Miner Act 2010?

The House Education and Labor Committee, chaired by Representative George Miller of California, recently drafted a bill (H.R. 5663) entitled the “Miner Safety and Health Act of 2010.” The measure’s stated purpose is to improve safety compliance, “empower workers to raise safety concerns,” prevent tragedies and establish victims’ rights.

The bill increases the federal Mine Safety and Health Administration’s (MSHA) rights and powers in inspections and investigations. It adds to existing enforcement mechanisms like pattern of violations and injunctive actions. Some provisions focus only on coal mines, but for the most part civil and criminal penalties under the law, monetary and non-monetary, would be expanded for all mines. Increased penalties would extend to cases of safety discrimination as well as violations of safety requirements.

For all mines, enactment of the bill as drafted would mean the following:

Accident Investigations

1. For all accident investigations conducted by MSHA, the agency must determine whether there were violations of law, and “in cases involving criminal actions, refer such matters to the Attorney General.”

2. Accidents involving three or more deaths would require investigation by a five-person panel chaired by the National Institute for Occupational Safety and Health (NIOSH). This would be in addition to MSHA’s investigation and would constitute outside review of MSHA’s actions prior to the accident, as well as the operator’s.

3. The same type of panel may be employed for “any accident that is of such severity or scale for potential or actual harm” for which NIOSH might deem an investigation is warranted.

4. Two of the panel members would be a mine operator representative and a representative of miners. The others would be persons with relevant qualifications appointed by NIOSH.

5. MSHA and NIOSH would have subpoena authority, without having to convene a public hearing, as required under the present law. MSHA’s subpoena authority would not be limited to accident investigations, but rather would be “to perform any…functions” under the law.

6. MSHA would be authorized to interview any individual “without the knowledge of the operator.” Such person may be represented by a personal attorney.

Inspections and Investigations

7. Inspections are to be conducted on off-shifts to ensure protections “to all miners working all shifts.”

8. No attorney may represent an operator and any other individual in the same investigation, “unless such individual has knowingly and voluntarily waived all actual and reasonably foreseeable conflicts of interest.”

Unwarrantable Failure and Pattern Enforcement

9. The definition of “significant and substantial” is made more expansive for both unwarrantable failure and pattern enforcement and is no longer limited to “mandatory standards.”

10. A violation is significant and substantial “if there is a reasonable possibility that such violation could result in injury, illness, or death.”

11. Pattern is no longer a pattern of violations but rather: “A Pattern of Recurring Noncompliance or Accidents.”

12. The “notice of potential pattern” procedure is discarded. Pattern status will attach immediately if the operator is determined to have a pattern of: (1) citations for significant and substantial violations; (2) unwarrantable failures; (3) citations for flagrant violations; (4) withdrawal orders of any sort; or (5) accidents, injuries, or illnesses (or any combination of these).

13. There will be regulations to spell out threshold criteria for initial determination of pattern status by MSHA and details of performance benchmarks to be imposed during pattern status.

14. Once a mine is under a pattern, all persons are to be withdrawn from the mine except as authorized by law or MSHA.

15. Once under a pattern, the operator will be required to respond to a “remediation order” from MSHA, which could include training, safety management, employment of safety professionals, increase of employment contingent generally, inspections, records and anything else dictated by MSHA.

16. The mine closure will continue until MSHA verifies that all violations identified in the remediation order are corrected or are being corrected and the operator has completed all other MSHA requirements for reopening.

17. The remediation order will continue in effect as long as pattern status continues. If the operator does not meet requirements on time, the mine may be closed once again.

18. To avoid renewed closure, the mine must meet the following “performance benchmarks,” against which it will be evaluated by MSHA every 90 days:

a. A rate of significant and substantial violations that is in the top performing 35th percentile…for all mines of similar size and type” or a reduction in the rate of significant and substantial violations by 70% since being placed on pattern status;

b. Accident and injury rates that are, on average, in the top performing 35th percentile of such rates for all mines of similar size and type; and

c. No unwarrantable failure, imminent danger (with significant and substantial violation), and no flagrant violations issued.

19. To get off pattern status, the mine must meet the same benchmarks for a one-year period, except that for significant and substantial violations and accident and injury rates, the 25th percentile level will be the benchmark.

20. Pattern orders may be contested before the Federal Mine Safety and Health Review Commission on an expedited basis.

21. Inspection frequency at pattern mines will be doubled and the mine will have to pay into a fund to pay for the additional inspections.

22. Civil penalty calculations will be doubled throughout pattern status.

Civil and Criminal Penalties

23. The maximum penalty for a significant and substantial violation will be $150,000.

24. There will be a minimum penalty of $10,000 for safety discrimination (maximum $100,000).

25. Directors, officers and agents of operators are subject to civil and criminal penalties for a “knowing violation.” There is no longer a requirement for “willful” conduct for a criminal violation and there is no longer a limitation to “corporate” operators. Thus, agents working for partnerships are subject to knowing violations enforcement.

26. The definition of “operator” is expanded to include anyone who “controls a mine by making or having the authority to make management or operational decisions that affect, directly or indirectly, the health or safety at the mine.”

27. The definition of “agent” is amended to include “any miner,” thus eliminating the requirement that the person supervise “the miners.”

28. Maximum sanctions for first offense criminal violations are raised to $1,000,000 and five years imprisonment.

29. Criminal sanctions are added for knowing discrimination for safety activity including imprisonment up to 10 years as well as major fines.

30. Five years imprisonment and major fines are provided for advance notice of inspection, or attempted advance notice.

31. In reviewing civil penalties, the Commission would be required to follow MSHA’s point schedule.

32. Operators will be required to pay pre-judgment interest on any amount of contested penalty not reduced by the Commission.

33. Sanctions, including mine closure orders, are provided for non-payment of penalties.

Worker Rights and Protections

34. Miners will be entitled to full pay for the entire period they are idled due to any MSHA order.

35. Miners’ rights to refuse work, complain and be free from retaliation are broadened.

36. The time for a person to file a discrimination complaint has been increased to 180 days from when the miner or applicant for employment became aware that discrimination occurred.

37. Miners will be reinstated to their jobs while their case is pending as long as it is pending at any level, even if the Secretary ultimately does not pursue the case on the miner’s behalf.

38. Miners must be given an extra hour of refresher training annually devoted to miners’ rights.

39. The operator can respond to a miner’s complaint with witness statements or other evidence; the complainant will be able to receive and rebut the operator’s response, statements and evidence during MSHA’s investigation.

40. Exemplary, as well as actual, damages may be awarded to a successful complainant.