the
Review Commission or courts.
TITLE VII--AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT
Sec. 701--Enhanced Protections from Retaliation. Employee's
protected activity is expanded under the anti-retaliation
provisions contained in Section 11(c) of the OSH Act to cover:
an employee's refusal to perform work he/she reasonably
believes would result in serious injury or illness or to
violate the Act; an employee's reporting of injuries,
illnesses, or unsafe conditions; and an employee testifying
before Congress.
This section extends the statute of limitations from 30 to
180 days. OSHA must order preliminary reinstatement to
individuals where OSHA has found reasonable grounds that the
claimant was discriminated against. Where DOL declines to
investigate, employees can request a de novo hearing before an
Administrative Law Judge (ALJ).
A complainant alleging discrimination has the burden of
proving that protected activity was a ``contributing factor''
to the adverse action. The employer can overcome this by
demonstrating by clear and convincing evidence that the
employer would have taken the same adverse action in the
absence of such conduct. When an ALJ finds a violation of the
law, she can order reinstatement, preservation of seniority,
back pay with interest, exemplary damages (as appropriate),
attorney's fees, and expungement of adverse information in the
employee's record. Claimants or respondents can seek
administrative appeal within the DOL within 30 days of receipt
of an ALJ decision. Such appeal shall be decided in 90 days.
Judicial review is provided in the Court of Appeals. The
employer's history of violating OSHA's anti retaliation
provisions will be a factor considered by the Occupational
Safety and Health Review Commission when assessing penalties.
If the Labor Department does not investigate, adjudicate,
hear appeals and decide the claim in a timely manner (330
days), the claimant is allowed to ``kick out'' and file suit in
federal district court for a de novo review of the matter.
Claimants employed by employers in OSHA state-plans, can elect
to file their claim with the state OSHA or with federal OSHA,
if a claim is filed with federal OSHA, federal OSHA must
investigate and adjudicate the claim, and may not send the
claim back to the state to have it investigated or adjudicated.
Sec. 702.--Victims' Rights. OSHA must inform family members
of workers killed (or incapacitated from a job related injury)
or victims about OSHA's investigation before final decisions
are made about whether to issue any citations. Victims include
workers who suffered an injury which is the subject of an OSHA
inspection or investigation.
OSHA must provide a copy of any citations or reports
related to the investigation to families or victims at the same
time the employer receives them. OSHA is required to notify
families or victims about formal or informal settlements and
provide families or victims with an opportunity to meet with
OSHA or submit statements prior to reaching any agreement. OSHA
must establish a family liaison in each area office to keep
families and victims informed and assist them in asserting
their rights.
Families and victims must be notified of employer contests;
notified of time and date of any proceeding before the OSHA
Review Commission; be provided copies of all pleadings and
decisions; and be provided an opportunity to appear and make a
statement before the Commission. The Commission must provide
due consideration to statements and information provided by
families.
Sec. 703.--Correction of Serious, Willful or Repeated
Violations Pending Contest and Procedures for a Stay. Requires
employers to correct serious, willful, and repeat violations
while they are contesting citations for OSHA violations. The
OSHA Act allows employers to postpone abatement while they
litigate, which puts workers in harm's way. This forces OSHA to
eliminate penalties or downgrade citations in order to secure
correction of the violation.
Provides employers with the right to seek a temporary stay
of OSHA's abatement order through an expedited proceeding
before an Occupational Safety and Health Review Commission
(OSHRC) ALJ while the merits of the citation are litigated. To
obtain a stay, the employer must show it is likely to succeed
in challenging the underlying the merits of the citation or in
challenging the length of the abatement period, and a stay will
not harm the health and safety of workers. Unions can intervene
as a party. Decisions on a request for a stay must be rendered
within 30 days. Any party can appeal to the full OSHRC, and if
the OSHRC declines to act, or act in a timely manner, parties
can appeal to the Court of Appeals.
Sec. 704.--Conforming Amendment. Allows DOL to assess a
civil penalty up to $7,000 for each day an employer fails to
correct or abate a serious, willful, or repeat violation by the
date established by DOL for correction, unless the OSHRC has
issued a stay.
Sec. 705.--Civil Penalties. OSHA's civil penalties have not
been adjusted for inflation since 1990, due to an exemption in
the Federal Civil Penalties Inflation Adjustment Act. Section
705 increases civil penalties to account for inflation, and
establishes higher penalties when workers are killed due a
willful or serious violation. A reduced penalty is established
for small businesses where workers are killed due to a willful
or serious violation. OSHA must adjust civil penalties for
inflation at least once every 4 years, beginning January 1,
2015 (see Chart #1).
CHART 1--OSHA CIVIL PENALTIES
----------------------------------------------------------------------------------------------------------------
OSHA Current civil Proposed increase in
penalty civil penalty In H.R.
Category of violation -------------------------- 5663
-------------------------
Minimum Maximum Minimum Maximum
----------------------------------------------------------------------------------------------------------------
Willful or Repeated......................................... $5,000 $70,000 $8,000 $120,000
----------------------------------------------------------------------------------------------------------------
Willful of Repeated, resulting in a fatality................ Not in law $50,000a $250,000
----------------------------------------------------------------------------------------------------------------
Serious..................................................... $0 $7,000 $0 $12,000
----------------------------------------------------------------------------------------------------------------
Serious, resulting in a fatality............................ Not in law $20,000a $50,000
----------------------------------------------------------------------------------------------------------------
Other than serious.......................................... $0 $7,000 $0 $12,000
----------------------------------------------------------------------------------------------------------------
Failure to correct (abate) a safety or health hazard........ $0 $7,000/day $0 $12,000/day
----------------------------------------------------------------------------------------------------------------
Failure to post............................................. $0 $7,000 $0 $12,000
----------------------------------------------------------------------------------------------------------------
\a\This minimum is reduced by half for employers of 25 or fewer employees.
When assessing penalties for repeat violation, Section 705
also authorizes OSHA and the Review Commission to consider the
history of similar violations in state-plan states as well as
federal OSHA states. Currently, federal OSHA must overlook
violations in 21 different states when assessing an employer's
past history with respect to repeat violations.
Consistent with the objective of addressing repeat
violations across multi-establishment employers, the Committee
urges the Secretary, when bringing enforcement actions against
multi-establishment employers to assess whether there is a
potential for the same or similar violations to be repeated at
the employer's other establishments. As part of such
assessment, the Secretary should use its authority under the
Act to obtain data on injury and illnesses across all similar
establishments. For employers receiving a ``high-severity''
violation from OSHA as part of OSHA's Severe Violator
Enforcement Program, the Secretary should consistently evaluate
all of the employer's similar establishments to determine
whether the violation exists at such establishments and certify
to OSHA that the hazards were abated or that the violation does
not exist at any comparable establishment. This policy can and
should be achieved through improvements to the Field Operations
Manual.
Sec. 706.--Criminal Penalties. Section 706 increases the
criminal penalty and modifies the intent standard for a
violation that causes a worker's death. Penalties are increased
from a misdemeanor to a felony (see Chart #2). Under this
section, knowing violations which cause or contribute to the
death of a worker are designated as felonies with a maximum
fine of $250,000 for individuals and $500,000 for
organizations, or a 10-year prison term, or both. Knowing
violations which cause ``serious bodily harm'' are subject to
maximum fine of $250,000 for individuals and $500,000 for
organizations or a 5-year prison term, or both. Serious bodily
harm is defined as an injury or illness that involves a
substantial risk of death, protracted unconsciousness, obvious
physical disfigurement, or loss or impairment (either permanent
or temporary) of the function of a bodily member, organ or
mental facility.'' While corporations and sole proprietors are
liable under the OSHA Act, officers and directors of
corporations are immune from criminal liability. Section 706
adds officers and directors as parties who can be prosecuted
for criminal violations.
Section 706 also updates the OSH Act with regards to
unauthorized advance notice of inspections. Strict liability
provision in existing law is replaced with a requirement that a
person must knowingly provide advance notice with the intent to
impede, interfere with or adversely affect the result of an
inspection. Current law provides that advance notice of
inspections by any person is a misdemeanor. Penalties are
increased from a misdemeanor to a felony with 5 years/maximum
or $250,000 for an individual, and $500,000 for an
organization.
Nothing preempts state or local law enforcement agencies
from conducting criminal prosecutions in accordance with state
or local laws.
CHART 2--OSHA CRIMINAL PENALTIES
------------------------------------------------------------------------
Current maximum Criminal OSHA
Category of violation OSHA criminal penalty in H.R.
penalty 5663
------------------------------------------------------------------------
Knowing, resulting in a fatality $10,000; For an individual--
misdemeanor with $250,000; felony
a 6 mo max prison with a 10 yr max
term. prison term.
For an
organization--$50
0,000; felony.
------------------------------------------------------------------------
Knowing, repeat, resulting in a $20,000; For an individual--
fatality. misdemeanor with $250,000; felony
a 1 yr max prison with a 20 yr max
term. prison term.
For an
organization--$50
0,000; felony.
------------------------------------------------------------------------
Knowing, resulting in serious Not in law........ For an individual--
bodily harm. $250,000; felony
with a 5 yr max
prison term.
For an
organization--$50
0,000; felony.
------------------------------------------------------------------------
Knowing, resulting in serious Not in law........ For an individual--
bodily harm. $250,000; felony
with a 10 yr max
prison term.
For an
organization--$50
0,000; felony.
------------------------------------------------------------------------
Advance notice of inspection.... $1,000; For an individual--
misdemeanor with $250,000; felony
a 6 mo max prison with a 5 yr max
term. prison term.
For an
organization--$50
0,000; felony.
------------------------------------------------------------------------
False statements $10,000; For an individual--
misdemeanor with $250,000; felony
a 6 mo max prison with a 5 yr max
term. prison term.
For an
organization--$50
0,000; felony.
------------------------------------------------------------------------
Sec. 707.--Pre-final Order Interest. Authorizes prejudgment
interest from the date of contest to the date of final order at
the rate charged by the IRS. Post judgment interest is already
authorized, and this legislation sets an 8% interest rate, the
same as the Mine Act.
Sec. 708.--Review of State Occupational Safety and Health
Plans. Authorizes the Secretary of Labor to assert concurrent
enforcement authority over a state OSHA plan, if she determines
that there is a failure by the state plan to comply
substantially with any provision of a state plan. Such
amendment provides states with an opportunity for a hearing
regarding an initial determination by the Secretary, provided
such request is made within 10 days of such initial
determination. If the Secretary affirms such determination
following a hearing, the Secretary may inspect and enforce OSHA
standards or under the general duty clause. Requires GAO to
conduct a study every 5 years to assess: whether a sample of
state plans are at least as effective as federal OSHA, whether
federal OSHA's oversight of state plans is effective, whether
the Secretary is adequately investigating Complaints About
State Plan Administration, and to whether the funding formula
for state plans is fair and adequate.
Sec. 709.--Health Hazard Evaluations by the National
Institute for Occupational Safety and Health. Modifies Section
20 of the Occupational Safety and Health Act of 1970 to expand
the list of those individuals who can request that NIOSH
conduct a Health Hazard Evaluation (HHE). This section
authorizes representatives of former workers, physicians,
another federal agency, or a state or local health department
to request an HHE, in addition to employers and employee
representatives who are already authorized to make such
requests. It also expands the issues that can be covered in an
HHE to go beyond toxic substances to include physical agents,
equipment, or working conditions. Such expanded authority
already exists for NIOSH to cover physical agents for miners.
Sec. 710.--Authorization of Cooperative Agreements by the
National Institute for Occupational Safety and Health. Amends
Section 22(h)(3) of the Occupational Safety and Health Act of
1970 to authorize the National Institute for Occupational
Safety and Health through its Office of Mine Safety and Health
to enter into cooperative agreements with international
institutions to improve mine safety and health through new
interventions.
Sec. 711.--Effective Date. Title VII takes effect not more
than 90 days after being enacted, with the exception of state-
plan states, which have 1 year from the date of its enactment
to implement its requirements. In addition, DOL may extend the
1-year period for up to 12 additional months if a state-plan
state's legislature is not in session during the 12-month
period after enactment.
VI. Explanation of Amendments
The Committee adopted a substitute amendment to the bill.
The substitute amendment is described in total in the summary
of the bill above. The Committee adopted four other amendments
to the substitute amendment: Amendment by Ms. Shea-Porter,
Amendment by Ms. Woolsey, Amendment by Mr. Hare, and Amendment
by Ms. Titus. These four amendments are described in the
Legislative History section of this report.
VII. Application of Law to the Legislative Branch
Section 102(b)(3) of Public Law 104-1, the Congressional
Accountability Act, requires a description of the application
of this bill to the legislative branch. H.R. 5663 would have no
impact on the legislative branch insofar as it amends the Mine
Act. The Congressional Accountability Act applies the
Occupational Safety and Health Act to the legislative branch.
VIII. Regulatory Impact Statement
The Committee has determined that H.R. 5663 will have a
minimal impact on the regulatory burden. In fact, H.R. 5663
will reduce the Department of Labor's regulatory burden
significantly by enacting into law or providing specific
guidance on a number of matters that have been pending on its
regulatory agenda for some time.
IX. Unfunded Mandate Statement
Section 423 of the Congressional Budget and Impoundment
Control Act (as amended by Section 101(a)(2) of the Unfunded
Mandates Reform Act, P.L. 104-4) requires a statement of
whether the provisions of the reported bill include unfunded
mandates. This issue is addressed in the CBO letter.
X. Earmark Statement
H.R. 5663 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9 of rule XXI.
XII. Statement of Oversight Findings and Recommendations of the
Committee
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the body of this report.
XIII. New Budget Authority and CBO Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the House of Representatives and section 308(a) of the
Congressional Budget Act of 1974 and with respect to
requirements of 3(c)(3) of rule XIII of the House of
Representatives and section 402 of the Congressional Budget Act
of 1974, the Committee has received the following estimate for
H.R. 5663 from the Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 26, 2010.
Hon. George Miller,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: Based on a review of H.R. 5663, the
Robert C. Byrd Miner Safety and Health Act of 2010 as ordered
reported on July 21, 2010, CBO estimates that enacting this
legislation would not affect direct spending over the 2010-2020
period. However, CBO estimates that the legislation would
increase revenues by $200 million over the 2010-2020 period.
CBO has not completed an estimate of the bill's impact on
discretionary spending.
H.R. 5663 would amend several sections of the Federal Mine
Safety and Health Act of 1977 (FMSHA) and the Occupational
Safety and Health Act of 1970 (OSHA). The bill would require
certain mine operators to implement safety measures to protect
mine workers, require mine operators to comply with new
standards regarding employee rights, and require independent
accident investigations for certain accidents. The bill would
also enhance whistleblower protections and victims' rights
under OSHA.
H.R. 5663 would increase civil and criminal penalties for
violations under both FMSHA and OSHA. Based on information from
the Department of Labor, CBO estimates that $120 million would
be generated from penalties collected under title III (relating
to FMSHA) of the bill and $80 million would be generated from
penalties collected under title VII (relating to OSHA). Because
enacting H.R. 5663 would affect revenues, pay-as-you-go
procedures would apply (see enclosed table).
CBO has determined that the bill contains several private-
sector mandates and one intergovernmental mandate as defined in
the Unfunded Mandates Reform Act (UMRA). Because of
insufficient information about the incremental costs related to
some of the mandates, CBO cannot determine whether the
aggregate cost of those private-sector mandates would exceed
the annual threshold established in UMRA ($141 million in 2010,
adjusted annually for inflation). CBO estimates that the total
cost of the intergovernmental mandate would be small and would
not exceed the annual threshold established for state, local,
and tribal entities ($70 million in 2010, adjusted annually for
inflation).
I hope this information is helpful to you. If you would
like further details on this estimate, the CBO contacts are
Grant Driessen, Sean Dunbar, and Andrea Noda.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 5663, THE ROBERT C. BYRD MINER SAFETY AND HEALTH ACT OF 2010, AS ORDERED REPORTED BY THE HOUSE COMMITTEE
ON EDUCATION AND LABOR ON JULY 21, 2010
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
------------------------------------------------------------------------------------------------------------------------
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2010-2015 2010-2020
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE OR DECREASE (-) IN THE DEFICIT
Statutory Pay-As-You-Go Impact. 0 -20 -20 -20 -20 -20 -20 -20 -20 -20 -20 -100 -200
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Congressional Budget Office.
XIV. Statement of General Performance Goals and Objectives
In accordance with clause 3(c) of House rule XIII, the goal
of H.R. 5663 is to improve the protection of miners in some of
the nation's most dangerous working environments and other
workers from occupational safety and health hazards.
XV. Constitutional Authority Statement
Under clause 3(d)(1) of rule XIII of the Rules of the House
of Representatives, the Committee must include a statement
citing the specific powers granted to Congress in the
Constitution to enact the law proposed by H.R. 5663. The
Committee believes that the amendments made by this bill, which
amends the Federal Mine Safety and Health Act to provide
increased protection to miners and other workers from
occupational safety and health hazards, are within Congress'
authority under Article I, section 8, clause 3 of the
Constitution of the United States.
XVI. Committee Estimate
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 5663.
However, clause 3(d)(3)(B) of that rule provides that this
requirement does not apply when the Committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget Act.
XVII. Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
FEDERAL MINE SAFETY AND HEALTH ACT OF 1977
* * * * * * *
DEFINITIONS
Sec. 3. For the purpose of this Act, the term--
(a) * * *
* * * * * * *
[(d) ``operator'' means any owner, lessee, or other
person who operates, controls, or supervises a coal or
other mine or any independent contractor performing
services or construction at such mine;]
(d) ``operator'' means--
(1) any owner, lessee, or other person that--
(A) operates or supervises a coal or
other mine; or
(B) controls such mine by making or
having the authority to make management
or operational decisions that affect,
directly or indirectly, the health or
safety at such mine; or
(2) any independent contractor performing
services or construction at such mine;
(e) ``agent'' means any person charged with
responsibility for the operation of all or a part of a
coal or other mine or the supervision of [the miners]
any miner in a coal or other mine;
* * * * * * *
(g) ``miner'' means any individual working in a coal
or other mine, and includes any individual who is not
currently working in a coal or other mine but would be
currently working in such mine, but for an accident in
such mine;
* * * * * * *
(m) ``Panel'' means the Interim Compliance Panel
established by this Act; [and]
(n) ``Administration'' means the Mine Safety and
Health Administration in the Department of Labor [.];
(o) ``Commission'' means the Federal Mine Safety and
Health Review Commission [.]; and
(p) ``significant and substantial violation'' means a
violation of this Act, including any mandatory health
or safety standard or regulation promulgated under this
Act, that is of such nature as could significantly and
substantially contribute to the cause and effect of a
coal or other mine safety or health hazard as described
in section 104(d).
* * * * * * *
TITLE I--GENERAL
* * * * * * *
INSPECTIONS, INVESTIGATIONS, AND RECORDKEEPING
Sec. 103. (a) Authorized representatives of the Secretary or
the Secretary of Health, Education, and Welfare shall make
frequent inspections and investigations in coal or other mines
each year for the purpose of (1) obtaining, utilizing, and
disseminating information relating to health and safety
conditions, the causes of accidents, and the causes of diseases
and physical impairments originating in such mines, (2)
gathering information with respect to mandatory health or
safety standards, (3) determining whether an imminent danger
exists, and (4) determining whether there is compliance with
the mandatory health or safety standards or with any citation,
order, or decision issued under this title or other
requirements of this Act. In carrying out the requirements of
this subsection, no advance notice of an inspection shall be
provided to any person, except that in carrying out the
requirements of clauses (1) and (2) of this subsection, the
Secretary of Health, Education, and Welfare may give advance
notice of inspections. In carrying out the requirements of
clauses (3) and (4) of this subsection, the Secretary shall
make inspections of each underground coal or other mine in its
entirety at least four times a year, and of each surface coal
or other mine in its entirety at least two times a year. Such
inspections shall be conducted during the various shifts and
days of the week during which miners are normally present in
the mine to ensure that the protections of this Act are
afforded to all miners working all shifts. The Secretary shall
develop guidelines for additional inspections of mines based on
criteria including, but not limited to, the hazards found in
mines subject to this Act, and his experience under this Act
and other health and safety laws. The Secretary shall, upon
request by an operator, review with the appropriate mine
officials the Secretary's most recent evaluation for pattern
status (as provided in section 104(e)) for that mine during the
course of a mine's regular quarterly inspection of an
underground mine or a biannual inspection of a surface mine,
or, at the discretion of the Secretary, during the pre-
inspection conference. For the purpose of making any inspection
or investigation under this Act, the Secretary, or the
Secretary of Health, Education, and Welfare, with respect to
fulfilling his responsibilities under this Act, or any
authorized representative of the Secretary or the Secretary of
Health, Education, and Welfare, shall have a right of entry to,
upon, or through any coal or other mine. During inspections and
investigations under this section, and during any litigation
under this Act, no attorney shall represent or purport to
represent both the operator of a coal or other mine and any
other individual, unless such individual has knowingly and
voluntarily waived all actual and reasonably foreseeable
conflicts of interest resulting from such representation. The
Secretary is authorized to take such actions as the Secretary
considers appropriate to ascertain whether such individual has
knowingly and voluntarily waived all such conflicts of
interest. If the Secretary finds that such an individual cannot
be represented adequately by such an attorney due to such
conflicts of interest, the Secretary may petition the
appropriate United States District Court which shall have
jurisdiction to disqualify such attorney as counsel to such
individual in the matter. The Secretary may make such a motion
as part of an ongoing related civil action or as a
miscellaneous action.
[(b) For the purpose]
(b) Accident Investigations.--
(1) In general.--For all accident investigations
under this Act, the Secretary shall--
(A) determine why the accident occurred;
(B) determine whether there were violations
of law, mandatory health and safety standards,
or other requirements, and if such violations
are found, issue citations and penalties, and
in cases involving possible criminal actions,
the Secretary may refer such matters to the
Attorney General; and
(C) make recommendations to avoid any
recurrence.
(2) Independent accident investigations.--
(A) In general.--There shall be, in addition
to an accident investigation under paragraph
(1), an independent investigation by an
independent investigation panel (referred to in
this subsection as the ``Panel'') appointed
under subparagraph (B) for--
(i) any accident involving 3 or more
deaths; or
(ii) any accident that is of such
severity or scale for potential or
actual harm that, in the opinion of the
Secretary of Health and Human Services,
the accident merits an independent
investigation.
