Just two weeks ago, families of the 29 men who were killed on April 5, 2010 at Massey Energy's Upper Big Branch (UBB) mine traveled to Washington DC to urge lawmakers to improve our nation's mine safety law. The West Virginia natives met with Republican and Democratic Members of Congress and asked for four simple reforms targeted at the mining industry's bad actors. They weren't asking anything for themselves. Only for new laws to help deter unscrupulous employers from causing another disaster and causing other communities to suffer the same pain and loss the UBB families have endured.
The House Education and the Workforce Committee had a chance yesterday to merely demonstrate its interest in passing a law targeted at companies that value profits more than human life. There wasn't a bill pending debate, but simply an amendment offered to the Committee's third quarter activities report. It was offered by the ranking member of the Committee, Congressman George Miller (D-CA), and it read:
“Before the end of this Congress, the Committee will consider and report legislation to improve safety and whistleblower protections for miners, and increase accountability for dangerous mine operators.”
Mr. Miller noted in his opening statement his rationale for offering the amendment:
"The activities report fails to address these and other missed opportunities to fix real problems that are squarely within our committee’s responsibility. This committee has yet to live up to our promise to improve mine safety – a promise we made to the 29 families who lost a loved one at Upper Big Branch more than two years ago."
The California congressman spoke for 5 minutes [webcast here at 00:10:49] and explained:
"...There were many lives up-ended and tears shed at the time, and promises made to take all necessary actions to prevent a similar disaster from every happening again. Despite requests for legislative reforms from many sides, including the head of the Mine Safety and Health Administration (MSHA), the Majority has stated that we must wait until all of the investigations are completed. We waited patiently. Four investigative reports have now been completed and yet there has been no action. MSHA's internal review has been completed. NIOSH's review has been completed. And there has been no action. Miners and families affected by the Upper Big Branch tragedy have urged us to move forward with legislation, and yet there is no action. I share the frustration of those miners and their families."
"I believe if we work together we can find common ground to move forward legislatively. There is broad agreement that Massey was a bad actor. The kind of behavior laid out in the investigation report should be unacceptable to anyone, and clearly is not indicative of the behavior of most of the industry. ...There should only be a small number of mine operators recklessly putting production ahead of safety the way Massey did, and we should address those operators. This was a conscious decision made by the owners of the company. The UBB investigation point to areas where Congress needs to strengthen the mine safety laws. Congress needs to provide a meaningful deterrent against giving advance notice of inspections. Advance notice is nothing more than an obstruction of justice and yet the law treats it like a misdemeanor."
"Congress needs to strengthen the miner's job protections for speaking up on dangerous conditions. Congress needs to give MSHA the subpeona power for investigations and inspections, and provide sufficient authority to shut down mines in a timely manner when they are persistently endangering miners' lives. Congress needs to give inspectors tools to go up the chain of command to hold all of those responsible for putting miners in danger, and making operators who criminally endanger the lives of miners subject to felony prosecution."
"A few weeks ago, I was privileged to sit down with the Upper Big Branch families to discuss their concerns and the need for reform. I understand that a number of House and Senate members on both sides of the aisle had the same privilege of meeting with these families. Mr. Chairman, I want to thank you for taking the time to meet with these families when they came to Washington. These brave individuals choked back tears while they issued a plea to take action so that their loved ones did not die in vain. They came to Washington to stand up for miners who go underground every day. They urged us to work together to close the loopholes in our mine safety laws. I am eager to do precisely that. But despite the majority's public statements about all options remaining on the table, we are still waiting for the initial step. All that remains is action."
"Public statements are no longer enough. Further delay only allows miners' lives to be put at unnecessary risk. And when and if there is another tragedy, and I sincerely hope there will not be, all eyes will turn to this Committee and ask 'why didn't we act?' 'Why didn't we do everything in our power to protect those miners who go underground every day?'"
"I urge the members to adopt my amendment and commit ourselves to producing legislation that will provide miners the real protection and to hold bad mine operators accountable. The families of Upper Big Branch mine tragedy and all miners deserve Congress to live up to its promise."
