Tales from the Front: MSHA/OSHA Reform Hearing
HR 5663 is the bill carrying forward reforms to MSHA and OSHA in the US House of Representatives. This report from Gary Visscher, who works in the office of ASSE’s Federal Representative, details the hearing where that bill was marked up and passed by the Committee on Education and Labor.
On Tuesday, July 13, Gary Visscher of the Law Office represented ASSE at the hearing of the Education and Labor Committee on H.R. 5663. It was a lengthy hearing and moderately well attended by Members. There have been rumors that the Committee would mark up H.R. 5663 this week, possibly on Thursday. Although Chairman Miller said that the Committee planned to mark up the bill “soon” he did not give a date. Republican staff told me that they had been assured it would not be this week, but expected Committee markup next week, probably on Wednesday.
Committee passage of the bill is a given. In talking to people at the hearing, the perception is that most Members of the House who are not on the Committee are not yet familiar with the bill, and so even though there has been talk of the House passing it before the August recess, it is not so clear that that will happen, particularly if the OSHA sections remain in the bill. Apparently the view of those visiting Senate offices is that if this is done this year it most likely would be in a lame duck session after the election.
Following is my summary and observations from the hearing.
In his opening statement, Chairman Miller focused almost entirely on the Upper Big Branch Mine disaster, even though the bill goes well beyond anything coming out of that incident. He also announced that the bill would be named the Robert C. Byrd Miner’s Health and Safety Act.
Ranking Member Kline, in his opening statement, expressed his consternation that the Majority had not invited the DOL IG to the hearing, to discuss recent IG reports that have criticized MSHA’s administration of its responsibilities under the Mine Law. Both he and Subcommittee Ranking Member McMichaels Rogers also expressed the view that the bill was moving too fast and it was premature to pass sweeping legislation on the basis of UBB mine disaster when all of those investigations, including one by the Committee, are still underway.
The first panel of the hearing was MSHA A/S Joe Main, Solicitor of Labor Patricia Smith, and OSHA A/S David Michaels. They expressed full support for the legislation as drafted. Solicitor Smith was particularly strident and dismissive of concerns that had been raised. On the change in the definition of Significant and Substantial, she argued that the language of the bill was what the original drafters of the Mine Act had intended, and that the Review Commission had “unfortunately substituted their own definition.” She also argued that the bill would reduce backlogs and litigation under the Mine Act by (1) eliminating the argument in most cases as whether a violation is S & S, and (2) by charging prejudgment interest, and thus taking away what she claimed was a major incentive and reason operators have to contest citations. Rep. Woolsey asked Smith to respond to that the immediate abatement requirement in the OSHA section would remove timely abatement as an important “settlement leverage” that DOL uses in negotiating settlements and resolving citations without litigation. Solicitor Smith’s response was “too bad. Health and safety trumps our attorneys’ ability to wheel and deal.”
In ironic timing, yesterday’s Politico newspaper had a front page article on the number of safety violations present in Congressional facilities. A couple of Members drew attention to the article, particularly on the question of who would be a “responsible corporate officer” who could draw criminal penalties under the OSHA section of the bill, if the changes were made to apply to Congress. Rep. Price asked Solicitor Smith that question, which she declined to answer, but in the process also said she didn’t know who the bill would reach in corporate business settings.
Both Rep. Rahall and Rep. Capito from West Virginia came to and stayed for the entire hearing. Rep. Rahall seemed particularly concerned about how MSHA is controlling access to the Upper Big Branch Mine during the investigations. A/S Main said that they were in control but had to work with operator, which has the resources necessary to give access.
Rep. Altimire from Pennsylvania was the only Member who asked about whether the legislation should distinguish between underground coal and other mines. A/S Main responded that there are different standards for different mines, but that “miners at sand and gravel mines should have a right to the same protections as underground miners.”
The second panel consisted of Mr. Stewart, a miner from the Upper Big Branch mine, Larry Grayson, professor at Penn State and chairman of a NIOSH panel in 2006 on mine safety, Bruce Watzman of NMA, Cecil Roberts of UMWA, Jonathon Snare on behalf of the Coalition for Workplace Safety, and Lynn Rinehart of the AFL.
The oral testimony and questions went along mostly predictable lines. Members on both sides seemed particularly impressed by work that was presented by Mr. Grayson, on identifying the “most problematic” mines. The work is detailed in his written testimony; with the help of a grad student, he ranked mines according to a combination of injury severity records and serious violation history, as a way of identifying the “worst mines,” which everyone says is what they want to address with the legislation.
Most of the Members and the Administration witnesses repeatedly talked about “recalcitrant” and “unscrupulous” employers, as though those would be the only ones that would be affected by (or they intended to affect by) the legislation. Rep. Price asked A/S Michaels to name those “unscrupulous” employers. A/S Michaels only identified one: BP. Only Lynn Rinehart of the AFL gave a different picture, saying that the problem is not just “recalcitrant employers,” but that there are “systemic problems” with health and safety enforcement in the United States. She argued that the OSH Act had fallen behind not only the Mine Act, but also environmental laws, and most other government sanctions in terms of penalties, and used the example that the Department of Justice brought more criminal cases under the environmental laws last year than it has in all of the years of the OSH Act.
There was (as usual in the Committee) relatively little discussion of specific provisions of the bill and their impact. On behalf of the mining industry, Bruce Watzman’s testimony was pretty general, laying out some principles that they believe should be followed in any legislation, without getting into many specific provisions of the bill, at least in his oral testimony. He emphasized that NMA would like to see the problems with MSHA administration, as pointed out in recent IG reports, addressed first. Otherwise, “the legislation layers harshly punitive measures on this inadequate foundation.” Jonathon Snare’s testimony addressed concerns with the OSH Act provisions of the bill, including the high burden of proof on an employer seeking a stay of abatement during a contested citation. He also expressed opposition to the change from “willful” to “knowing” as the level of intent required for criminal charges under the OSH Act.
During the question period, Rep. Kline asked a question about section 403 of the bill which, in his view, seemed to change the “at will” doctrine of employment, but only for underground coal mines. Bruce Watzman said he did not know why that provision was in the bill, and the matter seemed to pass along like every other point of disconnected discussion of specific provisions during the hearing. But Chairman Miller picked up on that in his closing comments, raising his voice about those who seem to want to make the “at will” doctrine sacrosanct.
Rep. Rahall said he hoped that all parties would continue to work on coming to some agreement on the bill, and the witnesses expressed their willingness to do so. But with markup forthcoming, it does not seem likely that much will change before then.