U.S. Reps. George Miller (D-CA), Nick Rahall (D-WV), Lynn Woolsey (D-CA), and Sen. Jay Rockefeller (D-WV) asked the inspector general in April to investigate MSHA’s procedures after MSHA disclosed that a computer error excluded the Upper Big Branch Mine from being notified that the mine may be under a so-called ‘pattern of violations’ (POV) sanction. Mines identified as having a ‘pattern of violations’ are considered serial violators of health and safety protections.

“The inspector general’s report confirms that the process to identify and impose sanctions against dangerous operators that repeatedly skirt mine laws is broken.  Without meaningful legislative reforms, miners will remain in the crosshairs of reckless mine owners operating outside of the margins of safety,” said Miller. “The Robert C. Byrd Miner Safety and Health Act passed by the committee will revamp this broken system. It will ensure that dangerous mines dramatically improve safety or be shut down until they improve.”

“By and large, most mine operators are looking out for the health and safety of their employees.  The reforms to the ‘pattern of violations’ process are necessary to get at the small group of operators who continue to flout the law,” said Rahall. “This legislation is a fitting tribute to the memory of Robert C. Byrd, and to his legacy of helping to ensure the health and safety of miners in the coal fields.” 

“The bottom line is that the administrative process for identifying serial violators of mine safety and health standards is totally ineffective and has been so since its creation,” said Woolsey. “If we are going to adequately protect miners from dangerous hazards, we need to turn this around, and can do so quickly by passing the Byrd bill.”

The report also found:
•    MSHA did not screen or monitor plans submitted by mine operators to improve safety once they were notified that they potentially faced pattern of violation sanctions
•    MSHA’s computer system contained errors that caused unreliable results when screening for mines that may be subject to pattern of violation sanctions
•    Delays in testing rock dust samples could cause delays in identifying safety hazards. In fact, rock dust samples from the Upper Big Branch mine were not performed until after the April 5 explosion. One of the samples exceeded the allowable amounts of coal dust. The Byrd bill would require new monitoring technology to provide real time rock dust measurements.

In June, the inspector general reported that MSHA allowed 10 serially non-compliant mines to avoid being placed on a potential pattern of violation due to the lack of resources to implement the agency’s administrative requirements to place mines of a pattern of violations – many of which were located in West Virginia.

The GAO found that for the last two decades, the Labor Department has not provided adequate management attention to the whistleblower program. The independent watchdog agency said the program’s training for investigators and their supervisors is inconsistent from region to region, that internal controls are lacking to monitor compliance with policies and procedures, and that few of the GAO’s previous recommendations from 2009 have been implemented.

The GAO also noted that despite an increased workload over the years, the number of inspectors has remained relatively flat, and urged the program establish a separate budget for the whistleblower program. In fiscal year 2009 more than 2,100 whistleblower complaints were filed with OSHA.  Congress provided the Labor Department with funds for 25 additional whistleblower investigators in fiscal year 2010 to deal with a growing caseload.

In hearings in both the House and Senate on a number of recent workplace tragedies – such as the Upper Big Branch mine, the Tesoro refinery explosion and the BP Deepwater Horizon explosion – Congress heard  how workers’ voices were routinely silenced from speaking up on significant problems for fear of job loss. Witnesses said that increased whistleblower protections might have prevented some or all of these tragedies.

“As we have seen all too often, workers pay the tragic price when companies retaliate against workers who raise legitimate safety concerns. Strong and effective whistleblower protections are essential to ensuring a safe workplace since safety regulators can’t be on every jobsite,” said Rep. Miller, chair of the House Education and Labor Committee. “At the same time, I will continue to work with my colleagues and the Secretary of Labor to modernize anti-retaliation protections as part of the Robert C. Byrd Miner Safety and Health Act.”

“Workers are the first line of defense against dangerous working conditions,” said Sen. Harkin, chair of the Senate Health, Education, Labor and Pensions Committee.  “We have an obligation to protect those who courageously risk their careers to protect the safety of others.  In light of the GAO’s findings, OSHA should take swift action to remedy the problems in this important program.  Even with these steps, however, many whistleblower laws remain inadequate. I’m committed to working with my colleagues on both sides of the aisle to strengthen them so all of America’s workers are fully protected.”  

“No worker should ever be discouraged from reporting a potentially dangerous situation in the workplace to an employer or an oversight agency for fear of retaliation,” said Sen. Murray, chair of the Senate HELP Subcommittee on Employment and Workplace Safety.  “We are working closely with our Republican colleagues to bring about some critically needed improvements to worker protection laws, including the need to update the OSHAct’s whistleblower programs. And it is our goal to work together on a bi-partisan bill to protect all of America’s workers.”

“We look forward to working with the Department of Labor to address the shortcomings in the Whistleblower Protection Program outlined in this report,” said Rep. Woolsey, chair of the House’s Workforce Protections Subcommittee. “We will, however, continue to exercise rigorous oversight and will act if the department fails to do so.”

Both the House and Senate are currently working on legislation to ensure that workers have a voice on the job by strengthening out-of-date whistleblower laws. Among other provisions, the Robert C. Byrd Mine Safety and Health Act would modernize 40-year-old anti-retaliation provisions in the federal Occupational Safety and Health Act, which is the oldest and least protective out of the 19-whistleblower laws administered by the Department of Labor.

More information on the Robert C. Byrd Mine Safety and Health Act

“Today’s announcement demonstrates a clear commitment to worker safety by the leadership of this Department of Labor and OSHA. Penalties for corporations who consistently put workers’ lives in danger must be more than just the cost of doing business,” said Miller. “While OSHA’s fine against BP for violations that occurred after the horrific explosion at its Texas City refinery is historic, strong sanctions in the past clearly did little to spur the company to improve. BP’s commitment to make significant safety enhancements must be closely monitored to ensure they live up to the promise they made today.”

In March 2005, 15 workers were killed and 180 others were injured in an explosion at BP's Texas City, TX facility. The U.S. Chemical Safety Board (CSB) released an investigative report in 2007 blaming BP for cost cutting that led to malfunctioning equipment and overworked and undertrained employees. CSB also blamed OSHA for failing in its investigative responsibilities. On Thursday, March 22, 2007, the Education and Labor Committee heard testimony examining what went wrong at BP and OSHA with the goal of preventing future disasters.

In July, the Education and Labor Committee approved legislation that would empower workers to speak up about safety concerns and give the Department of Labor the tools it needs to ensure that all workers go home safely at the end of the day.

More information on the Texas City explosion

“The Kleen Energy explosion is just another example of the tragic results of putting production, in this case completing construction, ahead of safety. OSHA’s significant proposed fine for safety violations resulting in the deaths of six workers should be a wakeup call for those who callously disregard accepted safety practices in order to meet deadlines.    

“While the $16.6 million proposed fine sends a strong message, additional safety regulations are needed to prevent similar explosions. OSHA needs to adopt safety protections consistent with the Chemical Safety Board’s recommendation that prohibits the use of natural gas or other flammable materials to clean out construction debris from pipes. Manufacturers are already modifying their recommendations on this practice given there are nonflammable alternatives for cleaning out piping. We recommend that OSHA make this prohibition mandatory.”

The $16.6 million fine is the third highest ever proposed by OSHA for a workplace safety and health violation. The Workforce Protections Subcommittee held a hearing in Middletown, Conn. on June 28 to examine the Kleen Energy explosion.

“A whistleblower may be the only thing standing between a safe workplace and a catastrophe,” said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “No worker should ever have to choose between his or her life and livelihood. Imagine a worker going to work and saying ‘get my affairs in order and let’s check my will.’ That’s what people do when they go to war and they shouldn’t have to do it when they go to work.”

The Offshore Oil and Gas Worker Whistleblower Protection Act (H.R. 5851), authored by Miller and Rep. Ed Markey (D-MA), recognizes that while many workers on the Deepwater Horizon rig had serious safety concerns prior to the explosion, workers were reluctant to come forward with those concerns because they feared that they would lose their jobs.

Congressional hearings and new reports have uncovered that workers on BP’s Deepwater Horizon rig had safety concerns prior to the tragedy, but feared that they would lose their jobs if they raised those concerns with management.

The provisions mirror other recently enacted whistleblower laws contained in the Consumer Product Safety Improvement Act and the Federal Railroad Safety Act.

Watch Chairman Miller’s speech on the Republican motion to recommit

“It is clear that the seemingly indiscriminate appeals of nearly every significant safety violation by some mine operators are undermining important enforcement tools and putting miners’ lives at risk. This additional funding approved today will reverse a backlog that has been allowed to pile up since the Bush administration, and is a step in the right direction in holding some of our most dangerous mine operators accountable,” said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee.

A February Education and Labor Committee hearing found that mine owners tripled the number of violations they appealed in order to escape tougher penalties including progressively tougher sanctions instituted after an increased number of mine tragedies in 2005 and 2007. The backlog of cases at the review commission jumped from 2,100 in 2006 to more than 17,000 today. The average case now takes more than 30 months to adjudicate.

Specifically, H.R. 4899:

• Provides $18.2 million for mine safety activities and legal services related to the Department of Labor’s caseload before the Federal Mine Safety and Health Review Commission.


• It also provides authority to the Secretary of Labor to allocate funds to the Mine Safety and Health Administration, provided that congressional appropriations committees are given at least 15 days advance notice.


• Includes $3.8 million to reduce the backlog of cases at the Federal Mine Safety and Health Review Commission.
  

The legislation approved by the committee would gives miners working in underground coal mines additional protections against retaliation if they speak up about dangerous conditions.  In May, the House Education and Labor Committee heard testimony in Beckley, West Virginia from miners and families of those who died in the Upper Big Branch Mine about serious shortcomings in miner protections, including threats and intimidation of miners who brought up safety concerns to their bosses.

The Upper Big Branch explosion also highlighted serious flaws in existing laws that undermine MSHA’s ability to bring tougher sanctions against our nation’s most dangerous mines. The bill would revamp the criteria for ‘pattern of violations’ sanctions to ensure that dangerous underground coal mine operations fix chronic problems.

“The safety and health of our nation's miners is too important not to act,” said Rep. Lynn Woolsey (D-CA), chair of the Subcommittee on Workforce Protections. “The Occupational Safety and Health Act, in particular, has not been significantly amended in 40 years and is badly outdated and needs to be brought into the 21st century. The bill that has been voted out of this committee will save lives and I am looking forward to its passage on the floor.”

In addition, responding to a number of recent deadly explosions at refineries, power plants and food processing facilities, the bill would also extend similar worker protections to all workplaces in order to hold employers accountable if they knowingly put their workers in danger.

“Every day, 14 workers don’t come home from work. While they don’t make headlines like trapped miners do, their lives and limbs are no less valuable,” said Miller.

The mine safety portion of the bill approved would apply to all underground coal mines and other so-called ‘gassy’ mines that emit potentially flammable or explosive amounts of methane.
Among other provisions, the reforms approved:

•    Making Mines with Serious and Repeated Violations Safe – Criteria for ‘pattern of violations’ sanctions would be revamped for underground coal mines and other ‘gassy’ mines to ensure that operators which chronically and repeatedly violate mine safety standards or have high accident rates improve safety dramatically.
•    Ensuring Irresponsible Operators are Held Accountable – Maximum criminal penalties would be increased for underground coal mines, and a sanction is established for mine operators who knowingly tamper with or disable safety equipment that could kill miners. Operators would be required to pay penalties in a timely manner.

•    Giving MSHA Better Enforcement Tools – MSHA would be given the authority to subpoena documents and testimony. The agency could seek a court order to close a mine when there is a continuing threat to the health and safety of miners. MSHA could require more training of miners in unsafe mines. MSHA will require contractors, in addition to operators, to report accidents and injuries, and hours of work at each mine, and those filing reports would be held responsible for their accuracy.

