H.R. 5663 (111th): Robert C. Byrd Miner Safety and Health Act of 2010

111th Congress, 2009–2010. Text as of Jul 29, 2010 (Reported by House Committee).

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IB

Union Calendar No. 334

111th CONGRESS

2d Session

H. R. 5663

[Report No. 111–579, Part I]

IN THE HOUSE OF REPRESENTATIVES

July 1, 2010

(for himself, Ms. Woolsey, Mr. Rahall, Mr. Courtney, Mr. Mollohan, Ms. Hirono, Mr. Sestak, Mr. Andrews, Mr. Hare, Ms. Shea-Porter, Mr. Grijalva, Mr. Bishop of New York, Ms. Sutton, Ms. Clarke, Mr. Shuler, Mr. Pierluisi, Mr. Kildee, and Mr. Holt) introduced the following bill; which was referred to the Committee on Education and Labor

July 29, 2010

Additional sponsors: Mr. Kucinich, Ms. Chu, Mr. Costello, Mr. Baca, Mr. Schiff, Ms. Slaughter, Mr. Michaud, Mr. Tierney, Mr. Arcuri, Mr. Towns, Ms. Velázquez, Mr. Brady of Pennsylvania, Mr. Polis of Colorado, Ms. Zoe Lofgren of California, Mr. Hinchey, Ms. Pingree of Maine, Mr. Space, Mr. Filner, Mr. Tonko, Mr. Stark, Ms. Linda T. Sánchez of California, Mr. Kagen, Ms. Loretta Sanchez of California, Mr. Nadler of New York, Mr. Blumenauer, Mr. Honda, Mr. Chandler, Mrs. Maloney, Mr. Gene Green of Texas, Ms. Berkley, Mr. Larsen of Washington, Ms. McCollum, Mr. Jackson of Illinois, Ms. Harman, Mr. Sherman, Mr. Visclosky, Mr. Langevin, and Mr. Patrick J. Murphy of Pennsylvania


July 29, 2010

Reported with an amendment, referred to the Committee on the Judiciary for a period ending not later than July 29, 2010, for consideration of such provisions of the bill and amendment as fall within the jurisdiction of that committee pursuant to clause 1(k), rule X

Strike out all after the enacting clause and insert the part printed in italic

July 29, 2010

Committee on the Judiciary discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed

For text of introduced bill, see copy of bill as introduced on July 1, 2010

A BILL

To improve compliance with mine and occupational safety and health laws, empower workers to raise safety concerns, prevent future mine and other workplace tragedies, establish rights of families of victims of workplace accidents, and for other purposes.


1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Robert C. Byrd Miner Safety and Health Act of 2010.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. References.

Title I—Additional inspection and investigation authority

Sec. 101. Independent accident investigations.

Sec. 102. Subpoena authority and miner rights during inspections and investigations.

Sec. 103. Designation of miner representative.

Sec. 104. Additional amendments relating to inspections and investigations.

Title II—Enhanced enforcement authority

Sec. 201. Technical amendment.

Sec. 202. A pattern of recurring noncompliance or accidents.

Sec. 203. Injunctive authority.

Sec. 204. Revocation of approval of plans.

Sec. 205. Challenging a decision to approve, modify, or revoke a coal or other mine plan.

Sec. 206. GAO Study on MSHA Mine Plan Approval.

Title III—Penalties

Sec. 301. Civil penalties.

Sec. 302. Civil and criminal liability of officers, directors, and agents.

Sec. 303. Criminal penalties.

Sec. 304. Commission review of penalty assessments.

Sec. 305. Delinquent payments and prejudgment interest.

Title IV—Worker Rights and Protections

Sec. 401. Protection from retaliation.

Sec. 402. Protection from loss of pay.

Sec. 403. Underground coal miner employment standard for mines placed in pattern status.

Title V—Modernizing health and safety standards

Sec. 501. Pre-shift review of mine conditions.

Sec. 502. Rock dust standards.

Sec. 503. Atmospheric monitoring systems.

Sec. 504. Technology related to respirable dust.

Sec. 505. Refresher training on miner rights and responsibilities.

Sec. 506. Authority to mandate additional training.

Sec. 507. Certification of personnel.

Title VI—Additional mine safety provisions

Sec. 601. Definitions.

Sec. 602. Assistance to States.

Sec. 603. Black lung medical reports.

Sec. 604. Rules of application to certain mines.

Title VII—Amendments to the Occupational Safety and Health Act

Sec. 701. Enhanced protections from retaliation.

Sec. 702. Victims’ rights.

Sec. 703. Correction of serious, willful, or repeated violations pending contest and procedures for a stay.

Sec. 704. Conforming amendments.

Sec. 705. Civil penalties.

Sec. 706. Criminal penalties.

Sec. 707. Pre-final order interest.

Sec. 708. Review of State Occupational Safety and Health Plans.

Sec. 709. Health Hazard Evaluations by the National Institute for Occupational Safety and Health.

Sec. 710. Authorization of cooperative agreements by NIOSH Office of Mine Safety and Health.

Sec. 711. Effective date.

2.

References

Except in title VII and as otherwise expressly provided, whenever in this Act an amendment is expressed as an amendment to a section or other provision, the reference shall be considered to be made to a section or other provision of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.).

I

Additional inspection and investigation authority

101.

Independent accident investigations

(a)

In general

Section 103(b) (30 U.S.C. 813(b)) is amended by striking (b) For the purpose and inserting the following:

(b)

Accident investigations

(1)

In general

For all accident investigations under this Act, the Secretary shall—

(A)

determine why the accident occurred;

(B)

determine whether there were violations of law, mandatory health and safety standards, or other requirements, and if such violations are found, issue citations and penalties, and in cases involving possible criminal actions, the Secretary may refer such matters to the Attorney General; and

(C)

make recommendations to avoid any recurrence.

(2)

Independent accident investigations

(A)

In general

There shall be, in addition to an accident investigation under paragraph (1), an independent investigation by an independent investigation panel (referred to in this subsection as the Panel) appointed under subparagraph (B) for—

(i)

any accident involving 3 or more deaths; or

(ii)

any accident that is of such severity or scale for potential or actual harm that, in the opinion of the Secretary of Health and Human Services, the accident merits an independent investigation.

(B)

Appointment

(i)

In general

As soon as practicable after an accident described in subparagraph (A), the Secretary of Health and Human Services shall appoint 5 members for the Panel required under this paragraph from among individuals who have expertise in accident investigations, mine engineering, or mine safety and health that is relevant to the particular investigation.

(ii)

Chairperson

The Panel shall include, and be chaired by, a representative from the Office of Mine Safety and Health Research, of the National Institute for Occupational Safety and Health (referred to in this subsection as NIOSH).

(iii)

Conflicts of interest

Panel members, and staff and consultants assisting the Panel with an investigation, shall be free from conflicts of interest with regard to the investigation, and be subject to the same standards of ethical conduct for persons employed by the Secretary.

(iv)

Composition

The Secretary of Health and Human Services shall appoint as members of the Panel—

(I)

1 operator of a mine or individual representing mine operators, and

(II)

1 representative of a labor organization that represents miners,

and may not appoint more than 1 of either such individuals as members of the Panel.
(v)

Staff and expenses

The Director of NIOSH shall designate NIOSH staff to facilitate the work of the Panel. The Director may accept as staff personnel on detail from other Federal agencies or re-employ annuitants. The detail of personnel under this paragraph may be on a non-reimbursable basis, and such detail shall be without interruption or loss of civil service status or privilege. The Director of NIOSH shall have the authority to procure on behalf of the Panel such materials, supplies or services, including technical experts, as requested in writing by a majority of the Panel.