(B) Appointment.--
(i) In general.--As soon as
practicable after an accident described
in subparagraph (A), the Secretary of
Health and Human Services shall appoint
5 members for the Panel required under
this paragraph from among individuals
who have expertise in accident
investigations, mine engineering, or
mine safety and health that is relevant
to the particular investigation.
(ii) Chairperson.--The Panel shall
include, and be chaired by, a
representative from the Office of Mine
Safety and Health Research, of the
National Institute for Occupational
Safety and Health (referred to in this
subsection as NIOSH).
(iii) Conflicts of interest.--Panel
members, and staff and consultants
assisting the Panel with an
investigation, shall be free from
conflicts of interest with regard to
the investigation, and be subject to
the same standards of ethical conduct
for persons employed by the Secretary.
(iv) Composition.--The Secretary of
Health and Human Services shall appoint
as members of the Panel--
(I) 1 operator of a mine or
individual representing mine
operators, and
(II) 1 representative of a
labor organization that
represents miners,
and may not appoint more than 1 of
either such individuals as members of
the Panel.
(v) Staff and expenses.--The Director
of NIOSH shall designate NIOSH staff to
facilitate the work of the Panel. The
Director may accept as staff personnel
on detail from other Federal agencies
or re-employ annuitants. The detail of
personnel under this paragraph may be
on a non-reimbursable basis, and such
detail shall be without interruption or
loss of civil service status or
privilege. The Director of NIOSH shall
have the authority to procure on behalf
of the Panel such materials, supplies
or services, including technical
experts, as requested in writing by a
majority of the Panel.
(vi) Compensation and travel.--All
members of the Panel who are officers
or employees of the United States shall
serve without compensation in addition
to that received for their services as
officers or employees of the United
States. Each Panel member who is not an
officer or employee of the United
States shall be compensated at a rate
equal to the daily equivalent of the
annual rate of basic pay prescribed for
level IV of the Executive Schedule
under section 5315 of title 5, United
States Code, for each day (including
travel time) during which such member
is engaged in the performance of duties
of the Panel. The members of the Panel
shall be allowed travel expenses,
including per diem in lieu of
subsistence, at rates authorized for
employees of agencies under subchapter
1 of chapter 57 of title 5, United
States Code, while away from their
homes or regular places of business in
the performance of services for the
Panel.
(C) Duties.--The Panel shall--
(i) assess and identify any factors
that caused the accident, including
deficiencies in safety management
systems, regulations, enforcement,
industry practices or guidelines, or
organizational failures;
(ii) identify and evaluate any
contributing actions or inactions of--
(I) the operator;
(II) any contractors or other
persons engaged in mining-
related functions at the site;
(III) any State agency with
oversight responsibilities;
(IV) any agency or office
within the Department of Labor;
or
(V) any other person or
entity (including equipment
manufacturers);
(iii) review the determinations and
recommendations by the Secretary under
paragraph (1);
(iv) prepare a report that--
(I) includes the findings
regarding the causal factors
described in clauses (i) and
(ii);
(II) identifies any strengths
and weaknesses in the
Secretary's investigation; and
(III) includes
recommendations, including
interim recommendations where
appropriate, to industry, labor
organizations, State and
Federal agencies, or Congress,
regarding policy, regulatory,
enforcement, administrative, or
other changes, which in the
judgment of the Panel, would
prevent a recurrence at other
mines; and
(v) publish such findings and
recommendations (excluding any portions
which the Attorney General requests
that the Secretary withhold in relation
to a criminal referral) and hold public
meetings to inform the mining community
and families of affected miners of the
Panel's findings and recommendations.
(D) Hearings; applicability of certain
federal law.--The Panel shall have the
authority to conduct public hearings or
meetings, but shall not be subject to the
Federal Advisory Committee Act. All public
hearings of the Panel shall be subject to the
requirements under section 552b of title 5,
United States Code.
(E) Memorandum of understanding.--Not later
than 90 days after the date of enactment of the
Robert C. Byrd Miner Safety and Health Act of
2010, the Secretary of Labor and the Secretary
of Health and Human Services shall conclude and
publically issue a memorandum of understanding
that--
(i) outlines administrative
arrangements which will facilitate a
coordination of efforts between the
Secretary of Labor and the Panel,
ensures that the Secretary's
investigation under paragraph (1) is
not delayed or otherwise compromised by
the activities of the Panel, and
establishes a process to resolve any
conflicts between such investigations;
(ii) ensures that Panel members or
staff will be able to participate in
investigation activities (such as mine
inspections and interviews) related to
the Secretary of Labor's investigation
and will have full access to documents
that are assembled or produced in such
investigation, and ensures that the
Secretary of Labor will make all of the
authority available to such Secretary
under this section, including subpoena
authority, to obtain information and
witnesses which may be requested by
such Panel; and
(iii) establishes such other
arrangements as are necessary to
implement this paragraph.
(F) Procedures.--Not later than 90 days after
the date of enactment of the Robert C. Byrd
Miner Safety and Health Act of 2010, the
Secretary of Health and Human Services shall
establish procedures to ensure the consistency
and effectiveness of Panel investigations. In
establishing such procedures, such Secretary
shall consult with independent safety
investigation agencies, sectors of the mining
industry, representatives of miners, families
of miners involved in fatal accidents, State
mine safety agencies, and mine rescue
organizations. Such procedures shall include--
(i) authority for the Panel to use
evidence, samples, interviews, data,
analyses, findings, or other
information gathered by the Secretary
of Labor, as the Panel determines
valid;
(ii) provisions to ensure
confidentiality if requested by any
witness, to the extent permitted by
law, and prevent conflicts of interest
in witness representation; and
(iii) provisions for preservation of
public access to the Panel's records
through the Secretary of Health and
Human Services.
(G) Authorization of appropriations.--There
is authorized to be appropriated to carry out
this subsection such sums as may be necessary.
(3) Powers and processes.--For the purpose of making
any investigation of any accident or other occurrence
relating to health or safety in a coal or other mine,
the Secretary may, after notice, hold public hearings,
and may sign and issue subpoenas for the attendance and
testimony of witnesses and the production of relevant
papers, books and documents, and administer oaths.
Witnesses summoned shall be paid the same fees and
mileage that are paid witnesses in the courts of the
United States. In case of contumacy or refusal to obey
a subpoena served upon any person under this section,
the district court of the United States. In case of
contumacy or refusal to obey a subpoena served upon any
person under this section, the district court of the
United States for any district in which such person is
found or resides or transacts business, upon
application by the United States and after notice to
such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony
before the Secretary or to appear and produce documents
before the Secretary, or both, and any failure to obey
such order of the court may be punished by such court
as a contempt thereof.
(4) Additional powers.--For purposes of making
inspections and investigations, the Secretary or the
Secretary's designee, may sign and issue subpoenas for
the attendance and testimony of witnesses and the
production of information, including all relevant data,
papers, books, documents, and items of physical
evidence, and administer oaths. Witnesses summoned
shall be paid the same fees that are paid witnesses in
the courts of the United States. In carrying out
inspections and investigations under this subsection,
authorized representatives of the Secretary and
attorneys representing the Secretary are authorized to
question any individual privately. Under this section,
any individual who is willing to speak with or provide
a statement to such authorized representatives or
attorneys representing the Secretary may do so without
the presence, involvement, or knowledge of the operator
or the operator's agents or attorneys. The Secretary
shall keep the identity of an individual providing such
a statement confidential to the extent permitted by
law. Nothing in this paragraph prevents any individual
from being represented by that individual's personal
attorney.
* * * * * * *
(d) All accidents, including unintentional roof falls (except
in any abandoned panels or in areas which are inaccessible or
unsafe for inspections), shall be investigated by the operator
or his agent to determine the cause and the means of preventing
a recurrence. Records of such accidents and investigations
shall be kept and the information shall be made available to
the Secretary or his authorized representative and the
appropriate State agency. Such records shall be open for
inspection by interested persons. [Such records shall include
man-hours worked and shall be reported at a frequency
determined by the Secretary, but at least annually.] The
records to be kept and made available by the operator of the
mine shall include man-hours worked and occupational injuries
and illnesses with respect to the miners in their employ or
under their direction or authority, and shall be maintained
separately for each mine and be reported at a frequency
determined by the Secretary, but at least annually. Independent
contractors (within the meaning of section 3(d)) shall be
responsible for reporting accidents, occupational injuries and
illnesses, and man-hours worked for each mine with respect to
the miners in their employ or under their direction or
authority, and shall be reported at a frequency determined by
the Secretary, but not less than annually. Reports or records
of operators and contractors required and submitted to the
Secretary under this subsection shall be signed and certified
as accurate and complete by a knowledgeable and responsible
person possessing a certification, registration, qualification,
or other approval, as provided for under section 118. Knowingly
falsifying such records or reports shall be grounds for
revoking such certification, registration, qualification, or
other approval under the standards established under subsection
(b)(1) of such section.
* * * * * * *
(f) Subject to regulations issued by the Secretary, a
representative of the operator and a representative authorized
by his miners shall be given an opportunity to accompany the
Secretary of his authorized representative during the physical
inspection of any coal or other mine made pursuant to the
provisions of subsection (a), for the purpose of aiding such
inspection and to participate in pre- or post-inspection
conferences held at the mine. Where there is no authorized
miner representative, the Secretary or his authorized
representative shall consult with a reasonable number of miners
concerning matters of health and safety in such mine. Such
representative of miners who is also an employee of the
operator shall suffer no loss of pay during the period of his
participation in the inspection made under this subsection. To
the extent that the Secretary or authorized representative of
the Secretary determines that more than one representative from
each party would further aid the inspection, he can permit each
party to have an equal number of such additional
representatives. However, only one such representative of
miners who is an employee of the operator shall be entitled to
suffer no loss of pay during the period of such participation
under the provisions of this subsection. If any miner is
entrapped or otherwise prevented as the result of an accident
in such mine from designating such a representative directly,
such miner's closest relative may act on behalf of such miner
in designating such a representative. If any miner is not
currently working in such mine as the result of an accident in
such mine, but would be currently working in such mine but for
such accident, such miner may designate such a representative.
A representative of miners shall have the right to participate
in any accident investigation the Secretary initiates pursuant
to subsection (b), including the right to participate in
investigative interviews and to review all relevant papers,
books, documents and records produced in connection with the
accident investigation, unless the Secretary in consultation
with the Attorney General excludes such representatives from
the investigation on the grounds that inclusion would interfere
with or adversely impact a criminal investigation that is
pending or under consideration. Compliance with this subsection
shall not be a jurisdictional prerequisite to the enforcement
of any provision of this Act.
* * * * * * *
(k) In the event of any accident occurring in a coal or other
mine, an authorized representative of the Secretary[, when
present,] may issue such orders as he deems appropriate to
insure the safety of any person in the coal or other mine, and
the operator of such mine shall obtain the approval of such
representative, in consultation with appropriate State
representatives, when feasible, of any plan to recover any
person in such mine or to recover the coal or other mine or
return affected areas of such mine to normal.
CITATIONS AND ORDERS
Sec. 104. (a) * * *
* * * * * * *
(d)(1) If, upon any inspection of a coal or other mine, an
authorized representative of the Secretary finds that there has
been a violation of [any mandatory health or safety standard]
any provision of this Act, including any mandatory health or
safety standard or regulation promulgated under this Act, and
if he also finds that, while the conditions created by such
violation do not cause imminent danger, such violation is of
such nature as could significantly and substantially contribute
to the cause and effect of a coal or other mine safety or
health hazard, and if he finds such violation to be caused by
an unwarrantable failure of such operator to comply with [such
mandatory health or safety standards] such provisions,
regulations, or mandatory health or safety standards, he shall
include such finding in any citation given to the operator
under this Act. If, during the same inspection or any
subsequent inspection of such mine within 90 days after the
issuance of such citation, an authorized representative of the
Secretary finds another violation of [any mandatory health or
safety standard] any provision of this Act, including any
mandatory health or safety standard or regulation promulgated
under this Act, and finds such violation to be also caused by
an unwarrantable failure of such operator to so comply, he
shall forthwith issue an order requiring the operator to cause
all persons in the area affected by such violation, except
those persons referred to in subsection (c) to be withdrawn
from, and to be prohibited from entering, such area until an
authorized representative of the Secretary determines that such
violation has been abated.
* * * * * * *
[(e)(1) 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 coal or
other 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 the cause and effect of a coal
or other mine 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,
except those persons referred to in subsection (c), to be
withdrawn from, and to be prohibited from entering, such area
until an authorized representative of the Secretary determines
that such violation has been abated.
[(2) If a withdrawal order with respect to any area in a coal
or other mine has been issued pursuant to paragraph (1), a
withdrawal order shall be issued by an authorized
representative of the Secretary who finds upon any subsequent
inspection the existence in such mine of any violation of a
mandatory health or safety standard which could significantly
and substantially contribute to the cause and effect of a coal
or other mine health or safety hazard. The withdrawal order
shall remain in effect until an authorized representative of
the Secretary determines that such violation has been abated.
[(3) If, upon an inspection of the entire coal or other mine,
an authorized representative of the Secretary finds no
violations of mandatory health or safety standards that could
significantly and substantially contribute to the cause and
effect of a coal or other mine health and safety hazard, the
pattern of violations that resulted in the issuance of a notice
under paragraph (1) shall be deemed to be terminated and the
provisions of paragraphs (1) and (2) shall no longer apply.
However, if as a result of subsequent violations, the operator
reestablishes a pattern of violations, paragraphs (1) and (2)
shall again be applicable to such operator.
[(4) The Secretary shall make such rules as he deems
necessary to establish criteria for determining when a pattern
of violations of mandatory health or safety standards exists.]
(e) Pattern of Recurring Noncompliance or Accidents.--
(1) Pattern status.--
(A) In general.--For purposes of this
subsection, a coal or other mine shall be
placed in pattern status if such mine has, as
determined based on the regulations promulgated
under paragraph (8)--
(i) a pattern of--
(I) citations for significant
and substantial violations;
(II) citations and withdrawal
orders issued for unwarrantable
failure to comply with
mandatory health and safety
standards under section 104(d);
(III) citations for flagrant
violations within the meaning
of section 110(b);
(IV) withdrawal orders issued
under any other section of this
Act (other than orders issued
under subsections (j) or (k) of
section 103); and
(V) accidents and injuries;
or
(ii) a pattern consisting of any
combination of citations, orders,
accidents, or injuries described in
subclauses (I) through (V).
(B) Mitigating circumstances.--
Notwithstanding subparagraph (A), if the
Secretary, after conducting an assessment of a
coal or other mine that otherwise qualifies for
pattern status, certifies that there are
mitigating circumstances wherein the operator
has already implemented remedial measures that
have reduced risks to the health and safety of
miners to the point that such risks are no
longer elevated and has taken sufficient
measures to ensure such elevated risk will not
recur, the Secretary may deem such mine to not
be in pattern status under this subsection. The
Secretary shall issue any such certification of
such mitigating circumstances that would
preclude the placement of a mine in pattern
status as a written finding, which shall, not
later than 10 days after the certification is
made, be--
(i) made available on the public
website of the Mine Safety and Health
Administration; and
(ii) transmitted to the Committee on
Education and Labor of the House of
Representatives and the Committee on
Health, Education, Labor, and Pensions
of the Senate.
(C) Frequency.--Not less frequently than
every 6 months, the Secretary shall identify
any mines which meet the criteria set forth in
paragraph (8).
(2) Actions following placement of mine in pattern
status.--For any coal or other mine that is in pattern
status, the Secretary shall--
(A) notify the operator of such mine that the
mine is being placed in pattern status;
(B) issue an order requiring such operator to
cause all persons to be withdrawn from such
mine, except those persons referred to in
subsection (c) or authorized by an order of the
Secretary issued under this subsection;
(C) issue a remediation order described in
paragraph (3) to such operator within 3 days;
and
(D) require that the number of regular
inspections of such mine required under section
103 be increased to 8 per year while the mine
is in pattern status.
Notice advising operators that they face potential
placement in pattern status shall not be a requirement
for issuing a withdrawal order to operators under this
subsection.
(3) Remediation order.--
(A) In general.--A remediation order issued
to an operator under paragraph (2)(C) may
require the operator to carry out one or more
of the following requirements, pursuant to a
timetable for commencing and completing such
actions or as a condition of miners reentering
the mine:
(i) Provide specified training,
including training not otherwise
required under this Act.
(ii) Institute and implement an
effective health and safety management
program approved by the Secretary,
including--
(I) the employment of safety
professionals, certified
persons, and adequate numbers
of personnel for the mine, as
may be required by the
Secretary;
(II) specific inspection,
recordkeeping, reporting and
other requirements for the mine
as the Secretary may establish;
and
(III) other requirements to
ensure compliance and to
protect the health and safety
of miners or prevent accidents
or injuries as the Secretary
may determine are necessary.
(iii) Facilitate any effort by the
Secretary to communicate directly with
miners employed at the mine outside the
presence of the mine operators or its
agents, for the purpose of obtaining
information about mine conditions,
health and safety practices, or
advising miners of their rights under
this Act.
(B) Modification of and failure to comply
with remediation order.--The Secretary may
modify the remediation order, as necessary, to
protect the health and safety of miners. If the
mine operator fails to fully comply with the
remediation order during the time a mine is in
pattern status, the Secretary shall reinstate
the withdrawal order under paragraph (2)(B).
(C) Extension of deadlines.--An extension of
a deadline under the remediation order may be
granted on a temporary basis and only upon a
showing that the operator took all feasible
measures to comply with the order and only to
the extent that the operator's failure to
comply is beyond the control of the operator.
(4) Conditions for lifting a withdrawal order.--A
withdrawal order issued under paragraph (2)(B) shall
not be lifted until the Secretary verifies that--
(A) any and all violations or other
conditions in the mine identified in the
remediation order have been or are being fully
abated or corrected as outlined in the
remediation order; and
(B) the operator has completed any other
actions under the remediation order that are
required for reopening the mine.
(5) Performance evaluation.--
(A) Performance benchmarks.--The Secretary
shall evaluate the performance of each mine in
pattern status every 90 days during which the
mine is producing and determine if, for such
90-day period--
(i) the rate of citations at such
mine for significant and substantial
violations--
(I) is in the top performing
35th percentile of such rates,
respectively, for all mines of
similar size and type; or
(II) has been reduced by 70
percent from the date on which
such mine was placed in pattern
status, provided that the rate
of such violations is not
greater than the mean for all
mines of similar size and type;
(ii) the accident and injury rates at
such mine are in the top performing
35th percentile of such rates,
respectively, for all mines of similar
size and type; and
(iii) no citations or withdrawal
orders for a violation under section
104(d), no withdrawal orders for
imminent danger under section 107
(issued in connection with a citation),
and no flagrant violations within the
meaning of section 110(b), were issued
for such mine.
(B) Reissuance of withdrawal orders.--If an
operator being evaluated fails to achieve the
performance benchmarks described in
subparagraph (A), the Secretary may reissue a
withdrawal order under paragraph (2)(B) to
remedy any recurring conditions that led to
pattern status under this subsection, and may
modify the remediation order, as necessary, to
protect the health and safety of miners.
(6) Termination of pattern status.--
(A) Performance benchmarks.--The Secretary
shall remove a coal or other mine from pattern
status if, for a 1-year period during which the
mine is producing--
(i) the rate of citations at such
mine for significant and substantial
violations--
(I) is in the top performing
25th percentile of such rates,
respectively, for all mines of
similar size and type; or
(II) has been reduced by 80
percent from the date on which
such mine was placed in pattern
status, provided that the rate
of such violations is not
greater than the mean for all
mines of similar size and type;
(ii) the accident and injury rates at
such mine are in the top performing
25th percentile of such rates,
respectively, for all mines of similar
size and type; and
(iii) no citations or withdrawal
orders for violations under section
104(d), no withdrawal orders for
imminent danger under section 107
(issued in connection with a citation),
and no flagrant violations within the
meaning of section 110(b), were issued
for such mine.
(B) Continuation of pattern status.--Should
the mine operator fail to meet the performance
benchmarks described in subparagraph (A), the
Secretary shall extend the mine's placement in
pattern status until such benchmarks are
achieved.
(C) Construction.--A withdrawal order issued
as the result of a condition that was entirely
beyond the operator's ability to prevent or
control shall not preclude the operator from
being removed from pattern status, provided the
operator did not cause or allow miners to be
exposed to the condition in violation of any
provision of this Act or a mandatory health or
safety standard or regulation promulgated under
this Act.
(7) Expedited review.--If any order under this
subsection is contested, the review of such order shall
be conducted on an expedited basis, in accordance with
section 105(d).
(8) Regulations.--
(A) In general.--Not later than 120 days
after the date of enactment of the Robert C.
Byrd Miner Safety and Health Act of 2010, the
Secretary shall issue interim final regulations
that shall define--
(i) the threshold benchmarks to
trigger pattern status under paragraph
(1) and cause a withdrawal order to be
issued or reissued; and
(ii) the performance benchmarks
described in paragraphs (5)(A) and
(6)(A).
(B) Threshold benchmarks.--In establishing
threshold benchmarks to trigger pattern status
for mines with significantly poor compliance
that contributes to unsafe or unhealthy
conditions, the Secretary--
(i) shall--
(I) consider rates of
citations and orders described
in paragraph (1)(A) and rates
of reportable accidents and
injuries within the preceding
180-day period; and
(II) assign appropriate
weight to various types of
citations, orders, accidents,
injuries, or other factors; and
(ii) may include--
(I) factors such as mine
type, production levels, number
of miners, hours worked by
miners, number of mechanized
mining units (or similar
production characteristics),
and the presence of a
representative of miners at the
mine for purposes of collective
bargaining;
(II) the mine's history of
citations, violations, orders,
and other enforcement actions,
or rates of reportable
accidents and injuries, over
any period determined relevant
by the Secretary; and
(III) other factors the
Secretary may determine
appropriate to protect the
safety and health of miners.
(C) Final regulation.--Not later than 2 years
after the date of enactment of the Robert C.
Byrd Miner Safety and Health Act of 2010, the
Secretary shall promulgate a final regulation
implementing this paragraph.
(9) Public database and information.--The Secretary
shall establish and maintain a publically available
electronic database containing the data used to
determine pattern status for all coal or other mines
which shall be updated as frequently as practicable.
Such database shall be searchable and have the capacity
to provide comparative data about the health and safety
at mines of similar sizes and types. The Secretary
shall also make publicly available--
(A) a list of all mines the Secretary places
in pattern status, updated within 7 days of
placing an additional mine in pattern status;
(B) the metrics, including percentile
information, used for the purposes of the
performance benchmarks and threshold benchmarks
described in paragraphs (5), (6), and (8); and
(C) guidance for the use of such metrics and
benchmarks to assist operators in determining
the performance their mines under criteria
established by the Secretary.