•    Protecting Miners Who Speak out on Unsafe Conditions – Protections for workers who speak out about unsafe conditions in underground coal and other gassy mines would be strengthened and would guarantee that miners wouldn’t lose pay for safety-related closures. In addition, miners would receive protections allowing them to speak freely during investigations.  

•    Modernizing Safety Requirements in Coal Mines – Increased rock dusting would be required to prevent coal dust explosions. Pre-shift reviews of hazards and violations in the mine must be communicated to incoming miners to ensure that they are not caught unaware.  Protocols for continuous atmospheric monitoring for methane and carbon monoxide will be developed by NIOSH and adopted by MSHA through regulations.

•    Increasing MSHA’s Accountability – The legislative outline provides for an independent investigation of the most serious accidents, which includes an assessment of whether there are gaps in MSHA’s oversight or regulation. It asks the Government Accountability Office to assess whether there are problems with timeliness of mine plan reviews.

•    Guaranteeing Basic Protections in All Other Workplaces under OSHA – To ensure that all workplaces have basic protections, whistleblower protections would be strengthened, criminal and civil penalties would be increased, and hazard abatement would be sped up. In addition, victims of accidents and their family members would be provided greater rights during investigations and enforcement actions. OSHA would be allowed to assert concurrent enforcement jurisdiction in states with OSHA state plans, if the state is failing to maintain protections for workers that is at least as effective as federal OSHA.

More information on these reforms

“The Upper Big Branch mine tragedy is the perfect example of how current law is inadequate, especially for those operations that do everything to flout the law,” said U.S. Rep. George Miller (D-CA), chairman of the committee. “Despite a pattern of serious violations, there was little MSHA could do to get Massey to turn this operation around. The millions of dollars in proposed fines over the years didn’t work. Dozens of temporary closure orders didn’t work. Reform of mine safety laws is essential.”

The bill would revamp the criteria for ‘pattern of violations’ sanctions to ensure that dangerous mine operations fix chronic problems. MSHA would have authority to close down the mine once a ‘pattern of violations’ status is triggered, and in order to reopen, mine operators have to comply with a remediation plan and be subject to more mine inspections and additional reporting requirements.

“The Mine Act’s ‘pattern of violations’ provision is intended to provide MSHA a powerful tool to deal with mine operators who demonstrated, through continued significant and substantial health or safety violations, a disregard for the health and safety of miners. Instead, the ‘pattern of volitions’ provision is an empty vessel,” said Joseph Main, the Assistant Secretary of Labor for Mine Safety and Health. “I believe this bill will save lives and prevent injuries by enabling MSHA to act quickly to enforce compliance with the Mine Act at operations with high levels of violations.”  

Stanley “Goose” Stewart, a miner who was working in the Upper Big Branch mine on the day of the explosion, testified that the widespread fear of losing their jobs prevented miners from speaking out on safety problems.

“In my years working for Massey, I feel they have taken coal mining back to the early 1900’s using three principles; fear, intimidation and propaganda,” said Stewart, who also testified at the committee’s May hearing in Beckley, West Virginia with family members of lost miners. “If this bill is passed, hopefully enough miners will feel they can stand up to the Massey empire or any other rogue company and protect themselves without retaliation.”

The legislation also responds to a number of recent deadly explosions at refineries, power plants and food processing facilities. It would extend similar worker protections to all workplaces in order to hold employers accountable if they knowingly put their workers in danger.

“Every day in this country we have a Sago mine disaster, every two days an Upper Big Branch, and every month the loss of a fully loaded Boeing 747.  These tragedies happen in every corner of the country, usually one at a time, far from the evening news and the morning headlines,” said David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health. “Clearly, whether a worker leaves home in the morning on his way to a mine or on her way to a refinery or construction site, every worker needs and deserves equally effective protections.”

For instance, whistleblower laws would be strengthened to the level of other federal whistleblower laws already on the books. In addition, penalties would be increased for the second time in 40 years and indexed to inflation.

“We believe this provision will go a long way toward restoring the OSH Act’s deterrent effect, and will make it harder for employers to treat OSHA penalties as simply a cost of doing business,” said M. Patricia Smith, the Solicitor for the U.S. Department of Labor. “The criminal penalties in this bill are based on similar provisions in the Clean Water Act and the Resource Conservation and Recovery Act, meaning that killing a person will be treated just as seriously as killing a lake.”

Also testifying in support of the legislation were, R. Larry Grayson, a professor of mining at Penn State University; Lynn Rhinehart, general counsel of the AFL-CIO; and Cecil Roberts, president of the United Mine Workers of America.

More information on these reforms

“With tonight’s vote, the House acted on behalf of American workers, teachers and students across the nation who have suffered in the recent economic downturn.

“The bill helps to close a multi-billion dollar shortfall in the Pell Grant program that could have deterred many low-income students from attending college, and allocates $10 billion in emergency spending to save hundreds of thousands of teachers from losing their jobs due to local budget shortfalls. This vote will ensure our teachers remain in the classrooms and our students don’t lose a year of learning.  We will not allow our children’s education to become a casualty of the state of the economy.

“Additionally, tonight’s vote represents a significant victory for America’s workers by providing additional funding for mine safety enforcement cases to help workers safe, and provides our communities’ first responders basic collective bargaining rights so they can keep our communities safe and strong.

“These are responsible, targeted investments that will create and secure jobs, and keep our promise to our nation’s children.

More information on provisions of H.R. 4899:

•    Education Jobs: The 2010 Supplemental Appropriations Act creates a $10 billion Education Jobs fund to provide emergency support to school districts to prevent layoffs and keep 140,000 school employees on the job next year. The Department of Education will administer the fund and distribute the money to states through a formula based on total population and school age population. States will distribute the funds to school districts through their primary funding formula or through the Title I formula. The bill includes strict provisions that requires states to use this funding only to preserve, rehire or hire new employees in elementary and secondary education. The money can’t be used to supplant state education spending.

•    Pell Grants: The 2010 Supplemental Appropriations Act invests $4.95 billion, fully offset, to address the current year shortfall in the Pell Grant Program. In the last academic year, more than 8 million students received Pell grants.

•    Miner Safety and Review Commission Backlog: The 2010 Supplemental Appropriations Act would provide a $22 million down payment to reduce the backlog of mine safety enforcement cases and to ensure that there are sufficient resources for the federal Mine Safety and Health Administration to meet all of its legally mandated mine inspection requirements. In February, the committee found that a flood of mine owner appeals is undermining efforts to protect miners by delaying tougher sanctions. A dangerous mine cannot face tougher penalties or increased scrutiny by MSHA unless citations are fully adjudicated. Because of this backlog of appeals, cases now take several months or years to be resolved.

•    Public Safety Personnel Collective Bargaining: It will guarantee collective bargaining rights for first responders employed by states and localities. States would administer and enforce their own labor laws, while the Federal Labor Relations Authority would only step in where such laws do not exist or do not meet minimum standards. The language prohibits public safety officers from engaging in a lockout, sickout, work slowdown, strike, or any other organized job action that will disrupt the delivery of emergency services.

 “We see the consequences of mine operators that game the system in order to push production. Safety is compromised and miners die,” said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Too many families have suffered a great loss recently as the result of callous mine operators, ineffective protections and outdated laws. It is time to provide effective protections to ensure that every miner is be able to return home safely to their families at the end of their shift. Congress has an obligation to make sure that is the case.”

In May, the House Education and Labor Committee heard testimony in Beckley, West Virginia from miners and families of those who died in the Upper Big Branch Mine about serious shortcomings in miner protections, including threats and intimidation of miners who brought up safety concerns to their bosses.

“In this year when so many miners and others have lost their lives in workplace accidents, it is more important than ever to extend protections to those brave miners and workers who want to speak out about unsafe conditions,”  said Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee. “This bill will save lives in a number of ways, but none more important than by strengthening whistleblower and other worker protection provisions.”

The Upper Big Branch explosion also highlighted serious flaws in existing laws that undermines MSHA’s ability to bring tougher sanctions against our nation’s most dangerous mines. The bill would revamp the criteria for ‘pattern of violations’ sanctions to ensure that dangerous mine operations fix chronic problems. The Mine Safety and Health Administration (MSHA) would have authority to close down the mine once a ‘pattern of violations’ status is triggered, and in order to reopen, mine operators have to comply with a remediation plan and be subject to more mine inspections and additional reporting requirements.

Responding to a number of recent deadly explosions at refineries, power plants and food processing facilities, the bill would also extend similar worker protections to all workplaces in order to hold employers accountable if they knowingly put their workers in danger.

Among other provisions, the reforms outlined include:
•    Making Mines with Serious and Repeated Violations Safe – Criteria for ‘pattern of violations’ sanctions would be revamped to ensure that the nation’s most dangerous mine operations improve safety dramatically.
•    Ensuring Irresponsible Operators are Held Accountable – Maximum criminal and civil penalties would be increased and operators would be required to pay penalties in a timely manner.
•    Giving MSHA Better Enforcement Tools – MSHA would be given the authority to subpoena documents and testimony. The agency could seek a court order to close a mine when there is a continuing threat to the health and safety of miners. MSHA could require more training of miners in unsafe mines.
•    Protecting Miners Who Speak out on Unsafe Conditions – Protections for workers who speak out about unsafe conditions would be strengthened and would guarantee that miners wouldn’t lose pay for safety-related closures. The bill would provide underground coal miners with protections from dismissal unless the employer has just cause. In addition, miners would receive protections allowing them to speak freely during investigations.  
•    Modernizing Safety Requirements in Coal Mines – Increased rock dusting would be required to prevent coal dust explosions. Pre-shift reviews of hazards and violations in the mine must be communicated to incoming miners to ensure that they are not caught unaware.  Protocols for continuous atmospheric monitoring for methane and carbon monoxide will be developed by NIOSH and adopted by MSHA through regulations.
•    Increasing MSHA’s Accountability – The legislative outline provides for an independent investigation of the most serious accidents.  It would require that mine personnel are well qualified, and ensure that inspections are comprehensive and well targeted.
•    Guaranteeing Basic Protections in All Other Workplaces – To ensure that all workplaces have basic protections, whistleblower protections would be strengthened, criminal and civil penalties would be increased, and hazard abatement would be sped up. In addition, victims of accidents and their family members would be provided greater rights during investigations and enforcement actions.

More information on these reforms

On February 7, a natural gas explosion ripped through the construction site of the Kleen
Energy Natural Gas Power Plant in Middletown, Conn., killing six workers, injuring dozens, and causing extensive property damage. Federal, state, and local investigators agree that the likely cause was the result of a natural ‘gas blow’ operation near an ignition source. Gas blows are used to clean out construction debris from pipes by forcing natural gas at high pressures. A similar explosion occurred at a Slim Jim factory in North Carolina in June 2009, which killed three workers and injured 71.

“Together with the other tragedies that occurred, as the world of heartache and loss that have resulted, the lessons here could not be any more apparent or urgent,” said Jodi Thomas, wife of Ron Crabb who was killed in the explosion on February 7. “Failing to make good come from this would be the biggest tragedy of all.”

The U.S. Chemical Safety Board (CSB), an independent federal agency that investigates major industrial accidents including the Kleen Energy and Slim Jim explosions, agreed that there are no national protections and made recommendations to prevent such explosions from occurring.

“CSB investigators have determined that no specific federal workplace safety standards prohibit intentional, planned releases of natural gas into workplaces, as occurred here on February 7,” said John Bresland, member of the CSB. “We need to put an end to the unsafe and potentially deadly practice of venting huge volumes of natural gas in the vicinity of workers and ignition sources.”