(vi)

Compensation and travel

All members of the Panel who are officers or employees of the United States shall serve without compensation in addition to that received for their services as officers or employees of the United States. Each Panel member who is not an officer or employee of the United States shall be compensated at a rate equal to the daily equivalent of the annual rate of basic pay prescribed for level IV of the Executive Schedule under section 5315 of title 5, United States Code, for each day (including travel time) during which such member is engaged in the performance of duties of the Panel. The members of the Panel shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter 1 of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of services for the Panel.

(C)

Duties

The Panel shall—

(i)

assess and identify any factors that caused the accident, including deficiencies in safety management systems, regulations, enforcement, industry practices or guidelines, or organizational failures;

(ii)

identify and evaluate any contributing actions or inactions of—

(I)

the operator;

(II)

any contractors or other persons engaged in mining-related functions at the site;

(III)

any State agency with oversight responsibilities;

(IV)

any agency or office within the Department of Labor; or

(V)

any other person or entity (including equipment manufacturers);

(iii)

review the determinations and recommendations by the Secretary under paragraph (1);

(iv)

prepare a report that—

(I)

includes the findings regarding the causal factors described in clauses (i) and (ii);

(II)

identifies any strengths and weaknesses in the Secretary’s investigation; and

(III)

includes recommendations, including interim recommendations where appropriate, to industry, labor organizations, State and Federal agencies, or Congress, regarding policy, regulatory, enforcement, administrative, or other changes, which in the judgment of the Panel, would prevent a recurrence at other mines; and

(v)

publish such findings and recommendations (excluding any portions which the Attorney General requests that the Secretary withhold in relation to a criminal referral) and hold public meetings to inform the mining community and families of affected miners of the Panel's findings and recommendations.

(D)

Hearings; applicability of certain Federal law

The Panel shall have the authority to conduct public hearings or meetings, but shall not be subject to the Federal Advisory Committee Act. All public hearings of the Panel shall be subject to the requirements under section 552b of title 5, United States Code.

(E)

Memorandum of Understanding

Not later than 90 days after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary of Labor and the Secretary of Health and Human Services shall conclude and publically issue a memorandum of understanding that—

(i)

outlines administrative arrangements which will facilitate a coordination of efforts between the Secretary of Labor and the Panel, ensures that the Secretary's investigation under paragraph (1) is not delayed or otherwise compromised by the activities of the Panel, and establishes a process to resolve any conflicts between such investigations;

(ii)

ensures that Panel members or staff will be able to participate in investigation activities (such as mine inspections and interviews) related to the Secretary of Labor’s investigation and will have full access to documents that are assembled or produced in such investigation, and ensures that the Secretary of Labor will make all of the authority available to such Secretary under this section, including subpoena authority, to obtain information and witnesses which may be requested by such Panel; and

(iii)

establishes such other arrangements as are necessary to implement this paragraph.

(F)

Procedures

Not later than 90 days after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary of Health and Human Services shall establish procedures to ensure the consistency and effectiveness of Panel investigations. In establishing such procedures, such Secretary shall consult with independent safety investigation agencies, sectors of the mining industry, representatives of miners, families of miners involved in fatal accidents, State mine safety agencies, and mine rescue organizations. Such procedures shall include—

(i)

authority for the Panel to use evidence, samples, interviews, data, analyses, findings, or other information gathered by the Secretary of Labor, as the Panel determines valid;

(ii)

provisions to ensure confidentiality if requested by any witness, to the extent permitted by law, and prevent conflicts of interest in witness representation; and

(iii)

provisions for preservation of public access to the Panel’s records through the Secretary of Health and Human Services.

(G)

Authorization of appropriations

There is authorized to be appropriated to carry out this subsection such sums as may be necessary.

(3)

Powers and processes

For the purpose

.

(b)

Reporting requirements

Section 511(a) (30 U.S.C. 958(a)) is amended by inserting after 501, the following: the status of implementation of recommendations from each independent investigation panel under section 103(b) received in the preceding 5 years.

102.

Subpoena authority and miner rights during inspections and investigations

Section 103(b) (as amended by section 101) (30 U.S.C. 813(b)) is further amended by adding at the end the following:

(4)

Additional powers

For purposes of making inspections and investigations, the Secretary or the Secretary’s designee, may sign and issue subpoenas for the attendance and testimony of witnesses and the production of information, including all relevant data, papers, books, documents, and items of physical evidence, and administer oaths. Witnesses summoned shall be paid the same fees that are paid witnesses in the courts of the United States. In carrying out inspections and investigations under this subsection, authorized representatives of the Secretary and attorneys representing the Secretary are authorized to question any individual privately. Under this section, any individual who is willing to speak with or provide a statement to such authorized representatives or attorneys representing the Secretary may do so without the presence, involvement, or knowledge of the operator or the operator’s agents or attorneys. The Secretary shall keep the identity of an individual providing such a statement confidential to the extent permitted by law. Nothing in this paragraph prevents any individual from being represented by that individual’s personal attorney.

.

103.

Designation of miner representative

Section 103(f) (30 U.S.C. 813(f)) is amended by inserting before the last sentence the following: If any miner is entrapped or otherwise prevented as the result of an accident in such mine from designating such a representative directly, such miner’s closest relative may act on behalf of such miner in designating such a representative. If any miner is not currently working in such mine as the result of an accident in such mine, but would be currently working in such mine but for such accident, such miner may designate such a representative. A representative of miners shall have the right to participate in any accident investigation the Secretary initiates pursuant to subsection (b), including the right to participate in investigative interviews and to review all relevant papers, books, documents and records produced in connection with the accident investigation, unless the Secretary in consultation with the Attorney General excludes such representatives from the investigation on the grounds that inclusion would interfere with or adversely impact a criminal investigation that is pending or under consideration..

104.

Additional amendments relating to inspections and investigations

(a)

Hours of inspections

Section 103(a) (30 U.S.C. 813(a)) is amended by inserting after the third sentence the following: Such inspections shall be conducted during the various shifts and days of the week during which miners are normally present in the mine to ensure that the protections of this Act are afforded to all miners working all shifts..

(b)

Review of mine pattern status

Section 103(a) is further amended by inserting before the last sentence the following: The Secretary shall, upon request by an operator, review with the appropriate mine officials the Secretary’s most recent evaluation for pattern status (as provided in section 104(e)) for that mine during the course of a mine’s regular quarterly inspection of an underground mine or a biannual inspection of a surface mine, or, at the discretion of the Secretary, during the pre-inspection conference..

(c)

Injury and illness reporting

Section 103(d) (30 U.S.C. 813(d)) is amended by striking the last sentence and inserting the following: The records to be kept and made available by the operator of the mine shall include man-hours worked and occupational injuries and illnesses with respect to the miners in their employ or under their direction or authority, and shall be maintained separately for each mine and be reported at a frequency determined by the Secretary, but at least annually. Independent contractors (within the meaning of section 3(d)) shall be responsible for reporting accidents, occupational injuries and illnesses, and man-hours worked for each mine with respect to the miners in their employ or under their direction or authority, and shall be reported at a frequency determined by the Secretary, but not less than annually. Reports or records of operators and contractors required and submitted to the Secretary under this subsection shall be signed and certified as accurate and complete by a knowledgeable and responsible person possessing a certification, registration, qualification, or other approval, as provided for under section 118. Knowingly falsifying such records or reports shall be grounds for revoking such certification, registration, qualification, or other approval under the standards established under subsection (b)(1) of such section..

(d)

Orders following an accident

Section 103(k) (30 U.S.C. 813(k)) is amended by striking , when present,.