(10) Operator fees for additional inspections.--
(A) Assessment and collection.--Beginning 120
days after the date of enactment of the Robert
C. Byrd Miner Safety and Health Act of 2010,
the Secretary shall assess and collect fees, in
accordance with this paragraph, from each coal
or other mine in pattern status for the costs
of additional inspections under this
subsection. The Secretary shall issue, by rule,
a schedule of fees to be assessed against coal
or other mines of varying types and sizes, and
shall collect and assess amounts under this
paragraph based on the schedule.
(B) Use.--Amounts collected as provided in
subparagraph (A) shall only be available to the
Secretary for making expenditures to carry out
the additional inspections required under
paragraph (2)(D).
(C) Authorization of appropriations.--In
addition to any other amounts authorized to be
appropriated under this Act, there is
authorized to be appropriated to the Assistant
Secretary for Mine Safety and Health for each
fiscal year in which fees are collected under
subparagraph (A) an amount equal to the total
amount of fees collected under such
subparagraph during that fiscal year. Such
amounts are authorized to remain available
until expended. If on the first day of a fiscal
year a regular appropriation to the Commission
has not been enacted, the Commission shall
continue to collect fees (as offsetting
collections) under this subsection at the rate
in effect during the preceding fiscal year,
until 5 days after the date such regular
appropriation is enacted.
(D) Collection and crediting of fees.--Fees
authorized and collected under this paragraph
shall be deposited and credited as offsetting
collections to the account providing
appropriations to the Mine Safety and Health
Administration and shall not be collected for
any fiscal year except to the extent and in the
amount provided in advance in appropriation
Acts.
* * * * * * *
(g)(1) * * *
(2) No miner who is ordered withdrawn from a coal or other
mine [under paragraph (1)] under paragraph (1) or under section
115(e) shall be discharged or otherwise discriminated against
because of such order; and no miner who is ordered withdrawn
from a coal or other mine [under paragraph (1)] under paragraph
(1) or under section 115(e) shall suffer a loss of compensation
during the period necessary for such miner to receive such
training and for an authorized representative of the Secretary
to determine that such miner has received the requisite
training.
* * * * * * *
PROCEDURE FOR ENFORCEMENT
Sec. 105. (a) * * *
* * * * * * *
[(c)(1) No person shall discharge or in any manner
discriminate against or cause to be discharged or cause
discrimination against or otherwise interfere with the exercise
of the statutory rights of any miner, representative of miners
or applicant for employment in any coal or other mine subject
to this Act because such miner, representative of miners or
applicant for employment has filed or made a complaint under or
related to this Act, including a complaint notifying the
operator or the operator's agent, or the representative of the
miners at the coal or other mine of an alleged danger or safety
or health violation in a coal or other mine, or because such
miner, representative of miners or applicant for employment is
the subject of medical evaluations and potential transfer under
a standard published pursuant to section 101 or because such
miner, representative of miners or applicant for employment has
instituted or caused to be instituted any proceeding under or
related to this Act or has testified or is about to testify in
any such preoceeding, or because of the exercise by such miner,
representative of miners or applicant for employment on behalf
of himself or others of any statutory right afforded by this
Act.
[(2) Any miner or applicant for employment or representative
of miners who believes that he has been discharged, interfered
with, or otherwise discriminated against by any person in
violation of this subsection may, within 60 days after such
violation occurs, file a complaint with the Secretary alleging
such discrimination. Upon receipt of such complaint, the
Secretary shall forward a copy of the complaint to the
respondent and shall cause such investigation to be made as he
deems appropriate. Such investigation shall commence within 15
days of the Secretary's receipt of the complaint, and if the
Secretary finds that such complaint was not frivolously
brought, the Commission, on an expedited basis upon application
of the Secretary, shall order the immediate reinstatement of
the miner pending final order on the complaint. If upon such
investigation, the Secretary determines that the provisions of
this subsection have been violated, he shall immediately file a
complaint with the Commission, with service upon the alleged
violator and the miner, applicant for employment, or
representative of miners alleging such discrimination or
interference and propose an order granting appropriate relief.
The Commission shall afford an opportunity for a hearing (in
accordance with section 554 of title 5, United States Code, but
without regard to subsection (a)(3) of such section) and
thereafter shall issue an order, based upon findings of fact,
affirming, modifying, or vacating the Secretary's proposed
order, or directing other appropriate relief. Such order shall
become final 30 days after its issuance. The Commission shall
have authority in such proceedings to require a person
committing a violation of this subsection to take such
affirmative action to abate the violation as the Commission
deems appropriate, including, but not limited to, the rehiring
or reinstatement of the miner to his former position with back
pay and interest. The complaining miner, applicant, or
representative of miners may persent additional evidence on his
own behalf during any hearing held pursuant to this paragraph.
[(3) Within 90 days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in writing, the
miner, applicant for employment, or representative of miners of
his determination whether a violation has occurred. If the
Secretary, upon investigation, determines that the provisions
of this subsection have not been violated, the complainant
shall have the right, within 30 days notice of the Secretary's
determination, to file an action in his own behalf before the
Commission, charging discrimination or interference in
violation of paragraph (1). The Commission shall afford an
opportunity for a hearing (in accordance with section 554 of
title 5, United States Code, but without regard to subsection
(a)(3) of such section), and thereafter shall issue an order,
based upon findings of fact, dismissing or sustaining the
complainant's charges and, if the charges are sustained,
granting such relief as it deems appropriate, including, but
not limited to, an order requiring the rehiring or
reinstatement of the miner of his former position with back pay
and interest or such remedy as my be appropriate. Such order
shall become final 30 days after its issuance. Whenever an
order is issued sustaining the complainant's charges under this
subsection, a sum equal to the aggregate amount of all costs
and expenses (including attorney's fees) as determined by the
Commission to have been reasonably incurred by the miner,
applicant for employment or representaitve of miners for, or in
connection with, the institution and prosecution of such
proceedings shall be assessed against the person committing
such violation. Proceedings under this section shall be
expedited by the Secretary and the Commission. Any order issued
by the Commission under this paragraph shall be subject to
judicial review in accordance with section 106. Violations by
any person of paragraph (1) shall be subject to the provisions
of sections 108 and 110(a).]
(c) Protection From Retaliation.--
(1) Retaliation prohibited.--
(A) Retaliation for complaint or testimony.--
No person shall discharge or in any manner
discriminate against or cause to be discharged
or cause discrimination against or otherwise
interfere with the exercise of the statutory
rights of any miner or other employee of an
operator, representative of miners, or
applicant for employment, because--
(i) such miner or other employee,
representative, or applicant for
employment--
(I) has filed or made a
complaint, or is about to file
or make a complaint, including
a complaint notifying the
operator or the operator's
agent, or the representative of
the miners at the coal or other
mine of an alleged danger or
safety or health violation in a
coal or other mine;
(II) instituted or caused to
be instituted, or is about to
institute or cause to be
instituted, any proceeding
under or related to this Act or
has testified or is about to
testify in any such proceeding
or because of the exercise by
such miner or other employee,
representative, or applicant
for employment on behalf of him
or herself or others of any
right afforded by this Act, or
has reported any injury or
illness to an operator or
agent;
(III) has testified or is
about to testify before
Congress or any Federal or
State proceeding related to
safety or health in a coal or
other mine; or
(IV) refused to violate any
provision of this Act,
including any mandatory health
and safety standard or
regulation; or
(ii) such miner is the subject of
medical evaluations and potential
transfer under a standard published
pursuant to section 101.
(B) Retaliation for refusal to perform
duties.--
(i) In general.--No person shall
discharge or in any manner discriminate
against a miner or other employee of an
operator for refusing to perform the
miner's or other employee's duties if
the miner or other employee has a good-
faith and reasonable belief that
performing such duties would pose a
safety or health hazard to the miner or
other employee or to any other miner or
employee.
(ii) Standard.--For purposes of
clause (i), the circumstances causing
the miner's or other employee's good-
faith belief that performing such
duties would pose a safety or health
hazard shall be of such a nature that a
reasonable person, under the
circumstances confronting the miner or
other employee, would conclude that
there is such a hazard. In order to
qualify for protection under this
paragraph, the miner or other employee,
when practicable, shall have
communicated or attempted to
communicate the safety or health
concern to the operator and have not
received from the operator a response
reasonably calculated to allay such
concern.
(2) Complaint.--Any miner or other employee or
representative of miners or applicant for employment
who believes that he or she has been discharged,
disciplined, or otherwise discriminated against by any
person in violation of paragraph (1) may file a
complaint with the Secretary alleging such
discrimination not later than 180 days after the later
of--
(A) the last date on which an alleged
violation of paragraph (1) occurs; or
(B) the date on which the miner or other
employee or representative knows or should
reasonably have known that such alleged
violation occurred.
(3) Investigation and hearing.--
(A) Commencement of investigation and initial
determination.--Upon receipt of such complaint,
the Secretary shall forward a copy of the
complaint to the respondent, and shall commence
an investigation within 15 days of the
Secretary's receipt of the complaint, and, as
soon as practicable after commencing such
investigation, make the determination required
under subparagraph (B) regarding the
reinstatement of the miner or other employee.
(B) Reinstatement.--If the Secretary finds
that such complaint was not frivolously
brought, the Commission, on an expedited basis
upon application of the Secretary, shall order
the immediate reinstatement of the miner or
other employee until there has been a final
Commission order disposing of the underlying
complaint of the miner or other employee. If
either the Secretary or the miner or other
employee pursues the underlying complaint, such
reinstatement shall remain in effect until the
Commission has disposed of such complaint on
the merits, regardless of whether the Secretary
pursues such complaint by filing a complaint
under subparagraph (D) or the miner or other
employee pursues such complaint by filing an
action under paragraph (4). If neither the
Secretary nor the miner or other employee
pursues the underlying complaint within the
periods specified in paragraph (4), such
reinstatement shall remain in effect until such
time as the Commission may, upon motion of the
operator and after providing notice and an
opportunity to be heard to the parties, vacate
such complaint for failure to prosecute.
(C) Investigation.--Such investigation shall
include interviewing the complainant and--
(i) providing the respondent an
opportunity to submit to the Secretary
a written response to the complaint and
to present statements from witnesses or
provide evidence; and
(ii) providing the complainant an
opportunity to receive any statements
or evidence provided to the Secretary
and rebut any statements or evidence.
(D) Action by the secretary.--If, upon such
investigation, the Secretary determines that
the provisions of this subsection have been
violated, the Secretary shall immediately file
a complaint with the Commission, with service
upon the alleged violator and the miner or
other employee or representative of miners
alleging such discrimination or interference
and propose an order granting appropriate
relief.
(E) Action of the commission.--The Commission
shall afford an opportunity for a hearing (in
accordance with section 554 of title 5, United
States Code, but without regard to subsection
(a)(3) of such section) and thereafter shall
issue an order, based upon findings of fact,
affirming, modifying, or vacating the
Secretary's proposed order, or directing other
appropriate relief. Such order shall become
final 30 days after its issuance. The
complaining miner or other employee,
representative, or applicant for employment may
present additional evidence on his or her own
behalf during any hearing held pursuant to this
paragraph.
(F) Relief.--The Commission shall have
authority in such proceedings to require a
person committing a violation of this
subsection to take such affirmative action to
abate the violation and prescribe a remedy as
the Commission considers appropriate,
including--
(i) the rehiring or reinstatement of
the miner or other employee with back
pay and interest and without loss of
position or seniority, and restoration
of the terms, rights, conditions, and
privileges associated with the
complainant's employment;
(ii) any other compensatory and
consequential damages sufficient to
make the complainant whole, and
exemplary damages where appropriate;
and
(iii) expungement of all warnings,
reprimands, or derogatory references
that have been placed in paper or
electronic records or databases of any
type relating to the actions by the
complainant that gave rise to the
unfavorable personnel action, and, at
the complainant's direction,
transmission of a copy of the decision
on the complaint to any person whom the
complainant reasonably believes may
have received such unfavorable
information.
(4) Notice to and action of complainant.--
(A) Notice to complainant.--Not later than 90
days of the receipt of a complaint filed under
paragraph (2), the Secretary shall notify, in
writing, the miner or other employee, applicant
for employment, or representative of miners of
his determination whether a violation has
occurred.
(B) Action of complainant.--If the Secretary,
upon investigation, determines that the
provisions of this subsection have not been
violated, the complainant shall have the right,
within 30 days after receiving notice of the
Secretary's determination, to file an action in
his or her own behalf before the Commission,
charging discrimination or interference in
violation of paragraph (1).
(C) Hearing and decision.--The Commission
shall afford an opportunity for a hearing (in
accordance with section 554 of title 5, United
States Code, but without regard to subsection
(a)(3) of such section), and thereafter shall
issue an order, based upon findings of fact,
dismissing or sustaining the complainant's
charges and, if the charges are sustained,
granting such relief as it deems appropriate as
described in paragraph (3)(D). Such order shall
become final 30 days after its issuance.
(5) Burden of proof.--In adjudicating a complaint
pursuant to this subsection, the Commission may
determine that a violation of paragraph (1) has
occurred only if the complainant demonstrates that any
conduct described in paragraph (1) with respect to the
complainant was a contributing factor in the adverse
action alleged in the complaint. A decision or order
that is favorable to the complainant shall not be
issued pursuant to this subsection if the respondent
demonstrates by clear and convincing evidence that the
respondent would have taken the same adverse action in
the absence of such conduct.
(6) Attorneys' fees.--Whenever an order is issued
sustaining the complainant's charges under this
subsection, a sum equal to the aggregate amount of all
costs and expenses, including attorney's fees, as
determined by the Commission to have been reasonably
incurred by the complainant for, or in connection with,
the institution and prosecution of such proceedings
shall be assessed against the person committing such
violation. The Commission shall determine whether such
costs and expenses were reasonably incurred by the
complainant without reference to whether the Secretary
also participated in the proceeding.
(7) expedited proceedings; judicial review.--
Proceedings under this subsection shall be expedited by
the Secretary and the Commission. Any order issued by
the Commission under this subsection shall be subject
to judicial review in accordance with section 106.
Violations by any person of paragraph (1) shall be
subject to the provisions of sections 108 and
110(a)(4).
(8) procedural rights.--The rights and remedies
provided for in this subsection may not be waived by
any agreement, policy, form, or condition of
employment, including by any pre-dispute arbitration
agreement or collective bargaining agreement.
(9) Savings.--Nothing in this subsection shall be
construed to diminish the rights, privileges, or
remedies of any employee who exercises rights under any
Federal or State law or common law, or under any
collective bargaining agreement.
(d) Revocation of Approval of Plans.--
(1) Revocation.--If the Secretary finds that any
program or plan of an operator, or part thereof, that
was approved by the Secretary under this Act is based
on inaccurate information or that circumstances that
existed when such plan was approved have materially
changed and that continued operation of such mine under
such plan constitutes a hazard to the safety or health
of miners, the Secretary shall revoke the approval of
such program or plan.
(2) Withdrawal orders.--Upon revocation of the
approval of a program or plan under subsection (a), the
Secretary may immediately issue an order requiring the
operator to cause all persons, except those persons
referred to in section 104(c), to be withdrawn from
such mine or an area of such mine, and to be prohibited
from entering such mine or such area, until the
operator has submitted and the Secretary has approved a
new plan.
[(d)] (e) If, within 30 days of receipt thereof, an operator
of a coal or other mine notifies the Secretary that he intends
to contest the issuance or modification of an order issued
under section 104, or citation or a notification of proposed
assessment of a penalty issued under subsection (a) or (b) of
this section, or the reasonableness of the length of abatement
time fixed in a citation or modification thereof issued under
section 104, or any miner or representative of miners notifies
the Secretary of an intention to contest the issuance,
modification, or termination or any order issued under section
104, or the reasonableness of the length of time set for
abatement by a citation or modification thereof issued under
section 104, the Secretary shall immediately advise the
Commission of such notification, and the Commission shall
afford an opportunity for a hearing (in accordance with section
554 of title 5, United States Code, but without regard to
subsection (a)(3) of such section), and thereafter shall issue
an order, based on findings of fact, affirming, modifying, or
vacating the Secretary's citation, order, or proposed penalty,
or directing other appropriate relief. Such order shall become
final 30 days after its issuance. The rules of procedure
prescribed by the Commission shall provide affected miners or
representatives of affected miners an opportunity to
participate as parties to hearings under this section. The
Commission shall take whatever action is necessary to expedite
proceedings for hearing appeals of orders issued under section
104. In any proceeding in which a party challenges the
Secretary's decision to approve, modify, or revoke a coal or
other mine plan under this Act, the Commission and the courts
shall affirm the Secretary's decision unless the challenging
party establishes that such decision was arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.
* * * * * * *
INJUNCTIONS
Sec. 108. (a)(1) * * *
(2) The Secretary may institute a civil action for relief,
including permanent or temporary injunction, restraining order,
or any other appropriate order in the district court of the
United States for the district in which the coal or other mine
is located or in which the operator of such mine has his
principal office whenever the Secretary believes that the
operator of a coal or other mine is engaged in [a pattern of
violation of the mandatory health or safety standards of this
Act, which in the judgment of the Secretary constitutes a
continuing hazard to the health or safety of miners.] a course
of conduct that in the judgment of the Secretary constitutes a
continuing hazard to the health or safety of miners, including
violations of this Act or of mandatory health and safety
standards or regulations under this Act.
* * * * * * *
POSTING OF ORDERS AND DECISIONS
Sec. 109. (a) * * *
* * * * * * *
(e) Posting of Advance Notice Penalties.--Each operator of a
coal or other mine shall post, on the bulletin board described
in subsection (a) and in a conspicuous place near each staffed
entrance onto the mine property, a notice stating, in a form
and manner to be prescribed by the Secretary--
(1) that giving, causing to give, or attempting to
give or cause to give advance notice of any inspection
to be conducted under this Act with the intention of
impeding, interfering with, or adversely affecting the
results of such inspection is unlawful pursuant to
section 110(e); and
(2) the maximum penalties for a violation under such
subsection.
PENALTIES
Sec. 110. (a)(1) The operator of a coal or other mine in
which a violation occurs of a mandatory health or safety
standard or who violates any other provisions of this Act,
including any regulation promulgated under this Act, shall be
assessed a civil penalty by the Secretary which penalty shall
not be more than $50,000 for each such violation. Each
occurrence of a violation of a mandatory health or safety
standard may constitute a separate offense.
* * * * * * *
(4) If any person violates section 105(c), the Secretary
shall propose, and the Commission shall assess, a civil penalty
of not less than $10,000 or more than $100,000 for the first
occurrence of such violation, and not less than $20,000 or more
than $200,000 for any subsequent violation, during any 3-year
period.
[(4)] (5) Nothing in this subsection shall be construed to
prevent an operator from obtaining a review, in accordance with
section 106, of an order imposing a penalty described in this
subsection. If a court, in making such review, sustains the
order, the court shall apply at least the minimum penalties
required under this subsection.
(b)(1) * * *
* * * * * * *
(3) Notwithstanding any other provision of this Act, an
operator of a coal or other mine that is in pattern status
under section 104(e) and that fails to meet the performance
benchmarks set forth by the Secretary under section
104(e)(5)(A) during any performance review of the mine
following the first performance review shall be assessed an
increased civil penalty for any violation of this Act,
including any mandatory health or safety standard or regulation
promulgated under this Act. Such increased penalty shall be
twice the amount that would otherwise be assessed for the
violation under this Act, including the regulations promulgated
under this Act, subject to the maximum civil penalty
established for the violation under this Act. This paragraph
shall apply to violations at such mine that occur during the
time period after the operator fails to meet the performance
benchmarks in this paragraph, and ending when the Secretary
determines at a subsequent performance review that the mine
meets the performance benchmarks under section 104(e)(5)(A).
[(c) Whenever a corporate operator violates a mandatory
health or safety standard or knowingly violates or fails or
refuses to comply with any order issued under this Act or any
order incorporated in a final decision issued under this Act,
except an order incorporated in a decision issued under
subsection (a) section 105(c), any director, officer, or agent
of such corporation who knowingly authorized, ordered, or
carried out such violation, failure, or refusal shall be
subject to the same civil penalties, fines, and imprisonment
that may be imposed upon a person under subsections (a) and
(d).]
(c) Civil and Criminal Liability of Officers, Directors, and
Agents.--Whenever an operator violates a provision of this Act,
including any mandatory health or safety standard or regulation
promulgated under this Act, or knowingly violates or fails or
refuses to comply with any order issued under this Act or any
order incorporated in a final decision issued under this Act,
any director, officer, or agent of such operator who knowingly
authorized, ordered, or carried out such violation, failure, or
refusal, or any policy or practice that resulted in such
violation, failure, or refusal, shall be subject to the same
civil penalties, fines, and imprisonment that may be imposed
upon a person under this section.
(d)(1) Any operator who [willfully] knowingly violates a
mandatory health or safety standard, or knowingly violates or
fails or refuses to comply with any order issued under section
104 and section 107, or any order incorporated in a final
decision issued under this title, except an order incorporated
in a decision under subsection (a)(1) or section 105(c), shall,
upon conviction, be punished [by a fine of not more than
$250,000, or by imprisonment for not more than one year, or by
both, except that if the conviction is for a violation
committed after the first conviction of such operator under
this Act, punishment shall be by a fine of not more than
$500,000, or by imprisonment for not more than five years, or
both.] as follows:
(A) By a fine of not more than $250,000, or by
imprisonment for not more than 1 year, or both.
(B) If the conviction is for a violation committed
after a previous conviction of such operator for a
violation of the same mandatory health or safety
standard, by a fine of not more than $1,000,000, or by
imprisonment for not more than 5 years, or both.
(C) If the conviction is for a violation committed
after a previous conviction of such operator for a
violation of an order, by a fine of not more than
$1,000,000, or by imprisonment for not more than 5
years, or both.
(D) If the operator's actions knowingly exposed
miners to a significant risk of serious injury or
illness or death, by a fine of not more than
$1,000,000, or by imprisonment for not more than 5
years, or both.
(E) If the operator knowingly tampered with or
disabled a required safety device which exposed miners
to a significant risk of serious injury or illness or
death, or if the conviction is for a violation
described in subparagraph (D) committed after a
previous conviction of such operator for a such a
violation, by a fine of not more than $2,000,000, or by
imprisonment for not more than 10 years, or both.