While the Occupational Safety and Health Administration (OSHA) issues general industry and construction standards, the agency does not have a standard on the handling of natural gas or methane. In addition, national fire code standards adopted by some states developed by the National Fire Protection Association (NFPA) are voluntary and do not apply to power plants.

“Particularly with 125 more natural gas power plants commissioned to be built over the next five years, it behooves us to explore exactly what went wrong here in Middletown and take the necessary steps to see it does not happen again,” said Rep. Rosa DeLauro (D-CT).

CSB recommended today that OSHA promulgate regulations addressing this procedure and the handling of explosive gasses, the NFPA update fire-protection standards, manufacturers provide guidance on using alternative methods to clean fuel gas piping, and states enact legislation preventing the use of flammable gas to clean pipes.   

“While we can never undo the tragic events of February, we can honor the memory of the fallen by guaranteeing that we have the regulations and standards in place to ensure that every worker is protected,” said Rep. John Larson (D-CT).

“We are writing to urge the Department of the Interior to actively engage OSHA to seek that agency’s expertise and experience on process safety management prior to issuing any final ‘Safety and Environmental Management Systems’ regulation,” Miller and Rahall wrote. “The MMS proposed regulation and OSHA’s rule share a common feature: both are focused on management systems to ensure hydrocarbons stay inside pipes in complex industrial processes such as oil rigs and refineries. While the purpose of the proposed MMS rule is laudable – to improve environmental and worker health and safety on the Outer Continental Shelf – we have some concerns that the rule is not comprehensive enough.”

At an Education and Labor Committee hearing this week on oil rig worker health and safety protections, MMS testified that it is working on a process safety management regulation for offshore oil rigs, like the Deepwater Horizon, but has not coordinated their proposal with experts at OSHA. In addition, MMS stated that the agency is basing their new proposal on voluntary oil industry standards.

View the full text of Miller and Rahal's letter

“The Inspector General’s alert raises very serious concerns that go to the heart of health and safety of mine workers. Prior to Assistant Secretary Main’s confirmation, MSHA obstructed a key safety enforcement tool that could have endangered the lives of mine workers,” said Miller, chairman of the House Education and Labor. “We will continue our rigorous oversight of mine safety, including introduction of significant reforms to our nation’s health and safety laws in the coming days. This memorandum also raises questions about whether MSHA districts have sufficient resources to enforce the law.”

According to the key findings, the Inspector General is “very concerned about mines removed for reasons other than appropriate consideration of the health and safety conditions at those mines. MSHA is not subjecting these mines to the enhanced oversight that accompanies potential POV status, yet it does not have evidence that they had reduced their rate of significant and substantial violations. As a result, miners may be subjected to increased safety risks.”

Once a mine is notified that they may be under a pattern of violation, the mine must take immediate actions to come up with a plan that reduces future violations – approved by federal mine safety officials – or face tougher sanctions.

“In light of the current tragedy in Gulf, I hope we can answer whether there is a better way to oversee and protect the health and safety of oil rig workers,” said U.S. Rep. George Miller, chairman of the committee. “The Deepwater disaster clearly demonstrates that the status quo is not good enough. We must do better.”

For example, witnesses from the U.S. Coast Guard and the Bureau of Ocean Energy could not identify specific protections for workers who blow the whistle on unsafe working conditions or operations.

“These are inherently dangerous working conditions. Now there is a question whether a worker has the protection to say ‘stop’ in face of danger without fear of retaliation. That is a very serious problem if that right doesn’t exist in the law,” said Miller.

Miller also raised questions regarding BOE’s development of a process safety management regulation without the proper involvement of OSHA, which has years of experience in carrying out such a standard.

Process safety management standards are used to prevent or contain a catastrophic release of hazardous materials in high-risk operations present in the chemical and petroleum industries.

Witnesses also testified that despite some initial problems with coordination on worker protections for workers cleaning up the oil spill, efforts are better coordinated among OSHA, the Coast Guard and BP, which is responsible for providing personal protective equipment to workers.  

Dr. John Howard, director of the National Institute for Occupational Safety and Health (NIOSH), an agency part of the Centers for Disease Control, testified that cleanup workers face many risks such as exposure to heat stress and toxic substances that have both short and long-term health implications.

“It is important to protect response workers, volunteers and Gulf coast residents against potential health hazards now so that we can prevent future chronic health effects associated with this spill,” said Howard. Howard also said that NIOSH is currently collecting the names and job duties for the thousands of workers currently involved in the cleanup so they can track current and future health problems.

Read opening statements from the hearing or watch an archived webcast

Employers can request that the National Institute for Occupational Health and Safety conduct a study of workplace conditions to determine whether workers are risking exposure to illness, known as a health hazard evaluation, or HHE. This assessment helps to mitigate exposure to dangerous conditions and allows officials to track workers’ long-term health problems resulting from exposure to dangerous conditions.

While BP has requested a health hazard evaluation for some clean-up workers operating closer to shore after several reports of illnesses, the company has yet to request an assessment of hazardous conditions near the site of the oil leak.

“The magnitude of the Deepwater Horizon disaster is unparalleled and the potential health risks for clean-up workers remains largely unknown. Workers are being exposed to extreme heat, crude oil, oil byproducts, dispersant and other unknown chemicals,” Miller continued.  “More than 1.1 million gallons of dispersant have been sprayed in the Gulf Coast, however there remains little to no evidence on what the short and long-term impact of the dispersant will be on workers and the communities exposed to these chemicals.”

The full text of the letter sent to BP today appears below.
 
June 10, 2010

Dr. Tony Hayward
Chief Executive Officer
BPPLC
1 St. James's Square
London SWI Y 4PD
United Kingdom

Dear Dr. Hayward,

I am deeply disappointed to learn that BP has not taken all steps necessary to protect the health and safety of the thousands of volunteers and workers performing clean-up duties in the wake of the devastating oil spill in the Gulf Coast.  Eleven men lost their lives as a result of this disaster.  Everything possible must be done to ensure that no one else does.  Protecting every worker responding to the oil spill must become a paramount priority for BP.  Despite BP’s public statement that it is fully protecting workers, workers are getting sick as part of the response and containment efforts. In addition, there is no independent comprehensive exposure and medical assessment of off shore workers. This is imperative if we are to ensure that BP is doing everything in its power to protect the health and safety of those cleaning up the worst oil spill in our nation’s history.    

Section 20(a)(6) of the Occupational Safety and Health Act of 1970 provides that the National Institute for Occupational Health and Safety (NIOSH) shall conduct a Health Hazard Evaluation (HHE) to determine whether exposures to substances have “potentially toxic effects in such concentrations as used or found”  following a “written request by any employer or authorized representative of employees…”  On May 28, 2010, after numerous reports of worker illness such as nausea, vomiting and headaches, BP submitted an HHE request to NIOSH, but limited its scope to include only those workers on the Vessels of Opportunity operating along the Louisiana coast.  This request only covers a portion of the over 15,000 workers participating in clean-up activities.     

Failure to request the full monitoring of all workers responding to the oil spill could have dire consequences and is irresponsible.  In the aftermath of the 9/11 terrorist attack and natural disasters such as Katrina, it is clear that health effects to emergency responders are significant and can ultimately prove deadly. 

The magnitude of the Deepwater Horizon disaster is unparalleled and the potential health risks for clean-up workers remains largely unknown.  Workers are being exposed to extreme heat, crude oil, oil byproducts, dispersant and other unknown chemicals.  More than 1.1 million gallons of dispersant have been sprayed in the Gulf Coast; however there remains little to no evidence on what the short and long-term impact of the dispersant will be on workers and the communities exposed to these chemicals. 

There is evidence that workers participating in oil-spill clean-up activities may experience long-term respiratory problems.  The first study to examine the long-term health effects for oil clean-up workers found that clean-up workers from the 2002 Prestige oil spill in Spain experienced a higher rate of respiratory symptoms one to two years after participating in clean-up activities.   The work the Deepwater Horizon oil spill responders are performing could be exposing them to risks of illness.

I urge BP to do what it already should have done weeks ago: request that NIOSH conduct an HHE that examines the conditions and exposure levels workers face at every worksite tied to this disaster, including those carrying out source control, surface control, as well as shoreline workers, and workers who are decontaminating wildlife.  Given the urgency of the situation, we request that you make this request to NIOSH in the next 48 hours and to make this document public.

I understand NIOSH stands ready and able to respond to this request, as they have since receiving your narrower May 28th HHE request.  It is essential that every step available is taken to protect the health and safety of these workers and the residents of the Gulf Coast.

Sincerely,

George Miller

CC:  The Honorable Hilda Solis
         The Honorable Kathleen Sebelius
         Admiral Thad Allen, National Incident Commander
         Mr. Doug Suttles, Chief Operating Officer, BP Exploration and Production
# # #

***
Good morning. I would like to welcome everyone to today’s hearing on the Upper Big Branch Mine tragedy. The Education and Labor Committee has traveled to Beckley, West Virginia to hear from families who are grieving and looking for answers to our nation’s most devastating mine tragedy in forty years.

Just a few weeks ago, Americans were once again transfixed on an unfolding tragedy at a coal mine, while rescuers worked heroically to find miners who we all hoped were still alive. On April 5, a massive explosion on a scale that is nearly incomprehensible ripped through the Upper Big Branch Mine. 

Our nation hoped and prayed that early reports of four unaccounted miners indicated that there might be survivors. But, sadly, these hopes faded.  Twenty-nine coal miners died that day. More importantly, this community lost husbands, fathers, sons, and best friends.

On behalf of all of my colleagues, I want to express our deepest sympathies to each of you and your families. Our thoughts continue to be with you and your communities who have suffered such a big loss.

I know your testimony today will be painful for you to deliver. Nevertheless, your testimony is critical for us to hear. I thank you very much for agreeing to participate in today’s hearing.

I would also like to recognize all of the brave miners involved in the rescue effort. These men and women worked around the clock, day after day. You, too, have the appreciation of this nation for your selfless efforts.

I would also like to extend our gratitude to Governor Joe Manchin and Congressman Nick Rahall, who were on the ground helping families and miners during the rescue efforts. 

Secretary Hilda Solis also joins us today. She was also on the ground and met with miners and their families during this ordeal.

I am also grateful for the participation of other members of the West Virginia delegation today -- Congresswoman Shelley Moore Capito, Congressman Alan Mollohan, and Senator Jay Rockefeller. The West Virginia delegation has provided invaluable support to make sure that lessons  from this tragedy are not forgotten.

I want you to know that we are all working together on legislation to make sure something like this doesn’t happen again.

Today we will hear from a panel of family members about how this tragedy has affected them.

While the cause of this tragedy remains under investigation, the hazards miners face while underground are not a mystery.

We know how coal dust can explode like gunpowder when ignited by methane. We understand the disastrous results when a mine owner operates on the margins of safety in order to put more coal on the belt. We know what happens when workers’ voices are silenced by fear of retaliation for speaking out on safety problems they see. And, we know the consequences for safety when an operator games the system in order to escape much tougher safety oversight. 

Miners die. That’s what happens.

Despite these truths, I am sure that many are skeptical that elected officials have the willingness to do anything about it. There is frustration that as attention to this tragedy fades, mine operators will simply return to business as usual. That no one will be held accountable for the deaths of so many loved ones, and real safety reforms will fall by the wayside again.

I share this concern. I’ve seen it happen before.

But we cannot succumb to defeatism and cynicism when it comes to the lives of our fellow human beings. I will not.

This committee has heard from too many families over the years who have suffered a great loss, as you have. I made a promise to them and I cannot forget that promise.

I made a pledge to the families of Sago, Aracoma Alma, Darby and Crandall Canyon that we would do everything in our power to uncover the cause of those tragedies, to hold responsible parties accountable, and to prevent other miners from suffering a similar fate. 