(e)

Conflict of interest in the representation of miners

Section 103(a) (30 U.S.C. 813(a)) is amended by adding at the end the following: During inspections and investigations under this section, and during any litigation under this Act, no attorney shall represent or purport to represent both the operator of a coal or other mine and any other individual, unless such individual has knowingly and voluntarily waived all actual and reasonably foreseeable conflicts of interest resulting from such representation. The Secretary is authorized to take such actions as the Secretary considers appropriate to ascertain whether such individual has knowingly and voluntarily waived all such conflicts of interest. If the Secretary finds that such an individual cannot be represented adequately by such an attorney due to such conflicts of interest, the Secretary may petition the appropriate United States District Court which shall have jurisdiction to disqualify such attorney as counsel to such individual in the matter. The Secretary may make such a motion as part of an ongoing related civil action or as a miscellaneous action..

II

Enhanced enforcement authority

201.

Technical amendment

Section 104(d)(1) (30 U.S.C. 814(d)(1)) is amended—

(1)

in the first sentence—

(A)

by striking any mandatory health or safety standard and inserting any provision of this Act, including any mandatory health or safety standard or regulation promulgated under this Act; and

(B)

by striking such mandatory health or safety standards and inserting such provisions, regulations, or mandatory health or safety standards; and

(2)

in the second sentence, by striking any mandatory health or safety standard and inserting any provision of this Act, including any mandatory health or safety standard or regulation promulgated under this Act,.

202.

A pattern of recurring noncompliance or accidents

Section 104(e) (30 U.S.C. 814(e)) is amended to read as follows:

(e)

Pattern of recurring noncompliance or accidents

(1)

Pattern status

(A)

In general

For purposes of this subsection, a coal or other mine shall be placed in pattern status if such mine has, as determined based on the regulations promulgated under paragraph (8)—

(i)

a pattern of—

(I)

citations for significant and substantial violations;

(II)

citations and withdrawal orders issued for unwarrantable failure to comply with mandatory health and safety standards under section 104(d);

(III)

citations for flagrant violations within the meaning of section 110(b);

(IV)

withdrawal orders issued under any other section of this Act (other than orders issued under subsections (j) or (k) of section 103); and

(V)

accidents and injuries; or

(ii)

a pattern consisting of any combination of citations, orders, accidents, or injuries described in subclauses (I) through (V).

(B)

Mitigating circumstances

Notwithstanding subparagraph (A), if the Secretary, after conducting an assessment of a coal or other mine that otherwise qualifies for pattern status, certifies that there are mitigating circumstances wherein the operator has already implemented remedial measures that have reduced risks to the health and safety of miners to the point that such risks are no longer elevated and has taken sufficient measures to ensure such elevated risk will not recur, the Secretary may deem such mine to not be in pattern status under this subsection. The Secretary shall issue any such certification of such mitigating circumstances that would preclude the placement of a mine in pattern status as a written finding, which shall, not later than 10 days after the certification is made, be—

(i)

made available on the public website of the Mine Safety and Health Administration; and

(ii)

transmitted to the Committee on Education and Labor of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate.

(C)

Frequency

Not less frequently than every 6 months, the Secretary shall identify any mines which meet the criteria set forth in paragraph (8).

(2)

Actions following placement of mine in pattern status

For any coal or other mine that is in pattern status, the Secretary shall—

(A)

notify the operator of such mine that the mine is being placed in pattern status;

(B)

issue an order requiring such operator to cause all persons to be withdrawn from such mine, except those persons referred to in subsection (c) or authorized by an order of the Secretary issued under this subsection;

(C)

issue a remediation order described in paragraph (3) to such operator within 3 days; and

(D)

require that the number of regular inspections of such mine required under section 103 be increased to 8 per year while the mine is in pattern status.

Notice advising operators that they face potential placement in pattern status shall not be a requirement for issuing a withdrawal order to operators under this subsection.
(3)

Remediation order

(A)

In general

A remediation order issued to an operator under paragraph (2)(C) may require the operator to carry out one or more of the following requirements, pursuant to a timetable for commencing and completing such actions or as a condition of miners reentering the mine:

(i)

Provide specified training, including training not otherwise required under this Act.

(ii)

Institute and implement an effective health and safety management program approved by the Secretary, including—

(I)

the employment of safety professionals, certified persons, and adequate numbers of personnel for the mine, as may be required by the Secretary;

(II)

specific inspection, recordkeeping, reporting and other requirements for the mine as the Secretary may establish; and

(III)

other requirements to ensure compliance and to protect the health and safety of miners or prevent accidents or injuries as the Secretary may determine are necessary.

(iii)

Facilitate any effort by the Secretary to communicate directly with miners employed at the mine outside the presence of the mine operators or its agents, for the purpose of obtaining information about mine conditions, health and safety practices, or advising miners of their rights under this Act.

(B)

Modification of and failure to comply with remediation order

The Secretary may modify the remediation order, as necessary, to protect the health and safety of miners. If the mine operator fails to fully comply with the remediation order during the time a mine is in pattern status, the Secretary shall reinstate the withdrawal order under paragraph (2)(B).

(C)

Extension of deadlines

An extension of a deadline under the remediation order may be granted on a temporary basis and only upon a showing that the operator took all feasible measures to comply with the order and only to the extent that the operator's failure to comply is beyond the control of the operator.

(4)

Conditions for lifting a withdrawal order

A withdrawal order issued under paragraph (2)(B) shall not be lifted until the Secretary verifies that—

(A)

any and all violations or other conditions in the mine identified in the remediation order have been or are being fully abated or corrected as outlined in the remediation order; and

(B)

the operator has completed any other actions under the remediation order that are required for reopening the mine.

(5)

Performance evaluation

(A)

Performance benchmarks

The Secretary shall evaluate the performance of each mine in pattern status every 90 days during which the mine is producing and determine if, for such 90-day period—

(i)

the rate of citations at such mine for significant and substantial violations—

(I)

is in the top performing 35th percentile of such rates, respectively, for all mines of similar size and type; or

(II)

has been reduced by 70 percent from the date on which such mine was placed in pattern status, provided that the rate of such violations is not greater than the mean for all mines of similar size and type;

(ii)

the accident and injury rates at such mine are in the top performing 35th percentile of such rates, respectively, for all mines of similar size and type; and

(iii)

no citations or withdrawal orders for a violation under section 104(d), no withdrawal orders for imminent danger under section 107 (issued in connection with a citation), and no flagrant violations within the meaning of section 110(b), were issued for such mine.

(B)

Reissuance of withdrawal orders

If an operator being evaluated fails to achieve the performance benchmarks described in subparagraph (A), the Secretary may reissue a withdrawal order under paragraph (2)(B) to remedy any recurring conditions that led to pattern status under this subsection, and may modify the remediation order, as necessary, to protect the health and safety of miners.

(6)

Termination of pattern status

(A)

Performance benchmarks

The Secretary shall remove a coal or other mine from pattern status if, for a 1-year period during which the mine is producing—

(i)

the rate of citations at such mine for significant and substantial violations—

(I)

is in the top performing 25th percentile of such rates, respectively, for all mines of similar size and type; or

(II)

has been reduced by 80 percent from the date on which such mine was placed in pattern status, provided that the rate of such violations is not greater than the mean for all mines of similar size and type;

(ii)

the accident and injury rates at such mine are in the top performing 25th percentile of such rates, respectively, for all mines of similar size and type; and

(iii)

no citations or withdrawal orders for violations under section 104(d), no withdrawal orders for imminent danger under section 107 (issued in connection with a citation), and no flagrant violations within the meaning of section 110(b), were issued for such mine.