(2) Whoever knowingly takes any action that is directly or
indirectly harmful to any person, including action that
interferes with the lawful employment or livelihood of any
person, because such person has provided an authorized
representative of the Secretary, a State or local mine safety
or health officer or official, or any other law enforcement
officer with any information related to the existence of a
health or safety violation or an unhealthful or unsafe
condition, policy, or practice under this Act shall be fined
under title 18, United States Code, imprisoned for not more
than 10 years, or both.
[(e) Unless otherwise authorized by this Act, any person who
gives advance notice of any inspection to be conducted under
this Act shall, upon conviction, be punished by a fine of not
more than $1,000 or by imprisonment for not more than six
months, or both.]
(e) Unless otherwise authorized by this Act, any person that
knowingly gives, causes to give, or attempts to give or cause
to give, advance notice of any inspection conducted under this
Act with the intention of impeding, interfering with, or
adversely affecting the results of such inspection, shall be
fined under title 18, United States Code, imprisoned for not
more than 5 years, or both.
* * * * * * *
(i) The Commission shall have authority to assess all civil
penalties provided in this Act. [In assessing civil monetary
penalties, the Commission shall consider] In any review of a
citation and proposed penalty assessment contested by an
operator, the Commission shall assess not less than the penalty
derived by using the same methodology (including any point
system) prescribed in regulations under this Act, so as to
ensure consistency in operator penalty assessments, except that
the Commission may assess a penalty for less than the amount
that would result from the utilization of such methodology if
the Commission finds that there are extraordinary
circumstances. If there is no such methodology prescribed for a
citation or there are such extraordinary circumstances, the
Commission shall assess the penalty by considering the
operator's history of previous violations, the appropriateness
of such penalty to the size of the business of the operator
charged, whether the operator was negligent, the effect on the
operator's ability to continue in business, the gravity of the
violation, and the demonstrated good faith of the person
charged in attempting to achieve rapid compliance after
notification of a violation. In proposing civil penalties under
this Act, the Secretary may rely upon a summary review of the
information available to him and shall not be required to make
findings of fact concerning the above factors.
(j) Civil penalties owed under this Act shall be paid to the
Secretary for deposit into the Treasury of the United States
and shall accrue to the United States and may be recovered in a
civil action in the name of the United States brought in the
United States district court for the district where the
violation occurred or where the operator has its principal
office. [Interest at the rate of 8 percent per annum shall be
charged against a person on any final order of the Commission,
or the court. Interest shall begin to accrue 30 days after the
issuance of such order.] Pre-final order interest on such
penalties shall begin to accrue on the date the operator
contests a citation issued under this Act, including any
mandatory health or safety standard or regulation promulgated
under this Act, and shall end upon the issuance of the final
order. Such pre-final order interest shall be calculated at the
current underpayment rate determined by the Secretary of the
Treasury pursuant to section 6621 of the Internal Revenue Code
of 1986, and shall be compounded daily. Post-final order
interest shall begin to accrue 30 days after the date a final
order of the Commission or the court is issued, and shall be
charged at the rate of 8 percent per annum.
* * * * * * *
(l) Ensuring Payment of Penalties.--
(1) Delinquent payment letter.--If the operator of a
coal or other mine fails to pay any civil penalty
assessment that has become a final order of the
Commission or a court within 45 days after such
assessment became a final order, the Secretary shall
send the operator a letter advising the operator of the
consequences under this subsection of such failure to
pay. The letter shall also advise the operator of the
opportunity to enter into or modify a payment plan with
the Secretary based upon a demonstrated inability to
pay, the procedure for entering into such plan, and the
consequences of not entering into or not complying with
such plan.
(2) Withdrawal orders following failure to pay.--If
an operator that receives a letter under paragraph (1)
has not paid the assessment by the date that is 180
days after such assessment became a final order and has
not entered into a payment plan with the Secretary, the
Secretary shall issue an order requiring such operator
to cause all persons, except those referred to in
section 104(c), to be withdrawn from, and to be
prohibited from entering, the mine that is covered by
the final order described in paragraph (1), until the
operator pays such assessment in full (including
interest and administrative costs) or enters into a
payment plan with the Secretary. If such operator
enters into a payment plan with the Secretary and at
any time fails to comply with the terms specified in
such payment plan, the Secretary shall issue an order
requiring such operator to cause all persons, except
those referred to in section 104(c), to be withdrawn
from the mine that is covered by such final order, and
to be prohibited from entering such mine, until the
operator rectifies the noncompliance with the payment
plan in the manner specified in such payment plan.
[(l)] (m) The provisions of this section shall not be
applicable with respect to title IV of this Act.
[ENTITLEMENT OF MINERS
[Sec. 111. If a coal or other mine or area of such mine is
closed by an order issued under section 103, section 104, or
section 107, all miners working during the shift when such
order was issued who are idled by such order shall be entitled,
regardless of the result of any review of such order, to full
compensation by the operator at their regular rates of pay for
the period they are idled, but for not more than the balance of
such shift. If such order is not terminated prior to the next
working shift, all miners on that shift who are idled by such
order shall be entitled to full compensation by the operator at
their regular rates of pay for the period they are idled, but
for not more than four hours of such shift. If a coal or other
mine or area of such mine is closed by an order issued under
section 104 or section 107 of this title for a failure of the
operator to comply with any mandatory health or safety
standards, all miners who are idled due to such order shall be
fully compensated after all interested parties are given an
opportunity for a public hearing, which shall be expedited in
such cases, and after such order is final, by the operator for
lost time at their regular rates of pay for such time as the
miners are idled by such closing, or for one week, whichever is
the lesser. Whenever an operator violates or fails or refuses
to comply with any order issued under section 103, section 104,
or section 107 of this Act, all miners employed at the affected
mine who would have been withdrawn from, or prevented from
entering, such mine or area thereof as a result of such order
shall be entitled to full compensation by the operator at their
regular rates of pay, in addition to pay received for work
performed after such order was issued, for the period beginning
when such order was issued and ending when such order is
complied with, vacated, or terminated. The Commission shall
have authority to order compensation due under this section
upon the filing of a complaint by a miner or his representative
and after opportunity for hearing subject to section 554 of
title 5, United States Code.]
SEC. 111. ENTITLEMENT OF MINERS.
(a) Protection From Loss of Pay.--
(1) Withdrawal orders.--If a coal or other mine or
area of such mine is closed by an order issued under
section 103, 104, 107, 108, or 110, all miners working
during the shift when such order was issued who are
idled by such order shall be entitled, regardless of
the result of any review of such order, to full
compensation by the operator at their regular rates of
pay for the period they are idled, but for not more
than the balance of such shift. If such order is not
terminated prior to the next working shift, all miners
on that shift who are idled by such order shall be
entitled to full compensation by the operator at their
regular rates of pay for the period they are idled, but
for not more than four hours of such shift. If a coal
or other mine or area of such mine is closed by an
order issued under section 104, 107 (in connection with
a citation), 108, or 110, all miners who are idled by
such order shall be entitled, regardless of the result
of any review of such order, to full compensation by
the operator at their regular rates of pay and in
accordance with their regular schedules of pay for the
entire period for which they are idled, not to exceed
60 days.
(2) Closure in advance of order.--If the Secretary
finds that such mine or such area of a mine was closed
by the operator in anticipation of the issuance of such
an order, all miners who are idled by such closure
shall be entitled to full compensation by the operator
at their regular rates of pay and in accordance with
their regular schedules of pay, from the time of such
closure until such time as the Secretary authorizes
reopening of such mine or such area of the mine, not to
exceed 60 days, except where an operator promptly
withdraws miners upon discovery of a hazard, and
notifies the Secretary where required, and within the
prescribed time period.
(3) Refusal to comply.--Whenever an operator violates
or fails or refuses to comply with any order issued
under section 103, 104, 107, 108, or 110, all miners
employed at the affected mine who would have been
withdrawn from, or prevented from entering, such mine
or area thereof as a result of such order shall be
entitled to full compensation by the operator at their
regular rates of pay, in addition to pay received for
work performed after such order was issued, for the
period beginning when such order was issued and ending
when such order is complied with, vacated, or
terminated.
(b) Enforcement.--
(1) Commission orders.--The Commission shall have
authority to order compensation due under this section
upon the filing of a complaint by a miner or his
representative and after opportunity for hearing
subject to section 554 of title 5, United States Code.
Whenever the Commission issues an order sustaining the
complaint under this subsection in whole or in part,
the Commission shall award the complainant reasonable
attorneys' fees and costs.
(2) Failure to pay compensation due.--Consistent with
the authority of the Secretary to order miners
withdrawn from a mine under this Act, the Secretary
shall order a mine that has been subject to a
withdrawal order under section 103, 104, 107, 108, or
110, and has reopened, to be closed again if
compensation in accordance with the provisions of this
section is not paid by the end of the next regularly
scheduled payroll period following the lifting of a
withdrawal order.
(c) Expedited Review.--If an order is issued which results in
payments to miners under subsection (a), the operators shall
have the right to an expedited review before the Commission
using timelines and procedures established pursuant to section
316(b)(2)(G)(ii).
* * * * * * *
MANDATORY HEALTH AND SAFETY TRAINING
Sec. 115. (a) Each operator of a coal or other mine shall
have a health and safety training program which shall be
approved by the Secretary. The Secretary shall promulgate
regulations with respect to such health and safety training
programs not more than 180 days after the effective date of the
Federal Mine Safety and Health Amendments Act of 1977. Each
training program approved by the Secretary shall provide as a
minimum that--
(1) * * *
* * * * * * *
[(3) all miners shall receive no less than eight
hours of refresher training no less frequently than
once each 12 months, except that miners already
employed on the effective date of the Federal Mine
Safety and Health Amendments Act of 1977 shall receive
this refresher training no more than 90 days after the
date of approval of the training plan required by this
section;]
(3) all miners shall receive not less than 9 hours of
refresher training not less frequently than once every
12 months, and such training shall include one hour of
training on the statutory rights and responsibilities
of miners and their representatives under this Act and
other applicable Federal and State law, pursuant to a
program of instruction developed by the Secretary and
delivered by an employee of the Administration or by a
trainer approved by the Administration that is a party
independent from the operator;
* * * * * * *
(c) Any health and safety training program of instruction
provided under this section shall include distribution to
miners of information regarding miners' rights under the Act,
as well as a toll-free hotline telephone number, which the
Secretary shall maintain to receive complaints from miners and
the public regarding hazardous conditions, discrimination,
safety or health violations, or other mine safety or health
concerns. Information regarding the hotline shall be provided
in a portable, convenient format, such as a durable wallet
card, to enable miners to keep the information on their person.
[(c)] (d) Upon completion of each training program, each
operator shall certify, on a form approved by the Secretary,
that the miner has received the specified training in each
subject area of the approved health and safety training plan. A
certificate for each miner shall be maintained by the operator,
and shall be available for inspection at the mine site, and a
copy thereof shall be given to each miner at the completion of
such training. When a miner leaves the operator's employ, he
shall be entitled to a copy of his health and safety training
certificates. False certification by an operator that training
was given shall be punishable under section 110 (a) and (f);
and each health and safety training certificate shall indicate
on its face, in bold letters, printed in a conspicuous manner
the fact that such false certification is so punishable.
(e) Authority To Mandate Additional Training.--
(1) In general.--The Secretary is authorized to issue
an order requiring that an operator of a coal or other
mine provide additional training beyond what is
otherwise required by law, and specifying the time
within which such training shall be provided, if the
Secretary finds that--
(A)(i) a serious or fatal accident has
occurred at such mine; or
(ii) such mine has experienced accident and
injury rates, citations for violations of this
Act (including mandatory health or safety
standards or regulations promulgated under this
Act), citations for significant and substantial
violations, or withdrawal orders issued under
this Act at a rate above the average for mines
of similar size and type; and
(B) additional training would benefit the
health and safety of miners at the mine.
(2) Withdrawal order.--If the operator fails to
provide training ordered under paragraph (1) within the
specified time, the Secretary shall issue an order
requiring such operator to cause all affected persons,
except those persons referred to in section 104(c), to
be withdrawn, and to be prohibited from entering such
mine, until such operator has provided such training.
[(d)] (f) The Secretary shall promulgate appropriate
standards for safety and health training for coal or other mine
construction workers.
[(e)] (g)(1) * * *
* * * * * * *
SEC. 117. UNDERGROUND COAL MINER EMPLOYMENT STANDARD FOR MINES PLACED
IN PATTERN STATUS.
(a) In General.-- For purposes of ensuring miners' health and
safety and miners' right to raise concerns thereof, when an
underground coal mine is placed in pattern status pursuant to
section 104(e), and for 3 years after such placement, the
operator of such mine may not discharge or constructively
discharge a miner who is paid on an hourly basis and employed
at such underground coal mine without reasonable job-related
grounds based on a failure to satisfactorily perform job
duties, including compliance with this Act and with mandatory
health and safety standards or other regulations issued under
this Act, or other legitimate business reason, where the miner
has completed the employer's probationary period, not to exceed
6 months.
(b) Cause of Action.--A miner aggrieved by a violation of
subsection (a) may file a complaint in Federal district court
in the district where the mine is located within 1 year of such
violation.
(c) Remedies.--In an action under subsection (b), for any
prevailing miner the court shall take affirmative action to
further the purposes of the Act, which may include
reinstatement with backpay and compensatory damages. Reasonable
attorneys' fees and costs shall be awarded to any prevailing
miner under this section.
(d) Pre-Dispute Waiver Prohibited.--A miner's right to a
cause of action under this section may not be waived with
respect to disputes that have not arisen as of the time of the
waiver.
(e) Construction.--Nothing in this section shall be construed
to limit the availability of rights and remedies of miners
under any other State or Federal law or a collective bargaining
agreement.
SEC. 118. CERTIFICATION OF PERSONNEL.
(a) Certification Required.--Any person who is authorized or
designated by the operator of a coal or other mine to perform
any duties or provide any training that this Act, including a
mandatory health or safety standard or regulation promulgated
pursuant to this Act, requires to be performed or provided by a
certified, registered, qualified, or otherwise approved person,
shall be permitted to perform such duties or provide such
training only if such person has a current certification,
registration, qualification, or approval to perform such duties
or provide such training consistent with the requirements of
this section.
(b) Establishment of Certification Requirements and
Procedures.--
(1) In general.--Not later than 1 year after the date
of enactment of the Robert C. Byrd Miner Safety and
Health Act of 2010, the Secretary shall issue mandatory
standards to establish--
(A) requirements for such certification,
registration, qualification, or other approval,
including the experience, examinations, and
references that may be required as appropriate;
(B) time limits for such certifications and
procedures for obtaining and renewing such
certification, registration, qualification, or
other approval; and
(C) procedures and criteria for revoking such
certification, registration, qualification, or
other approval, including procedures that
ensure that the Secretary (or a State agency,
as applicable) responds to requests for
revocation and that the names of individuals
whose certification or other approval has been
revoked are provided to and maintained by the
Secretary, and are made available to
appropriate State agencies through an
electronic database.
(2) Coordination with states.--In developing such
standards, the Secretary shall consult with States that
have miner certification programs to ensure effective
coordination with existing State standards and
requirements for certification. The standards required
under paragraph (1) shall provide that the
certification, registration, qualification, or other
approval of the State in which the coal or other mine
is located satisfies the requirement of subsection (a)
if the State's program of certification, registration,
qualification, or other approval is no less stringent
than the standards established by the Secretary under
paragraph (1).
(c) Operator Fees for Certification.--
(1) Assessment and collection.--Beginning 180 days
after the date of enactment of the Robert C. Byrd Miner
Safety and Health Act of 2010, the Secretary shall
assess and collect fees, in accordance with this
subsection, from each operator for each person
certified under this section. Fees shall be assessed
and collected in amounts determined by the Secretary as
necessary to fund the certification programs
established under this section.
(2) Use.--Amounts collected as provided in paragraph
(1) shall only be available to the Secretary, as
provided in paragraph (3), for making expenditures to
carry out the certification programs established under
this subsection.
(3) Authorization of appropriations.--In addition to
funds authorized to be appropriated under section 114,
there is authorized to be appropriated to the Assistant
Secretary for Mine Safety and Health for each fiscal
year in which fees are collected under paragraph (1) an
amount equal to the total amount of fees collected
under paragraph (1) during that fiscal year. Such
amounts are authorized to remain available until
expended. If on the first day of a fiscal year a
regular appropriation to the Commission has not been
enacted, the Commission shall continue to collect fees
(as offsetting collections) under this subsection at
the rate in effect during the preceding fiscal year,
until 5 days after the date such regular appropriation
is enacted.
(4) Collecting and crediting of fees.--Fees
authorized and collected under this subsection shall be
deposited and credited as offsetting collections to the
account providing appropriations to the Mine Safety and
Health Administration and shall not be collected for
any fiscal year except to the extent and in the amount
provided in advance in appropriation Acts.
(d) Citation; Withdrawal Order.--Any operator who permits a
person to perform any of the health or safety related functions
described in subsection (a) without a current certification
which meets the requirements of this section shall be
considered to have committed an unwarrantable failure under
section 104(d)(1), and the Secretary shall issue an order
requiring that the miner be withdrawn or reassigned to duties
that do not require such certification.
SEC. 119. APPLICABILITY OF CERTAIN PROVISIONS TO CERTAIN MINES.
(a) Rule of Construction.--With respect to the mines
described in subsection (b), this Act as in effect on the date
before the date of enactment of the Robert C. Byrd Miner Safety
and Health Act of 2010, shall continue to apply to such mines
as then in effect.
(b) Applicable Mines.--
(1) In general.--The mines referred to in subsection
(a) are--
(A) surface mines, except for surface
facilities or impoundments physically connected
to--
(i) underground coal mines; or
(ii) other underground mines which
are gassy mines; and
(B) underground mines which are neither coal
mines nor gassy mines.
(2) Definition.--As used in paragraph (1), the term
``gassy mine'' means a mine, tunnel, or other
underground workings in which a flammable mixture has
been ignited, or has been found with a permissible
flame safety lamp, or has been determined by air
analysis to contain 0.25 percent or more (by volume) of
methane in any open workings when tested at a point not
less than 12 inches from the roof, face of rib.
(c) Savings Provision.--Nothing in this section shall impact
the authority of the Secretary to promulgate or modify
regulations pursuant to the authority under any such provisions
as in effect on the date before the date of enactment of the
Robert C. Byrd Miner Safety and Health Act of 2010, or shall be
construed to alter or modify precedent with regards to the
Commission or courts.
TITLE II--INTERIM MANDATORY HEALTH STANDARDS
* * * * * * *
DUST STANDARD AND RESPIRATORY EQUIPMENT
Sec. 202. (a) * * *
* * * * * * *
(d) Beginning six months after the operative date of this
title and from time to time thereafter, the Secretary [of
Health, Education, and Welfare] shall establish, in accordance
with the provisions of section 101 of this Act, a schedule
reducing the average concentration of respirable dust in the
mine atmosphere during each shift to which each miner in the
active workings is exposed below the levels established in this
section to a level of personal exposure which will prevent new
incidences of respiratory disease and the further development
of such disease in any person. [Such schedule shall specify the
minimum time necessary to achieve such levels taking into
consideration present and future advancements in technology to
reach these levels.] Not later than 2 years after the date of
enactment of the Robert C. Byrd Miner Safety and Health Act of
2010, the Secretary shall promulgate final regulations that
require operators, beginning on the date such regulations are
issued, to provide coal miners with the maximum feasible
protection from respirable dust, including coal and silica
dust, that is achievable through environmental controls, and
that meet the applicable standards.
* * * * * * *
TITLE III--INTERIM MANDATORY SAFETY STANDARDS FOR UNDERGROUND COAL
MINES
* * * * * * *
VENTILATION
Sec. 303. (a) * * *
* * * * * * *
(d)(1) * * *
* * * * * * *
(3)(A) Not later than 30 days after the issuance of the
interim final rules promulgated under subparagraph (C), each
operator of an underground coal mine shall implement a
communication program at the underground coal mine to ensure
that each miner is orally briefed on and made aware of, prior
to traveling to or arriving at the miner's work area and
commencing the miner's assigned tasks--
(i) any conditions that are hazardous, or that
violate a mandatory health or safety standard or a plan
approved under this Act, where the miner is expected to
work or travel; and
(ii) the general conditions of that miner's assigned
working section or other area where the miner is
expected to work or travel.
(B) Not later than 180 days after the date of enactment of
the Robert C. Byrd Miner Safety and Health Act of 2010, the
Secretary shall promulgate interim final rules implementing the
requirements of subparagraph (A). The Secretary shall issue a
final rule not later than 2 years after such date.
* * * * * * *
COMBUSTIBLE MATERIALS AND ROCK DUSTING
Sec. 304. (a) * * *
* * * * * * *
(d) [Where rock] Rock Dust.--
(1) In general.--Where rock dust is required to be
applied, it shall be distributed upon the top, floor,
and sides of all underground areas of a coal mine and
maintained in such quantities that the incombustible
content of the combined coal dust, rock dust, and other
dust shall be not less than [65 per centum, but the
incombustible content in the return aircourses shall be
no less than 80 per centum. Where methane is present in
any ventilating current, the per centum of
incombustible content of such combined dusts shall be
increased 1.0 and 0.4 per centum for each 0.1 per
centum of methane where 65 and 80 per centum,
respectively, of incombustibles are required.] 80
percent. Where methane is present in any ventilating
current, the percentage of incombustible content of
such combined dusts shall be increased 0.4 percent for
each 0.1 percent of methane.
(2) Methods of measurement.--
(A) In general.--Each operator of an
underground coal mine shall take accurate and
representative samples which shall measure the
total incombustible content of combined coal
dust, rock dust, and other dust in such mine to
ensure that the coal dust is kept below
explosive levels through the appropriate
application of rock dust.
(B) Direct reading monitors.--By the later of
June 15, 2011, or the date that is 30 days
after the Secretary of Health and Human
Services has certified in writing that direct
reading monitors are commercially available to
measure total incombustible content in samples
of combined coal dust, rock dust, and other
dust and the Department of Labor has approved
such monitors for use in underground coal
mines, the Secretary shall require operators to
take such dust samples using direct reading
monitors.
(C) Regulations.--The Secretary shall, not
later than 180 days after the date of enactment
of the Robert C. Byrd Miner Safety and Health
Act of 2010, promulgate an interim final rule
that prescribes methods for operator sampling
of total incombustible content in samples of
combined coal dust, rock dust, and other dust
using direct reading monitors and includes
requirements for locations, methods, and
intervals for mandatory operator sampling.