I extend this same promise to all the families of Upper Big Branch. Your families paid the ultimate price for a job our nation depends on.

Losing a family member to a senseless tragedy could fill you with a sense of powerlessness. However, I have found that in the face of overwhelming tragedy, families display incredible strength and determination.

Coal miners’ families helped to provide the final push to give miners a fighting chance after an emergency. As a result, mines must have at least 96 hours of breathable air stockpiled, lifelines, tracking and communications systems installed, and that mine rescue teams be properly trained, equipped and ready to respond. While this was a significant step forward, I felt that we missed an opportunity to do more to protect the health and safety of our nation’s miners.

Every day, miners show up for their shift knowing that there is a chance they may not return to their families.  Miners for generations have lived with this fear.

But I firmly believe that there are things we can do to ensure that every miner who goes to work is be able to return home safely to their families at the end of their shift.  Congress has an obligation to make sure that is the case.

And we will.

I thank you all for coming today and look forward to your testimony.

“Last month, we watched as the tragic events unfolded at the Upper Big Branch Mine in West Virginia. The memory of the 29 miners who lost their lives in that disaster must stand as a reminder of the work that remains to keep our nation’s miners safe,” said U.S. Rep. George Miller (D-CA), chair of the committee. “In the wake of the Upper Big Branch Mine disaster and other tragedies, I am deeply concerned about how various coal mining conglomerates have encouraged or discouraged safe mining practices within their mines.”

The committee has standing authority to subpoena documentary evidence and to compel witnesses to appear at committee hearings. A deposition serves as an intermediate step between a full public hearing and an informal staff interview. It creates a formal record and allows the committee to explore issues in a more sustained manner than would be practical at a hearing.

While not unprecedented, the granting of deposition authority is rare. It has been granted to the committee once before, during the Crandall Canyon Mine investigation in the 110th Congress. That investigation led to a criminal referral to the Department of Justice, in large part because of evidence obtained in depositions.

“In the name of tens of thousands of miners and their families who put their lives on the line every day, we call on mine operators to make the safety and health of their workers their top priority,” the lawmakers wrote. “In the coming weeks Congress will be working on reforms to the Mine Act to close enforcement loopholes, strengthen MSHA’s oversight and provide more federal resources to close the growing backlog of citation appeals.  We urge the mining industry to drop its historic record of opposing critical mine safety improvements and instead work with Congress and the Obama Administration to pass overdue reforms.”

This afternoon two miners were reported dead after becoming trapped last night after a roof collapse at Alliance Coal’s Dotiki Mine in Kentucky.

The full text of their letter appears below:
 
***

April 29, 2010

Open Letter to the Nation’s Mine Owners:

During the past month our nation has witnessed four mine tragedies, including the Upper Big Branch mine explosion, which killed 29 miners, the death of one miner at the Beckley Pocahontas Mine, the death of a contract worker at M-Class Mining, and two deaths at the Dotiki Mine today.  Sadly, each of these tragedies was preventable.

In the name of tens of thousands of miners and their families who put their lives on the line every day, we call on mine operators to make the safety and health of their workers their top priority.

In addition to these recent tragedies, the number of mine citations for serious violations has skyrocketed, revealing a dangerous pattern of neglect and failure of commitment by too many operators to comply with the nation’s mine safety laws. Spot inspections just completed by the Mine Safety and Health Administration at 57 coal mines found 1,436 violations and resulted in a staggering 105 closure orders.

The government does not have sufficient resources to be at every mine every day.  Mine operators must take responsibility for ensuring the safety of their employees.    

Today, we call on all of the country’s mine operators to take actions and responsibility immediately to ensure their operations are actively in compliance with all mine safety laws; that adequate resources are being allocated to mine safety; and that managers and employees have full confidence that they may report dangers internally or to regulators without any fear of retaliation or penalty.  

We request that non-union mines give their employees and their families an opportunity to meet with management to suggest additional safety measures and to report dangerous or potentially dangerous conditions. We request that union mine owners do the same with their unions, and work with them to monitor and develop additional safety procedures as needed.  

We also request that each mine employee be given a card in the next three days with MSHA’s toll free number so they can confidentially report potential hazards in the event they fear retaliation.

In the coming weeks Congress will be working on reforms to the Mine Act to close enforcement loopholes, strengthen MSHA’s oversight and provide more federal resources to close the growing backlog of citation appeals.  

We urge the mining industry to drop its historic record of opposing critical mine safety improvements and instead work with Congress and the Obama Administration to pass overdue reforms.   

We look forward to hearing through the mine associations what specific actions each mine operator is taking in response to this letter.      

Sincerely,

GEORGE MILLER
Chair, House Education and Labor Committee

LYNN WOOLSEY
Chair, House Workforce Protections Subcommittee

The hearing took place on the 21st anniversary of Workers Memorial Day, which honors workers who lose their lives, become injured or develop an illness on the job each year.

“A safe workplace depends on workers reporting unsafe conditions to their employers or the government without fear of retaliation, and with the knowledge that the government will be there to back them up if the employer does retaliate,” said U.S. Rep. Lynn Woolsey (D-CA), chair of the subcommittee.

The Protecting America’s Workers Act (H.R. 2067) and proposed changes to legislation, would update workplace whistleblower protections by mirroring other modern whistleblower statutes, such as the Consumer Product Safety Improvement Act. The bill would also ensure that victims and their families are kept informed about investigations of fatalities and incidents involving serious injuries or illnesses.

“I believe stronger whistleblower protections and more substantial rights for victims and their families can lead to safer jobsites and ultimately, more men and women who go safely home to their families at the end of the day,” said Jordan Barab, the deputy assistant secretary of labor for occupational safety and health. “This administration strongly supports the whistleblower provisions of the Protecting America’s Workers Act.”

Under the bill, a seriously injured worker or family member would have the right to meet with OSHA prior to the issuance of a citation, receive copies of a citation at no cost, be informed of any notice of contest and receive pleadings regarding appeals, and make a statement on the record before an agreement to change a citation is finalized.

On January 29, 2009, Robert Fitch died after a fall from a faulty manlift at a Lincoln, Nebraska Archer Daniel Midland pant. Although OSHA cited ADM for operating a dangerous manlift, ADM was not fined for the faulty device that resulted in the death of Fitch. Family members were not included in the investigation and only learned of the final penalty through the media.

“This piece of equipment caused my uncle’s death, and we have since been informed it was inherently unsafe and very scary to use,” said Fitch’s niece, Tonya Ford. “Nine months after hearing about the zero penalty assessed to ADM, my family still did not have answers.”

Celeste Monforton, an assistant research professor at The George Washington University’s Department of Environmental and Occupational Health, said she learned during the Sago mine explosion investigation that family members can make a significant contribution to an accident investigation.

“There is no one more interested in finding the truth about the cause of an on-the-job death than a worker’s loved one,” Monforton testified.

The Occupational Safety and Health Act is also supposed to protect workers who raise concerns with their employers or to ‘blow the whistle’ by reporting unsafe practices to government agencies. However, the 1970 law lacks protections afforded to whistleblowers under modern whistleblower laws and it imposes numerous hurdles that result in many meritorious claims being dismissed.

“The reason I am here to tell my story today is that my employer got away with firing me without any consequences,” said Neal Jorgensen, a whistleblower formerly employed with Plastic Industries in Preston, Idaho. “Although OSHA investigated the facts of my case, found it was sound, and tried to collect the wages I would have earned if I had not been fired, the government lawyers decided not to go to court on my behalf to enforce the law. I found out that I could not have taken the company to court even if I could have afforded it.”

The Protecting America’s Workers Act would strengthen and modernize federal whistleblower statutes. The bill would provide subpoena powers to OSHA investigators, a critical tool in any investigative process, and establish administrative remedies for successful complainants, including preliminary, payment of back wages, and compensatory and punitive damages. It also allows workers to file a lawsuit if the Department of Labor fails to address the case in a timely manner.

“It is essential that Congress incorporate these sound and proven protections into the Occupational Safety and Health Act, so that workers who raise concerns about hazardous working conditions receive the same basic protections against retaliation as those who complain about corporate malfeasance, environmental or transportation hazards, or health care fraud,” said Lynn Rhinehart, general counsel of the AFL-CIO.

“I am deeply saddened by yet another coal miner’s death. It is especially troubling that this death occurred at a mine that we knew posed a danger to miners. The 48 mines identified publicly last week by this committee continue to pose a danger to our nation’s miners.  The fact is that a mine that has a pattern of safety problems indicates a dangerous workplace. Tragically, we have had to learn that lesson again today.

“Indiscriminate mine owner appeals are letting some of the most dangerous mines to escape tougher penalties and heightened scrutiny. The Obama administration and Congress must correct this problem and correct it now. Mine operators must be held accountable to the highest standard for protecting the safety and health of America’s hard-working miners. We must start clearing this backlog up immediately.”

Last week, the committee released a list of 48 mines identified by the federal Mine Safety and Health Administration in August 2009 for increased scrutiny, including ICG’s Pocahontas Mine, but were not targeted due to the more than 16,000 unresolved appeals filed by mine operators. The list includes the Upper Big Branch Mine in West Virginia where 29 miners lost their lives in an explosion on April 5.

In February, the committee held a hearing on how these flood of mine owner appeals of violations were undermining efforts to protect miners by delaying tougher sanctions.

The International Coal Group also owned the Sago mine where an explosion in January 2006 trapped 13 miners. Only one miner survived.

In March,  U.S. Reps. Lynn Woolsey (D-CA) and George Miller (D-CA), introduced The Work-Life Balance Award Act of 2010 (H.R. 4855), legislation to recognize workplaces that provide employees the ability to achieve work-life balance.

Balancing work and family is a challenge for many, witnesses told the subcommittee.

“This legislation comes at a critical time. Women now make up half of America’s workforce, and their incomes are increasingly important to families’ economic survival, testified witness Portia Wu, vice president of the National Partnership for Women & Families. “Working men are also investing more time in child care. And many more Americans are assuming eldercare responsibilities—a trend that will intensify as our country’s population ages.”

Currently, 31 million American women struggle to balance work with the needs of their young families, explained Carol Evans, president of Working Mother Media. Evans continued, “The award proposed in the Woolsey-Miller Bill will add to the tremendous spotlight we shine on the needs of working families.”

“Workers should not have to choose between work and family,” said Woolsey, the chair of the subcommittee. “The Work-Life Balance Award will send a clear message to employers that the federal government recognizes companies that develop family-friendly policies for their workers. In fact, providing work-life benefits has been shown to increase retention, decrease absenteeism, and increase productivity.”

The Work-Life Balance Award Act would establish an annual Work-Life Balance Award at the Department of Labor to be given to employers with exemplary work-life workforce policies.  These policies would be defined as workplace practices “designed to enable employees to achieve a satisfactory work-life balance.” These practices include, but are not limited to: paid sick leave to care for oneself or a sick family member and for the birth or adoption of a child, time off to attend children’s extracurricular activities and school conferences, telecommuting, and job-sharing.  

Any public or private employer of any size is eligible for the award, as long as they comply with federal and state labor and employment laws.

“President Obama is correct that we need to reform a mine safety system that has for far too long been tipped in favor of mine operators – at the expense of miners’ lives. The president laid out a number of priorities, many that Congress has worked to enact in the past, that would improve working conditions for our nation’s miners.

“These efforts must not suffer the same fate as past initiatives to improve mine safety, when special interests succeeded in killing important reforms. On behalf of the 29 fallen miners, and the hundreds who have died on the job over the years, we must show the courage to take bold action. I look forward to working with the administration to ensure that production and profit are not put ahead of worker safety.”