The ranking Member of the Comittee's subcommittee on Workforce Protections, Congresswoman Lynn Woolsey (D-CA) spoke in favor of the Miller amendment [webcast here at 00:16:00]:
"Over two years ago, on May 24, 2010, this Committee traveled to Beckley WV where we received chilling testimony from families and miners about the unsafe working conditions in the Upper Big Branch mine, where 29 miners were killed in the worst coal mining disaster in the country in the past 40 years. Leo Long, a miner and grandfather of one of the 29 miners testified that day saying 'I'm asking for you all to please do something for the rest of the coal miners in the mines. I pray for it every night, every day. If you don't do something, something like this is going to happen again.' Well, Mr. Long isn't hear today, but I'm asking for him. Please, all of us, hear his plea."
"We've been told we should wait on legislation until all the investigation reports are in. Well since that hearing, there have been four investigation reports--MSHA, the State of West Virginia, the Governor's Independent Investigation Panel, and the United Mine Workers---and they all found that Massey violated widely recognized safety standards that actually caused the explosion."
"The deaths of the 29 miners in the massive explosion on April 5, 2010, were completely preventable if Massey had maintained its longwall mining equipment, complied with its roof control plan, shored up the mine roof and applied rock dust to prevent coal dust from propagating an explosion. But Massey obstructed MSHA inspectors, and they did this by providing advance notice of inspections which gave foremen time to cover up hazardous conditions before MSHA inspectors arrived underground to detect violations. They did it by keeping two sets of mine examination books and by intimidating miners by threatening their jobs if they tried to stop production to correct hazards. The West Virginia Governor's Independent Panel concluded that 'such total and catastrophic systemic failures can only be explained in the context of a culture in which wrongdoing became acceptable, where deviation became the norm.'"
"Members of this Committee, operators who behave recklessly need to be dealt with head on, and now. ... Several weeks ago, and Congressman Miller mentioned this, some of the families of the miners that were killed in the Upper Big Branch mine disaster came to Washington. I met with them, they met with the leaders of the Committee. When I met with them, they were urging us to adopt the same common sense reforms that we're asking for in the Miller amendment. I know that [Congressman] Mr. Kline and [Congressman] Mr. Walberg met with them. I can't believe that the two of you weren't taken by the fact that these individuals were not just in pain for their loss, they were totally frustrated that we have done nothing, so that we can protect miners in the future. I think that is as bad for them right now as the sadness of their feeling."
"I hope there is bi-partisan agreement that the blood spilled by these miners was not in vain, it cannot be in vain, and that we have to honor Mr. Long's plea. I ask that we vote yes on Mr. Miller's amendment. We have to get to work on meaningful mine safety reform."
Congressman Robert Andrews (D-NJ) also spoke in support of the Miller amendment [webcast here at 00:21:44] noting:
"Very often when I come to a committee hearing on a labor-management issue, it's pretty scripted frankly on both sides. Both sides retreat to their ideological positions and exchange views. ...I was pleasantly surprised on the hearing we had on mine safety because I thought it was one of the more factual, objective, non-partisan hearings I've seen in this Committee in a very, very long time. The majority and the minority both deserve credit for that. I really got the sense that day that the purpose of the hearing was to examine how the law could be made better to prevent a tragedy like this from ever happening again."
"I would urge the Majority to support the Miller amendment because I think it is very much in the spirit of the hearing we had that day. The Miller amendment is not about an ideological position---pro union, anti-union. It reflects the spirit of the hearing in recognizing three points that I thought I heard some consensus on. ...The first is if a worker in a mine reports a safety violation to try to save his or her life or his or her colleagues, they should be punished for it. There ought to be whistleblower protection that really works if you are trying to save your own life or that of your co-workers. The second thing I heard is that MSHA--the federal agency that is responsible for mine safety---should have the legal power through subpeona to compel information so they can get to the bottom where the facts and circumstances justify that. The third thing I heard is in cases where there is intentional and deliberate wrongdoing, where you tip off somebody working in the mine because the inspectors are coming to alter things, or you deliberately destroy documents, or tamper with witnesses or the evidence, there should be very serious penalties attached to that."
"...I'll just close with this point, I know this is true in my district, I'm almost sure this is true in everybody's district. The number one thing I hear about when I travel and meet with my constituents and listen to them, is why can't the two sides work together more often? Why is everything a Republican vs. Democratic fight? Why can't you ladies and gentleman find some things that you agree and do them? Here's an opportunity. I believe we do agree on. We should do it, and support the Miller amendment. More importantly, report a bill out of this Committee the President can sign."