(D) Recommendations.--Not later than 1 year
after the date of enactment of the Robert C.
Byrd Miner Safety and Health Act of 2010, the
Secretary of Health and Human Services shall,
based upon the latest research, recommend to
the Secretary of Labor any revisions to the
mandatory operator sampling locations, methods,
and intervals included in the interim final
rule described in subparagraph (B) that may be
warranted in light of such research.
(3) Limitation.--Until a final rule is issued by the
Secretary under section 502(b)(2) of the Robert C. Byrd
Miner Safety and Health Act of 2010, any measurement
taken by a direct reading monitor described in
paragraph (2) shall not be admissible to establish a
violation in an enforcement action under this Act.
* * * * * * *
MISCELLANEOUS
Sec. 317. (a) * * *
* * * * * * *
(u) Atmospheric Monitoring Systems.--
(1) Niosh recommendations.--Not later than 1 year
after the date of enactment of the Robert C. Byrd Miner
Safety and Health Act of 2010, the Director of the
National Institute for Occupational Safety and Health,
acting through the Office of Mine Safety and Health
Research, in consultation, including through technical
working groups, with operators, vendors, State mine
safety agencies, the Secretary, and labor
representatives of miners, shall issue recommendations
to the Secretary regarding--
(A) how to ensure that atmospheric monitoring
systems are utilized in the underground coal
mining industry to maximize the health and
safety of underground coal miners;
(B) the implementation of redundant systems,
such as the bundle tubing system, that can
continuously monitor the mine atmosphere
following incidents such as fires, explosions,
entrapments, and inundations; and
(C) other technologies available to conduct
continuous atmospheric monitoring.
(2) Atmospheric monitoring system regulations.--Not
later than 1 year following the receipt of the
recommendations described in paragraph (1), the
Secretary shall promulgate regulations requiring that
each operator of an underground coal mine install
atmospheric monitoring systems, consistent with such
recommendations, that--
(A) protect miners where the miners normally
work and travel;
(B) provide real-time information regarding
methane and carbon monoxide levels, and airflow
direction, as appropriate, with sensing,
annunciating, and recording capabilities; and
(C) can, to the maximum extent practicable,
withstand explosions and fires.
DEFINITIONS
Sec. 318. For the purpose of this title and title II of this
Act, the term--
[(a) ``certified'' or ``registered'' as applied to
any person means a person certified or registered by
the State in which the coal mine is located to perform
duties prescribed by such titles, except that, in a
State where no program of certification or registration
is provided or where the program does not meet at least
minimum Federal standards established by the Secretary,
such certification or registration shall be the
Secretary;
[(b) ``qualified'' person means, as the context
requires,
[(1) an individual deemed qualified by the
Secretary and designated by the operator to
make tests and examinations required by this
Act; and
[(2) an individual deemed, in accordance with
minimum requirements to be established by the
Secretary, qualified by training, education,
and experience, to perform electrical work, to
maintain electrical equipment, and to conduct
examinations and tests of all electrical
equipment;]
[(c)] (1) ``permissible'' as applied to--
[(1)] (A) equipment used in the operation of
a coal mine, means equipment, other than
permissible electric face equipment, to which
an approval plate, label, or other device is
attached as authorized by the Secretary and
which meets specifications which are prescribed
by the Secretary for the construction and
maintenance of such equipment and are designed
to assure that such equipment will not cause a
mine explosion or a mine fire,
[(2)] (B) explosives, shot firing units, or
blasting devices used in such mine, means
explosives, shot firing units, or blasting
devices which meet specifications which are
prescribed by the Secretary, and
[(3)] (C) the manner of use of equipment or
explosives, shot firing units, and blasting
devices, means the manner of use prescribed by
the Secretary;
[(d)] (2) ``rock dust'' means pulverized limestone,
dolomite, gypsum, anhydrite, shale, adobe, or other
inert material, preferably light colored, 100 per
centum of which will pass through a sieve having twenty
meshes per linear inch and 70 per centum or more of
which will pass through a sieve having two hundred
meshes per linear inch; the particles of which when
wetted and dried will not cohere to form a cake which
will not be dispersed into separate particles by a
light blast of air; and which does not contain more
than 5 per centum of combustible matter or more than a
total of 4 per centum of free and combined silica
(SiO2), or, where the Secretary finds that
such silica concentrations are not available, which
does not contain more than 5 per centum of free and
combined silica;
[(e)] (3) ``anthracite'' means coals with a volatile
ratio equal to 0.12 or less;
[(f)] (4) ``volatile ratio'' means volatile matter
content divided by the volatile matter plus the fixed
carbon;
[(g)(1)] (5)(A) ``working face'' means any place in a
coal mine in which work of extracting coal from its
natural deposit in the earth is performed during the
mining cycle,
[(2)] (B) ``working place'' means the area of
a coal mine inby the last open crosscut,
[(3)] (C) ``working section'' means all areas
of the coal mine from the loading point of the
section to and including the working faces,
[(4)] (D) ``active workings'' means any place
in a coal mine where miners are normally
required to work or travel;
[(h)] (6) ``abandoned areas'' means sections, panels,
and other areas that are not ventilated and examined in
the manner required for working places under section
303 of this title;
[(i)] (7) ``permissible' as applied to electric face
equipment means all electrically operated equipment
taken into or used inby the last open crosscut of an
entry or a room of any coal mine the electrical parts
of which, including, but not limited to, associated
electrical equipment, components, and accessories, are
designed, constructed, and installed, in accordance
with the specifications of the Secretary, to assure
that such equipment will not cause a mine explosion or
mine fire, and the other features of which are designed
and constructed, in accordance with the specifications
of the Secretary, to prevent, to the greatest extent
possible, other accidents in the use of such equipment;
and the regulations of the Secretary or the Director of
the Bureau of Mines in effect on the operative date of
this title relating to the requirements for
investigation, testing, approval, certification, and
acceptance of such equipment as permissible shall
continue in effect until modified or superseded by the
Secretary, except that the Secretary shall provide
procedures, including, where feasible, testing,
approval, certification, and acceptance in the field by
an authorized representative of the Secretary, to
faciliate compliance by an operator with the
requirements of section 305(a) of this title within the
periods prescribed therein:
[(j)] (8) ``low voltage'' means by to and including
660 volts: ``medium voltage'' means voltages from 661
to 1,000 volts; and ``high voltage'' means more than
1,000 volts;
* * * * * * *
TITLE V--ADMINISTRATION
* * * * * * *
ASSISTANCE TO STATES
Sec. 503. (a) The Secretary[, in coordination with the
Secretary of Health, Education, and Welfare and the Secretary
of the Interior,] is authorized to make grants in accordance
with an application approved under this section to any State in
which coal or other mining takes place--
(1) * * *
(2) to improve State workmen's compensation and
occupational disease laws and programs related to coal
or other mine employment; [and]
(3) to promote Federal-State coordination and
cooperation in improving the health and safety
conditions in the coal or other mines[.]; and
(4) to assist such State in developing and
implementing any certification program for coal or
other mines required for compliance with section 118.
* * * * * * *
(h) There is authorized to be appropriated [$3,000,000 for
fiscal year 1970, and $10,000,000 annually in each succeeding
fiscal year] $20,000,000 for each fiscal year to carry out the
provisions of this section, which shall remain available until
expended. The Secretary shall provide for an equitable
distribution of sums appropriated for grants under this section
to the States where there is an approved application, except
that no less than one-half of such sum shall be allocated to
coal-producing States.
* * * * * * *
REPORTS
Sec. 511. (a) Within one hundred and twenty days following
the convening of each session of Congress the Secretary shall
submit through the President to the Congress and to the Office
of Science and Technology an annual report upon the subject
matter of this Act, the progress concerning the achievement of
its purposes, the needs and requirements in the field of coal
or other mine health and safety, the amount and status of each
loan made pursuant to this Act, a description and the
anticipated cost of each project and program he has undertaken
under sections 301(b) and 501, the status of implementation of
recommendations from each independent investigation panel under
section 103(b) received in the preceding 5 years and any other
relevant information, including any recommendations he deems
appropriate.
* * * * * * *
----------
BLACK LUNG BENEFITS ACT
TITLE IV--BLACK LUNG BENEFITS
* * * * * * *
Part C--Claims for Benefits After December 31, 1973
* * * * * * *
SEC. 435. MEDICAL REPORTS.
In any claim for benefits for a miner under this title, an
operator that requires a miner to submit to a medical
examination regarding the miner's respiratory or pulmonary
condition shall, not later than 14 days after the miner has
been examined, deliver to the claimant a complete copy of the
examining physician's report. The examining physician's report
shall be in writing and shall set out in detail the examiner's
findings, including any diagnoses and conclusions and the
results of any diagnostic imaging techniques and tests that
were performed on the miner.
* * * * * * *
----------
OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
* * * * * * *
SEC. 9A. VICTIMS' RIGHTS.
(a) Rights Before the Secretary.--A victim or the
representative of a victim, shall be afforded the right, with
respect to an inspection or investigation conducted under
section 8 to--
(1) meet with the Secretary regarding the inspection
or investigation conducted under such section before
the Secretary's decision to issue a citation or take no
action;
(2) receive, at no cost, a copy of any citation or
report, issued as a result of such inspection or
investigation, at the same time as the employer
receives such citation or report;
(3) be informed of any notice of contest or addition
of parties to the proceedings filed under section
10(c); and
(4) be provided notification of the date and time or
any proceedings, service of pleadings, and other
relevant documents, and an explanation of the rights of
the employer, employee and employee representative, and
victim to participate in proceedings conducted under
section 10(c).
(b) Rights Before the Commission.--Upon request, a victim or
representative of a victim shall be afforded the right with
respect to a work-related bodily injury or death to--
(1) be notified of the time and date of any
proceeding before the Commission;
(2) receive pleadings and any decisions relating to
the proceedings; and
(3) be provided an opportunity to appear and make a
statement in accordance with the rules prescribed by
the Commission.
(c) Modification of Citation.--Before entering into an
agreement to withdraw or modify a citation issued as a result
of an inspection or investigation of an incident under section
8, the Secretary shall notify a victim or representative of a
victim and provide the victim or representative of a victim
with an opportunity to appear and make a statement before the
parties conducting settlement negotiations. In lieu of an
appearance, the victim or representative of the victim may
elect to submit a letter to the Secretary and the parties.
(d) Secretary Procedures.--The Secretary shall establish
procedures--
(1) to inform victims of their rights under this
section; and
(2) for the informal review of any claim of a denial
of such a right.
(e) Commission Procedures and Considerations.--The Commission
shall--
(1) establish procedures relating to the rights of
victims to be heard in proceedings before the
Commission; and
(2) in rendering any decision, provide due
consideration to any statement or information provided
by any victim before the Commission.
(f) Family Liaisons.--The Secretary shall designate at least
1 employee at each area office of the Occupational Safety and
Health Administration to serve as a family liaison to--
(1) keep victims informed of the status of
investigations, enforcement actions, and settlement
negotiations; and
(2) assist victims in asserting their rights under
this section.
(g) Definition.--In this section, the term ``victim'' means--
(1) an employee, including a former employee, who has
sustained a work-related injury or illness that is the
subject of an inspection or investigation conducted
under section 8; or
(2) a family member (as further defined by the
Secretary) of a victim described in paragraph (1), if--
(A) the victim dies as a result of a incident
that is the subject of an inspection or
investigation conducted under section 8; or
(B) the victim sustains a work-related injury
or illness that is the subject of an inspection
or investigation conducted under section 8, and
the victim because of incapacity cannot
reasonably exercise the rights under this
section.
PROCEDURE FOR ENFORCEMENT
Sec. 10. (a) * * *
* * * * * * *
(d) Correction of Serious, Willful, or Repeated Violations
Pending Contest and Procedures for a Stay.--
(1) Period permitted for correction of serious,
willful, or repeated violations.--For each violation
which the Secretary designates as serious, willful, or
repeated, the period permitted for the correction of
the violation shall begin to run upon receipt of the
citation.
(2) Filing of a motion of contest.--The filing of a
notice of contest by an employer--
(A) shall not operate as a stay of the period
for correction of a violation designated as
serious, willful, or repeated; and
(B) may operate as a stay of the period for
correction of a violation not designated by the
Secretary as serious, willful, or repeated.
(3) Criteria and rules of procedure for stays.--
(A) Motion for a stay.--An employer that
receives a citation alleging a violation
designated as serious, willful, or repeated and
that files a notice of contest to the citation
asserting that the time set for abatement of
the alleged violation is unreasonable or
challenging the existence of the alleged
violation may file with the Commission a motion
to stay the period for the abatement of the
violation.
(B) Criteria.--In determining whether a stay
should be issued on the basis of a motion filed
under subparagraph (A), the Commission may
grant a stay only if the employer has
demonstrated--
(i) a substantial likelihood of
success on the areas contested under
subparagraph (A); and
(ii) that a stay will not adversely
affect the health and safety of
workers.
(C) Rules of procedure.--The Commission shall
develop rules of procedure for conducting a
hearing on a motion filed under subparagraph
(A) on an expedited basis. At a minimum, such
rules shall provide:
(i) That a hearing before an
administrative law judge shall occur
not later than 15 days following the
filing of the motion for a stay (unless
extended at the request of the
employer), and shall provide for a
decision on the motion not later than
15 days following the hearing (unless
extended at the request of the
employer).
(ii) That a decision of an
administrative law judge on a motion
for stay is rendered on a timely basis.
(iii) That if a party is aggrieved by
a decision issued by an administrative
law judge regarding the stay, such
party has the right to file an
objection with the Commission not later
than 5 days after receipt of the
administrative law judge's decision.
Within 10 days after receipt of the
objection, a Commissioner, if a quorum
is seated pursuant to section 12(f),
shall decide whether to grant review of
the objection. If, within 10 days after
receipt of the objection, no decision
is made on whether to review the
decision of the administrative law
judge, the Commission declines to
review such decision, or no quorum is
seated, the decision of the
administrative law judge shall become a
final order of the Commission. If the
Commission grants review of the
objection, the Commission shall issue a
decision regarding the stay not later
than 30 days after receipt of the
objection. If the Commission fails to
issue such decision within 30 days, the
decision of the administrative law
judge shall become a final order of the
Commission.
(iv) For notification to employees or
representatives of affected employees
of requests for such hearings and shall
provide affected employees or
representatives of affected employees
an opportunity to participate as
parties to such hearings.
JUDICIAL REVIEW
Sec. 11. (a) * * *
* * * * * * *
(c)(1) No person shall [discharge or in any manner
discriminate against any employee because such] discharge or
cause to be discharged, or in any manner discriminate against
or cause to be discriminated against, any employee because--
(A) such employee has filed any complaint or
instituted or caused to be instituted any proceeding
under or related to [this Act or has] this Act;
(B) such employee has testified or is about to
testify [in any such proceeding or because of the
exercise] before Congress or in any Federal or State
proceeding related to safety or health;
(C) such employee has refused to violate any
provision of this Act; or
(D) of the exercise by such employee on behalf of
himself or others of any right afforded by this Act,
including the reporting of any injury, illness, or
unsafe condition to the employer, agent of the
employer, safety and health committee involved, or
employee safety and health representative involved.
[(2) Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation of
this subsection may, within thirty days after such violation
occurs, file a complaint with the Secretary alleging such
discrimination. Upon receipt of such complaint, the Secretary
shall cause such investigation to be made as he deems
appropriate. If upon such investigation, the Secretary
determines that the provisions of this subsection have been
violated, he shall bring an action in any appropriate United
States district court against such person. In any such action
the United States district courts shall have jurisdiction, for
cause shown to restrain violations of paragraph (1) of this
subsection and order all appropriate relief including rehiring
or reinstatement of the employee to his former position with
back pay.
[(3) Within 90 days of the receipt of a complaint filed under
this subsection the Secretary shall notify the complainant of
his determination under paragraph 2 of this subsection.]
(2) Prohibition of retaliation.--(A) No person shall
discharge, or cause to be discharged, or in any manner
discriminate against, or cause to be discriminated
against, an employee for refusing to perform the
employee's duties if the employee has a reasonable
apprehension that performing such duties would result
in serious injury to, or serious impairment of the
health of, the employee or other employees.
(B) For purposes of subparagraph (A), the
circumstances causing the employee's good-faith belief
that performing such duties would pose a safety or
health hazard shall be of such a nature that a
reasonable person, under the circumstances confronting
the employee, would conclude that there is such a
hazard. In order to qualify for protection under this
paragraph, the employee, when practicable, shall have
communicated or attempted to communicate the safety or
health concern to the employer and have not received
from the employer a response reasonably calculated to
allay such concern.
(3) Complaint.--Any employee who believes that the
employee has been discharged, disciplined, or otherwise
discriminated against by any person in violation of
paragraph (1) or (2) may seek relief for such violation
by filing a complaint with the Secretary under
paragraph (5).
(4) Statute of limitations.--
(A) In general.--An employee may take the
action permitted by paragraph (3)(A) not later
than 180 days after the later of--
(i) the date on which an alleged
violation of paragraph (1) or (2)
occurs; or
(ii) the date on which the employee
knows or should reasonably have known
that such alleged violation occurred.
(B) Repeat violation.--Except in cases when
the employee has been discharged, a violation
of paragraph (1) or (2) shall be considered to
have occurred on the last date an alleged
repeat violation occurred.
(5) Investigation.--
(A) In general.--An employee may, within the
time period required under paragraph (4)(B),
file a complaint with the Secretary alleging a
violation of paragraph (1) or (2). If the
complaint alleges a prima facie case, the
Secretary shall conduct an investigation of the
allegations in the complaint, which--
(i) shall include--
(I) interviewing the
complainant;
(II) providing the respondent
an opportunity to--
(aa) submit to the
Secretary a written
response to the
complaint; and
(bb) meet with the
Secretary to present
statements from
witnesses or provide
evidence; and
(III) providing the
complainant an opportunity to--
(aa) receive any
statements or evidence
provided to the
Secretary;
(bb) meet with the
Secretary; and
(cc) rebut any
statements or evidence;
and
(ii) may include issuing subpoenas
for the purposes of such investigation.
(B) Decision.--Not later than 90 days after
the filing of the complaint, the Secretary
shall--
(i) determine whether reasonable
cause exists to believe that a
violation of paragraph (1) or (2) has
occurred; and
(ii) issue a decision granting or
denying relief.
(6) Preliminary order following investigation.--If,
after completion of an investigation under paragraph
(5)(A), the Secretary finds reasonable cause to believe
that a violation of paragraph (1) or (2) has occurred,
the Secretary shall issue a preliminary order providing
relief authorized under paragraph (14) at the same time
the Secretary issues a decision under paragraph (5)(B).
If a de novo hearing is not requested within the time
period required under paragraph (7)(A)(i), such
preliminary order shall be deemed a final order of the
Secretary and is not subject to judicial review.
(7) Hearing.--
(A) Request for hearing.--
(i) In general.--A de novo hearing on
the record before an administrative law
judge may be requested--
(I) by the complainant or
respondent within 30 days after
receiving notification of a
decision granting or denying
relief issued under paragraph
(5)(B) or paragraph (6)
respectively;
(II) by the complainant
within 30 days after the date
the complaint is dismissed
without investigation by the
Secretary under paragraph
(5)(A); or
(III) by the complainant
within 120 days after the date
of filing the complaint, if the
Secretary has not issued a
decision under paragraph
(5)(B).
(ii) Reinstatement order.--The
request for a hearing shall not operate
to stay any preliminary reinstatement
order issued under paragraph (6).
(B) Procedures.--
(i) In general.--A hearing requested
under this paragraph shall be conducted
expeditiously and in accordance with
rules established by the Secretary for
hearings conducted by administrative
law judges.
(ii) Subpoenas; production of
evidence.--In conducting any such
hearing, the administrative law judge
may issue subpoenas. The respondent or
complainant may request the issuance of
subpoenas that require the deposition
of, or the attendance and testimony of,
witnesses and the production of any
evidence (including any books, papers,
documents, or recordings) relating to
the matter under consideration.
(iii) Decision.--The administrative
law judge shall issue a decision not
later than 90 days after the date on
which a hearing was requested under
this paragraph and promptly notify, in
writing, the parties and the Secretary
of such decision, including the
findings of fact and conclusions of
law. If the administrative law judge
finds that a violation of paragraph (1)
or (2) has occurred, the judge shall
issue an order for relief under
paragraph (14). If review under
paragraph (8) is not timely requested,
such order shall be deemed a final
order of the Secretary that is not
subject to judicial review.
(8) Administrative appeal.--
(A) In general.--Not later than 30 days after
the date of notification of a decision and
order issued by an administrative law judge
under paragraph (7), the complainant or
respondent may file, with objections, an
administrative appeal with an administrative
review body designated by the Secretary
(referred to in this paragraph as the ``review
board'').
(B) Standard of review.--In reviewing the
decision and order of the administrative law
judge, the review board shall affirm the
decision and order if it is determined that the
factual findings set forth therein are
supported by substantial evidence and the
decision and order are made in accordance with
applicable law.
(C) Decisions.--If the review board grants an
administrative appeal, the review board shall
issue a final decision and order affirming or
reversing, in whole or in part, the decision
under review by not later than 90 days after
receipt of the administrative appeal. If it is
determined that a violation of paragraph (1) or
(2) has occurred, the review board shall issue
a final decision and order providing relief
authorized under paragraph (14). Such decision
and order shall constitute final agency action
with respect to the matter appealed.
(9) Settlement in the administrative process.--
(A) In general.--At any time before issuance
of a final order, an investigation or
proceeding under this subsection may be
terminated on the basis of a settlement
agreement entered into by the parties.
(B) Public policy considerations.--Neither
the Secretary, an administrative law judge, nor
the review board conducting a hearing under
this subsection shall accept a settlement that
contains conditions conflicting with the rights
protected under this Act or that are contrary
to public policy, including a restriction on a
complainant's right to future employment with
employers other than the specific employers
named in a complaint.
(10) Inaction by the review board or administrative
law judge.--
(A) In general.--The complainant may bring a
de novo action described in subparagraph (B)
if--
(i) an administrative law judge has
not issued a decision and order within
the 90-day time period required under
paragraph (7)(B)(iii); or
(ii) the review board has not issued
a decision and order within the 90-day
time period required under paragraph
(8)(C).