The Education and Labor Committee has made miner health and safety a top priority for years. In February of 2006, in the aftermath of the tragic Sago mine accident, Democrats on the committee held the first public forum with family members of the fallen miners to ensure that their voices and concerns about mining dangers were heard by Congress. Since 2007, under Chairman Miller’s leadership, the committee has held multiple hearings on mine safety and authored legislation to strengthen mine safety laws that was approved by the House in January 2008.

Most recently, the committee looked into mine operators’ indiscriminate appeals that created a massive backlog of cases and damaged MSHA’s ability to use its enhanced enforcement tools like progressively increased fines and immediate shut down orders for dangerous mines. Yesterday, the chairman released a list of 48 mines identified by MSHA in August 2009 for increased scrutiny, but were not targeted due to unresolved appeals filed by mine operators. The list includes the Upper Big Branch Mine in West Virginia where 29 miners lost their lives in an explosion on April 5.

Under current law, the federal Mine Safety and Health Administration issues a letter to frequent violators warning them that they may be sanctioned under a so-called ‘pattern of violation’. Once a mine is notified that they may be under a pattern of violation, the mine must take immediate actions to reduce future violations – approved by federal mine safety officials – or face drastic sanctions including mine closure for any future significant and substantial violation.

The list released by the committee today are those 48 mines that would have received this notice of a potential pattern of violation sanctions in October 2009 but for contested citations that had not been resolved due to delays caused by the backlog of more than 16,000 operator appeals.

Mines are subject to a pattern of violation sanctions when they meet ten criteria indicating the mine is a habitual violator of mine safety laws. Criteria includes mines that receive at least 20 significant and substantial violations, at least two elevated enforcement actions, and one unwarrantable failure violation over the previous 24 months. These violations must also be fully adjudicated. In addition, mines must have a violation rate that is 25 percent higher than the industry average over the same period.

In February, the committee held a hearing on how these flood of mine owner appeals of violations were undermining efforts to protect miners by delaying tougher sanctions. According to the Department of Labor, once a mine is notified that they may be subject to a pattern of violation sanctions, mines reduced future citations of serious problems by 72 percent.

In addition, MSHA also announced yesterday that a computer error prevented the Upper Big Branch mine from being notified that it could be subject to a potential pattern of violation. As the result of this disclosure, Miller and U.S. Reps. Nick Rahall (D-WV) and Lynn Woolsey (D-CA) asked the Labor Department Inspector General to investigate.

Review the list of mines on MSHA’s August 2009 list.

Below is a list of the mine names and locations contained in the list:

Coal Mine List

Mine ID	Mine Name	City
1103121	Elkville No. 1 Mine	Jackson County, IL
4608994	Deep Mine No. 8	Wayne County, WV
4608704	Copley Trace Surface Mine	Wayne County, WV
4608735	Allegiance Mine	Boone County, WV
4603755	Liberty Processing	Boone County, WV
4605437	American Eagle Mine	Kanawha County, WV
1502709	Highland 9 Mine	Union County, KY
4609082	Coalburg No. 1 Mine	Boone County, WV
4609150	Dorothy No 3 Mine	Boone County, WV
4609163	Roundbottom Powellton Deep Mine	Boone County, WV
4609048	Slip Ridge Cedar Grove Mine	Raleigh County, WV
4609136	Broad Run Mine	Mason County, WV
1510753	Mine #1	Pike County, KY
4609101	Toney Fork Surface Mine	Logan Country, WV
4608436	Upper Big Branch Mine	South Raleigh County, WV
1518911	Mine #28	Pike County, KY
4609230	Winchester Mine	Kanawha County, WV
4403472	Tipple #1	Wise County, VA
4608131	Mine No. 35	Mcdowell County, WV
4609017	Mine No. 37	Mcdowell County, WV
4608845	Mine No. 36	Mcdowell County, WV
4607908	Big Mountain No 16	Boone County, WV
4202074	Horizon Mine	Carbon County, UT
4607191	Josephine No 2 Mine	Raleigh County, WV
1519261	Mine #2	Knott County, KY
4800086	Kemmerer Mine	Lincoln County, WY
4605252	Beckley Pocahontas Mine	Raleigh County, WV
4608715	Pond Creek Mine No. 1	Mingo County, WV
1401626	Garland Mine	Bourbon County, KS
4608570	Coalburg No 2 Mine	Logan County, WV
0201195	Kayenta Mine	Navajo County, AZ
4608909	Midland Trail Mine No. 2	Greenbrier County, WV

Metal/Non-Metal List

Mine ID	Mine Name	City
3607156	Sreebs Slate&Stone Co. Inc.	Northampton County, PA
3800007	Giant Cement Company	Dorchester County, SC
2300188	Selma Plant Quarry & Mill	Jefferson County, MO
0301607	SAINT-GOBAIN PROPPANTS	Sebastian County, AR
1001993	Bear River Zeolite	Franklin County, ID
2602246	Meikle Mine	Eureka County, NV
3607463	Essroc Cement Corp - Bessemer PA	Lawrence County, PA
0400213	Lebec Cement Plant	Kern County, CA
3800305	HARLEYVILLE MINE & PLANT	Dorchester County, SC
2602374	Deep Post	Eureka County, NV
4100906	Sherwin Alumina, L.P.	San Patricio County, TX
3000073	Holcim (US) Inc	Greene County, NY
2401467	Genesis Inc. Troy Mine	Lincoln County, MT
0100043	Leeds Plant	Jefferson County, AL
4500805	Seattle Plant	King County, WA
0800046	Miami Cement Plant	Dade County, FL

Once a mine is notified that they may be under a pattern of violation, the mine must take immediate actions to come up with a plan that reduces future violations – approved by federal mine safety officials – or face tougher sanctions.

“Given the tragedy that occurred last Monday, the department’s announcement today that a computing error last October prevented them from identifying the Upper Big Branch mine for increased scrutiny is deeply disturbing.

“In light of this disclosure, we will be asking the Labor Department’s Inspector General to examine issues surrounding this disclosure. Specifically, we will ask the Inspector General to examine MSHA’s policy, criteria, regulations and information systems regarding their ‘pattern of violation’ sanctions to determine whether they are reliable and effective in weeding out and sanctioning habitual violators.  The miners who died so tragically at the Upper Big Branch mine, their families, and all the men and women who go to work in our mines each day deserve nothing less.”

In February, the Education and Labor Committee held a hearing on how a flood of mine owner appeals of violations were undermining efforts to protect miners by delaying tougher ‘pattern of violation’ sanctions for 48 of the country’s most dangerous mines.

“President Obama was right to put aside partisanship and delay to ensure the proper operations of important government functions. The National Labor Relations Board has not had a working majority since 2007 and has been unable to carry out the board’s duties. During this time, scores of cases have been awaiting adjudication. Craig Becker and Mark Pearce are extremely qualified, and both business and workers should welcome a fully functioning board.”

“President Obama has nominated two exceptionally qualified individuals who will bring a wealth of knowledge and experience to the Chemical Safety Board,” said Miller. “Since the Chemical Safety Board has a number of important cases they are currently investigating, Dr. Moure-Eraso and Mr. Griffon deserve to receive speedy consideration by the Senate.”

Similar to the National Transportation Safety Board that investigates airline incidents, the Chemical Safety and Hazard Investigation Board (CSB) is a small independent agency that investigates industrial chemical accidents and makes recommendations to appropriate health and safety regulators in order to prevent future events. Among other tragedies, the CSB has investigated the Port Wentworth, Ga. Imperial Sugar refinery and the BP-Texas City refinery explosions. The CSB is currently investigating the Middletown, Connecticut power plant explosion that killed six.

Background:

Rafael Moure-Eraso, Nominee for Chair, U.S. Chemical Safety and Hazard Investigation Board
Rafael Moure-Eraso is currently serving as Graduate Coordinator of the Department of Work Environment, School of Health and Environment at the University of Massachusetts Lowell where he had been a Professor and Chair of the department for the last five years. He has been a faculty member at the University of Massachusetts for twenty years as an Associate Professor (1988) and promoted to full Professor in 2000. He holds BS and MS degrees in Chemical Engineering (University of Pittsburg ‘67, Bucknell University ’70) and a MS and Ph.D. in Environment Health (Industrial Hygiene) (University of Cincinnati ’74, ’82). He is a currently Certified Industrial Hygienist for Comprehensive Practice (CIH) since 1983.

Mark Griffon, Nominee for Member of the US Chemical Safety and Hazard investigation Board
Mark Griffon's career has included work in academia, the public sector and the private sector.  In 1992, Mr. Griffon founded Creative Pollution Solutions, Inc. to provide environmental and occupational health consulting including management and technical oversight of large remediation projects, waste site characterization, radiation surveys, health and safety and health physics audits and investigations, and exposure assessment research.  Mr. Griffon holds a B.S. in Chemistry from Rensselaer Polytechnic Institute and an M.S. in Radiological Sciences from University of Massachusetts Lowell.

The Protecting America’s Workers Act (H.R. 2067), introduced by Woolsey, will strengthen and modernize the Occupational Safety and Health Act, the law that ensures the health and safety of American workers. Among the bill’s other provisions, it will improve whistleblower protections, strengthen enforcement and increase monetary penalties.

“Jobs cannot be good jobs unless they are safe jobs. Stronger OSHA enforcement will save lives,” said David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health. “Because OSHA can visit only a limited number of workplaces each year we need a stronger OSH Act to leverage our resources to encourage compliance by employers. [Protecting America’s Workers Act] includes critical provisions that deal with significant weaknesses in the current law and more adequately ensure the safety and health of America’s workers.”

Witnesses testified that current sanctions do not provide adequate deterrence for employers to comply with the law and protect workers because penalties haven’t been updated in nearly 20 years. Further, penalties are not adjusted according to inflation as other laws currently are. As a result, witnesses said that some employers view them simply as the cost of doing business. The Protecting America’s Workers Act will index the increased civil monetary penalties to inflation in the future

“Over the years, OSHA’s ability to effectively conduct enforcement programs has been greatly diminished,” said Eric Frumin, the health and safety coordinator of Change to Win. “The current penalties do not provide a serious deterrent to serious misbehavior by employers.”

The legislation will also subject employers who knowingly put their workers in harm’s way that results in a fatality or serious injury to felony prosecution and prison time, equivalent to other federal laws, such as the penalties in the Clean Air Act and Clean Water Act.

The Department of Justice said that current environmental sanctions are successful at holding unscrupulous employers accountable for polluting and similar penalties should be applied to employers who knowingly harm or cause the deaths of workers.

“Adding felony provisions to the OSH Act, as proposed, would provide important tools to prosecute those employers who expose their workers to the risk of death or serious injury, whether charged in conjunction with environmental crimes or charged alone,” said John Cruden, the Deputy Assistant Attorney General for the Environmental and Natural Resources Division. “The Department of Justice supports the strengthening of OSHA’s criminal penalties to make it more consistent with other criminal statutes and further the goal of improving worker safety.”

“MSHA’s stronger emphasis on safety is saving lives and reducing injuries,” said U.S. Rep. George Miller (D-CA), chairman of committee. “Some of the largest mining operations have responded by challenging tougher sanctions at a staggering rate. As a result, miners’ lives are in the crosshairs.”

When the Mine Safety and Health Administration cites a mine operator for a safety violation, the owners can challenge the violation to the Federal Mine Safety and Health Review Commission that currently employs ten administrative law judges.

Mary Lu Jordan, the chair of the Review Commission, testified that the average time it takes to dispose of a case has increased over the last three years, from 178 days to 401 days this year.  There are currently approximately 16,000 cases at the Review Commission with at least $195 million in outstanding fines. In 2006, this backlog was only 2,100 cases.

