Well, it's here or is it? As long anticipated, the House of Representatives last month introduced HR 5663, a new Mine Safety and Health Administration
Well, it's here Ö or is it? As long anticipated, the House of Representatives last month introduced HR 5663, a new Mine Safety and Health Administration reform bill that would serve as a huge kick in the rear to the mining industry in terms of punitive provisions. This is fast-track legislation, which was subject to a single hearing, where the administration, multiple unions, a miner from the Massey mines who deplored working conditions under current law, and a technical expert (Larry Grayson from University of Missouri, Rolla, who offered a new approach to Pattern of Violations determination), all basically ganged up on the single industry witness, Bruce Watzman of the National Mining Association.
THE LEGISLATION MOVED quickly to markup in the House Education and Labor Committee on July 21, where a big surprise was in store. As part of a substitute bill (which struck a few ó but not nearly enough ó of the more onerous provisions in the original measure), committee Chairman Rep. George Miller (D-Calif.) moved to exempt from the bill all mines except for underground coal and underground gassy metal/nonmetal mines (mainly trona and salt mines, although a complete list was unavailable). This modification reportedly came after the aggregates industry made about 3,000 calls to congressional offices in the days preceding markup. Good work, y'all.
The substitute bill was approved, with a 30-17 vote along strict party lines, and is now ready for floor action in the House of Representatives. This may occur by the time you read this article.
But what does this really mean? In the words of one Labor Department representative that I spoke with, ìThis is MSHA's worst nightmare.î The fact is, this 11th-hour shift in focus of the legislation from the entire industry to just a segment occurred without much discussion or contemplation of consequences. During the markup, Miller indicated that the other sections, including aggregates operations, will ìremain under the current Mine Act.î This means that MSHA will have to operate its programs (if the bill becomes law, as is) under two different sets of statutory rules. Here are some examples of where these conflicts may create real administrative and legal problems.
- Criminal prosecutions for the covered underground mines would be based on a standard of knowing violations (according to Congress, this means that the operator's representative knew of a hazardous condition that could cause injury to an individual and did nothing to correct it, without requiring any actual injury); the exempt mines would continue to be held criminally liable only for willful violations (which a member of Congress incorrectly characterized as ìintending to harm an employeeî).
- The criminal penalty for covered underground mine agents would be up to five years incarceration in a federal prison (a felony) and a maximum $1 million penalty; the criminal penalty for exempt mine agents would be up to one year incarceration (a misdemeanor) and a maximum $250,000 penalty.
- There would be criminal prosecution of up to 10 years incarceration and a $250,000 for violating a miner's whistle-blower rights for covered mine agents, but no corresponding criminal prosecution at exempt mines.
- There would be a minimum $10,000 and maximum $100,000 civil penalty against the mining company for violating a whistle blower's rights for covered mines. Current law provides that if MSHA finds it appropriate, it can assess a civil penalty of up to $70,000 (no minimum penalty), and this is what presumably would continue to apply to exempt mines.
- Miners at exempt mines who wish to file whistle-blower complaints would be subject to a 60-day statute of limitations; miners at covered mines would have a 180-day statute of limitations and have temporary reinstatement rights through the end of litigation, even if MSHA found no merit to the complaint and they had to proceed pro se (representing themselves). It is unclear whether exempt miners would have this temporary reinstatement right when proceeding pro se, but there are two cases on this issue now pending before the full FMSHRC, one of which is at a nonmetal mine.
- There would be two sets of POV criteria: one for the covered underground mines and one under the existing Mine Act for exempt locations. The criteria are quite different from each other, but one thing that is clear from the legislation is that covered mines would have twice the number of mandatory inspections, would have to pay MSHA for the additional inspection costs, and would get doubled penalties for any citations issued once the mine is under the POV finding. There were some in attendance at the markup who seemed to think that exempt mines would no longer be subject to POV at all. But that does not seem to be the case based on remarks made by Miller during the hearing. He said only that they would not be subject ìto this bill.î
- During inspections and investigations, MSHA would have administrative subpoena power to demand documents and take witness statements (without notice to the company or corporate counsel). This now seems to be limited to the covered underground mines. Among the documents that could be obtained in this way are audit reports, near-miss accident reports, internal memoranda, and safety committee minutes ó all of which could be used to issue citations, since there is no statute of limitations and evidence of the existence of a past violation is citable under the Mine Act's strict liability theory.
- During investigations (of accident, or Section 110 special investigations), the mine operator could not share counsel with its agents, nor could agents share counsel if MSHA believed that a conflict of interest existed. Although the agents could initially consent to a waiver of any conflict and agree to share counsel, if MSHA second-guessed the agents and attorney's position on lack of conflict, the agency could demand a hearing in U.S. District Court where it would attempt to disqualify the attorney from participating. This would add a layer of litigation before any interviews could occur, and arguably violates the constitutional right to counsel of one's own choosing given that any MSHA interviews can lead to a criminal prosecution. It appears now that this curb on joint representation may be limited to the covered underground mines.
So, is this good news or bad news? It's hard to say. I view it as a temporary reprieve, but not a done deal. Industry should not get complacent. The Senate must still take up the bill and may not be as quick to appease the aggregates industry. Moreover, while the Department of Labor supported the original version of HR 5663, it may have some things to say about being required to administer two separate statutes with limited resources. Finally, there are some significant constitutional considerations ó starting with equal protection rights ó that could be implicated by the two-tiered whistle-blower protections and the different standard of proof for criminal prosecutions.
THERE'S ANOTHER CURVE ball in this game. After you get through the first 70 pages of this 100-plus page bill, the House suddenly shifts gears and addresses Occupational Safety and Health Administration reform. This includes increased civil penalties, expansion of criminal prosecution to felony status, enhanced whistle-blower protections, immediate abatement of cited conditions, and victims' rights provisions. These could be the killer provisions for this bill. It is, after all, easy to vote for mine safety (and the only opponents to the bill's mining provisions are the handful of mining industry trade groups). It is another thing to take on the U.S. Chamber of Commerce, National Association of Manufacturers, National Federation of Independent Business, and the thousands of trade associations representing various sectors from the chemical industry to construction.
A substitute bill, which mirrored the original HR 5663 except it omitted the OSHA-related provisions, was introduced on July 20 by Rep. Maria Capito (D-W.Va.). There is some speculation that this may be the version that gets introduced in the Senate by Sen. Jay Rockefeller (D-W.Va.). He is reportedly working on a bill to be introduced after the August congressional recess. A Republican amendment offered during the July 21 markup to strike the OSHA provisions failed. But if the bill's proponents sense that the only way to make Mine Act reform happen this year is to kill the OSHA sections, I would not be surprised to see that happen. If so, passage becomes much more likely. There will certainly be more to report on this soon.