(B)

Continuation of pattern status

Should the mine operator fail to meet the performance benchmarks described in subparagraph (A), the Secretary shall extend the mine’s placement in pattern status until such benchmarks are achieved.

(C)

Construction

A withdrawal order issued as the result of a condition that was entirely beyond the operator’s ability to prevent or control shall not preclude the operator from being removed from pattern status, provided the operator did not cause or allow miners to be exposed to the condition in violation of any provision of this Act or a mandatory health or safety standard or regulation promulgated under this Act.

(7)

Expedited review

If any order under this subsection is contested, the review of such order shall be conducted on an expedited basis, in accordance with section 105(d).

(8)

Regulations

(A)

In general

Not later than 120 days after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall issue interim final regulations that shall define—

(i)

the threshold benchmarks to trigger pattern status under paragraph (1) and cause a withdrawal order to be issued or reissued; and

(ii)

the performance benchmarks described in paragraphs (5)(A) and (6)(A).

(B)

Threshold benchmarks

In establishing threshold benchmarks to trigger pattern status for mines with significantly poor compliance that contributes to unsafe or unhealthy conditions, the Secretary—

(i)

shall—

(I)

consider rates of citations and orders described in paragraph (1)(A) and rates of reportable accidents and injuries within the preceding 180-day period; and

(II)

assign appropriate weight to various types of citations, orders, accidents, injuries, or other factors; and

(ii)

may include—

(I)

factors such as mine type, production levels, number of miners, hours worked by miners, number of mechanized mining units (or similar production characteristics), and the presence of a representative of miners at the mine for purposes of collective bargaining;

(II)

the mine’s history of citations, violations, orders, and other enforcement actions, or rates of reportable accidents and injuries, over any period determined relevant by the Secretary; and

(III)

other factors the Secretary may determine appropriate to protect the safety and health of miners.

(C)

Final regulation

Not later than 2 years after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall promulgate a final regulation implementing this paragraph.

(9)

Public database and information

The Secretary shall establish and maintain a publically available electronic database containing the data used to determine pattern status for all coal or other mines which shall be updated as frequently as practicable. Such database shall be searchable and have the capacity to provide comparative data about the health and safety at mines of similar sizes and types. The Secretary shall also make publicly available—

(A)

a list of all mines the Secretary places in pattern status, updated within 7 days of placing an additional mine in pattern status;

(B)

the metrics, including percentile information, used for the purposes of the performance benchmarks and threshold benchmarks described in paragraphs (5), (6), and (8); and

(C)

guidance for the use of such metrics and benchmarks to assist operators in determining the performance their mines under criteria established by the Secretary.

(10)

Operator fees for additional inspections

(A)

Assessment and collection

Beginning 120 days after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall assess and collect fees, in accordance with this paragraph, from each coal or other mine in pattern status for the costs of additional inspections under this subsection. The Secretary shall issue, by rule, a schedule of fees to be assessed against coal or other mines of varying types and sizes, and shall collect and assess amounts under this paragraph based on the schedule.

(B)

Use

Amounts collected as provided in subparagraph (A) shall only be available to the Secretary for making expenditures to carry out the additional inspections required under paragraph (2)(D).

(C)

Authorization of appropriations

In addition to any other amounts authorized to be appropriated under this Act, there is authorized to be appropriated to the Assistant Secretary for Mine Safety and Health for each fiscal year in which fees are collected under subparagraph (A) an amount equal to the total amount of fees collected under such subparagraph during that fiscal year. Such amounts are authorized to remain available until expended. If on the first day of a fiscal year a regular appropriation to the Commission has not been enacted, the Commission shall continue to collect fees (as offsetting collections) under this subsection at the rate in effect during the preceding fiscal year, until 5 days after the date such regular appropriation is enacted.

(D)

Collection and Crediting of Fees

Fees authorized and collected under this paragraph shall be deposited and credited as offsetting collections to the account providing appropriations to the Mine Safety and Health Administration and shall not be collected for any fiscal year except to the extent and in the amount provided in advance in appropriation Acts.

.

203.

Injunctive authority

Section 108(a)(2) (30 U.S.C. 818(a)(2)) is amended by striking a pattern of violation of and all that follows and inserting a course of conduct that in the judgment of the Secretary constitutes a continuing hazard to the health or safety of miners, including violations of this Act or of mandatory health and safety standards or regulations under this Act..

204.

Revocation of approval of plans

Section 105 (30 U.S.C. 815) is amended—

(1)

by redesignating subsection (d) as subsection (e); and

(2)

by inserting after subsection (c) the following:

(d)

Revocation of approval of plans

(1)

Revocation

If the Secretary finds that any program or plan of an operator, or part thereof, that was approved by the Secretary under this Act is based on inaccurate information or that circumstances that existed when such plan was approved have materially changed and that continued operation of such mine under such plan constitutes a hazard to the safety or health of miners, the Secretary shall revoke the approval of such program or plan.

(2)

Withdrawal orders

Upon revocation of the approval of a program or plan under subsection (a), the Secretary may immediately issue an order requiring the operator to cause all persons, except those persons referred to in section 104(c), to be withdrawn from such mine or an area of such mine, and to be prohibited from entering such mine or such area, until the operator has submitted and the Secretary has approved a new plan.

.

205.

Challenging a decision to approve, modify, or revoke a coal or other mine plan

Section 105(e) (as redesignated by section 204(1)) (30 U.S.C. 815(e)) is amended by adding at the end the following: In any proceeding in which a party challenges the Secretary’s decision to approve, modify, or revoke a coal or other mine plan under this Act, the Commission and the courts shall affirm the Secretary’s decision unless the challenging party establishes that such decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law..

206.

GAO Study on MSHA Mine Plan Approval

Not later than 1 year after the date of enactment of this Act, the Comptroller General shall provide a report to Congress on the timeliness of the Mine Safety and Health Administration’s approval of underground coal mines’ required plans and plan amendments, including—

(1)

factors that contribute to any delays in the approval of these plans; and

(2)

as appropriate, recommendations for improving timeliness of plan review and for achieving prompt decisions.

III

Penalties

301.

Civil penalties

(a)

Technical correction

Section 110(a)(1) (30 U.S.C. 820(a)(1)) is amended by inserting including any regulation promulgated under this Act, after this Act,.

(b)

Increased civil penalties during pattern status

Section 110(b) (30 U.S.C. 820(b)) is amended by adding at the end the following:

(3)

Notwithstanding any other provision of this Act, an operator of a coal or other mine that is in pattern status under section 104(e) and that fails to meet the performance benchmarks set forth by the Secretary under section 104(e)(5)(A) during any performance review of the mine following the first performance review shall be assessed an increased civil penalty for any violation of this Act, including any mandatory health or safety standard or regulation promulgated under this Act. Such increased penalty shall be twice the amount that would otherwise be assessed for the violation under this Act, including the regulations promulgated under this Act, subject to the maximum civil penalty established for the violation under this Act. This paragraph shall apply to violations at such mine that occur during the time period after the operator fails to meet the performance benchmarks in this paragraph, and ending when the Secretary determines at a subsequent performance review that the mine meets the performance benchmarks under section 104(e)(5)(A).

.

(c)

Civil penalty for retaliation

Section 110(a) (30 U.S.C. 820(a)) is further amended—

(1)

by redesignating paragraph (4) as paragraph (5); and

(2)

by inserting after paragraph (3) the following:

(4)

If any person violates section 105(c), the Secretary shall propose, and the Commission shall assess, a civil penalty of not less than $10,000 or more than $100,000 for the first occurrence of such violation, and not less than $20,000 or more than $200,000 for any subsequent violation, during any 3-year period.

.

302.