According to data provided by the Review Commission, if current trends and funding for the agency remain the same, the backlog would dramatically increase to 47,000 cases by 2020.

Witnesses testified that the backlog of cases give incentives for mine operators to abuse this appeals process because it can delay steeper penalties for repeat violators.

“It is important that we remove the incentive for operators with significant and substantial safety violations at their mine to contest violations simply to delay enforcement,” said Joseph Main, Assistant Secretary of Labor for Mine Safety and Health. “Delay in addressing [significant and substantial] hazardous conditions puts miners at risk, is at odds with the purpose of the Mine Act and mission of MSHA, and is unacceptable.”

Mine operators can be subject to progressively steeper fines or even shut down if cited for multiple serious health and safety violations. Today, mine operators are contesting two-thirds of all fines. Some of the largest mine owners who are challenging nearly every citation.

“The existing system rewards mine operators that file contests,” said Cecil Roberts, president of the United Mine Workers of America. “Having delay in the resolution of alleged violations diminishes MSHA’s ability to use the full panoply of its enforcement tools. You must also recognize that many of these violations are quite serious - the kind of violations that have contributed to mine fires, explosions and the deaths of coal miners.”

MSHA said that 48 mines that employ more than 6,000 miners could face tougher sanctions if not for delays at the review commission.

MSHA also noted that when mine operators were notified that they could face potential closures for additional violations and be subject to higher sanctions, those mines reduced future serious citations by 72 percent.  

Last year, Congress approved funding for an additional four judges at the review commission. In this year’s budget proposal the Obama administration requested four more. According to data provided by the review commission, 22 to 26 judges would be needed to significantly reduce the backlog of cases.

To read more about the hearing, click here.

“In an especially difficult economy, a responsive Department of Labor is essential to assisting and standing up for workers,” said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Thanks to Secretary Solis, the Department of Labor is playing a central role in our nation’s economic recovery and laying the groundwork for a stronger middle class.”

More than seven million jobs have been cut over the past two years as the result of the financial collapse. From day one of the new Obama administration, Congress worked with the administration on a recovery plan to save the economy from total devastation. Economist from left to right agree that the Recovery Act added real growth to the economy and predicted that without these investments, more than a million more Americans would be out of work.

 “While I came to lead the Department of Labor at a tumultuous and challenging time, I know that we have already made a real difference in the lives of America’s workers and their families,” said Solis. “We successfully implemented the Recovery Act and have seen how these investments have saved and created jobs in communities across the country.”

The American Recovery and Reinvestment Act made historic investments in American workers and provided vital resources to families deal with the financial collapse. Among other things, the Department of Labor is responsible for administering increased unemployment benefits, health care premium support for laid off workers and significant investments made in workforce development programs including more than 300,000 summer youth jobs. 

While the Department of Labor has been working on an ambitious agenda to promote economic recovery and train workers for the careers of the future, Solis’ department has also revamped agencies suffering from years of neglect.

“In a labor market where jobs are difficult to find and workers are glad to have the jobs they hold, it is too easy for workers to be exploited,” Solis continued. “We are strengthening our efforts to be vigilant in protecting the rights and safety of workers by hiring additional enforcement personnel and reviewing and improving our regulatory efforts.”

The Recovery Act and the department’s new priorities have allowed agencies to increase their capacity to protect workers’ health and safety, pay, and benefits after nearly a decade of cuts. For example, additional resources have allowed the department to hire an additional 250 investigators to ensure compliance with our nation’s wage and child labor laws.

“Especially in this economy, every dollar an employer steals from a worker is a dollar a family loses to pay for basic necessities,” Miller said.

Solis outlined five key priorities for her department:

(1)        Significantly reduce fatalities resulting from the most common causes at workplaces covered by the Occupational Safety and Health Administration and mining sites.
(2)        Reduce the number of repeat violators of minimum wage, overtime, and workplace safety laws.
(3)        Raise labor standards low-wage trading partners in order to create a more balanced playing field for American manufacturing employees. Create a program to help workers injured on the job return to work so that they can continue to be productive members of America’s workforce.
(4)        Increase opportunities for America’s workers to acquire the skills and knowledge to succeed in a knowledge-based economy.

“The Department has outlined these high-priority goals to focus our agencies on the most critical needs affecting the safety, health, and economic security of workers,” Solis said.

“The Senate’s confirmation of David Michaels should be a signal to our nation’s workers that they will have a strong ally to ensure their workplace health and safety,” said Miller. “His leadership and expertise will be a welcome addition to OSHA as the agency works to restore its mission. I look forward to working with Dr. Michaels and Secretary Solis to ensure the agency has the tools it needs to accomplish its vital mission.”

“Dr. Michaels is an excellent choice to head OSHA, and I am so pleased that he has finally been confirmed by the Senate,” said Woolsey. “As chair of the Subcommittee on Workforce Protections, I am looking forward to working with him to fulfill the promise of the OSH Act passed about 40 years ago:  to provide a safe and healthful environment for America’s workers.” 

 

“When you’re struggling to make ends meet you’re going to do everything possible to not miss a day’s pay,” said U.S. Rep. George Miller (D-CA), chairman of the committee. “The lack of paid sick leave encourages workers who may have H1N1 to hide their symptoms and come to work sick – risking the health of their co-workers, customers and the public.”

On November 3, Rep. Miller and Rep. Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee, introduced the Emergency Influenza Containment Act (H.R. 3991). The temporary legislation will guarantee up to five paid sick days for a worker sent home or directed to stay home by an employer for a contagious illness, such as the H1N1 flu virus.

The Centers for Disease Control reports that the flu’s spread is very unusual this early in the season. They estimate that 22 million Americans have already become ill in the last six months with H1N1 and 3,900 have died. The CDC issued guidance in August that said, in part, that workers feeling symptoms of the flu should stay home and employers should not penalize them for staying home.

“Visits to doctors for influenza-like illness as well as flu-related hospitalizations and deaths among children and young adults…are higher than expected for this time of the year,” said Assistant Surgeon General Anne Schuchat, who is also the director of the National Center for Immunization and Respiratory Diseases at the CDC. “Some ways to combat the spread of respiratory infections include staying home when you are sick and keeping sick children at home.”

Public health officials say that isolating the virus is important to slow the infection rate of the H1N1 flu virus. They recommend strong measures to ensure that those with the infection stay away from others and that mandatory sick leave policies can be helpful to not only slow the spread, but also to improve businesses’ productivity.

“This is particularly a plus for small employers where preventable losses of even a small number of workers can have a devastating effect on the business,” said Dr. Georges Benjamin, the executive director of the American Public Health Association. “Mandatory sick leave encourages employees to stay out of the workplace when appropriate, protecting the business and I believe hastens the employees return to productive work.”    

While public health officials have advised employers to show flexibility in allowing workers to stay home without taking punitive actions, some workers have reported that employers are not providing needed time off. 

At least 50 million American workers currently do not have access to paid sick leave, many in lower-wage industries that have direct contact with the public such as food-service, hospitality industry, schools and health care fields.

“Our nation’s failure to provide a minimum standard of paid sick leave is putting our public health at risk. More than two-thirds of flu cases are transmitted in schools and workplaces,” said Debra Ness, president of the National Partnership for Women and Families. “Workers in child care centers and nursing homes, and retail clerks disproportionately lack paid sick days. Because the lack of paid sick days forces employees to work when they are ill, their coworkers and the general public are at risk of contagion.” 

Studies also show that businesses stand to lose billions in productivity when workers come in sick. Ness said when sick employees come into work and infect co-workers, they lower productivity by as much as $180 billion a year and have the potential to cripple vital business operations.

For more information on the Emergency Influenza Containment Act, click here.

To read the testimony of the hearing, click here.

The report was requested by U.S. Sens. Tom Harkin (D-IA) and Patty Murray (D-WA), and U.S. Reps. George Miller (D-CA) and Lynn Woolsey (D-CA).

A third of occupational health professionals surveyed by the GAO said that they were pressured by employers to provide insufficient treatments to workers in order to hide or downplay work-related injuries or illness. More than two-thirds of health professionals observed worker fear for reporting an injury or illness, and 53 percent of practitioners said they were pressured by an employer to downplay an injury or illness so it is doesn’t have to be reported on an official log.

"The widespread underreporting so clearly documented in this report is undermining the health and safety of American workers,” said Sen. Harkin, chairman of the Senate Health, Education, Labor and Pensions Committee.  “If we don't know the full extent of the workplace hazards workers face, we cannot fully address these risks. We need to take steps to require employers to provide a full account of on-the-job injuries and to protect workers so they can report workplace incidents without fear of retaliation."

“We cannot allow the lack of accurate information to permit hazardous working conditions to go unaddressed, putting workers’ health and lives at risk,” said Rep. Miller, chairman of the House Education and Labor Committee. “The GAO report underscores the need for OSHA to have all the tools they need to eliminate incentives that result in underreporting injuries.”

Injury and illness records assist OSHA to better allocate its resources, accurately target its inspections and evaluate the success of efforts to improve the health and safety of American workers. Employers may underreport injury and illness rates because lower rates likely lead to fewer inspections, improves their competitiveness when bidding for new contracts, and lowers the employer’s workers’ compensation costs.  Workers may also be discouraged from reporting injuries or illnesses because of prizes given by employers to groups of workers that report fewer injuries or illnesses. 

"This report confirms that when it comes to the documenting of workplace injuries, we can't just take employers at their word.  The system, to this point has been all too easy to game,” said Sen. Murray, chair of the Senate Subcommittee on Employment and Workplace Safety.  “Government has the responsibility to be a stronger partner in ensuring that every worker who punches in for their next shift returns home safe and healthy at the end of the day.  But to do that, we must have accurate information and that means more input from those on the factory floor and in the workplace. We need to ensure the inclusion and protection of victims and family members throughout the reporting process.”

“GAO’s survey results make clear that there is pressure on workers and health care providers to underreport and under-treat job-related injuries and illnesses,” said Rep. Woolsey. “GAO’s report underscores the need for Congress to enact provisions in the Protecting Americas Workers Act, which would prevent employers from implementing safety incentive programs that discourage accurate recordkeeping and reporting of occupational injuries and illnesses.” 

The GAO recommended that OSHA inspectors to interview workers during records audits, update the list of hazardous industries that are scrutinized, and provide employers with better education and training on recordkeeping requirements.

The Protecting Americas Workers Act, introduced by Harkin, Miller, Murray and Woolsey, would give OSHA additional tools to combat underreporting of injuries and illnesses by employers.

For more information on the bill, click here.

To read the GAO report issued today, click here.

“Sick workers advised to stay home by their employers shouldn’t have to choose between their livelihood, and their coworkers’ or customer’s health,” said Miller. “This will not only protect employees, but it will save employers money by ensuring that sick employees don’t spread infection to co-workers and customers, and will relieve the financial burden on our health system swamped by those suffering from H1N1.”

“To help control the spread of the H1N1 flu virus, workers who are sick should stay at home,” said Woolsey. “This bill will ensure that workers who are directed to stay home by their employers can do so without paying a financial penalty.”

The Centers for Disease Control estimates that a sick worker will infect one in ten co-workers. As a result, the CDC and other public health officials have advised employers to be flexible when dealing with sick employees and to develop leave policies that will not punish workers for being ill.

At least 50 million American workers do not have access to paid sick leave, many in lower-wage jobs that have direct contact with the public such as the food-service and hospitality industry, schools and health care fields. The National Partnership for Women and Families estimates that the economy loses $180 billion in productivity a year when sick employees show up to work, also known as “presenteeism.”

