OSHA: New Miner Safety Bill Provides Vehicle for Radical Changes to the Occupational Safety and Health Act of 1970

The recently drafted Miner Safety and Health Act of 2010 (MSHA) began as a response to the recent multi-fatality accident at a Massey Energy Co. mine in West Virginia. It has now become a vehicle for passage of a much wider range of reforms to the Occupational Safety and Health Act of 1970. As proposed, the MSHA includes H.R. 2067, the Protecting America’s Workers Act (PAWA).

PAWA proposes the most sweeping legislative change to the Occupational Safety and Health Act in its 40 year existence. Though many of the proposed revisions contained in PAWA have been in the works for several years, they have yet to be passed into law and there is some speculation that current attempts to gain passage will likewise be unsuccessful. However, the Department of Labor and OSHA have promised reform and have taken an active involvement in the passage of PAWA.

The most recent discussion draft of PAWA (March 9, 2010), contains provisions that would:

Increase protection for whistleblowers under OSH Act Section 11(c)

Require immediate abatement of serious, willful, or repeat violations (currently can be abated pending contest) unless affirmative determination allowing delay in abatement is made by OSHA

Substantially increase civil and criminal penalties for violations of the OSH Act

Expand criminal liability:
felony conviction of officers and directors and imprisonment for up to five (5) years (replacing 6 months for “employer”) for “knowing” (replacing “willful”) violation that contributes to serious bodily harm to an employee (currently the OSH Act specifies that only the “employer” may be held liable)
felony conviction of officers and directors and imprisonment for up to ten (10) years (replacing 6 months for “employer”) for “knowing” (replacing “willful”) violation that contributes to the death of an employee (currently the OSH Act specified that only the “employer” may be held liable)

Increase maximum civil penalties for violations:
for willful and repeat violations from $70,000/violation to $120,000/violation;
for willful and repeat violations that result in a fatality to $250,000/violation;
for serious violations from $7,000/violation to $12,000/violation;
for serious violations that result in a fatality to $50,000/violation;
for “other-than-serious” violations from $7,000/violation to $12,000/violation;
for failure to abate and failure to post violation, from $7,000/violation to $12,000/violation

Increase minimum civil penalties for violations:
for willful violations from $5,000/violation to $8,000/violation;
for willful or repeat violations that result in a fatality, to $50,000/violation.

Permit accrual of pre-final order interest on penalties beginning on the notice of contest date.

The House Education and Labor Committee will hold hearings on the bill on July 13, followed thereafter by Committee vote. It is projected that the bill could reach the floor of the House by the end of July.

PAWA is an extension of OSHA’s effort to increase enforcement, most recently illustrated by implementation of the Severe Violator Enforcement Program (SVEP), which became effective June 18, 2010. Announced in April 2010, the SVEP is designed to focus increased inspection and enforcement efforts on employers that continually disregard their legal obligations to protect their workers by willful, repeated, or failure-to-abate violations. The SVEP replaces OSHA’s Enhanced Enforcement Program.

Employers should pay close attention to the progress of the MSHA. The inclusion of PAWA will result in substantial revisions to the OSH Act that will seriously effect all employers, not just those interested in mine safety.

Steven K. Metcalf