Occupational Safety and Health NewsAlert
For clients and friends of Jackson Kelly PLLC Volume 6, Number 15 ©2010 Jackson Kelly PLLC
Representative George Miller (D-CA), Chairman of the House Committee on Education and Labor, released a “discussion draft” of a bill on June 29, 2010, which would make significant changes to the Federal Mine Safety and Health Act of 1977. In a statement posted on the House Committee on Education and Labor’s website, lawmakers said, “It is the hope of the authors that this paper can form the basis of productive discussions with Congressional colleagues and interested stakeholders, and can be the starting point for bipartisan legislation that will protect all our workers and prevent future disasters by improving compliance with mine and occupational safety and health laws.”
The proposed changes are too numerous to fully list in this article. A copy of the discussion draft may be found at the House Committee’s website at: http://edlabor.house.gov/documents/111/pdf/legislation/MineSafety2010.pdf
The following highlights the more significant proposals:
Pattern of Violations · Expands Significant and Substantial (“S&S”) violations to include violations of any part of the Mine Act and any regulation promulgated under the Mine Act. · Defines the term S&S as any violation where there is “a reasonable possibility that such violation could result in injury, illness, or death.” · Allows MSHA to declare that a mine has a pattern of violations and to immediately issue an order of withdrawal. Advance notice of the potential finding is not required. · Mines placed in pattern status will have the minimum number of annual “required inspections” doubled. Mines will have to pay MSHA for the costs of the additional inspections. · Mines placed in pattern status will remain in that status for one year after they resume production and must meet specific statutory performance benchmarks (not defined) to be removed. Investigations, Subpoenas, and Injunctions · Gives the Secretary of Health and Human Services (“HHS”) and the National Institute for Occupational Safety and Health (“NIOSH”) authority to appoint a Panel to conduct a separate investigation of any mine accident involving three or more deaths or any accident which the Secretary of HHS determines merits an independent investigation. · Grants MSHA broad authority to issue subpoenas to compel the production of witnesses and documents in connection with inspections and investigations relating to safety and health issues. · Grants MSHA broad authority to seek injunctions against any conduct which, in the judgment of MSHA, constitutes a continuing hazard to the safety and health of the miners. Revocation of Mine Plans · Allows MSHA to revoke approved plans and to immediately issue an order of withdrawal. Penalties · Raises the maximum penalty for S&S violations to $150,000. · Mines placed in pattern status that fail to meet the specific statutory performance benchmarks at the end of one year shall have all penalties doubled up to the maximum amount allowed under the law. · Increases civil penalties for violations of section 105(c) to a minimum of $10,000 and a maximum of $100,000 for the first occurrence and a minimum of $20,000 and not more than $200,000 for any subsequent violation within a three year period. · Provides for prejudgment interest, compounded daily, on all contested civil penalties. · Gives MSHA the authority to issue a withdrawal order to an operator that is 180 days delinquent on payment of penalties. Individual and Criminal Liability · Expands individual liability to agents who knowingly authorized or ordered a practice which contributes to the occurrence of a violation. · Expands knowing violations to include violations of regulations, such as Part 50 regulations, requiring reporting of accidents. · Makes “knowing” violations criminal in nature by deleting the “willfully” language from Section 110(d) of the Mine Act. · Makes criminal violations felonies by raising the penalties to five years imprisonment and a fine of not more than $1,000,000 for the first occurrence and ten years imprisonment and a maximum fine of $2,000,000 for subsequent convictions. Miners’ Rights · Provides that an order of temporary reinstatement continues in effect until there is a final order of the Commission on the case, regardless of whether the Secretary pursues the case on behalf of the complainant. · Prohibits the termination of underground hourly coal miners who have completed a six month probationary period without reasonable job-related grounds based upon a failure to satisfactorily perform job duties. Allows miners to bring an action in Federal district court to challenge such dismissals. · Provides that all miners idled by any order under the Mine Act are entitled to pay for the entire period that they are idled. Safety Standards · Requires mine operators of underground coal mines to establish a communication program to notify each miner entering the mine of current conditions. · Raises the percentage of incombustible content to a minimum of 80% in all entries in underground coal mines and requires that operators take accurate samples to ensure compliance. · Requires that mine operators use direct reading monitors for incombustible content when such are available. Certification of Certified Personnel and Additional Training · Requires any person designated by the operator to perform duties or provide training to have been certified, qualified, or otherwise approved according to requirements to be established by the Secretary. · MSHA will assess fees for each certified person employed by an operator and such fees shall be paid by the mine operator. We believe Congress will hold legislative hearings shortly after Congress returns from the July 4th break. Chairman Miller is intent on reporting a Mine Safety bill out of the committee before Congress recesses in early August. Republicans were critical of the broad scope of the draft legislation and the lack of bipartisanship. Senator Mike Enzi (R-WY) expressed his disappointment in the legislation and stated that, instead of pursuing a bi-partisan productive approach to miner safety, “Democrats have chosen to introduce a sweeping piece of legislation that affects every business in this country and only amplifies the adversarial role of OSHA and MSHA, without increasing safety.” Jackson Kelly’s Occupational Safety & Health practice group will continue to follow the developments of this “Discussion Draft” Bill.
OCCUPATIONAL SAFETY AND HEALTH PRACTICE GROUP
Denver, Colorado
Responsible Attorney
Karen L. Johnston
(303) 390-0008
For more information, contact:
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Laura E. Beverage (303) 390-0003 |
Karen L. Johnston (303) 390-0003 |
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R. Henry Moore (412) 434-8801 |
Michael T. Cimino (304) 340-1000 |
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