ASSE Comments on OSH/Mine Reform Bill
ASSE has commented (http://www.asse.org/professionalaffairs_new/communications/federal/docs/071210HR5366Comment2-esig.docx) on a bill (HR 5663, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h5663ih.txt.pdf) introduced July 1, just before the July 4 holiday weekend that was heard July 13 by the House Education and Labor Committee with possible markup to follow shortly. The bill attaches key provisions of the Protecting America’s Workers Act (PAW Act; HR 2067) to Mine Act provisions in a bill. Consistent with a tradition of bipartisanship on OSH issues in the Senate, it was reported last week that Senate Health, Education, Labor and Pensions (HELP) Committee Chair Tom Harkin (D-IA) has decided to delay introduction of mine safety reform legislation until he can rally bipartisan support. See that report here, (http://thehill.com/blogs/healthwatch/worker-safety/106929-senate-dems-hold-out-for-bipartisan-mine-safety-bill).
ASSE’s letter to Chairman George Miller (D-CA) of the Committee states:
1. ASSE is concerned that this rush to markup does not address a glaring failure of the OSH Act to provide more than 8 million public sector workers with the same minimal federal occupational safety and health protections that all other workers enjoy.
2. ASSE fears that some very positive contributions HR 5663 makes in OSH Act reform will be lost under the weight of opposition to Mine Act reforms that make strengthening oversight of US mines more difficult, in our members’ view.
3. After negotiations that saw previous concerns with the PAW Act whistleblower provisions addressed, ASSE supports sections on Enhanced Protections from Retaliation and Prohibition of Retaliation. However, ASSE cannot agree with establishing a whistleblower private right of action. ASSE supports giving victims the opportunity to appear before the Occupational Safety and Health Review Commission (OSHRC) but cannot support giving victims an opportunity to make a statement before the parties conducting settlement negotiations.
4. ASSE supports provisions allowing employers to file with OSHRC a motion to stay a period for the correction of a violation designated as serious, willful, or repeated, which addresses concerns ASSE had with similar PAW Act provisions.
5. ASSE does not oppose the increased levels of civil and criminal penalties proposed in this legislation if the new definition of employer under the criminal provisions is changed from “any officer or director” to “any responsible officer or director.” As it stands, though, this definition helps protect the large majority of ASSE members doing their job from being held accountable for others’ failure to address safety and health risks.
6. ASSE also supports changing “wilfull” to “knowing” to determine criminal intent under an OSH Act prosecution if it is made clear “knowing” reflects both a knowledge and awareness that the hazard, actions or conditions are likely to place another person in imminent danger of death or serious bodily injury; a knowledge and awareness that the hazard, actions, or conditions constitute a violation of a mandatory safety or health standard; and that the person had the ability to take action to address the hazard or condition and did not.
7. The Mine Act reform provisions are new to the debate. ASSE supports NIOSH’s increased involvement in investigating major mine accidents but argues for more funds for NIOSH to do so. Overall, ASSE does not support key provisions in the bill. ASSE is concerned that new subpoena powers are overbroad and discourage self-audits and recording of “near misses.” We oppose making all Mine Act violations presumptively significant and substantial. ASSE urges that it be made clear that criminal prosecution for knowing violations of MSHA standards should occur only for serious injuries or worse, or for false statements or falsified documents. We are concerned that the criminalization of retaliation against whistleblowers are harsher than for knowing violations of mandatory standards. We are also concerned that increasing penalties again comes soon after 2006 MINER Act provisions, which dramatically increased contested cases and a 17,000 FHSHRC backlog.