(B) De novo action.--Such de novo action may
be brought at law or equity in the United
States district court for the district where a
violation of paragraph (1) or (2) allegedly
occurred or where the complainant resided on
the date of such alleged violation. The court
shall have jurisdiction over such action
without regard to the amount in controversy and
to order appropriate relief under paragraph
(14). Such action shall, at the request of
either party to such action, be tried by the
court with a jury.
(11) Judicial review.--
(A) Timely appeal to the court of appeals.--
Any party adversely affected or aggrieved by a
final decision and order issued under this
subsection may obtain review of such decision
and order in the United States Court of Appeals
for the circuit where the violation, with
respect to which such final decision and order
was issued, allegedly occurred or where the
complainant resided on the date of such alleged
violation. To obtain such review, a party shall
file a petition for review not later than 60
days after the final decision and order was
issued. Such review shall conform to chapter 7
of title 5, United States Code. The
commencement of proceedings under this
subparagraph shall not, unless ordered by the
court, operate as a stay of the final decision
and order.
(B) Limitation on collateral attack.--An
order and decision with respect to which review
may be obtained under subparagraph (A) shall
not be subject to judicial review in any
criminal or other civil proceeding.
(12) Enforcement of order.--If a respondent fails to
comply with an order issued under this subsection, the
Secretary or the complainant on whose behalf the order
was issued may file a civil action for enforcement in
the United States district court for the district in
which the violation was found to occur to enforce such
order. If both the Secretary and the complainant file
such action, the action of the Secretary shall take
precedence. The district court shall have jurisdiction
to grant all appropriate relief described in paragraph
(14).
(13) Burdens of proof.--
(A) Criteria for determination.--In making a
determination or adjudicating a complaint
pursuant to this subsection, the Secretary,
administrative law judge, review board, or a
court may determine that a violation of
paragraph (1) or (2) has occurred only if the
complainant demonstrates that any conduct
described in paragraph (1) or (2) with respect
to the complainant was a contributing factor in
the adverse action alleged in the complaint.
(B) Prohibition.--Notwithstanding
subparagraph (A), a decision or order that is
favorable to the complainant shall not be
issued in any administrative or judicial action
pursuant to this subsection if the respondent
demonstrates by clear and convincing evidence
that the respondent would have taken the same
adverse action in the absence of such conduct.
(14) Relief.--
(A) Order for relief.--If the Secretary,
administrative law judge, review board, or a
court determines that a violation of paragraph
(1) or (2) has occurred, the Secretary or
court, respectively, shall have jurisdiction to
order all appropriate relief, including
injunctive relief, compensatory and exemplary
damages, including--
(i) affirmative action to abate the
violation;
(ii) reinstatement without loss of
position or seniority, and restoration
of the terms, rights, conditions, and
privileges associated with the
complainant's employment, including
opportunities for promotions to
positions with equivalent or better
compensation for which the complainant
is qualified;
(iii) compensatory and consequential
damages sufficient to make the
complainant whole, (including back pay,
prejudgment interest, and other
damages); and
(iv) expungement of all warnings,
reprimands, or derogatory references
that have been placed in paper or
electronic records or databases of any
type relating to the actions by the
complainant that gave rise to the
unfavorable personnel action, and, at
the complainant's direction,
transmission of a copy of the decision
on the complaint to any person whom the
complainant reasonably believes may
have received such unfavorable
information.
(B) Attorneys' fees and costs.--If the
Secretary or an administrative law judge,
review board, or court grants an order for
relief under subparagraph (A), the Secretary,
administrative law judge, review board, or
court, respectively, shall assess, at the
request of the employee against the employer--
(i) reasonable attorneys' fees; and
(ii) costs (including expert witness
fees) reasonably incurred, as
determined by the Secretary,
administrative law judge, review board,
or court, respectively, in connection
with bringing the complaint upon which
the order was issued.
(15) Procedural rights.--The rights and remedies
provided for in this subsection may not be waived by
any agreement, policy, form, or condition of
employment, including by any pre-dispute arbitration
agreement or collective bargaining agreement.
(16) Savings.--Nothing in this subsection shall be
construed to diminish the rights, privileges, or
remedies of any employee who exercises rights under any
Federal or State law or common law, or under any
collective bargaining agreement.
(17) Election of venue.--
(A) In general.--An employee of an employer
who is located in a State that has a State plan
approved under section 18 may file a complaint
alleging a violation of paragraph (1) or (2) by
such employer with--
(i) the Secretary under paragraph
(5); or
(ii) a State plan administrator in
such State.
(B) Referrals.--If--
(i) the Secretary receives a
complaint pursuant to subparagraph
(A)(i), the Secretary shall not refer
such complaint to a State plan
administrator for resolution; or
(ii) a State plan administrator
receives a complaint pursuant to
subparagraph (A)(ii), the State plan
administrator shall not refer such
complaint to the Secretary for
resolution.
* * * * * * *
PENALTIES
Sec. 17. (a) Any employer who willfully or repeatedly
violates the requirements of section 5 of this Act, any
standard, rule, or order promulgated pursuant to section 6 of
this Act, or regulations prescribed pursuant to this Act, may
be assessed a civil penalty or not more than [$70,000] $120,000
for each violation, but not less than [$5,000] $8,000 for each
willful violation. In determining whether a violation is
repeated, the Secretary or the Commission shall consider the
employer's history of violations under this Act and under State
occupational safety and health plans established under section
18. If such a willful or repeated violation caused or
contributed to the death of an employee, such civil penalty
amounts shall be increased to not more than $250,000 for each
such violation, but not less than $50,000 for each such
violation, except that for an employer with 25 or fewer
employees such penalty shall not be less than $25,000 for each
such violation.
(b) Any employer who has received a citation for a serious
violation of the requirements of section 5 of this Act, of any
standard, rule, or order promulgated pursuant to section 6 of
this Act, or of any regulations prescribed pursuant to this
Act, shall be assessed a civil penalty of up to [$7,000]
$12,000 for each such violation. If such a violation caused or
contributed to the death of an employee, such civil penalty
amounts shall be increased to not more than $50,000 for each
such violation, but not less than $20,000 for each such
violation, except that for an employer with 25 or fewer
employees such penalty shall not be less than $10,000 for each
such violation.
(c) Any employer who has received a citation for a violation
of the requirements of section 5 of this Act, of any standard,
rule, or order promulgated pursuant to section 6 of this Act,
or of regulations prescribed pursuant to this Act, and such
violation is specifically determined not to be of a serious
nature, may be assessed a civil penalty of up to [$7,000]
$12,000 for each violation.
[(d) Any employer who fails to correct a violation for which
a citation has been issued under section 9(a) within the period
permitted for its correction (which period shall not begin to
run until the date of the final order of the Commission in the
case of any review proceeding under section 10 initiated by the
employer in good faith and not solely for delay or avoidance of
penalties), may be assessed a civil penalty of not more than
$12,000 for each day during which such failure or violation
continues.]
(d) Any employer who fails to correct a violation designated
by the Secretary as serious, willful, or repeated and for which
a citation has been issued under section 9(a) within the period
permitted for its correction (and a stay has not been issued by
the Commission under section 10(d)) may be assessed a civil
penalty of not more than $12,000 for each day during which such
failure or violation continues. Any employer who fails to
correct any other violation for which a citation has been
issued under section 9(a) of this title within the period
permitted for its correction (which period shall not begin to
run until the date of the final order of the Commission in the
case of any review proceeding under section 10 initiated by the
employer in good faith and not solely for delay of avoidance of
penalties) may be assessed a civil penalty of not more than
$12,000 for each day during which such failure or violation
continues.
(e) Amounts provided under this section for civil penalties
shall be adjusted by the Secretary at least once during each 4-
year period beginning January 1, 2015, to account for the
percentage increase or decrease in the Consumer Price Index for
all urban consumers during such period.
[(e) Any employer who willfully violates any standard,
rule, or order promulgated pursuant to section 6 of this Act,
or of any regulations prescribed pursuant to this Act, and that
violation caused death to any employee, shall, upon conviction,
be punished by a fine of not more than $10,000 or by
imprisonment for not more than six months, or by both; except
that if the conviction is for a violation committed after a
first conviction of such person, punishment shall be by a fine
of not more than $20,000 or by imprisonment for not more than
one year, or by both.]
(f)(1) Any employer who knowingly violates any standard,
rule, or order promulgated under section 6 of this Act, or of
any regulation prescribed under this Act, and that violation
caused or significantly contributed to the death of any
employee, shall, upon conviction, be punished by a fine in
accordance with title 18, United States Code, or by
imprisonment for not more than 10 years, or both, except that
if the conviction is for a violation committed after a first
conviction of such person under this subsection or subsection
(i), punishment shall be by a fine in accordance title 18,
United States Code, or by imprisonment for not more than 20
years, or by both.
(2) For the purpose of this subsection, the term ``employer''
means, in addition to the definition contained in section 3 of
this Act, any officer or director.
[(f) Any person who gives advance notice of any
inspection to be conducted under this Act, without authority
from the Secretary or his designees, shall upon conviction, be
punished by a fine of not more than $1,000 or by imprisonment
for not more than six months, or by both.]
(g) Unless otherwise authorized by this Act, any person that
knowingly gives, causes to give, or attempts to give or cause
to give, advance notice of any inspection conducted under this
Act with the intention of impeding, interfering with, or
adversely affecting the results of such inspection, shall be
fined under title 18, United States Code, imprisoned for not
more than 5 years, or both.
[(g)] (h) Whoever knowingly makes any false statement,
representation, or certification in any application, record,
report, plan, or other document filed or required to be
maintained pursuant to this Act shall, upon conviction, be
punished by a [fine of not more than $10,000, or by
imprisonment for not more than six months,] fine in accordance
with title 18, United States Code, or by imprisonment for not
more than 5 years, or by both.
[(h)] (i)(1) Section 1114 of title 18, United States
Code, is hereby amended by striking out ``designated by the
Secretary of Health, Education, and Welfare to conduct
investigations, or inspections under the Federal Food, Drug,
and Cosmetic Act'' and inserting in lieu thereof ``or of the
Department of Labor assigned to perform investigative,
inspection, or law enforcement functions''.
* * * * * * *
[(i)] (j) Any employer who violates of the posting
requirements, as prescribed under the provisions of this Act,
shall be assessed a civil penalty of up to [$7,000] $12,000 for
each violation.
(k)(1) Any employer who knowingly violates any standard,
rule, or order promulgated under section 6, or any regulation
prescribed under this Act, and that violation caused or
significantly contributed to serious bodily harm to any
employee but does not cause death to any employee, shall, upon
conviction, be punished by a fine in accordance with title 18,
United States Code, or by imprisonment for not more than 5
years, or by both, except that if the conviction is for a
violation committed after a first conviction of such person
under this subsection or subsection (e), punishment shall be by
a fine in accordance with title 18, United States Code, or by
imprisonment for not more than 10 years, or by both.
(2) For the purpose of this subsection, the term ``employer''
means, in addition to the definition contained in section 3 of
this Act, any officer or director.
(3) For purposes of this subsection, the term ``serious
bodily harm'' means bodily injury or illness that involves--
(A) a substantial risk of death;
(B) protracted unconsciousness;
(C) protracted and obvious physical disfigurement; or
(D) protracted loss or impairment, either temporary
or permanent, of the function of a bodily member,
organ, or mental faculty.
[(j)] (l) The Commission shall have authority to assess
all civil penalties provided in this section, giving due
consideration to the appropriateness of the penalty with
respect to the size of the business of the employer being
charged, the gravity of the violation, the good faith of the
employer, and the history of previous violations, including the
history of violations under section 11(c).
[(k)] (m) For purposes of this section, a serious
violation shall be deemed to exist in a place of employment if
there is a substantial probability that death or serious
physical harm could result from a condition which exists, or
from one or more practices, means, methods, operations, or
processes which have been adopted or are in use, in such place
of employment unless the employer did not, and could not with
the exercise of reasonable diligence, know of the presence of
the violation.
[(l)] (n) Civil penalties owed under this Act shall be
paid to the Secretary for deposit into the Treasury of the
United States and shall accrue to the United States and may be
recovered in a civil action in the name of the United States
brought in the United States district court for the district
where the violation is alleged to have occurred or where the
employer has its principal office. Pre-final order interest on
such penalties shall begin to accrue on the date the party
contests a citation issued under this Act, and shall end upon
the issuance of the final order. Such pre-final order interest
shall be calculated at the current underpayment rate determined
by the Secretary of the Treasury pursuant to section 6621 of
the Internal Revenue Code of 1986, and shall be compounded
daily. Post-final order interest shall begin to accrue 30 days
after the date a final order of the Commission or the court is
issued, and shall be charged at the rate of 8 percent per year.
(o) Nothing in this Act shall preclude a State or local law
enforcement agency from conducting criminal prosecutions in
accordance with the laws of such State or locality.
* * * * * * *
STATE JURISDICTION AND STATE PLANS
Sec. 18. (a) * * *
* * * * * * *
[(f) The Secretary shall, on the basis of reports submitted
by the State agency and his own inspections make a continuing
evaluation of the manner in which each State having a plan
approved under this section is carrying out such plan. Whenever
the Secretary finds, after affording due notice and opportunity
for a hearing, that in the administration of the State plan
there is a failure to comply substantially with any provision
of the State plan (or any assurance contained therein), he
shall notify the State agency of his withdrawal of approval of
such plan and upon receipt of such notice such plan shall cease
to be in effect, but the State may retain jurisdiction in any
case commenced before the withdrawal of the plan in order to
enforce standards under the plan whenever the issues involved
do not relate to the reasons for the withdrawal of the plan.]
(f)(1) The Secretary shall, on the basis of reports submitted
by the State agency and the Secretary's own inspections, make a
continuing evaluation of the manner in which each State that
has a plan approved under this section is carrying out such
plan. Such evaluation shall include an assessment of whether
the State continues to meet the requirements of subsection (c)
of this section and any other criteria or indices of
effectiveness specified by the Secretary in regulations.
Whenever the Secretary finds, on the basis of such evaluation,
that in the administration of the State plan there is a failure
to comply substantially with any provision of the State plan
(or any assurance contained therein), the Secretary shall make
an initial determination of whether the failure is of such a
nature that the plan should be withdrawn or whether the failure
is of such a nature that the State should be given the
opportunity to remedy the deficiencies, and provide notice of
the Secretary's findings and initial determination.
(2) If the Secretary makes an initial determination to
reassert and exercise concurrent enforcement authority while
the State is given an opportunity to remedy the deficiencies,
the Secretary shall afford the State an opportunity for a
public hearing within 15 days of such request, provided that
such request is made not later than 10 days after Secretary's
notice to the State. The Secretary shall review and consider
the testimony, evidence, or written comments, and not later
than 30 days following such hearing, make a determination to
affirm, reverse, or modify the Secretary's initial
determination to reassert and exercise concurrent enforcement
authority under sections 8, 9, 10, 13, and 17 with respect to
standards promulgated under section 6 and obligations under
section 5(a). Following such a determination by the Secretary,
or in the event that the State does not request a hearing
within the time frame set forth in this paragraph, the
Secretary may reassert and exercise such concurrent enforcement
authority, while a final determination is pending under
paragraph (3) or until the Secretary has determined that the
State has remedied the deficiencies as provided under paragraph
(4). Such determination shall be published in the Federal
Register. The procedures set forth in section 18(g) shall not
apply to a determination by the Secretary to reassert and
exercise such concurrent enforcement authority.
(3) If the Secretary makes an initial determination that the
plan should be withdrawn, the Secretary shall provide due
notice and the opportunity for a hearing. If based on the
evaluation, comments, and evidence, the Secretary makes a final
determination that there is a failure to comply substantially
with any provision of the State plan (or any assurance
contained therein), he shall notify the State agency of the
withdrawal of approval of such plan and upon receipt of such
notice such plan shall cease to be in effect, but the State may
retain jurisdiction in any case commenced before the withdrawal
of the plan in order to enforce standards under the plan
whenever the issues involved do not relate to the reasons for
the withdrawal of the plan.
(4) If the Secretary makes a determination that the State
should be provided the opportunity to remedy the deficiencies,
the Secretary shall provide the State an opportunity to respond
to the Secretary's findings and the opportunity to remedy such
deficiencies within a time period established by the Secretary,
not to exceed 1 year. The Secretary may extend and revise the
time period to remedy such deficiencies, if the State's
legislature is not in session during this 1 year time period,
or if the State demonstrates that it is not feasible to correct
the deficiencies in the time period set by the Secretary, and
the State has a plan to correct the deficiencies within a
reasonable time period. If the Secretary finds that the State
agency has failed to remedy such deficiencies within the time
period specified by the Secretary and that the State plan
continues to fail to comply substantially with a provision of
the State plan, the Secretary shall withdraw the State plan as
provided for in paragraph (3).
* * * * * * *
(i) Not later than 18 months after the date of enactment of
this subsection, and every 5 years thereafter, the Comptroller
General shall complete and issue a review of the effectiveness
of State plans to develop and enforce safety and health
standards to determine if they are at least as effective as the
Federal program and to evaluate whether the Secretary's
oversight of State plans is effective. The Comptroller
General's evaluation shall assess--
(1) the effectiveness of the Secretary's oversight of
State plans, including the indices of effectiveness
used by the Secretary;
(2) whether the Secretary's investigations in
response to Complaints About State Plan Administration
(CASPA) are adequate, whether significant policy issues
have been identified by headquarters and corrective
actions are fully implemented by each State;
(3) whether the formula for the distribution of funds
described in section 23(g) to State programs is fair
and adequate; and
(4) whether State plans are as effective as the
Federal program in preventing occupational injuries,
illnesses and deaths, and investigating discrimination
complaints, through an evaluation of at least 20
percent of approved State plans, and which shall
cover--
(A) enforcement effectiveness, including
handling of fatalities, serious incidents and
complaints, compliance with inspection
procedures, hazard recognition, verification of
abatement, violation classification, citation
and penalty issuance, including appropriate use
of willful and repeat citations, and employee
involvement;
(B) inspections, the number of programmed
health and safety inspections at private and
public sector establishments, and whether the
State targets the highest hazard private sector
work sites and facilities in that State;
(C) budget and staffing, including whether
the State is providing adequate budget
resources to hire, train and retain sufficient
numbers of qualified staff, including timely
filling of vacancies;
(D) administrative review, including the
quality of decisions, consistency with Federal
precedence, transparency of proceedings,
decisions and records are available to the
public, adequacy of State defense, and whether
the State appropriately appeals adverse
decisions;
(E) anti discrimination, including whether
discrimination complaints are processed in a
timely manner, whether supervisors and
investigators are properly trained to
investigate discrimination complaints, whether
a case file review indicates merit cases are
properly identified consistent with Federal
policy and procedure, whether employees are
notified of their rights, and whether there is
an effective process for employees to appeal
the dismissal of a complaint;
(F) program administration, including whether
the State's standards and policies are at least
as effective as the Federal program and are
updated in a timely manner, and whether
National Emphasis Programs that are applicable
in such States are adopted and implemented in a
manner that is at least as effective as the
Federal program;
(G) whether the State plan satisfies the
requirements for approval set forth in this
section and its implementing regulations; and
(H) other such factors identified by the
Comptroller General, or as requested by the
Committee on Education and Labor of the House
of Representatives or the Committee on Health,
Education, Labor and Pensions of the Senate.
* * * * * * *
RESEARCH AND RELATED ACTIVITIES
Sec. 20. (a)(1) * * *
* * * * * * *
(6) The Secretary of Health, Education, and Welfare shall
publish within six months of enactment of this Act and
thereafter as needed but at least annually a list of all known
toxic substances by generic family or other useful grouping,
and the concentrations at which such toxicity is known to
occur. [He shall determine following a written request by any
employer or authorized representative of employees, specifying
with reasonable particularity the grounds on which the request
is made, whether any substance normally found in the place of
employment has potentially toxic effects in such concentrations
as used or found; and shall submit such determination both to
employers and affected employees as soon as possible.] The
Secretary shall determine following a written request by any
employer, authorized representative of current or former
employees, physician, other Federal agency, or State or local
health department, specifying with reasonable particularity the
grounds on which the request is made, whether any substance
normally found in the place of employment has potentially toxic
effects in such concentrations as used or found or whether any
physical agents, equipment, or working condition found or used
has potentially hazardous effects; and shall submit such
determination both to employers and affected employees as soon
as possible. If the Secretary of Health, Education, and Welfare
determines that any substance is potentially toxic at the
concentrations in which it is used or found in a place of
employment, and such substance is not covered by an
occupational safety or health standard promulgated under
section 6, the Secretary of Health, Education, and Welfare
shall immediately submit such determination to the Secretary,
together with all pertinent criteria.
* * * * * * *
NATIONAL INSTITUTE FOR OCCUPATIONAL SAFETY AND HEALTH
Sec. 22. (a) * * *
* * * * * * *
(h) Office of Mine Safety and Health.--
(1) * * *
* * * * * * *
(3) Functions.--In addition to all purposes and
authorities provided for under this section, the Office
of Mine Safety and Health shall be responsible for
research, development, and testing of new technologies
and equipment designed to enhance mine safety and
health. To carry out such functions the Director of the
Institute, acting through the Office, shall have the
authority to--
(A) * * *
(B) award contracts to educational
institutions or private laboratories for the
performance of product testing or related work
with respect to new mine technology and
equipment; [and]
(C) enter into cooperative agreements or
contracts with international institutions and
private entities to improve mine safety and
health through the development and evaluation
of new interventions; and
[(C)] (D) establish an interagency working
group as provided for in paragraph (5).
* * * * * * *
XVIII. Committee Correspondence
None.
SUPPLEMENTAL VIEW OF REPRESENTATIVE PHIL HARE
I strongly support the majority views expressed in the
Committee Report to accompany H.R. 5663, the Robert C. Byrd
Mine Safety and Health Act of 2010. This bill goes to great
lengths to improve the enforcement powers at the disposal of
the Occupational Safety and Health Administration (OSHA) and
replace the outdated tools and ineffective enforcement powers
it has today. In particular, I agree that OSHA must have the
increased capacity to address repeat violations across multi-
establishment employers, which this bill strengthens in Section
705 by expanding Section 17(a) of the Occupational Safety and
Health Act to authorize OSHA and the Occupational Safety and
Health Review Commission to consider an employer's history of
violations which occur in OSHA state plan states when assessing
penalties for repeat violations.