Civil and criminal liability of officers, directors, and agents

Section 110(c) (30 U.S.C. 820(c)) is amended to read as follows:

(c)

Civil and criminal liability of officers, directors, and agents

Whenever an operator violates a provision of this Act, including any mandatory health or safety standard or regulation promulgated under this Act, or knowingly violates or fails or refuses to comply with any order issued under this Act or any order incorporated in a final decision issued under this Act, any director, officer, or agent of such operator who knowingly authorized, ordered, or carried out such violation, failure, or refusal, or any policy or practice that resulted in such violation, failure, or refusal, shall be subject to the same civil penalties, fines, and imprisonment that may be imposed upon a person under this section.

.

303.

Criminal penalties

(a)

In general

Section 110(d) (30 U.S.C. 820(d)) is amended—

(1)

by inserting (1) before Any operator;

(2)

by striking willfully and inserting knowingly; and

(3)

by striking by a fine of not more than and all that follows and inserting

as follows:

(A)

By a fine of not more than $250,000, or by imprisonment for not more than 1 year, or both.

(B)

If the conviction is for a violation committed after a previous conviction of such operator for a violation of the same mandatory health or safety standard, by a fine of not more than $1,000,000, or by imprisonment for not more than 5 years, or both.

(C)

If the conviction is for a violation committed after a previous conviction of such operator for a violation of an order, by a fine of not more than $1,000,000, or by imprisonment for not more than 5 years, or both.

(D)

If the operator’s actions knowingly exposed miners to a significant risk of serious injury or illness or death, by a fine of not more than $1,000,000, or by imprisonment for not more than 5 years, or both.

(E)

If the operator knowingly tampered with or disabled a required safety device which exposed miners to a significant risk of serious injury or illness or death, or if the conviction is for a violation described in subparagraph (D) committed after a previous conviction of such operator for a such a violation, by a fine of not more than $2,000,000, or by imprisonment for not more than 10 years, or both.

.

(b)

Criminal penalty for retaliation

Section 110(d) (as amended by subsection (a)) is further amended by adding at the end the following:

(2)

Whoever knowingly takes any action that is directly or indirectly harmful to any person, including action that interferes with the lawful employment or livelihood of any person, because such person has provided an authorized representative of the Secretary, a State or local mine safety or health officer or official, or any other law enforcement officer with any information related to the existence of a health or safety violation or an unhealthful or unsafe condition, policy, or practice under this Act shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both.

.

(c)

Advance notice of inspections

(1)

In general

Section 110(e) (30 U.S.C. 820(e)) is amended to read as follows:

(e)

Unless otherwise authorized by this Act, any person that knowingly gives, causes to give, or attempts to give or cause to give, advance notice of any inspection conducted under this Act with the intention of impeding, interfering with, or adversely affecting the results of such inspection, shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.

.

(2)

Posting of advance notice penalties

Section 109 (30 U.S.C. 819) is amended by adding at the end the following:

(e)

Posting of advance notice penalties

Each operator of a coal or other mine shall post, on the bulletin board described in subsection (a) and in a conspicuous place near each staffed entrance onto the mine property, a notice stating, in a form and manner to be prescribed by the Secretary—

(1)

that giving, causing to give, or attempting to give or cause to give advance notice of any inspection to be conducted under this Act with the intention of impeding, interfering with, or adversely affecting the results of such inspection is unlawful pursuant to section 110(e); and

(2)

the maximum penalties for a violation under such subsection.

.

304.

Commission review of penalty assessments

Section 110(i) (30 U.S.C. 820(i)) is amended by striking In assessing civil monetary penalties, the Commission shall consider and inserting the following: In any review of a citation and proposed penalty assessment contested by an operator, the Commission shall assess not less than the penalty derived by using the same methodology (including any point system) prescribed in regulations under this Act, so as to ensure consistency in operator penalty assessments, except that the Commission may assess a penalty for less than the amount that would result from the utilization of such methodology if the Commission finds that there are extraordinary circumstances. If there is no such methodology prescribed for a citation or there are such extraordinary circumstances, the Commission shall assess the penalty by considering.

305.

Delinquent payments and prejudgment interest

(a)

Pre-Final order interest

Section 110(j) (30 U.S.C. 820(j)) is amended by striking the second and third sentences and inserting the following: Pre-final order interest on such penalties shall begin to accrue on the date the operator contests a citation issued under this Act, including any mandatory health or safety standard or regulation promulgated under this Act, and shall end upon the issuance of the final order. Such pre-final order interest shall be calculated at the current underpayment rate determined by the Secretary of the Treasury pursuant to section 6621 of the Internal Revenue Code of 1986, and shall be compounded daily. Post-final order interest shall begin to accrue 30 days after the date a final order of the Commission or the court is issued, and shall be charged at the rate of 8 percent per annum..

(b)

Ensuring payment of penalties

(1)

Amendments

Section 110 (30 U.S.C. 820) is further amended—

(A)

by redesignating subsection (l) as subsection (m); and

(B)

by inserting after subsection (k) the following:

(l)

Ensuring payment of penalties

(1)

Delinquent payment letter

If the operator of a coal or other mine fails to pay any civil penalty assessment that has become a final order of the Commission or a court within 45 days after such assessment became a final order, the Secretary shall send the operator a letter advising the operator of the consequences under this subsection of such failure to pay. The letter shall also advise the operator of the opportunity to enter into or modify a payment plan with the Secretary based upon a demonstrated inability to pay, the procedure for entering into such plan, and the consequences of not entering into or not complying with such plan.

(2)

Withdrawal orders following failure to pay

If an operator that receives a letter under paragraph (1) has not paid the assessment by the date that is 180 days after such assessment became a final order and has not entered into a payment plan with the Secretary, the Secretary shall issue an order requiring such operator to cause all persons, except those referred to in section 104(c), to be withdrawn from, and to be prohibited from entering, the mine that is covered by the final order described in paragraph (1), until the operator pays such assessment in full (including interest and administrative costs) or enters into a payment plan with the Secretary. If such operator enters into a payment plan with the Secretary and at any time fails to comply with the terms specified in such payment plan, the Secretary shall issue an order requiring such operator to cause all persons, except those referred to in section 104(c), to be withdrawn from the mine that is covered by such final order, and to be prohibited from entering such mine, until the operator rectifies the noncompliance with the payment plan in the manner specified in such payment plan.

.

(2)

Applicability and effective date

The amendments made by paragraph (1) shall apply to all unpaid civil penalty assessments under the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et seq.), except that, for any unpaid civil penalty assessment that became a final order of the Commission or a court before the date of enactment of this Act, the time periods under section 110(n) of the Federal Mine Safety and Health Act of 1977 (as amended) (30 U.S.C. 820(n)) shall be calculated as beginning on the date of enactment of this Act instead of on the date of the final order.

IV

Worker Rights and Protections

401.

Protection from retaliation

Section 105(c) (30 U.S.C. 815(c)) is amended to read as follows:

(c)

Protection from retaliation

(1)

Retaliation prohibited

(A)

Retaliation for complaint or testimony

No person shall discharge or in any manner discriminate against or cause to be discharged or cause discrimination against or otherwise interfere with the exercise of the statutory rights of any miner or other employee of an operator, representative of miners, or applicant for employment, because—

(i)

such miner or other employee, representative, or applicant for employment—

(I)

has filed or made a complaint, or is about to file or make a complaint, including a complaint notifying the operator or the operator’s agent, or the representative of the miners at the coal or other mine of an alleged danger or safety or health violation in a coal or other mine;

(II)

instituted or caused to be instituted, or is about to institute or cause to be instituted, any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such miner or other employee, representative, or applicant for employment on behalf of him or herself or others of any right afforded by this Act, or has reported any injury or illness to an operator or agent;

(III)

has testified or is about to testify before Congress or any Federal or State proceeding related to safety or health in a coal or other mine; or

(IV)

refused to violate any provision of this Act, including any mandatory health and safety standard or regulation; or

(ii)

such miner is the subject of medical evaluations and potential transfer under a standard published pursuant to section 101.

