Appalachian Voices Strongly Supports Mine Safety Legislation (S 153)

Senators Rockefeller, Harkin, Murray, and Manchin Introduce Legislation to Improve Working Conditions and Safety for Coal Miners

2010 will long be remembered for the horrific disaster at Massey Energy’s Upper Big Branch mine, after an explosion killed 29 men and set off a firestorm in Appalachia and in Washington, D.C. over the safety of America’s coal miners. However, we must remember that there were an additional 42 mine fatalities that received less attention, but had just as tragic an impact on the friends, family, and community of all those involved. In all, these 71 US coal mining fatalities in 2010 were an enormous increase from recent years, and the challenge of moving that number to zero in the upcoming years looms large on the coal industry, federal regulators, and Appalachian politicians.

Fortunately, Senators John Rockefeller (D-WV), Tom Harkin (D-IA), Patty Murray (D-WA), and Joe Manchin (D-WV) have introduced the Robert C. Byrd Mine and Workplace Safety and Health Act of 2011 (S 153). Their efforts deserve praise. Appalachian Voices strongly supports this bill, and urges Congress to pass it immediately. Coal mining is inherently dangerous, and our Appalachian workers deserve the safest mines that money can provide them.

The Senators who introduced this legislation understand that every miner deserves a safe place to work. Appalachian Voices urges them to remember that every Appalachian citizen also deserves a safe place to live. As long as the coal industry perpetuates the practice of mountaintop removal, Appalachian citizens are being denied their basic right of safety and well-being. Living near a mine shouldn’t mean that we must unnecessarily share the enormous dangers that are inherent in the coal mining process, and we would also ask Senator Rockefeller and Senator Manchin to support bipartisan legislation such as the Appalachia Restoration Act which would protect Appalachian citizens from toxic waste associated with mountaintop removal mines.

It is no accident that Massey Energy, who operated the Upper Big Branch Mine, was also the single largest perpetrator of mountaintop removal mining. They same corner-cutting mentality that led to the UBB disaster also leads to disastrously harmful practices like mountaintop removal. With reports emerging that Massey Energy is being bought by Alpha Natural Resources. United Mine Workers’ President Cecil Roberts had this to say:

…[E]rasing the Massey name from America’s coal industry is a positive step, no matter who is responsible for it. Massey had come to represent all that was wrong with the coal industry, whether it be safety and health issues, environmental issues or simple respect for its workers, their families and the communities where they live.

We agree completely, and urge Congress to strengthen our nation’s protection for our coal miners, as well as the surrounding community members who face the dangers of mountaintop removal.

In addition, Senator Manchin’s office provides the following information on their proposed mine safety legislation.

PROTECTS MINERS THAT REPORT SAFETY CONCERNS

• Strengthens protections for miners who speak out about unsafe conditions. Workers who go into mines every day are in the best position to find safety hazards. It is essential that miners have the strongest possible protections to ensure that they can raise safety concerns on the job without fear of retaliation. This legislation will strengthen existing whistleblower protections, including requiring one hour annually of “miner’s rights training” to inform workers of the law’s protections, giving miners an express right to refuse unsafe work, expanding the time limit for complaining about retaliation from 60 to 180 days, and authorizing punitive damages and criminal penalties for retaliation against workers who raise safety concerns.

• Makes sure that miners don’t lose pay for safety-related closures. Fear of losing a paycheck can deter miners from raising safety issues with MSHA. Under this legislation, miners will receive full pay when they are idled by a MSHA-initiated safety-related closure and cannot be re-assigned to work in an open portion of the mine.

• Allows miners to speak freely during investigations. The ability of miners to communicate openly with MSHA during investigations is key to uncovering and correcting safety problems. Under this legislation, miners and other individuals with relevant information will have the right to request a private interview with MSHA in the course of an investigation.

