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ASSE Comments on New Congressional Mine Act

Posted in on Tue, Jul 13, 2010

Des Plaines, IL (July 13, 2010) — The American Society of Safety Engineers (ASSE) today said it does not support the effort to link together key provisions of the Protecting America’s Workers Act (PAW Act, HR 2067), introduced last year, to mining safety and health provisions of the Mine Safety and Health Act of 2010 bill, HR 5663, for which the Congressional Committee is holding hearings on this week.

ASSE officials note that because the bill is so wide-sweeping in an attempt to move forward reforms to both the Federal Mine Safety and Health Act (Mine Act) and the Occupational Safety and Health Act (OSH Act), that ASSE fears the short time set aside to consider the bill does not serve the purpose of advancing occupational safety and health in the most thoughtful way possible.

In a letter sent today to Representative George Miller, chair of the House Committee on Education and Labor, ASSE President Darryl C. Hill, PhD, CSP, raised concerns and noted, “ASSE is particularly concerned that this rush to markup does not address a glaring failure of the OSH Act to provide more than eight million public sector workers with the same minimal federal occupational safety and health protections that all other workers enjoy.

“To propose toughening the safety and health protections most workers already have while so many other Americans – all public servants, many of who serve to protect our welfare – are not protected at even current levels of protection is unfair to those public servants,” Hill wrote. “Over the last several years, ASSE’s Florida members have worked with labor and business groups to advance protections for state, county and municipal workers. We know how difficult it would be to go from state to state to address this problem.

“The OSH Act will not be truly reformed until public sector workers receive the workplace protections they deserve,” Hill said.

ASSE is also concerned that positive contributions made to the PAW Act in reforming the OSH Act will be lost under the weight of opposition to Mine Act reforms that will make it difficult to achieve strengthening oversight of the nation’s mines.

Among the various OSH Act reforms included in the bill, 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, Hill noted, 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.

“ASSE does not seek protections for an SH&E professional’s failure to fulfill professional responsibilities,” Hill said, “but worker safety and health is best served by putting those responsible for an organization’s commitment to safety and health on notice of penalties that can result from shirking that responsibility.”

ASSE also conditionally supports a change from ‘willful’ to ‘knowing’ in the language of the bill 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.

“With that explanation on the record, we could support this provision. Without it, the use of ‘knowing’ remains too vague a term to help drive a significant change in the way organizations view worker safety and health, which should be the unwavering goal of this bill,” Hill said.

Hill notes that previous ASSE concerns about whistleblower provisions in the PAW Act had been addressed in HR 5663 and that ASSE supported sections on ‘Enhanced Protections from Retaliation and Prohibition of Retaliation’. ASSE, however, cannot agree with establishing a whistleblower private right of action. While ASSE supports giving victims the opportunity to appear before the Occupational Safety and Health Review Commission (OSHRC), it cannot support giving victims an opportunity to make a statement before the parties conducting settlement negotiations.

ASSE does support provisions allowing employers to file with the OSHRC a motion to stay a period for the correction of a violation designated as serious, willful, or repeated, a provision in HR 5663 that addresses concerns ASSE had with similar PAW Act provisions.

Founded in 1911, the Des Plaines, IL-based ASSE is the oldest professional safety organization and is committed to protecting people, property and the environment. Its more than 32,000 occupational safety, health and environmental professional members manage, supervise, research and consult on safety, health, transportation and environmental issues in all industries, government, labor and education. For more information and the complete statement please go to ASSE’s website at www.asse.org.



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