(B)

Retaliation for refusal to perform duties

(i)

In general

No person shall discharge or in any manner discriminate against a miner or other employee of an operator for refusing to perform the miner’s or other employee’s duties if the miner or other employee has a good-faith and reasonable belief that performing such duties would pose a safety or health hazard to the miner or other employee or to any other miner or employee.

(ii)

Standard

For purposes of clause (i), the circumstances causing the miner’s or other employee’s good-faith belief that performing such duties would pose a safety or health hazard shall be of such a nature that a reasonable person, under the circumstances confronting the miner or other employee, would conclude that there is such a hazard. In order to qualify for protection under this paragraph, the miner or other employee, when practicable, shall have communicated or attempted to communicate the safety or health concern to the operator and have not received from the operator a response reasonably calculated to allay such concern.

(2)

Complaint

Any miner or other employee or representative of miners or applicant for employment who believes that he or she has been discharged, disciplined, or otherwise discriminated against by any person in violation of paragraph (1) may file a complaint with the Secretary alleging such discrimination not later than 180 days after the later of—

(A)

the last date on which an alleged violation of paragraph (1) occurs; or

(B)

the date on which the miner or other employee or representative knows or should reasonably have known that such alleged violation occurred.

(3)

Investigation and hearing

(A)

Commencement of investigation and initial determination

Upon receipt of such complaint, the Secretary shall forward a copy of the complaint to the respondent, and shall commence an investigation within 15 days of the Secretary’s receipt of the complaint, and, as soon as practicable after commencing such investigation, make the determination required under subparagraph (B) regarding the reinstatement of the miner or other employee.

(B)

Reinstatement

If the Secretary finds that such complaint was not frivolously brought, the Commission, on an expedited basis upon application of the Secretary, shall order the immediate reinstatement of the miner or other employee until there has been a final Commission order disposing of the underlying complaint of the miner or other employee. If either the Secretary or the miner or other employee pursues the underlying complaint, such reinstatement shall remain in effect until the Commission has disposed of such complaint on the merits, regardless of whether the Secretary pursues such complaint by filing a complaint under subparagraph (D) or the miner or other employee pursues such complaint by filing an action under paragraph (4). If neither the Secretary nor the miner or other employee pursues the underlying complaint within the periods specified in paragraph (4), such reinstatement shall remain in effect until such time as the Commission may, upon motion of the operator and after providing notice and an opportunity to be heard to the parties, vacate such complaint for failure to prosecute.

(C)

Investigation

Such investigation shall include interviewing the complainant and—

(i)

providing the respondent an opportunity to submit to the Secretary a written response to the complaint and to present statements from witnesses or provide evidence; and

(ii)

providing the complainant an opportunity to receive any statements or evidence provided to the Secretary and rebut any statements or evidence.

(D)

Action by the Secretary

If, upon such investigation, the Secretary determines that the provisions of this subsection have been violated, the Secretary shall immediately file a complaint with the Commission, with service upon the alleged violator and the miner or other employee or representative of miners alleging such discrimination or interference and propose an order granting appropriate relief.

(E)

Action of the Commission

The Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section) and thereafter shall issue an order, based upon findings of fact, affirming, modifying, or vacating the Secretary’s proposed order, or directing other appropriate relief. Such order shall become final 30 days after its issuance. The complaining miner or other employee, representative, or applicant for employment may present additional evidence on his or her own behalf during any hearing held pursuant to this paragraph.

(F)

Relief

The Commission shall have authority in such proceedings to require a person committing a violation of this subsection to take such affirmative action to abate the violation and prescribe a remedy as the Commission considers appropriate, including—

(i)

the rehiring or reinstatement of the miner or other employee with back pay and interest and without loss of position or seniority, and restoration of the terms, rights, conditions, and privileges associated with the complainant’s employment;

(ii)

any other compensatory and consequential damages sufficient to make the complainant whole, and exemplary damages where appropriate; and

(iii)

expungement of all warnings, reprimands, or derogatory references that have been placed in paper or electronic records or databases of any type relating to the actions by the complainant that gave rise to the unfavorable personnel action, and, at the complainant’s direction, transmission of a copy of the decision on the complaint to any person whom the complainant reasonably believes may have received such unfavorable information.

(4)

Notice to and action of complainant

(A)

Notice to complainant

Not later than 90 days of the receipt of a complaint filed under paragraph (2), the Secretary shall notify, in writing, the miner or other employee, applicant for employment, or representative of miners of his determination whether a violation has occurred.

(B)

Action of complainant

If the Secretary, upon investigation, determines that the provisions of this subsection have not been violated, the complainant shall have the right, within 30 days after receiving notice of the Secretary’s determination, to file an action in his or her own behalf before the Commission, charging discrimination or interference in violation of paragraph (1).

(C)

Hearing and decision

The Commission shall afford an opportunity for a hearing (in accordance with section 554 of title 5, United States Code, but without regard to subsection (a)(3) of such section), and thereafter shall issue an order, based upon findings of fact, dismissing or sustaining the complainant’s charges and, if the charges are sustained, granting such relief as it deems appropriate as described in paragraph (3)(D). Such order shall become final 30 days after its issuance.

(5)

Burden of proof

In adjudicating a complaint pursuant to this subsection, the Commission may determine that a violation of paragraph (1) has occurred only if the complainant demonstrates that any conduct described in paragraph (1) with respect to the complainant was a contributing factor in the adverse action alleged in the complaint. A decision or order that is favorable to the complainant shall not be issued pursuant to this subsection if the respondent demonstrates by clear and convincing evidence that the respondent would have taken the same adverse action in the absence of such conduct.

(6)

Attorneys’ fees

Whenever an order is issued sustaining the complainant’s charges under this subsection, a sum equal to the aggregate amount of all costs and expenses, including attorney’s fees, as determined by the Commission to have been reasonably incurred by the complainant for, or in connection with, the institution and prosecution of such proceedings shall be assessed against the person committing such violation. The Commission shall determine whether such costs and expenses were reasonably incurred by the complainant without reference to whether the Secretary also participated in the proceeding.

(7)

Expedited proceedings; Judicial review

Proceedings under this subsection shall be expedited by the Secretary and the Commission. Any order issued by the Commission under this subsection shall be subject to judicial review in accordance with section 106. Violations by any person of paragraph (1) shall be subject to the provisions of sections 108 and 110(a)(4).

(8)

Procedural Rights

The rights and remedies provided for in this subsection may not be waived by any agreement, policy, form, or condition of employment, including by any pre-dispute arbitration agreement or collective bargaining agreement.

(9)

Savings

Nothing in this subsection shall be construed to diminish the rights, privileges, or remedies of any employee who exercises rights under any Federal or State law or common law, or under any collective bargaining agreement.

.

402.

Protection from loss of pay

Section 111 (30 U.S.C. 821) is amended to read as follows:

111.