Among other provisions, the Emergency Influenza Containment Act:

• Guarantees a sick worker up to five paid sick leave days a year if an employer ‘directs’ or ‘advises’ a sick employee to stay home or go home.
• Covers both full-time and part-time workers (on a pro-rated basis) in businesses with 15 or more workers. Employers that already provide at least 5 days’ paid sick leave are exempt.
• An employer can end paid sick leave at any time by informing the employee that the employer believes they’re well enough to return to work. Employees may continue on unpaid leave under the Family Medical Leave Act or other existing sick leave policies.
• Employees who follow their employer’s direction to stay home because of contagious illness cannot be fired, disciplined or made subject to retaliation for following directions. 
• Takes effect 15 days after being signed into law and sunsets after two years.

“The announcement by federal OSHA today is evidence that OSHA is taking the agency’s enforcement responsibilities seriously. These citations are deeply disturbing given earlier commitments to improve conditions after the 2005 tragedy that caused massive death and  injury at the Texas City, Texas refinery. I commend OSHA for taking actions to prevent another devastating explosion.”

“I applaud OSHA for taking strong action before other workers could be injured or killed,” said Woolsey. “This sends a clear message to other employers that they cannot ignore the health and safety of their workers.”

In March 2005, 15 workers were killed and 180 others were injured in an explosion at BP's Texas City, TX facility. The U.S. Chemical Safety Board released an investigative report in 2007 blaming BP for cost-cutting that led to malfunctioning equipment and overworked and undertrained employees, and OSHA for failing in its investigative responsibilities. On Thursday, March 22, 2007, the Education and Labor Committee heard testimony examining what went wrong at BP and OSHA with the goal of preventing future disasters.

For more information, click here.

“Basic oversight of state plans is not only important in Nevada, but it is vital to the 57 million American workers whose health and safety protections are enforced by a state plan,” said Rep. George Miller (D-CA), chairman of the committee. “While some states are running innovative programs, it is clear that additional reviews of state plans are warranted.”

Under the federal Occupational Safety and Health Act, a state can operate their own workplace health and safety program as long as they meet basic federal minimum standards. Twenty-seven states and territories operate such programs and are partially funded by the federal government.

“Workers need to know that OSHA will enforce the laws that will keep them safe on the job,” said Rep. Dina Titus (D-NV).  “Unfortunately the federal report clearly illustrates that Nevada OSHA let our workers down.  I thank Chairman Miller for shining a light on this dismal record of workplace safety so that we can bring about meaningful reforms that will protect workers, remove undue political influence from the process, and restore confidence in Nevada OSHA.”

A federal review of Nevada’s OSHA program found that the state failed to cite employers for clear hazards, didn't properly train inspectors on construction hazards, didn't follow up to ensure that dangerous conditions were fixed, failed to include worker representatives in inspections, and even failed to notify families of deceased workers of investigations or give them the chance to speak to investigators. Last year only 29 percent of Nevada’s citations were classified as “serious” compared to 44 percent for other state plans and 77 percent for federal OSHA. 

The review of Nevada OSHA was prompted after a 12 construction deaths on the Las Vegas Strip over an 18-month period during the city’s latest construction boom and a Pulitzer Prize-winning series by the Las Vegas Sun.

“State plan standards and enforcement must be at least as effective as Federal OSHA in providing safe and healthful employment to workers in the state,” said Jordan Barab, Acting Assistant Secretary of Labor for Occupational Safety and Health. “Federal OSHA identified a number of serious concerns about the Nevada plan.”

Barab also said the agency plans to increase oversight of all state programs after the federal OSHA review of the Nevada program.

For example, federal OSHA found that Nevada OSHA weakened penalties against a major hotel firm after two workers died and one was seriously injured at the Orleans Hotel and Casino, even though there was a history of similar problems. The investigator of the tragedy filed a complaint with federal OSHA regarding the lesser penalties and alleged that the lowered penalties were the result of OSHA protecting the contractor from bad publicity and a wrongful death lawsuit by the workers’ families. He later resigned.

“The federal OSHA review of the Nevada state plan agency confirms that NV OSHA utterly failed not only my son…but also all workers in the state of Nevada,” said Debi Koehler-Fergen, the mother of Travis Koehler who died in the Orleans tragedy. “[NV OSHA] is allowing powerful companies to use their political connections to influence such things as the outcome of investigations.”

Nevada OSHA also testified and pledged to improve their program.

Barab also announced that federal OSHA will undertake additional reviews of state-based health and safety programs similar to the one they agency completed on Nevada. Franklin Mirer, a professor of environmental and occupational health sciences at the City University of New York testified that additional reviews are warranted because states that operate their own health and safety plan often have lower rates of citations than federal OSHA. 

“The OSHA report, and the press reports, depict failures of the enforcement process in the Nevada state plan,” said Mirer. “Compared to OSHA, state plans in general issue fewer citations classified as higher gravity, including serious, willful, failure to abate and repeated. Federal OSHA can take this opportunity to improve its oversight of state plans.”

The Education and Labor Committee first examined construction safety problems in a 2008 hearing, including a string of deaths during the recent building boom on the Las Vegas strip. The hearing found that even when Nevada issued fines to employers for operating an unsafe workplace, those sanctions were often later reduced or even eliminated.

Miller said that he is planning additional oversight activities into this issue.

For more information on the 2008 hearing, click here.

To read the OSHA review of the Nevada health and safety program, click here.

“I congratulate Joe Main’s unanimous Senate confirmation as the next head of the Mine Safety and Health Administration.  Main will be a tireless advocate for the health and safety of America’s miners and bring a needed jumpstart to an agency that suffered from years of neglect. I look forward to working with him to ensure that our nation’s miners return home to their loved ones safely at the end of each shift.”

“This report confirms that there are serious problems with Nevada OSHA that need to be addressed immediately,” said Miller. “Workers in Nevada deserve to know that basic health and safety protections are enforced by the agency tasked to protect them.”

Under the federal Occupational Safety and Health Act, a state can operate their own workplace health and safety program as long as they meet basic federal minimum standards. Twenty-two states and territories operate such programs and are partially funded by the federal government.

OSHA reviewed Nevada’s state program between January 1, 2008 and June 1, 2009. This is OSHA’s most significant review of a state program since 1991when OSHA initiated steps to take over the North Carolina’s health and safety program after a poultry plant fire killed 25 people. The review found among other things that over the period:

• No ‘willful’ or ‘repeat’ citations were made and were even discouraged. ‘Willful’ violations carry significantly higher penalties;
• In nearly half of all fatality cases, family members of the fallen workers were not contacted or given the opportunity to speak with investigators;
• Clear cases of repeat violations were not cited. For example, OSHA issued ‘serious’ violations in the Orleans Casino case rather than ‘willful’ or ‘repeat’ violations even though the owner and operator of this hotel had same violations other facilities in Nevada;
• Even when Nevada OSHA cited a workplace for a health and safety violation, they could not demonstrate that those workplaces were abated correctly; and
• Nevada OSHA investigators were not properly trained on construction hazards. 

The Education and Labor Committee first examined construction safety problems in a 2008 hearing, including a string of deaths during the recent building boom on the Las Vegas strip. The hearing found that even when Nevada issued fines to employers for operating an unsafe workplace, those sanctions were often later reduced or even eliminated.

For more information on the 2008 hearing, click here.

To read the OSHA review of the Nevada health and safety program, click here.

 

“OSHA’s announcement is a giant step forward to protect American workers from these types of horrific – but preventable – tragedies,” said Miller. “Today’s action is a breath of fresh air after years of foot-dragging by the previous administration despite the overwhelming evidence that workers needed comprehensive protections against combustible dust explosions.”

“We are delighted that OSHA is moving forward with a standard for combustible dust,” said Woolsey.  “This recognition of the dangers of combustible dust is long overdue and will go a long way to protect American workers from these explosions.”
 
A new report released by OSHA today also found that despite the heightened attention and two U.S. Chemical Safety Board reports on combustible dust hazards, a significant number of workplaces do not have sufficient protections to prevent a combustible dust explosion.

OSHA said that the majority of facilities inspected under its National Emphasis Program for combustible dust have similar engineering failures that caused the Imperial Sugar’s refinery explosion at Port Wentworth, Ga. In fact, in several facilities, OSHA found the accumulation of combustible dust material ankle deep and covering an entire room.

In February, Miller, Woolsey and Rep. John Barrow (D-GA) reintroduced legislation to prevent these types of workplace explosions. The Worker Protection Against Combustible Dust Explosions and Fires Act, H.R. 849, would require the U.S. Occupational Safety and Health Administration to issue rules regulating combustible industrial dusts, like sugar dust, that can build up to hazardous levels and explode. The U.S. House of Representatives passed similar legislation in April 2008 by a bipartisan vote of 247 to 165.

For more information on the bill, click here.

To read OSHA’s report on combustible dust hazards, click here.

 

“Given the impressive credentials Dr. Michaels will bring as the OSHA administrator, I am confident that the initiatives launched by Secretary Solis to issue long overdue safety standards and bring back more vigorous enforcement of workplace safety and health standards will be realized,” said Woolsey.

Dr. David Michaels, an epidemiologist, is currently a research professor at the Department of Environmental and Occupational Health at the George Washington University School of Public Health and Health Services. He has conducted numerous studies of the health effects of occupational exposure to toxic chemicals, including asbestos, metals and solvents, and has written extensively on science and regulatory policy.  

Michaels served as Assistant Secretary of Energy for Environment, Safety and Health between 1998 and 2001, responsible for protecting the health and safety of workers, communities and the environment surrounding the nation’s nuclear weapons facilities.  In that position, he worked on a bipartisan basis to help enact the Energy Employees Occupational Illness Compensation Program Act of 2000, an initiative to compensate nuclear weapons workers who developed occupational illnesses as a result of exposure to radiation, beryllium and other hazards. 

“GAO’s report makes clear that OSHA has strayed too far from its core mission of protecting the safety and health of workers on the job. The agency has spent too much time seeking voluntary compliance from employers and too little time enforcing the law,” said U.S. Sen. Edward M. Kennedy (D-MA), chairman of the Health, Education, Labor and Pensions Committee. “I look forward to working with the Obama administration to see that OSHA effectively carries out its important responsibilities to the nation’s workforce.”

"The GAO findings only confirm what many had already known—the Bush administration’s misdirected reliance on voluntary programs siphoned scarce resources that were needed for enforcement of our nation’s health and safety laws,” said U.S. Rep. George Miller (D-CA), chairman of the House Education and Labor Committee. “Fortunately, the Congress and Obama administration are committed help set OSHA on a new course to provide the additional resources and staff in order to ensure that agency all workers are able to return home safely after their shifts.”

“Taking a hands-off approach to a voluntary enforcement program is a recipe for disaster,” said U.S.Sen. Patty Murray (D-WA), chairman of the Senate HELP Employment and Workplace Safety Subcommittee. “Unfortunately, under the Bush administration, enforcing the law often took a backseat to taking employers at their word. I look forward to working with the Obama Administration to build an agency that takes the initiative to keep businesses honest about the dangers their workers face."

“This report illustrates what many of us have been arguing all along - that when it comes to protecting America’s workers, voluntary safety programs by themselves don’t work,” said U.S. Rep. Lynn Woolsey (D-CA), chair of the House Subcommittee on Workforce Protections. “It’s time for OSHA to join the 21st Century and update their rules and regulations to confront the risks faced by today’s workers.  That’s why I have introduced the Protecting America’s Workers Act, and will continue to work with my colleagues and Secretary Solis to ensure that OSHA does everything in its power to keep our workers safe.”

The GAO found that OSHA did not properly ensure that only worksites which had exemplary safety programs were eligible for relief from routine inspections. The GAO found that 12 percent of the worksites participating in the program had an injury or illness rate higher than rates for their industry. In fact, one worksite participating in the VPP had an injury and illness rate 4 times higher than their industry average. OSHA performance goal is for VPP work sites to have an injury and illness rate of 50 percent less than their industry average.