Additionally, I join the Committee in supporting OSHA's
Severe Violator Enforcement Program (SVEP), and feel it is a
critical step in the right direction in ensuring that multi-
establishment hazards are abated. To underscore and further
elaborate on the language provided in the Committee report
regarding multi-establishment employers, it should be clear
that all employers who have received a ``high-severity''
violation, not just the employers under the SVEP, need to
evaluate any similar establishments and to determine whether
the hazard also exists at such establishments. Given limited
resources, OSHA's Field Operations Manual should be updated to
require OSHA, as part of its enforcement actions involving
``high severity'' violations to require employers to report
back and certify to OSHA that the hazard has either been abated
or does not exist at all similar establishments. This
clarification is necessary, because the number of employers and
violations that fall under the SVEP would not capture all work
sites that could be putting workers at needless risk from a
repeat violation.
Phil Hare.
MINORITY VIEWS
INTRODUCTION
On April 5, 2010, an underground explosion at the Upper Big
Branch Mine in Montcoal, West Virginia killed 29 coal miners
and thrust the dangers of mining into the national spotlight.
The tragedy at Upper Big Branch was devastating, and all
Americans joined the families, the state of West Virginia and
the communities in and around Montcoal in mourning their
incalcuable loss.
In the wake of this tragedy, Congress once again turned its
attention to the issue of mine safety. The Upper Big Branch
explosion forced policymakers to focus not only on the efficacy
of our nation's mine safety laws and regulations, but also on
the manner in which the federal agency responsible for
implementing and enforcing those laws and regulations--the Mine
Safety and Health Administration (MSHA)--is fulfilling its
obligations. While numerous investigations into the Upper Big
Branch accident have yet to provide any conclusive findings,
preliminary reviews have exposed serious deficiencies in the
law and its enforcement. Republicans and Democrats alike have
sought to address those deficiencies with the shared intent of
improving mine safety and better protecting the Americans who
work in this inherently dangerous industry.
Despite its good intentions, H.R. 5663 unfortunately falls
short in its effort to provide focused reforms that will
improve mine safety. The bill reflects a heavy-handed approach
more focused on punishing mine operators than addressing
identifiable opportunities to prevent mining accidents in the
first place. Moreover, the bill drifts far afield of its stated
purpose by including provisions wholly unrelated to mining or
mine safety. For reasons only the Majority can explain, H.R.
5663 also includes wholesale changes to the Occupational Safety
and Health (OSH) Act.\1\ While the inclusion of these unrelated
provisions is troubling in and of itself, the implications of
the specific proposed policies are of far greater concern.
These too appear premised on the notion of imposing punishment
rather than improving workplace safety. Also of concern is the
speed with which the majority insists on proceeding--refusing
to wait for the results of multiple ongoing investigations. For
these reasons, Committee Republicans are united in their
opposition to this legislation and urge that it be rejected by
the House of Representatives in favor of focused, well-informed
mine safety reforms.
---------------------------------------------------------------------------
\1\29 U.S.C. Sec. Sec. 651, et seq.
---------------------------------------------------------------------------
LEGISLATIVE HISTORY
The issues relating to mine safety are not new to the
Members of this Committee. During the 109th Congress, the House
passed the Mine Improvement and New Emergency Response Act of
2006 (the MINER Act),\2\ which was signed into law on June 15,
2006 and included the most significant reforms to the Federal
Mine Safety and Health Act of 1977\3\ in more than a
generation. Chief among them were new requirements that mine
operators adopt emergency response plans, install post-accident
breathable air and directional lifelines, and improve worker
training and communications.
---------------------------------------------------------------------------
\2\P.L. 109-236.
\3\See Federal Mine Safety and Health Act, P.L. 91-173 (December
30, 1969), codified at 30 U.S.C. 801, et seq. The legislation was
originally known as the Federal Coal Mine Health and Safety Act of
1969, but in 1977 was amended and its name changed to the Federal Mine
Safety and Health Act of 1977.
---------------------------------------------------------------------------
Essential to the enactment of the MINER Act was the
bipartisan manner in which it was developed. Members of both
parties worked with industry and worker representatives to
fashion a bill all parties agreed would materially improve mine
safety.
The Committee again considered mine safety legislation
during the 110th Congress, but with far different results. In
2007, the Committee considered H.R. 2768, the Supplemental Mine
Improvement and New Emergency Response Act (S-MINER). The bill,
developed solely by the panel's Democrats without accepting any
meaningful stakeholder input, sought to impose any number of
new regulatory requirements with respect to mine seals, belt
air, refuge chambers, and communications. Not only were these
new requirements unworkable, many would have had the perverse
effect of undoing the progress in mine safety brought about by
the aforementioned MINER Act. The S-MINER Act was considered
and approved by the House on January 16, 2008; it was never
considered in the Senate.
Committee Republicans believe lessons can be drawn from
these contrasting processes and outcomes. In the case of the
MINER Act, an open, bipartisan process produced a consensus
product that passed both chambers of Congress and was
ultimately signed into law. Mine safety improved as a result.
In the case of the S-MINER Act, a closed, partisan process
produced an unworkable product that could not advance beyond
the House of Representatives. It did nothing to improve mine
safety. Unfortunately, the Majority has elected to pursue the
latter path for H.R. 5663; Committee Republicans expect the
result will be the same.
DEFICIENCIES IN THE CURRENT MINING REGULATORY SYSTEM
In assessing the policy implications of H.R. 5663, it is
instructive to consider current strengths and weaknesses in
federal mine safety oversight and regulation, which is
primarily administered by MSHA.
The Mine Safety and Health Review Commission case backlog
When MSHA issues citations for violations of mining safety
laws, mine operators are permitted to contest the violations if
they believe the citations were issued in error. In recent
years, this process appears to have broken down due, at least
in part, to an increase in the number of contested citations at
the Mine Safety and Health Review Commission (MSHRC).
The series of events that led to the increase were examined
in a Committee hearing on February 23, 2010. One reason behind
the increase in contested citations is the MINER Act's
increased penalties for all violations, which resulted in
higher costs and increased incentives for mine operators to
challenge penalties because of those costs. Further, MSHA came
under fire for failing to perform all statutorily required
inspections. In response, MSHA removed its representatives that
had been working in the conference process used to resolve
violations, and transferred them to inspection duties. Also, on
February 4, 2008 and March 27, 2009, MSHA issued Procedure
Instruction Letters (PIL) that reduced the ability of mine
operators to use the conference process to address citations,
which had previously been successful in resolving many disputed
citations.
Witnesses at the Committee's February 23, 2010 hearing
suggested this breakdown in the conference process was a
contributing factor to the MSHRC backlog.
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 four to
six 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).\4\
---------------------------------------------------------------------------
\4\See, Testimony of Bruce Watzman, Committee on Education and
Labor Hearing, ``Reducing the Growing Backlog of Contested Mine Safety
Cases,'' February 23, 2010.
At the same hearing, the top MSHA official committed to
---------------------------------------------------------------------------
reestablishing the conference process:
After a review of the conferencing process it appears
that the best approach is to hold the MSHA health and
safety conference, if requested by the mine operator,
prior to MSHA issuing a proposed penalty assessment,
and provide the mine operator with an estimated penalty
amount based on the standard assessment formula. The
MSHA field conferencing and litigation representatives
(CLRs) and potentially other personnel would review the
facts of the violation and the inspector's
determination of negligence, likeliness of occurrence,
etc., as before. The resolution of these cases does not
require Commission approval unless they are later
contested. MSHA will implement this change through
policy.\5\
---------------------------------------------------------------------------
\5\See,Testimony of Assistant Secretary Joe Main, Committee on
Education and Labor Hearing, ``Reducing the Growing Backlog of
Contested Mine Safety Cases,'' February 23, 2010.
To date, however, MSHA has not made the promised changes to
the conference process and the backlog of contested citations
remains.
Finally, as discussed in greater detail below, MSHA has in
recent years attempted a more vigorous use of the ``pattern of
violations'' (POV) system to target mine operators that
habitually fail to meet their obligations under the Act. This
placed increasing pressure on mine operators to remove and
clear as many citations as possible to avoid POV status, which
entails significantly increased oversight and cost. This
confluence of policy changes increased penalties, fewer
conferences, and higher scrutiny of a mine operator's violation
history--contributed to the backlog.
Pattern of violations policy
After several multi-fatality mining accidents in 2006 and
the Crandall Canyon incident in 2007, MSHA renewed its efforts
to place mines in POV status by issuing criteria for making POV
determinations and notifying certain mines of their potential
POV status.
Under current rules, if a mine operator's citation history
meets specific criteria, MSHA can place the mine in POV status.
Once there, any additional citations issued automatically
trigger an increase in monetary penalties. In addition, a mine
in POV status is subject to more inspections and MSHA
inspectors can issue orders to shut down the mine more readily.
To emerge from POV status, a mine must demonstrate a 30 percent
reduction in serious and substantial violations of mine safety
laws over a 90-day period.\6\
---------------------------------------------------------------------------
\6\http://www.msha.gov/POV/POVScreeningCriteria.pdf.
---------------------------------------------------------------------------
MSHA only considers ``final'' orders issued by the MSHRC in
determining whether to put a mine in POV status. Citations in
the process of being contested are not included in that
determination. This has led critics to charge that mine
operators are purposefully contesting more citations to avoid
``final'' decisions and thus possibly triggering a POV
designation.
However, a closer look at the agency's own actions reveal
systemic problems experienced by MSHA in attempting to enforce
existing POV rules. For example, the agency announced on April
14, 2010 that a computer error in the fall of 2009 prevented
Upper Big Branch from designation as a potential POV mine.
Further, the U.S. Department of Labor's Office of Inspector
General (OIG) issued an Alert Memorandum on June 23, 2010
calling for immediate corrective action in the wake of
revelations that an internal MSHA policy had limited the number
of mines identified for potential POV status because of
resource limitations, ignoring legitimate safety concerns.\7\
The OIG is currently conducting its own investigation into the
POV system and is expected to provide recommendations in
September.
---------------------------------------------------------------------------
\7\See Alert Memorandum: MSHA Set Limits on the Number of Potential
Pattern of Violation Mines to be Monitored Report No. 05-10-004-06-001,
June 23, 2010.
---------------------------------------------------------------------------
Notably, it seems clear changes to the POV system could
have occurred prior to the Upper Big Branch fatalities had MSHA
revised its own ``Pattern of Violations Screening Criteria''
guidelines.\8\ Changes to this document do not require
legislative action, and months before the Upper Big Branch
explosion, Assistant Secretary Main acknowledged the POV system
is in need of improvement.
---------------------------------------------------------------------------
\8\http://www.msha.gov/POV/POVScreeningCriteria.pdf.
It is important that we remove the incentive for
operators with repeated S&S [Significant and
Substantial] safety violations at their mine to contest
violations simply to delay enforcement. Delay in
addressing S&S hazardous conditions puts miners at
risk, is at odds with the purpose of the Mine Act and
mission of MSHA, and is unacceptable. MSHA is
considering a review of the pattern of violation
process to determine whether our current approach is
the best one for providing timely protection for miners
working at mines with high levels of S&S violations.\9\
---------------------------------------------------------------------------
\9\See, Testimony of Assistant Secretary Joe Main, Committee on
Education and Labor Hearing, ``Reducing the Growing Backlog of
Contested Mine Safety Cases,'' February 23, 2010.
To date, no mine has ever been placed in POV status.
Reevaluating the POV system was included on MSHA's most recent
semi-annual regulatory agenda, released approximately three
weeks after the Upper Big Branch mine explosion.\10\ However,
the agency has not yet announced any proposed changes to the
current system, nor has it completed an analysis of mine safety
records to identify potential POV status mines since September
2009.
---------------------------------------------------------------------------
\10\See, Federal Register, April 28, 2010.
---------------------------------------------------------------------------
Additional statutory and regulatory weaknesses
In recent months, additional deficiencies at MSHA and
within current law have been identified through the Upper Big
Branch investigations, the OIG's investigative work, and the
Committee's oversight activities. Lawmakers and agency
officials agree MSHA is hamstrung by current limitations on its
ability to be granted subpoena power for accident
investigations. Further, MSHA needs to ensure mine inspectors
receive adequate training to identify mining hazards--a
responsibility on which it is currently falling short, as
described in a March 30, 2010, OIG report.\11\ Finally, an
update of safety and health standards is necessary to improve
the safety of miners.
---------------------------------------------------------------------------
\11\See, ``Journeyman Mine Inspectors Do Not Receive Required
Periodic Retraining,'' Department of Labor, Inspector General Office of
Audit, March 30, 2010. Report Number 05-10-001-06-001.
---------------------------------------------------------------------------
REPUBLICAN VIEWS
Committee Republicans are committed to improving mine
safety, a goal that cannot be achieved without first knowing
whether mine operators are complying with current laws and
whether federal authorities are fully enforcing those laws.
Republicans believe certain areas of improvement have been
identified and are widely understood; those areas for reform
were addressed in the Republican Substitute offered during the
Committee's consideration of H.R. 5663.
A flawed process has produced a flawed bill
As noted previously, Congress has a proven history of
bipartisanship to improve mine safety. The MINER Act, signed
into law in 2006, serves as an example of how divergent views
and interests can be accommodated when Members set aside
partisanship in the name of workplace safety. The S-MINER Act,
on the other hand, stands in stark contrast to that model. In
that case, the shared goal of improving mine safety fell victim
to partisan politics, a dynamic that ultimately doomed that
effort to failure.
Unfortunately, in the case of H.R. 5663, the Majority
elected to follow a path strikingly similar to that which led
to the demise of the S-MINER Act three years ago. Rather than
engaging Committee Republicans in a meaningful way at the
outset of the legislative process, Committee Democrats instead
elected to craft H.R. 5663 in a purely partisan manner.
Exemplifying this exclusionary process, Committee Republicans
were provided a final draft of the legislation less than twelve
hours before the Committee met to consider the bill, severely
limiting the opportunity for Republicans to evaluate and
respond to several significant, last-minute changes. The
result, not surprisingly, is a legislative product that
reflects a single, narrow point of view; one focused on
imposing punishment rather than improving mine safety.
Committee Republicans are also concerned by the haste with
which H.R. 5663 is being advanced. No less than three separate
investigations--at both the state and federal levels--are
currently underway to examine the circumstances that led to the
tragic loss of life at the Upper Big Branch mine. The results
of those investigations are not yet available.
In addition, the OIG is reviewing--at Congress' request--a
number of serious questions raised in connection with MSHA's
enforcement of its own mine safety regulations and protocols,
some of which may have relevance to the Upper Big Branch
investigations. The OIG's investigation is also not concluded.
Finally, less than two months ago, the Committee on
Education and Labor was granted by the full House the
extraordinary power of deposition authority in order to assess
whether mine safety laws are being properly obeyed and
enforced. That investigative effort, like every other initiated
in response to Upper Big Branch, is also still ongoing.
With so many agencies and so many resources being devoted
to examining the circumstances that contributed to the Upper
Big Branch tragedy, one cannot help but ask why the Majority is
insisting on rushing such an expansive piece of legislation.
Committee Republicans believe miners would be better served by
focusing our legislative efforts on those areas we know would
improve mine safety, while waiting to consider more far-
reaching proposals until the conclusion of the various
investigations, when all parties can carefully consider the
information and recommendations of those inquiries.
Democrats focus on punishment instead of prevention
H.R. 5663 is replete with increased civil and criminal
penalties, lower standards of liability, and expansive new
whistleblower provisions. Republicans believe punishing bad
actors is important. However, we also believe working in a
proactive manner to prevent injuries and fatalities before they
occur is far more important.
Penalties
In testimony received by this Committee on July 13, 2010,
Mr. Cecil Roberts, President of the United Mine Workers of
America (UMWA), said that ``most of this industry--and I have
said as high as 95 percent--do the right thing.''\12\ Yet the
Majority proposes substantial increases in civil fines, up to
$2,000,000 in certain cases, and harsh new criminal penalties
that include up to 20 years imprisonment for violations of the
law. These penalties would apply to all mine operators affected
by the legislation's new penalty framework, including many of
the 95 percent that, according to Mr. Roberts, ``do the right
thing.''
---------------------------------------------------------------------------
\12\See, Testimony of Cecil Roberts, Committee on Education and
Labor Hearing, ``H.R. 5663, the Mine Safety and Health Act of 2010,''
July 13, 2010.
---------------------------------------------------------------------------
In addition to increasing monetary penalties, the Majority
alters the underlying penalty structure, making it more
punitive and easier for ``good'' operators to be unjustly
penalized. For example, H.R. 5663 would impose pre-order
interest on a violation, the calculation of which starts at the
time an operator contests a citation. While apparently intended
to reduce the caseload at the MSHRC, this new fee to exercise
due process rights would be imposed on operators that contest
citations in good faith, significantly increasing the costs of
such challenges. Further, these interest amounts on higher base
level penalties will likely be compounded through no fault of
the operator because of the extended length of time it takes to
resolve a case from a contest to final order.\13\ Again, for
those mines included in H.R. 5663's new penalty rubric, the 95
percent of operators that ``do the right thing'' would be
penalized for exercising their rights in good faith.
---------------------------------------------------------------------------
\13\The average number of days it took to dispose of these cases
increased from 178 days in FY 2006 to 401 days in FY 2009. See,
Testimony of Mary Lu Jordan, Committee on Education and Labor Hearing,
``Reducing the Growing Backlog of Contested Mine Safety Cases,''
February 23, 2010.
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Standard of liability
H.R. 5663 lowers the standard of liability applicable to
many civil and criminal penalties contained in both the mining
and occupational safety sections of the bill (Titles III and
VII). Specifically, the legislation would replace the current
``willful'' standard with a ``knowing'' requirement for
violations of mandatory health or safety standards. This change
would significantly lower the level of intent required to prove
violations, thereby exposing mine operators, businesses,
corporate officers, agents and employees to increased liability
and endless litigation.
The bill contains no statutory definition of ``knowingly,''
nor does it provide an explanation or indication of how the
``knowing'' intent level for penalties under both OSHA and MSHA
is to be determined or limited. At the legislative hearing on
H.R. 5663 on July 13, 2010, one of the witnesses summarized
some of the concerns associated with using a ``knowing''
standard, especially in relation to criminal sanctions:
Such a change would upend decades of OSHA law--dating
to the passage of the OSH Act in 1970 and introduce
tremendous uncertainty, further guaranteeing
substantial increases in contested cases. While the
``knowing'' standard is used in environmental statutes,
it has not been the standard for OSHA criminal
culpability. In environmental law, the term ``knowing''
has come to be associated with a low level of intent,
almost akin to a strict liability standard where the
party in question has to know only that a given
activity was taking place, not that there was a
violation occurring or that environmental laws were
being broken. As there is no further definition in the
bill of this standard, employers (and OSHA inspectors)
will be left to guess what this means and when it
should apply. This is a prescription for utter
confusion and legal challenges that will be costly to
both the employer and the agency.
Further, imposing criminal liability on any ``an
officer or director'' is equally troublesome. The CWS
[Coalition for Workplace Safety] believes this proposal
will result in a witch hunt to hold officers or
directors responsible. Expanding criminal liability to
any officer or director will make corporate personnel
unduly subject to prosecution even if they generally
have no involvement in day to day operations. All of
these terms are vague and ambiguous as to who would
fall within these categories. These terms are also
vague as to how they would be applied in the legal
process; do they apply only to the corporate entity or
other legal entities such as partnerships? Does this
mean that any limited partner or director would now be
subject to potential criminal prosecution? How would
responsibility be determined? None of these changes
will improve workplace safety and health, and actually,
this new requirement, if adopted, could result in
adverse impacts as corporate employees would now fear
that any decision they could make on the jobsite could
subject them to prosecution; a safety director or E, H
& S employee could be faced with the reality that every
one of their decisions would be micromanaged,
potentially by employees who have little or no
expertise in safety and health. This will create a
chilling effect on these employees trying to simply do
their job, or even taking these jobs. Furthermore,
these are the people that should get those jobs--the
ones that care enough and know what should be done, but
do not want to be exposed to criminal liability because
of the actions of an employee they could not control.
This could create uncertainty on the jobsite with a net
reduction of workplace safety and health.\14\
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\14\See, Testimony of Jonathan L. Snare, Esq., Committee on
Education and Labor Hearing, ``H.R. 5663, the Miner Safety and Health
Act of 2010,'' July 13, 2010. Mr. Snare's comments appear to have equal
relevance to the bill's proposed changes to mine safety laws.
Application of this new, lower standard of intent to
virtually all employees and officers of a business is a
monumental shift in workplace safety policy, a stance all the
more extreme given that individuals face up to 20 years
imprisonment under a standard akin to strict liability, where
individuals lack willful intent or a ``bad purpose'' in their
actions or knowledge.
Committee Republicans believe that such punitive measures
will likely stifle, rather than support, efforts to improve
safety programs and expose individuals to severe criminal
penalties without sufficient intent to do harm.
Expansion of whistleblower protections
Committee Republicans believe the whistleblower expansion
proposed by the Majority is not necessary, nor will it
accomplish its stated purpose of improving safety.
Whistleblowers already receive significant protections under
existing mining and occupational safety laws, including the
ability to anonymously report safety violations--and rightfully
so. But H.R. 5663 appears to treat whistleblowers as the only
line of defense against safety violations, using valid
whistleblower protections as an opening to insert vast new
litigation opportunities.
An example of current legal protections against retaliation
for publicly voicing safety concerns can be found in Section
105(c) of the Mine Safety and Health Act of 1977. Under that
provision, mine operators cannot retaliate against miners for
making safety complaints. This provision was exercised recently
in a case involving a miner who publicly spoke out against
safety practices and was terminated by the mine operator for
alleged safety violations. The Labor Secretary prevailed on a
motion for temporary reinstatement of the miner, suggesting
that current laws are effectively protecting employees who
voice safety-related concerns and raising a serious question as
to the need for an expansion.\15\ Further, because of a last-
minute amendment that excludes certain classes of mines from
the requirements of H.R. 5663, workers at those mines would not
be able to avail themselves of the Majority's new whistleblower
protections. It stands to reason that all miners should have
the same protection to report safety violations free from
retribution; if miners in non-coal/gassy mines are sufficiently
protected by current law and Republicans believe they are
protected thanks to the existing statute--miners in coal/gassy
mines are also well-protected by these laws.
---------------------------------------------------------------------------
\15\The miner involved, Ricky Lee Campbell, was allegedly
terminated by Marfork Coal Co. after voicing various safety concerns.