INCREASES MSHA OVERSIGHT AND ACCOUNTABILITY

• Provides for an independent investigation of the most serious accidents. Everyone benefits from having the best possible information about serious accidents, not only to learn about what went wrong, but also to learn whether government officials acted properly before the accident, in responding to the crisis, and in their subsequent investigation. This legislation creates an independent panel, comprised of a NIOSH-appointed team of independent experts, to investigate the actions of both the operator and MSHA for serious accidents, including any accident involving 3 or more deaths.

• Makes sure that all safety personnel are well-qualified. A key component of mine safety is making sure that those responsible for the day-to-day safety decisions meet the highest standards of qualification. Under this bill, MSHA will institute a process to certify the qualifications of foremen, superintendents, and other high-level safety officials if there is not an adequate state-based certification process in place. This legislation also requires the Government Accountability Office (GAO) to review and make recommendations about the workforce needs of the industry and federal and state regulators to make sure that we have enough qualified safety and health personnel to keep our mines safe.

• Requires that inspections be comprehensive and well-targeted. Inspections by MSHA are the cornerstone of our mine safety system, and MSHA’s limited inspection resources should be well-distributed over all shifts and days of the week when mines are operating, so that all miners have the same high level of protection.

• Requires greater coordination in investigations. This legislation requires the Department of Justice to designate at least one full-time employee with expertise in the mining industry to coordinate with the Department of Labor and assist United States Attorneys in the investigation and prosecution of criminal violations of mine safety laws.

• Increases transparency of mine safety records. This legislation requires MSHA to improve its online public database of mine safety records, so that the public can view aggregate information about each operator’s safety record (rather than just the records of each individual mine) and more easily compare data on the safety records of mines and operators.

• Requires MSHA to develop a strategic plan to improve mine safety. Currently, the Department of Labor must develop strategic long-term plans for the whole Department, but a more detailed mine safety-specific plan is not required of MSHA. The last time MSHA developed a long-term plan was in 2002, covering the five-year period from 2003 to 2008. This legislation would require MSHA to routinely develop a five-year plan to set forth long-term safety goals and measurable strategies to achieve those goals.

GIVES MSHA APPROPRIATE ENFORCEMENT TOOLS

• Gives MSHA additional authority to order training. Even outside the pattern of violations context, there are circumstances where additional training is the appropriate response to a safety concern. MSHA will have the authority to order additional training in appropriate circumstances.

• Gives MSHA authority to seek injunctions when there is a course of conduct that constitutes a continuing threat to the health and safety of miners. Currently, MSHA has limited authority to pursue injunctive relief in court when there are serial violations that present a risk to the health and safety of miners. MSHA will have the authority to pursue an injunction to stop these dangerous practices when there is a course of conduct that constitutes a continuing hazard to the health and safety of miners.

• Clarifies the definition of a “significant and substantial” violation. Currently there is no statutory definition of a “significant and substantial” violation. The law would benefit from additional clarity by defining a “significant and substantial violation” to include violations where there is “a reasonable possibility that such violation could result in injury, illness or death.”

• Gives MSHA expanded authority to subpoena documents and testimony. Currently, MSHA does not have the authority to subpoena documents or testimony from operators outside the context of a formal, public hearing. MSHA should have this authority in the context of investigations and inspections as well as public hearings.

HOLDS IRRESPONSIBLE OPERATORS ACCOUNTABLE

• Increases maximum criminal penalties. Currently, criminal violations of mine safety laws are a misdemeanor for a first offense. To provide a strong deterrent for such serious misconduct, the penalties for knowing violations of safety standards will be raised to the felony level, including providing felony penalties for miners, operators, and government officials who knowingly provide advance notice of inspections.

• Increases maximum civil penalties. Raising maximum civil penalties for “significant and substantial” violations of mine safety laws will provide a strong economic incentive to comply with the law.