In addition, OSHA continued to allow businesses to participate in the voluntary program even though companies were cited for serious safety violations. For example, one worksite was allowed to continue to participate in the VPP even though it had three separate fatalities over a five year period. Another workplace was cited for 10 violations related to a fatality, including seven serious violations, and one related to discrepancies in the site’s injury and illness logs, but was able to continue to avoid regular inspections as a result of their participation in the VPP.

Although VPP is intended to increase worker participation in safety decisions, GAO found that some employees at VPP sites said “that injury and illness rates requirements of the VPP are used as a tool by management to pressure workers not to report injuries and illnesses.”

OSHA also stated today that they have accepted GAO’s recommendations so that only eligible worksites participate in the VPP program and the agency will develop new performance goals and measures to ensure the program is effective.

To read the full GAO report, click here.

“I am thankful that under Secretary Solis’ leadership, the Department has decided to withdraw this proposed rule - which was developed in secrecy and without the input of health and safety experts,” said Lynn Woolsey (D-CA), chair of the Workforce Protections Subcommittee. “The Secretary recognizes that the safety of workers is our top priority, and to do this we must be in the business of putting in place needed health and safety standards.”

The Washington Post reported last year on a proposal being developed by political appointees in secret with little consultation with career agency health and safety experts. The proposal would have added additional red tape to an already slow regulatory process.

Education and Labor Committee members introduced legislation last July to prevent the Department of Labor from finalizing the regulation. The Workforce Protections Subcommittee held a hearing on the proposal in September.

For more information on the proposal, click here.

The Enhanced Enforcement Program, created in 2003 by the Bush administration after an exposé into the poor safety and health record of the McWane Corporation, identifies high risk employers by their past behavior and targets them for additional scrutiny. However, the U.S. Department of Labor Inspector General found the Bush federal Occupational Safety and Health Administration did not properly carry out the initiative and it failed to effectively deter employers from putting workers’ lives at risk.

"It is essential that OSHA target its limited resources to inspect workplaces with the highest risk of hazardous conditions that have greater potential to cause injuries and fatalities,” said Elliot Lewis, assistant inspector general for audits at the U.S. Department of Labor. “While we cannot conclude that the enhanced enforcement would prevent subsequent fatalities, full and proper application of EEP procedures may have deterred and abated workplace hazards at the worksites of 45 employers where 58 subsequent fatalities occurred.”

The Inspector General report also referenced additional businesses that should have been included in the Enhanced Enforcement Program, but never were. The report cited the death of Raul Figueroa, a mechanic at Waste Management in Florida who was killed while repairing a truck. OSHA cited Waste Management for a serious violation that resulted in the death of Figueroa.

“For some time before his death, my stepfather complained about safety problems at the facility,” said Jesus Royas, Figueroa’s stepson. “Companies like Waste Management should not be allowed to cut corners and compromise safety.”

Witnesses also said the current program is too limited in scope because it does not focus on corporate-wide investigations and does not focus on the most flagrant violations that occur before workers are killed. 

“What is needed is a more systemic, holistic examination of the current OSHA enforcement regime, said Eric Frumin, director of health and safety at Change to Win. “Waste Management’s OSHA violations increased by 28 percent over the period 2003 to 2007. If Waste Management had implemented a comprehensive safety program, and held its managers accountable, Raul Figueroa might well be alive today.”

The current head of OSHA testified that the agency is working on improving the Enhanced Enforcement Program.

“The Enhanced Enforcement Program was designed…to focus enforcement efforts on recalcitrant employers,” said Jordan Barab, acting head of OSHA. “OSHA is exploring ways to reinvigorate the EEP, and the OIG report provides a starting point for our efforts to do this in the most effective way.”

Today is also Workers Memorial Day, which honors workers who lost their lives on the job due to hazardous working conditions. According to Bureau of Labor Statistics data, 5,657 workers died while on the job in 2007 – an average of about 15 a day.

While deaths on the job have significantly decreased since 1970 when Congress created the federal Occupational Safety and Health Administration, witnesses said that penalties have not been increased since 1990 and are much smaller than penalties contained in other federal laws.

“Nearly four decades after the [Occupational Safety and Health] Act was passed, enforcement of the job safety law remains weak and OSHA penalties remain low, particularly when compared with other safety and environmental laws,” said Margaret “Peg” Seminario, director of safety and health at the AFL-CIO. “Our analysis found that the average penalty for a serious violation is less than $1,000 and the average penalty involving workers deaths is $11,300.”

Witnesses said that OSHA’s penalties are too low and are often reduced after the initial citation. Nineteen year-old Jeremy Foster was killed in October 2004 while working at a sawmill in Ola, Ark. OSHA cited his employer for a ‘serious’ safety violation for improperly modifying a piece of equipment that resulted in his death. Even though Foster’s employer was cited for a ‘serious’ violation, the law only allows a fine up to $7,000.

“We were appalled to see the amount of the fine: $4,500. Surely this was an error,” said Rebecca Foster, Jeremy’s stepmother. “Shortly afterwards we read in our state newspaper that the fine had been reduced to only $2,250. Did they place a value of our only son’s life at this amount?”

While both civil and criminal penalties are available under the OSH Act, criminal prosecutions of egregious violations are rare and may only occur when a willful violation leads to the death of a worker. Even then, no matter how bad an employer acted, the maximum penalty is only a class B misdemeanor that may bring up to 6 months in prison. Other federal laws contain stricter penalties.

“In recent years, most of the criminal prosecutions for workers safety violations have been brought by the Justice Department's environmental crimes section,” said David Uhlman, former chief of the environmental crimes section. “While our worker safety regulations could be stronger, the primary flaw in our worker safety laws is not the rules we impose, but the lack of consequences for breaking those laws.”

According to Uhlman, there have been only 71 successful criminal prosecutions since 1970 under workers health and safety laws, a period when over 330,000 workers were killed in workplace fatalities.

Last week, members of the committee introduced the Protecting America’s Workers Act (H.R. 2067). The bill would update OSHA penalties, strengthen whistleblower protections, and ensure that bad employers are held accountable. For more information on the legislation, click here.

“It has been more than 30 years since the passage of the OSH Act, and it is badly in need of reform. While thousands of workers have been saved as a result of OSHA, 16 workers are killed and 11,200 workers are injured or made ill each and every day,” said Woolsey. “This legislation will strengthen OSHA by expanding coverage to millions of workers who are currently unprotected or inadequately protected, increasing civil and criminal penalties for those who violate the law, and by protecting those who blow the whistle on unsafe employer practices. I look forward to working with Chairman Miller and my colleagues on the committee to pass this legislation, and to partnering with Secretary of Labor Hilda Solis to ensure that every American worker gets the protections that they deserve.”

“Beginning last Congress, we conducted a systematic examination of the federal Occupational Safety and Health Administration and their ability to protect workers. We found that far too many employers were subject to a slap on the wrist or even let off the hook when they put their employee in danger,” said Rep. George Miller (D-CA), chairman of the full committee. “This legislation is vital to improving the health and safety of American workers.”

Among other provisions, the bill would:

• Apply federal safety standards to workers who are not currently covered, including federal, state, and local employees, and some private sector employees;
• Protect workers who blow the whistle on unsafe workplace conditions;
• Increase penalties against employers for repeated and willful violations of the law, including making felony charges available when an employer's repeated and willful violation of the law leads to a worker's death or serious injury; and
• Give workers and their families the right to challenge reduction of fines and other penalties.

This Tuesday, April 28, is Workers' Memorial Day, a day to commemorate workers who have been killed on the job and to recommit to making workplaces safer. The Education and Labor Committee will hold a hearing on whether OSHA penalties are sufficient to deter health and safety violations.

For additional information on the Protecting America’s Workers Act, click here.

“I congratulate Jordan for being named as the acting head of OSHA. Jordan will bring a tremendous amount of valuable health and safety experience to an agency that has been neglected for far too long. Throughout his career, Jordan has demonstrated the specialized knowledge of health and safety issues needed to revamp the agency and strengthen its efforts to protect Americans while on the job. I look forward to working with Jordan and Secretary Solis to ensure that the agency works to protect the health and safety of our nation’s workers.”

Prior to joining the committee, Barab worked for four years at the U.S. Chemical Safety and Hazard Investigation Board. He served as special assistant to the assistant director of Labor for OSHA from 1998 to 2001, and directed the safety and health program for the American Federation of State, County and Municipal Employees from 1982 to 1998. A native of Palos Verdes Estates, California, Barab is a 1975 graduate of Claremont McKenna College in California and received a Master's degree in International Relations from the Johns Hopkins University in 1978.

The Worker Protection Against Combustible Dust Explosions and Fires Act, H.R. 849, would require the U.S. Occupational Safety and Health Administration to issue rules regulating combustible industrial dusts, like sugar dust, that can build up to hazardous levels and explode. The U.S. House of Representatives passed similar legislation last April by a bipartisan vote of 247 to 165.

“This deadly workplace hazard has been known and understood too long for us to continue to do nothing,” said Miller. “Yesterday’s news that another combustible dust explosion occurred in Wisconsin is further evidence that our nation needs to act. I hope that with today’s bill introduction and the arrival of a new administration, our nation will finally help workers and business stop these preventable, and all too often, deadly explosions.”

“A year has passed since tragedy struck our community, but so far we haven’t enacted any real change. We’ve been told over and over that it’s not a question of if this type of accident is going to happen again, but when,” said Rep. Barrow. “We know what needs to be done. We need to put regulations that work in the workplace. I don’t care how long it will take, but I’m going to keep on pushing it until it gets done. Our prayers go out to the folks who are still suffering from their losses and injuries. Meanwhile, we should take this anniversary as a reminder that we have not yet done what we can do to prevent something like this from happening again.”

“Yesterday’s accident was just another reminder of the unacceptable risk posed to workers by outdated regulations on combustible dust,” said Woolsey. “While OSHA turned a blind eye to this issue under President Bush, I know that the new administration will confront this threat with the urgency that it deserves. I look forward to working with my colleagues and the new Secretary of Labor to take the necessary steps to update OSHA regulations on these potentially deadly substances and protect our workers.”

The U.S. Chemical Safety Board, which has launched a major investigation of the Imperial Sugar explosion, has concluded that the explosion was caused by combustible sugar dust. In 2006, following a series of fatal combustible dust explosions, the CSB conducted a major study of combustible dust hazards.

It identified 281 combustible dust incidents between 1980 and 2005 that killed 119 workers, injured 718 others, and extensively damaged industrial facilities. The CSB found no comprehensive OSHA rules that effectively control the risk of industrial dust explosions and recommended that OSHA issue a standard.

The Worker Protection against Combustible Dust Explosions and Fires Act would address these hazards by:

• Directing OSHA to issue interim rules on combustible dust within 90 days. The rules would include measures to minimize hazards associated with combustible dust through improved housekeeping, engineering controls, worker training and a written combustible dust safety program;  
• Directing OSHA to issue final rules within eighteen months. The rules would be based on effective voluntary standards devised by the National Fire Protection Association, a nonprofit organization. In addition to items required in the interim rules, the final rules would include requirements for building design and explosion protection. The interim rules would remain in effect until the final rules are issued; and
• Directing OSHA to revise the Hazard Communication Standard, which warns workers of potential on-the-job hazards, to include combustible dusts.

When dust builds up to dangerous levels in industrial worksites, it can become fuel for fires and explosions. Combustible dust can come from many sources, such as sugar, flour, feed, plastics, wood, rubber, furniture, textiles, pesticides, pharmaceuticals, dyes, coal, and metals, and therefore poses a risk across a number of different industries throughout the United States.