In a press release commenting on the successful motion for temporary
reinstatement, the Assistant Secretary of Labor for Mine Safety and
Health stated that, ``The law is clear in its protections toward miners
whose actions may lead to retaliation.'' See, MSHA Press Release issued
on June 17, 2010, at http://www.msha.gov/MEDIA/PRESS/2010/NR100617.asp
---------------------------------------------------------------------------
Significant protections are also provided under existing
occupational safety laws, specifically located at Section 11(c)
of the Occupational Health and Safety Act, 29 U.S.C. Section
660. In hearings before the Subcommittee on Workforce
Protections, one witness testified that current law works and
questioned the need for an expansion to whistleblower
protections under the OSHA statute:
I am unaware of any empirical data supporting the
assertion that the current statute fails to protect
occupational safety and health whistleblowers. Indeed,
my concern is that this assumption is supported by
nothing more than cherry-picked anecdotes or conclusory
assertions that occupational safety and health OSH
whistleblowers do not ``win often enough.''\16\
---------------------------------------------------------------------------
\16\See, Testimony of Lloyd Chinn, Committee on Education and
Labor, Subcommittee on Workforce Protections Hearing, ``Whistleblower
and Victim's Rights Provisions of H.R. 2067, the Protecting America's
Workers Act,'' April 28, 2010.
The testimony further illustrated that expanding protected
whistleblower activity may not increase the win rate for
---------------------------------------------------------------------------
aggrieved workers filing whistleblower claims:
In fact, although [the Majority's legislation]
apparently posits access to the federal courts as a
panacea for OSH whistleblowers, there is no reason to
believe the ``win'' rate there will be any better than
before OSHA. Indeed, in every administrative forum and
court system in which I've practiced as an employment
lawyer, it has been well understood that, in the
aggregate, employment litigation plaintiffs lose more
often than they win. This state of affairs is not, in
my opinion, because of any particular bias in any of
these court or administrative systems against
plaintiffs; rather, it is simply because in the context
of a particular employment statute, there is some
substantial number of meritless claims filed.\17\
---------------------------------------------------------------------------
\17\Ibid.
---------------------------------------------------------------------------
At the core of these proposed reforms is a fundamental
concern whether expanding whistleblower protections will lead
to increased safety of workers. Testimony received by the
Committee suggests it will not:
. . . one would expect (all other things being equal)
that inadequate OSH whistleblower protections have led
to a less-safe workplace. But Bureau of Labor
Statistics data support no such conclusion. According
to BLS, both nonfatal injuries as well as fatalities in
the workplace have continually declined over the past
decade.\18\
---------------------------------------------------------------------------
\18\Ibid.
Despite the evidence of adequate whistleblower protections,
H.R. 5663 significantly expands such protections under mining
and occupational safety laws for questionable reasons. For
example, the Majority's bill would create expansive new
investigation and hearing procedures applicable to
whistleblower complaints, increase attorney fee awards, and
give whistleblowers the ability to file suit in federal court
if they do not receive an administrative decision within 90
days. Given this relatively short timeframe, it appears
reasonable to conclude that such deadlines are likely to be
missed, resulting in more federal court litigation which will
only serve to raise costs and delay justice. Republicans
believe there should be a more proactive approach to increase
worker safety that does not rely on such litigious measures.
H.R. 5663 includes OSHA provisions wholly unrelated to mine safety
While the title of H.R. 5663 suggests it is intended to
address mine safety only, Committee Republicans believe the
scope of the bill goes far beyond its stated purpose. In doing
so, the bill threatens to negatively affect virtually every
business in the country. Specifically, Title VII of H.R. 5663
includes dramatic changes to the Occupational Safety and Health
Act. Essentially, this title seeks to import into H.R. 5663
entire sections of H.R. 2067, the Protecting America's Workers
Act (``PAWA''), a bill focused on an area of law completely
unrelated to mining safety. Some of the OSH Act changes are
similar to the provisions discussed above. For example, the
bill's OSH Act provisions adopt a ``knowing'' liability
standard, increase criminal and civil penalties, and expand
protections for whistleblowers. Other changes are unique to the
OSH Act title, including the requirement of a mandatory
abatement of alleged safety hazards without regard to due
process and inclusion of impacted employees or their family
members in various legal proceedings. At this point, the
Majority has not exempted any industry from this section of the
legislation.
During consideration of the bill, Committee Republicans
expressed repeated concerns about the far-reaching consequences
of the proposed changes to the OSH Act, noting the amendments
envisioned in H.R. 5663 reach almost every private-sector
employer and worker in this country. Unfortunately, none of the
provisions directly promote workplace safety, but again focus
only on punishment in the aftermath of an accident.
Standard of liability
As discussed previously, H.R. 5663 changes the OSH Act's
legal standard from ``willful'' to ``knowing,'' a dramatic
policy change, the ramifications of which are not fully known.
As noted in testimony received by the Committee, such a change
could have troubling consequences.
The expected modifications to PAWA's increase in
criminal penalties would change the level of intent
necessary for criminal penalties from the current
``willful'' to ``knowing.'' Such a change would upend
decades of OSHA law--dating to the passage of the act
in 1970 and introduce tremendous uncertainty, further
guaranteeing substantial increases in contested cases.
While the ``knowing'' standard is used in EPA law, it
has not been the standard for OSHA criminal
culpability. As there is no further definition in the
bill of this standard, employers (and OSHA inspectors)
will be left to guess what this means and when it
should apply. This is a prescription for utter
confusion and legal challenges that will be costly to
both the employer and the agency.\19\
---------------------------------------------------------------------------
\19\See, Testimony of Jonathan L. Snare, Esq., Committee on
Education and Labor Hearing, ``H.R. 5663, the Miner Safety and Health
Act of 2010,'' July 13, 2010.
---------------------------------------------------------------------------
Penalties
Committee Republicans are also concerned by the manner and
extent to which H.R. 5663 would increase penalties and fines
assessed under the OSH Act. Not only are the monetary increases
proposed by the bill significant, these penalties would
automatically increase every four years to account for
inflation. We are also troubled by the bill's so-called ``look
back'' provision, which would effectively permit the Secretary
of Labor to review an employer's past history of OSHA
violations and impose significant new penalties if the
Secretary judges that history to have caused or contributed to
an employee's death, despite the fact that past violations
would already have been penalized and adjudicated. Committee
Republicans share the view that penalties should be retained in
statute as a deterrent to policies or practices that might put
workers at risk. Moreover, we are willing to consider whether
the fines and penalties currently provided for in the OSH Act
are sufficient. However, we believe the changes proposed in
H.R. 5663 to be punitive in nature, ignoring recent history
which has shown a decline in workplace illness and injury rates
in conjunction with a compliance-based approach to workplace
safety.
Expansion of whistleblower protections
Committee Republicans are also troubled by the fact that
H.R. 5663 seeks to expand whistleblower protections under the
OSH Act. As with the proposed whistleblower protection
expansions under the mining provisions of the legislation, we
are unaware of any compelling evidence suggesting such an
expanded legal framework is necessary. Indeed, current
statistics point to the opposite conclusion. In 2008, according
to statistics provided by OSHA, the agency received 1,388
whistleblower complaints (commonly referred to as ``11(c)
cases,'') for the section of the OSH Act under which they are
brought. Seventy-six percent of those cases were without merit
(withdrawn or dismissed), and the remainder were settled or
litigated.\20\ In 2009, OSHA statistics revealed 1205 cases; of
those, 76 percent again were without merit (dismissed or
withdrawn) and the remainder were settled or litigated.\21\
Committee Republicans believe these figures give credence to
the notion that the current system of investigating and
adjudicating OSHA whistleblower complaints is adequate.
---------------------------------------------------------------------------
\20\See, Committee on Education and Labor, Subcommittee on
Workforce Protections Hearing, ``Whistleblower and Victim's Rights
Provisions of H.R. 2067, the Protecting America's Workers Act,'' April
28, 2010. Item 3, Record Submission, Department of Labor Statistics and
Outcomes on Whistleblower Cases filed with OSHA, Fiscal Year 2008.
\21\See, Committee on Education and Labor, Subcommittee on
Workforce Protections Hearing, ``Whistleblower and Victim's Rights
Provisions of H.R. 2067, the Protecting America's Workers Act,'' April
28, 2010. Item 4, Record Submission, OSHA's Actions on 11(c) Cases
Completed in Fiscal Year 2009.
---------------------------------------------------------------------------
Mandatory Abatement Without Due Process
Committee Republicans are concerned by the inclusion in
H.R. 5663 of a new, prompt abatement provision that requires
costly and disruptive changes be made in the workplace before
disputes over the validity of the citations are resolved. The
Majority attempts to draw a parallel to the mining industry and
its long adhered-to practice of abatement, while adjudication
of a contested citation is pending. However, expert testimony
provided to the Committee on this point disputes this notion.
This provision will reduce or eliminate the ability
of an employer to challenge a citation through the
OSHRC administrative process by requiring immediate
abatement. Immediate abatement is already available
through the emergency shutdown mechanism when OSHA
identifies an imminent hazard. This provision will also
eliminate one source of leverage that OSHA and the
Solicitor's Office can use to resolve cases by settling
appropriate cases with the requirement of immediate
abatement imposed.
The signaled modification to this mandatory abatement
provision which would substitute an employer's ability
to suspend abatement while contesting the citation with
a higher burden of proof akin to what is required for
securing a temporary injunction is simply unjustified
and an outrageous trampling of due process rights.
Abatement is more than just protecting against a
hazard; it is part of accepting responsibility for the
violation. Mandating abatement before allowing the
employer to exhaust their adjudicative process would be
like asking a criminal or civil defendant to pay a fine
or serve a sentence before the trial is held.
In addition, this provision will eliminate OSHA and
the Solicitor's Office prosecutorial discretion in
handling these contested cases. This provision strikes
me as unduly punitive and makes it much more difficult
for employers, particularly smaller employers who lack
resources, to challenge certain citations which they
may believe in good faith are incorrect or improperly
imposed by the agency in the first place. By making it
harder to settle cases this will increase the rate of
contest cases.\22\
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\22\See, Testimony of Jonathan L. Snare, Esq., Committee on
Education and Labor Hearing, ``H.R. 5663, the Miner Safety and Health
Act of 2010,'' July 13, 2010.
The mandatory abatement provision, like much of the bill,
is merely punitive in nature; its disregard for due process
exposes the Majority's predilection for imposing punishment
rather than proactively enhancing workplace safety.
AMENDMENTS OFFERED IN COMMITTEE
Given the expansive and unwieldy nature of the underlying
measure, Committee Republicans sought to refocus the measure on
the most pressing and well-understood mine safety issues.
Committee Republicans offered the following amendments.
Republican Substitute
The Republican substitute would improve mine safety by
empowering MSHA and holding the agency accountable, identifying
and punishing bad actors, and modernizing mine safety
standards. Republicans would provide MSHA the tools it needs
and has sought in Congressional hearings--a responsive pattern
of violation system and subpoena power for accident
investigations. The Republican substitute also mandates that
MSHA inspect mines at irregular hours, creates an independent
investigation panel to assess MSHA's activities before and
during an accident, mandates additional inspector training, and
reestablishes the conference process. Further, the substitute
requires penalties if the MSHRC determines a frivolous contest
had been brought. Finally, the Republican substitute modernizes
mine safety standards--provisions that would work to improve
the safety of all miners. A summary of the Republican
substitute follows.
Enhanced Enforcement
Pattern of violations
The Republican substitute utilizes the Safe Performance
Index (SPI)\23\ to draw a bright line for placing perpetually
unsafe mines in a pattern of violations. If a mine operator
falls below the identified threshold on the SPI, that operator
would be placed in POV status and required to submit a
comprehensive remediation plan to MSHA explaining how the mine
operator intends to improve safety to get out of POV status.
While in POV status, a mine would be subject to spot
inspections.\24\ Such inspections, to take place at irregular
hours, would focus MSHA's inspectors on the hazardous areas of
a mine where greater oversight is needed most.
---------------------------------------------------------------------------
\23\The Safe Performance Index is a matrix created by Dr. Larry
Greyson to model mine safety. This was discussed at the Committee's
July 13, 2010 legislative hearing on H.R. 5663.
\24\30 U.S.C. Sec. 813, Spot Inspections, provides in relevant
part: (i) Whenever the Secretary finds that a coal or other mine
liberates excessive quantities of methane or other explosive gases
during its operations, or that a methane or other gas ignition or
explosion has occurred in such mine which resulted in death or serious
injury at any time during the previous five years, or that there exists
in such mine some other especially hazardous condition, he shall
provide a minimum of one spot inspection by his authorized
representative of all or part of such mine during every five working
days at irregular intervals. For purposes of this subsection,
``liberation of excessive quantities of methane or other explosive
gases'' shall mean liberation of more than one million cubic feet of
methane or other explosive gases during a 24-hour period. When the
Secretary finds that a coal or other mine liberates more than five
hundred thousand cubic feet of methane or other explosive gases during
a 24-hour period, he shall provide a minimum of one spot inspection by
his authorized representative of all or part of such mine every 10
working days at irregular intervals. When the Secretary finds that a
coal or other mine liberates more than two hundred thousand cubic feet
of methane or other explosive gases during a 24-hour period, he shall
provide a minimum of one spot inspection by his authorized
representative of all or part of such mine every 15 working days at
irregular intervals.
---------------------------------------------------------------------------
When the Secretary determines that a mine operator has an
adequately improved SPI and has met all the requirements of the
remediation plan, the mine shall be notified that it has been
removed from POV status.
Increased Fines and Penalties
The Republican substitute increases penalties for
violations of the Act to include sharp monetary penalties
coupled with significant jail time, in those instances where a
mine operator's conduct warrants such punishment.
Advanced Notice of Inspection Penalties
The Republican substitute ensures that anyone providing
advance notice of an inspection can only do so at the behest of
an inspector to facilitate that inspection. Anyone who provides
advance notice of an inspection with the intent of interfering
with that inspection would be subject to a fine of $50,000 and
up to five years imprisonment.
Subpoena Power
MSHA has continually cited the need for easier access to
subpoena power to carry out its duties during a mine
investigation. The Republican substitute provides MSHA the
appropriate authority to subpoena relevant documents during an
investigation and ensures that Rule 45 of the Federal Rules of
Civil Procedure guide the agency's actions in this area.
Strengthened Inspection Authority
The Republican substitute requires inspectors to perform
inspections at irregular hours. Currently, MSHA is required to
inspect underground mines four times per year and surface mines
two times per year, an important safety and enforcement tool.
The substitute requires that 30 percent of mandated inspections
take place on evening and weekend shifts.
Penalty for Frivolous Contests
The 17,000 case backlog at the MSHRC can be attributed to
many actions over the last four years. Industry critics argue
that some mine operators contest citations in order to ``game
the system'' and delay the payment of penalties or the
inclusion in a potential POV status. Under the Republican
substitute, if the Commission determines a contest is frivolous
it may assess an additional penalty, thereby targeting the few
operators who may be engaging in dilatory adjudication.
Improved statutory processes
Independent Accident Investigations
While MSHA is well-equipped in both expertise and
technology to investigate accidents there are questions about
the agency's objectivity when examining its own conduct. The
Republican substitute creates an independent investigation
panel charged with investigating MSHA's actions in the wake of
serious mining accidents.
Designation of Miner Representative
The Republican substitute requires miners to designate a
representative upon employment; information that will be kept
on file by the mine operator in the event that miner is
entrapped or otherwise prevented from action on his own behalf.
This ensures the miner's wishes are represented and insulates
family members from having to determine who is the ``next of
kin'' in distressing situations.
Reestablishment of Conference Process for Contests
Previous actions by MSHA suspended the conference process
for resolving contested citations, a major contributing factor
to the overwhelming case backlog at the MSHRC. The Republican
substitute reinstates and improves the conference process while
making it a statutory requirement.
Modernizing mine safety standards
Rock Dust Standards
The Republican substitute implements a new rock dusting
standard, which as proposed by NIOSH and reflected in the
Republican substitute, will decrease the explosivity of coal
dust in mine intakes. Further, NIOSH has developed a real-time
coal dust explosivity meter (CDEM). The substitute encourages
the use of the NIOSH developed CDEM to test the explosivity of
the coal dust/rock dust mixture to ensure no explosive hazard
exists.
Personal Dust Monitors
The UMWA and industry agreed to personal dust monitor
protocols in a white paper dated April 4, 2008. The Republican
substitute requires the Secretary to issue a standard based on
the recommendations of this joint labor-industry task force.
Risk Analysis Pilot Program
The Republican substitute requires NIOSH to conduct a
survey of international mining practices with respect to
incident planning with a particular focus on Australia's risk
assessment approach. NIOSH will publish these protocols and
work with mine operators to utilize the risk assessment tool to
improve mine safety.
Training Requirement
Currently, MSHA's inspectors are required to undergo two
weeks of training every two years and one week of specified
training every year. Earlier this year, the Inspector General
determined that more than 50 percent of the inspectors
interviewed had not undergone the required retraining.\25\ The
Republican substitute corrects the training deficiency
identified in the IG report by increasing mandatory training
requirements.
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\25\See, ``Journeyman Mine Inspectors Do Not Receive Required
Periodic Retraining,'' Department of Labor, Inspector General Office of
Audit, March 30, 2010. Report Number 05-10-001-06-001.
---------------------------------------------------------------------------
Studies
Study Regarding Establishment of a Technical Disputes Panel
The Republican substitute calls for a study to examine the
issues involved in technical mine operation disputes and
determines whether a technical disputes panel could facilitate
and expedite the resolution of these disputes. Further, the
study will include recommendations about the role such a panel
would play in conjunction with the MSHRC.
GAO Study on Transfer of Authority of NIOSH to DOL
NIOSH was designed to research the many safety and health
issues facing our nation's workers. Given the inherent
relationship between NIOSH and the Department of Labor,
questions have arisen about the placement of NIOSH outside the
purview of the Secretary of Labor. The substitute requires the
General Accountability Office (GAO) to study the merits of
moving NIOSH within the Department and report to Congress if
such a move would improve worker safety and health.
The Republican substitute was defeated on a party line vote
of 30 to 17.
Amendment to strike Title VII of the underlying bill
Rep. McMorris Rodgers (R-WA) offered an amendment to strike
Title VII of the legislation. This amendment would have removed
the expansive and unwarranted amendments to the Occupational
Safety and Health Act. Committee Republicans support proactive
safety measures that prevent workplace illness and injury. The
punitive nature of Title VII of the bill does nothing to
improve safety, only implementing harsh penalties after an
accident or injury has occurred.
More than 230 organizations supported Rep. McMorris
Rodgers' position that Title VII was inappropriate public
policy.
The members of the Coalition for Workplace Safety are
committed to seeking and advocating for new ways to
continually improve safety in the workplace.
Unfortunately, our position as expressed at the July 13
hearing has not changed and we maintain our strong
belief that H.R. 5663, as introduced, will not improve
safety but will instead create greater cost, litigation
and hamper job creation. We urge the committee to not
approve this bill.\26\
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\26\Letter on file with the Committee.
This amendment was defeated on a party line vote of 30 to
17.
Amendment to delete the adoption of a ``knowing'' intent standard
Rep. Tom Price (R-GA) offered an amendment to strike the
``knowing'' intent standard that would apply to violations in
both the mining and occupational safety sections of the bill
(Titles III and VII). Specifically, the amendment would have
removed provisions that are unduly vague and punitive, are not
likely to yield improvements in mine and workplace safety, and
would result in an unwarranted increase in liability and
litigation applicable to a broad range of mine operators,
businesses, corporate officers, agents and employees.
The amendment was defeated on a party line vote of 30 to
17.
CONCLUSION
As a matter of public policy, H.R. 5663 falls well short of
its stated purpose--improving the safety and health of American
miners. It creates a system that fails to protect surface
miners and certain metal/nonmetal miners--as acknowledged by
the President,\27\ the Majority party in Congress,\28\ and the
Assistant Secretary of Labor for Mine Safety and Health.\29\ As
the Majority's own Committee report notes, ``In the last
decade, over 600 miners have been killed while working in coal
and metal/non-metal mines, including 190 underground coal
miners.'' Clearly, the risks to miners are not limited solely
to the underground coal/gassy mines affected by this
legislation. If, as asserted by the Majority, the POV system is
broken, it must be repaired for all mines, not just coal mines.
If the backlog at the Mine Safety and Health Review Commission
is broken, it must be repaired for all mine operators, not just
coal mine operators. Compounding the inexplicable establishment
of a dual system of mine safety, is the fact that at its core,
H.R. 5663 fails to focus on those issues all parties to this
debate agree are in need of attention. Instead, H.R. 5663
reflects a heavy-handed approach more focused on punishing mine
operators than addressing identifiable solutions to prevent
mining accidents in the first place.
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\27\``This isn't just about a single mine. It's about all of our
mines.'' See Remarks by the President on Mine Safety, April 15, 2010
available at www.whitehouse.gov.
\28\``Chairman Miller has said this backlog is unreasonable and
harms the safety of American miners,'' Democrats to crack down on
mining firms that avoid safety penalties. The Hill. April 8, 2010.
\29\``As I have said repeatedly, the current system is broken. As I
have said on many occasions, we need to fix the pattern of violation
system.'' Assistant Secretary Joe Main, Hearing on ``H.R. 5663, Mine
Safety and Health Act'' July 13, 2010.
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H.R. 5663 also fails because it includes provisions wholly
unrelated to mining or mine safety. In terms of workers'
safety, the bill's wholesale changes to the Occupational Safety
and Health Act are perhaps best described as ``subtraction by
addition,'' as they make federal workplace safety law less
navigable and mining reforms less focused in a bill ostensibly
intended to improve mine safety. As with so much of the bill,
these provisions appear premised on the notion of imposing
punishment rather than improving workplace safety.
Republicans have always held to the tenet that one
workplace death is one too many. We also believe proactive
safety policies that are practiced everyday will bring workers
home to their families at the end of every shift. As such, we
will continue to seek policy changes that result in real
improvements in worker safety and health and we will resist
those proposals predicated solely on imposing punishment after
the fact. It is with these guiding principles in mind that we
urge our colleagues to reject H.R. 5663 when it reaches the
floor of the House of Representatives in favor of a more
targeted, thoughtful, and informed approach to miner safety.
John Kline.
Thomas E. Petri.
Howard P. ``Buck'' McKeon.
Judy Biggert.
Todd Russell Platts.
Joe Wilson.
Cathy McMorris Rodgers.
Rob Bishop.
Brett Guthrie.
Bill Cassidy.
Tom McClintock.
David P. Roe.
Glenn Thompson.