Entitlement of miners

(a)

Protection from loss of pay

(1)

Withdrawal orders

If a coal or other mine or area of such mine is closed by an order issued under section 103, 104, 107, 108, or 110, all miners working during the shift when such order was issued who are idled by such order shall be entitled, regardless of the result of any review of such order, to full compensation by the operator at their regular rates of pay for the period they are idled, but for not more than the balance of such shift. If such order is not terminated prior to the next working shift, all miners on that shift who are idled by such order shall be entitled to full compensation by the operator at their regular rates of pay for the period they are idled, but for not more than four hours of such shift. If a coal or other mine or area of such mine is closed by an order issued under section 104, 107 (in connection with a citation), 108, or 110, all miners who are idled by such order shall be entitled, regardless of the result of any review of such order, to full compensation by the operator at their regular rates of pay and in accordance with their regular schedules of pay for the entire period for which they are idled, not to exceed 60 days.

(2)

Closure in advance of order

If the Secretary finds that such mine or such area of a mine was closed by the operator in anticipation of the issuance of such an order, all miners who are idled by such closure shall be entitled to full compensation by the operator at their regular rates of pay and in accordance with their regular schedules of pay, from the time of such closure until such time as the Secretary authorizes reopening of such mine or such area of the mine, not to exceed 60 days, except where an operator promptly withdraws miners upon discovery of a hazard, and notifies the Secretary where required, and within the prescribed time period.

(3)

Refusal to comply

Whenever an operator violates or fails or refuses to comply with any order issued under section 103, 104, 107, 108, or 110, all miners employed at the affected mine who would have been withdrawn from, or prevented from entering, such mine or area thereof as a result of such order shall be entitled to full compensation by the operator at their regular rates of pay, in addition to pay received for work performed after such order was issued, for the period beginning when such order was issued and ending when such order is complied with, vacated, or terminated.

(b)

Enforcement

(1)

Commission orders

The Commission shall have authority to order compensation due under this section upon the filing of a complaint by a miner or his representative and after opportunity for hearing subject to section 554 of title 5, United States Code. Whenever the Commission issues an order sustaining the complaint under this subsection in whole or in part, the Commission shall award the complainant reasonable attorneys’ fees and costs.

(2)

Failure to pay compensation due

Consistent with the authority of the Secretary to order miners withdrawn from a mine under this Act, the Secretary shall order a mine that has been subject to a withdrawal order under section 103, 104, 107, 108, or 110, and has reopened, to be closed again if compensation in accordance with the provisions of this section is not paid by the end of the next regularly scheduled payroll period following the lifting of a withdrawal order.

(c)

Expedited Review

If an order is issued which results in payments to miners under subsection (a), the operators shall have the right to an expedited review before the Commission using timelines and procedures established pursuant to section 316(b)(2)(G)(ii).

.

403.

Underground coal miner employment standard for mines placed in pattern status

The Federal Mine Safety and Health Act of 1977 is further amended by adding at the end of title I the following:

117.

Underground coal miner employment standard for mines placed in pattern status

(a)

In general

For purposes of ensuring miners’ health and safety and miners’ right to raise concerns thereof, when an underground coal mine is placed in pattern status pursuant to section 104(e), and for 3 years after such placement, the operator of such mine may not discharge or constructively discharge a miner who is paid on an hourly basis and employed at such underground coal mine without reasonable job-related grounds based on a failure to satisfactorily perform job duties, including compliance with this Act and with mandatory health and safety standards or other regulations issued under this Act, or other legitimate business reason, where the miner has completed the employer’s probationary period, not to exceed 6 months.

(b)

Cause of action

A miner aggrieved by a violation of subsection (a) may file a complaint in Federal district court in the district where the mine is located within 1 year of such violation.

(c)

Remedies

In an action under subsection (b), for any prevailing miner the court shall take affirmative action to further the purposes of the Act, which may include reinstatement with backpay and compensatory damages. Reasonable attorneys’ fees and costs shall be awarded to any prevailing miner under this section.

(d)

Pre-Dispute waiver prohibited

A miner’s right to a cause of action under this section may not be waived with respect to disputes that have not arisen as of the time of the waiver.

(e)

Construction

Nothing in this section shall be construed to limit the availability of rights and remedies of miners under any other State or Federal law or a collective bargaining agreement.

.

V

Modernizing health and safety standards

501.

Pre-shift review of mine conditions

Section 303(d) (30 U.S.C. 863(d)) is amended by adding at the end the following:

(3)
(A)

Not later than 30 days after the issuance of the interim final rules promulgated under subparagraph (C), each operator of an underground coal mine shall implement a communication program at the underground coal mine to ensure that each miner is orally briefed on and made aware of, prior to traveling to or arriving at the miner’s work area and commencing the miner’s assigned tasks—

(i)

any conditions that are hazardous, or that violate a mandatory health or safety standard or a plan approved under this Act, where the miner is expected to work or travel; and

(ii)

the general conditions of that miner’s assigned working section or other area where the miner is expected to work or travel.

(B)

Not later than 180 days after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall promulgate interim final rules implementing the requirements of subparagraph (A). The Secretary shall issue a final rule not later than 2 years after such date.

.

502.

Rock dust standards

(a)

Standards

Section 304(d) (30 U.S.C. 864(d)) is amended—

(1)

by striking Where rock and inserting the following:

Rock dust.—

(1)

In general

Where rock

;

(2)

by striking 65 per centum and all that follows and inserting 80 percent. Where methane is present in any ventilating current, the percentage of incombustible content of such combined dusts shall be increased 0.4 percent for each 0.1 percent of methane.; and

(3)

by adding at the end the following:

(2)

Methods of measurement

(A)

In general

Each operator of an underground coal mine shall take accurate and representative samples which shall measure the total incombustible content of combined coal dust, rock dust, and other dust in such mine to ensure that the coal dust is kept below explosive levels through the appropriate application of rock dust.

(B)

Direct reading monitors

By the later of June 15, 2011, or the date that is 30 days after the Secretary of Health and Human Services has certified in writing that direct reading monitors are commercially available to measure total incombustible content in samples of combined coal dust, rock dust, and other dust and the Department of Labor has approved such monitors for use in underground coal mines, the Secretary shall require operators to take such dust samples using direct reading monitors.

(C)

Regulations

The Secretary shall, not later than 180 days after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, promulgate an interim final rule that prescribes methods for operator sampling of total incombustible content in samples of combined coal dust, rock dust, and other dust using direct reading monitors and includes requirements for locations, methods, and intervals for mandatory operator sampling.

(D)

Recommendations

Not later than 1 year after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary of Health and Human Services shall, based upon the latest research, recommend to the Secretary of Labor any revisions to the mandatory operator sampling locations, methods, and intervals included in the interim final rule described in subparagraph (B) that may be warranted in light of such research.

(3)

Limitation

Until a final rule is issued by the Secretary under section 502(b)(2) of the Robert C. Byrd Miner Safety and Health Act of 2010, any measurement taken by a direct reading monitor described in paragraph (2) shall not be admissible to establish a violation in an enforcement action under this Act.

.

(b)

Report and rulemaking authority

(1)

Report

Not later than 2 years after the date of enactment of this Act, the Secretary of Health and Human Services, in consultation with the Secretary of Labor, shall prepare and submit, to the Committee on Education and Labor of the House of Representatives and the Committee on Health, Education, Labor, and Pensions of the Senate, a report—

(A)

regarding whether any direct reading monitor described in section 304(d)(2)(B) of the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 864(d)(2)(B)) is sufficiently reliable and accurate for the enforcement of the mandatory health or safety standards by the Secretary of Labor under such Act, and whether additional improvement to such direct reading monitor, or additional verification regarding reliability and accuracy, would be needed for enforcement purposes; and

(B)

identifying any limitations or impediments for such use in underground coal mines.