Congressman Ruben Hinojosa (D-TX) also spoke in support of the Miller amendment, as did Congressman Rush Holt (D-NJ), a Member with roots in West Virginia. Holt spoke eloquently in support of the need for changes in the mine safety laws, [webcast here at 00:30:48] including:
"To leave it to the industry who say that federal intervention is just intrusive is really a slap, worse than a slap, worse than an insult, it is a deadly threat to the workers."
The Chairman of the Committee, Congressman John Kline (R-MN), reacted this way to the discussion [webcast here at 00:26:11]:
"The visit of the families that subcommittee chair Walberg and I had a chance, to meet with those families cannot fail but to tug at your heart. It was a horrible tragedy, terrible deaths, and certainly we would all understand that family members want Congress to wave a wand to keep this from happening again."
"I'll just point out several things. I think that discussions will go forward and I hope in a bi-partisan way about possible legislation. I, of course, cannot support the Miller amendment which would bind the chair to, what's the quote here, 'to consider and report legislation.' I can't imagine any Chairman, including my predecessor here [looking at Congressman Miller] agreeing to such binding language, but I do believe that discussions will go forward."
"I just want to point out in the meantime, it is not that the Committee has done nothing. We have had hearings, as the gentleman from New Jersey just mentioned. We have sent oversight letters, we have been looking into MSHA. There's no question that Massey Energy was a bad actor. It's clearly defined. But it's also clear to both sides that there were mistakes and shortcomings by MSHA itself and we've had a chance to look at that. We are looking forward to the Department of Labor's Office of Inspector General who is supposed to complete an audit of MSHA's Office of Accountability."
"As I told the families, we don't want to pass legislation just so we can say, 'we passed legislation.' It ought to be legislation that we can agree to, and will address some of the issues that my colleagues have brought up today, and I suspect that we'll have a chance to continue these discussions. With that I would urge a 'no' vote."
Congresswoman Woolsey was not going to give up that easily. She asked the Chairman if there was some way to address his concern about "binding" language.
"We have to say something to these families about whistleblowers, about site inspections about two sets of records, we have to promise them that we're going to take the next step beyond talk, so far, we've talked. There've been the reports, we've talked, we've listened. They have to know we'll do something. How can Mr. Miller work with you and come up with something we're going to do for them?"
Congressman Miller conceded:
"I understand why you will not accept this amendment. But I would hope that this amendment could be a spring board to us taking action on what remains of this session. What we are really talking about here are a limited number of activities [for proposed legislation] that all of us, whoever went to law school, call obstruction of justice. The question of whether or not that is going to be condoned."
"...Mind you, this was a horrible company. It is not reflective of the other companies, but it is reflective of a few of the other companies that continue to do business in this way. The citations continue to be issued, but the miners don't get any safer unless they're completely shut down. Fortunately, the Administration is starting to do that with that handful of people, but that's not the answer. The answer is to have these measures be the subject of pretty severe penalties which are called felonies. Today you can repeatedly violate the law and knowingly do so to obstruct justice and its a misdemeanor."
"I would just hope Mr. Chairman that we would recognize how narrow this is. Everybody suggested they are against these activities, but these activities continue. We'll all lament the next accident that takes the lives of these miners, and we'll have another review and we'll find these practices again. This is narrowly cast to what people in the industry, our colleagues in coal companies refer to, the State refers to, the enforcement agency refers to as bad actors. This is not representative of the industry. The industry won't stop these practices, it's time for the Congress to do so."
At this point [webcast here at 00:35:50] the Chairman called for a vote. "All those in favor say 'aye.'" I heard a handful of voices. "All those opposed say 'no.'" I heard one voice and then the Chairman's. "In the opinion of the Chair, the 'nos' have it." Huh? I definitely heard more 'ayes' than 'nos.'
One of the Democrats called for a roll-call vote which required the Members to appear in the hearing room to cast their vote [webcast here at 01:10:46] The Miller amendment, which simply stated:
"Before the end of this Congress, the Committee will consider and report legislation to improve safety and whistleblower protections for miners, and increase accountability for dangerous mine operators”
was defeated by a party-line vote (16-22). Twenty-two Republicans on the Committee opposed it. Sixteen Democrats on the Committee supported it.