• Requires operators to pay penalties in a timely manner. Currently, MSHA is trying to collect about $27 million in unpaid penalties for fully adjudicated safety violations. Operators that accrue penalties that are never paid effectively get away with violating the law. MSHA will have the authority to withdraw miners from a mine that is more than 180 days in arrears on fully-adjudicated penalties, if that mine is not participating in a payment plan.

ESTABLISHES REHABILITATION PROCESS FOR UNSAFE MINES
• Changes MSHA’s “pattern of violations” process from a primarily punitive process to a rehabilitative process, wherein mines with significantly degraded safety records are given remedial safety plans and must meet benchmarks demonstrating that they are making progress on safety issues.

The “pattern of violations” system was intended to be the most important tool to address mines with recurring safety problems. Unfortunately, this tool cannot be effectively utilized under current law. In addition, the harshly punitive nature of the current system does not serve the goal of helping unsafe mines improve their performance and return to operations safely.

This legislation will place mines with a pattern of significant safety problems (withdrawal orders, flagrant violations, citations for “significant and substantial” violations, accidents and injuries, etc.) onto “pattern of violations” status if their safety and compliance records fall below thresholds established by MSHA. These thresholds must be appropriate to the size and type of mine, and both the thresholds and the data that MSHA uses to evaluate mines must be made publicly available on MSHA’s website and updated regularly so that mines can track their status and take preventive measures to avoid being placed on pattern status. The Government Accountability Office (GAO) will conduct an independent evaluation of MSHA’s new “pattern of violations” criteria and consult with stakeholders to make sure that the criteria is effective in preventing repeat violations.

Under the bill, when a mine is placed on pattern status, MSHA will issue a remediation order that outlines steps that the mine must take to get its safety performance back on track, such as additional training for miners, additional safety personnel, or the creation of a health and safety management program. Miners will be withdrawn from the mine until violations or unsafe conditions are remedied, and the operator has commenced or completed other safety actions identified in the order. The mine will then be in what is effectively a probationary period during which time the number of annual inspections will increase. MSHA will periodically assess whether the mine is meeting prescribed safety benchmarks, and mines that meet these benchmarks will be removed from pattern status. Mines that do not improve their safety records will face an increase in fines and penalties for safety violations, and potentially a renewed withdrawal order.

REDUCES SAFETY RISKS

• Reduce the Risk of Coal Dust Explosions. It is essential to take all possible steps to reduce known risks to miners’ safety. This legislation requires greater amounts of rock dusting, mandates new monitoring technology to improve rock dust measurements, and requires the study and subsequent use of continuous atmospheric monitoring systems.

• Requires pre-shift reviews of mine conditions, and communication to ensure that appropriate safety information is transmitted. Responsible practices and good communication is the first line of defense in keeping our mines safe. Operators will be required to institute a pre-shift review of mine conditions, and to implement a communication program so that each miner is aware of the current conditions of the mine at the start of his or her shift. This would be accomplished through required verbal communication between incoming and outgoing foreman, assistant foreman, and other officials responsible for safety conditions on each shift. These verbal communications must also be recorded in writing.

INCREASES SAFETY FOR WORKERS IN ALL INDUSTRIES

• Enhances protections in other workplaces that are covered under the Occupational Safety and Health Act. Unfortunately, mines are not our nation’s only dangerous workplaces. All workers deserve to come home safe after work each day. Accordingly, this legislation improves protections for workers in other workplaces by strengthening whistleblower protections, increasing criminal penalties particularly where workers are killed due to safety violations, updating civil penalties which have not been increased since 1990, preventing litigation from delaying the correction of hazards that could lead to serious injury or death, and providing greater rights for victims of accidents and their family members to participate in proceedings under the Occupational Safety and Health Act.

About JW Randolph

Raised on the banks of the Tennessee River, JW's work to create progress in his home state and throughout Appalachia has been featured on the Rachel Maddow Show, The Daily Kos and Grist. He served first as Appalachian Voices’ Legislative Associate and then Tennessee director until leaving to pursue a career in medicine in 2012.