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Statement of Chairman Tom Harkin (D-IA) at the HELP Committee Hearing ‘Putting Safety First: Strengthening Enforcement and Creating a Culture of Compliance at Mines and Other Dangerous Workplaces’

As Prepared for Delivery

"The topic of today’s hearing couldn’t be more timely, or more important.  In the wake of the West Virginia coal mining disaster that killed 29 miners; the refinery explosion in Anacortes, Washington where seven workers died; the disaster that killed six people at a Connecticut natural gas power plant; and just last week a blast on a Louisiana oil rig off the Gulf of Mexico that most likely killed 11 workers, it is time to focus renewed attention on the safety of American workers.  This string of recent worker deaths and injuries is a grim reminder that too many employers cut corners on safety, and too many workers pay the price with their lives.

"As the son of a coal miner, I feel these losses very deeply, on a very personal level.  My thoughts and prayers are with the families and coworkers of those killed, injured or missing because of these awful tragedies.  While there is very little comfort we can offer during this difficult time, we can promise that their loved ones have not died in vain.  We will learn from these tragedies so that no one has to go to work in the fear that they will not go home at the end of their shift.

"Certainly, the history of the American workplace suggests that when we focus our efforts, we have the ability to make great strides to improve safety and health.  Since passage of the Coal Mine Health and Safety Act and Occupational Safety and Health Act four decades ago, countless lives have been saved and the number of workplace accidents has been dramatically reduced. 

"Yet we still have a long way to go.  Every year, tens of thousands of American workers are killed or permanently disabled by workplace injuries and occupational disease.  In 2008, the latest available data, 5,214 workers were killed by traumatic injuries and an estimated 50,000-60,000 died from occupational diseases.  Too many workers remain in harm’s way, and it is long past time to strengthen the critical laws that keep Americans safe on the job. 

"One area in our health and safety laws that needs particular attention is enforcement.  While the vast majority of employers are responsible, and do all they can to protect their workers, there is, unfortunately, a population of employers that prioritize profits over safety, and knowingly and repeatedly violate the law.  The deadly blast at the Upper Big Branch coal mine earlier this month was a tragic example of the dangers of this approach.   

"This facility had a record of numerous and serious safety violations, including 515 violations last year alone; that’s 76 percent more than the national average.  So far this year, it has already accumulated 124 additional violations.  Even more troubling, 48 of these accrued citations were repeated “significant and substantial” violations of safety standards that the mine operator knew or at least, should have known, presented a serious threat to worker safety. 

"The problem of repeat offenders is certainly not limited to the world of mining.  Flagrant abuse of the law is common in many of our most dangerous industries.  Unfortunately the penalties for breaking the law are often so minimal that employers can dismiss them as a minor cost of doing business.  Currently, serious violations – where there is a “substantial probability of death or serious physical harm” – are subject to a maximum civil penalty of $7,000.  That’s $18,000 less than the maximum fine for a Class I civil environmental violation under the Clean Air Act.  Criminal penalties are also weak.  If a worker dies because of the willful act of his or her employer, that employer faces a maximum conviction for a misdemeanor and up to six months in jail.  In contrast, that same employer willfully violating the Clean Water Act could be fined up to $250,000 and spend up to 15 years in prison. 

"Just as we’ve done in the context of environmental protection, we have to change the incentives facing employers in the area of workplace safety, so that no rational employer can make an economic judgment that safety is not worth their attention. 
"In addition to putting real teeth in our safety and health laws, we have to make sure that our federal agencies have the enforcement tools they need to identify mines and non-mine workplaces with the worst safety records in the country and hold these repeat offenders accountable.  We have provisions in our laws that are supposed to target repeat offenders, but these special rules are often rendered ineffective – either weakened through mistaken interpretation, or undermined by employers who will go to great lengths to game the system.

"There is no question that a mine like Upper Big Branch should have been receiving special scrutiny under the “pattern of violation” provisions of our mine safety laws.  This is an operator that – even in the wake of the worst mining disaster in recent history – continues to use such unsafe practices that just today MSHA ordered the withdrawal of miners from three different Massey mines due to hazardous conditions. 

"But as bad as UBB’s record was, the law has been interpreted to allow them to continue operating without “pattern of violation” treatment as long as they can reduce their violations by more than 1/3 in response to a written warning. 
With a record as spotty as UBB’s, a partial reduction in their numerous citations is hardly a sign of a safe mine, and should not be a “get out of jail free” card to escape the intent of the law.

"But it’s not just historically weak interpretations of the law that are to blame.  Employers also find creative ways to ensure that the system cannot work as Congress intended.  In the mining industry, for example, some chronic violators have avoided being placed on “pattern of violation” status and avoided paying legitimate penalties by contesting nearly every citation that is assessed against them.  Because MSHA uses only final orders to establish a pattern of violations and the average contested citation takes over a year to adjudicate due to a 16,000 case backlog at the Federal Mine Safety and Health Review Commission, repeat offenders are able to evade pattern of violations status by contesting large numbers of violations.  At the Upper Big Branch coal mine, for example, Massey contested 97 percent of its “significant and substantial” violations in 2007. 

"A similar problem is seen in non-mine workplaces.  While the backlog of cases is not nearly as great at the Occupational Safety and Health Review Commission, under OSHA’s weaker law, employers don’t even have to fix a known hazard until the entire review process is completed, sometimes years later.  I hope my colleagues on both sides of the aisle will agree – that’s simply unacceptable, and it must change.

"We are sitting here today on the eve of Worker’s Memorial Day -- a day that is set aside to remember the thousands of brave men and women who die on the job in our country each year.  The best way we can honor their memory is to renew our efforts to protect workers’ lives and improve safety and health in our country’s coal mines and other dangerous workplaces.
In honor of those who have fallen on the job, I’d like to take a moment to read a tribute from Reverend Ian Lawton to workers who lost their lives on the job:

“We remember those we have lost with great fondness.  They gave much to the world; as individuals, family members, friends and work colleagues.  We remember their families in their enormous sadness.  For those who have died at work building a better place for the rest of us; [t]hose who died while constructing our buildings and expressways, hospitals and schools; [f]or those who have died young and innocent, victims of avoidable accidents; [m]ay we learn from this loss, honor the memory of those lost [a]nd work towards a safer work place for all people [w]here the rights and dignity of all workers are upheld above all else.”

"While health and safety standards in American workplaces have significantly improved in recent decades, Reverend Lawton’s words still ring true as we mourn our recent losses in Connecticut, Washington state, West Virginia and Louisiana.  We still have a long way to go to ensure that our sons and daughters, moms and dads, brothers and sisters all come home safe from a hard day’s work, and we should not rest until these tragedies are a chapter in the history books, and we no longer have any need to observe a day of mourning for American workers killed on the job."