(2)

Authority

If the Secretary determines that such direct reading monitor is sufficiently reliable and accurate for the enforcement of mandatory health and safety standards under the Federal Mines Safety and Health Act of 1977 following such report or any update thereto, the Secretary shall promulgate a final rule authorizing the use of such direct reading monitor for purposes of compliance and enforcement, in addition to other methods for determining total incombustible content. Such rule shall specify mandatory operator sampling locations, methods, and intervals.

503.

Atmospheric monitoring systems

Section 317 (30 U.S.C. 877) is amended by adding at the end the following:

(u)

Atmospheric monitoring systems

(1)

NIOSH recommendations

Not later than 1 year after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Director of the National Institute for Occupational Safety and Health, acting through the Office of Mine Safety and Health Research, in consultation, including through technical working groups, with operators, vendors, State mine safety agencies, the Secretary, and labor representatives of miners, shall issue recommendations to the Secretary regarding—

(A)

how to ensure that atmospheric monitoring systems are utilized in the underground coal mining industry to maximize the health and safety of underground coal miners;

(B)

the implementation of redundant systems, such as the bundle tubing system, that can continuously monitor the mine atmosphere following incidents such as fires, explosions, entrapments, and inundations; and

(C)

other technologies available to conduct continuous atmospheric monitoring.

(2)

Atmospheric monitoring system regulations

Not later than 1 year following the receipt of the recommendations described in paragraph (1), the Secretary shall promulgate regulations requiring that each operator of an underground coal mine install atmospheric monitoring systems, consistent with such recommendations, that—

(A)

protect miners where the miners normally work and travel;

(B)

provide real-time information regarding methane and carbon monoxide levels, and airflow direction, as appropriate, with sensing, annunciating, and recording capabilities; and

(C)

can, to the maximum extent practicable, withstand explosions and fires.

.

504.

Technology related to respirable dust

Section 202(d) (30 U.S.C. 842(d)) is amended—

(1)

by striking of Health, Education, and Welfare; and

(2)

by striking the second sentence and inserting the following: Not later than 2 years after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall promulgate final regulations that require operators, beginning on the date such regulations are issued, to provide coal miners with the maximum feasible protection from respirable dust, including coal and silica dust, that is achievable through environmental controls, and that meet the applicable standards..

505.

Refresher training on miner rights and responsibilities

(a)

In general

Section 115(a)(3) (30 U.S.C. 825(a)(3)) is amended to read as follows:

(3)

all miners shall receive not less than 9 hours of refresher training not less frequently than once every 12 months, and such training shall include one hour of training on the statutory rights and responsibilities of miners and their representatives under this Act and other applicable Federal and State law, pursuant to a program of instruction developed by the Secretary and delivered by an employee of the Administration or by a trainer approved by the Administration that is a party independent from the operator;

.

(b)

National hazard reporting hotline

Section 115 (30 U.S.C. 825) is further amended—

(1)

by redesignating subsections (c) through (e) as subsections (d) through (f), respectively; and

(2)

by inserting after subsection (b) the following:

(c)

Any health and safety training program of instruction provided under this section shall include distribution to miners of information regarding miners’ rights under the Act, as well as a toll-free hotline telephone number, which the Secretary shall maintain to receive complaints from miners and the public regarding hazardous conditions, discrimination, safety or health violations, or other mine safety or health concerns. Information regarding the hotline shall be provided in a portable, convenient format, such as a durable wallet card, to enable miners to keep the information on their person.

.

(c)

Timing of initial statutory rights training

Notwithstanding section 115 of the Federal Mine Safety and Health Act (as amended by subsection (a)) (30 U.S.C. 825) or the health and safety training program approved under such section, an operator shall ensure that all miners already employed by the operator on the date of enactment of this Act shall receive the one hour of statutory rights and responsibilities training described in section 115(a)(3) of such Act not later than 180 days after such date.

506.

Authority to mandate additional training

(a)

In general

Section 115 (30 U.S.C. 825) is further amended by redesignating subsections (e) and (f) (as redesignated) as subsections (f) and (g) and inserting after subsection (d) (as redesignated) the following:

(e)

Authority To mandate additional training

(1)

In general

The Secretary is authorized to issue an order requiring that an operator of a coal or other mine provide additional training beyond what is otherwise required by law, and specifying the time within which such training shall be provided, if the Secretary finds that—

(A)
(i)

a serious or fatal accident has occurred at such mine; or

(ii)

such mine has experienced accident and injury rates, citations for violations of this Act (including mandatory health or safety standards or regulations promulgated under this Act), citations for significant and substantial violations, or withdrawal orders issued under this Act at a rate above the average for mines of similar size and type; and

(B)

additional training would benefit the health and safety of miners at the mine.

(2)

Withdrawal order

If the operator fails to provide training ordered under paragraph (1) within the specified time, the Secretary shall issue an order requiring such operator to cause all affected persons, except those persons referred to in section 104(c), to be withdrawn, and to be prohibited from entering such mine, until such operator has provided such training.

.

(b)

Conforming amendments

Section 104(g)(2) (30 U.S.C. 814(g)(2)) is amended by striking under paragraph (1) both places it appears and inserting under paragraph (1) or under section 115(e).

507.

Certification of personnel

(a)

In general

Title I is further amended by adding at the end the following:

118.

Certification of personnel

(a)

Certification required

Any person who is authorized or designated by the operator of a coal or other mine to perform any duties or provide any training that this Act, including a mandatory health or safety standard or regulation promulgated pursuant to this Act, requires to be performed or provided by a certified, registered, qualified, or otherwise approved person, shall be permitted to perform such duties or provide such training only if such person has a current certification, registration, qualification, or approval to perform such duties or provide such training consistent with the requirements of this section.

(b)

Establishment of certification requirements and procedures

(1)

In general

Not later than 1 year after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall issue mandatory standards to establish—

(A)

requirements for such certification, registration, qualification, or other approval, including the experience, examinations, and references that may be required as appropriate;

(B)

time limits for such certifications and procedures for obtaining and renewing such certification, registration, qualification, or other approval; and

(C)

procedures and criteria for revoking such certification, registration, qualification, or other approval, including procedures that ensure that the Secretary (or a State agency, as applicable) responds to requests for revocation and that the names of individuals whose certification or other approval has been revoked are provided to and maintained by the Secretary, and are made available to appropriate State agencies through an electronic database.

(2)

Coordination with States

In developing such standards, the Secretary shall consult with States that have miner certification programs to ensure effective coordination with existing State standards and requirements for certification. The standards required under paragraph (1) shall provide that the certification, registration, qualification, or other approval of the State in which the coal or other mine is located satisfies the requirement of subsection (a) if the State’s program of certification, registration, qualification, or other approval is no less stringent than the standards established by the Secretary under paragraph (1).

(c)

Operator Fees for certification

(1)

Assessment and collection

Beginning 180 days after the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, the Secretary shall assess and collect fees, in accordance with this subsection, from each operator for each person certified under this section. Fees shall be assessed and collected in amounts determined by the Secretary as necessary to fund the certification programs established under this section.

(2)

Use

Amounts collected as provided in paragraph (1) shall only be available to the Secretary, as provided in paragraph (3), for making expenditures to carry out the certification programs established under this subsection.

(3)

Authorization of appropriations

In addition to funds authorized to be appropriated under section 114, there is authorized to be appropriated to the Assistant Secretary for Mine Safety and Health for each fiscal year in which fees are collected under paragraph (1) an amount equal to the total amount of fees collected under paragraph (1) during that fiscal year. Such amounts are authorized to remain available until expended. If on the first day of a fiscal year a regular appropriation to the Commission has not been enacted, the Commission shall continue to collect fees (as offsetting collections) under this subsection at the rate in effect during the preceding fiscal year, until 5 days after the date such regular appropriation is enacted.

(4)

Collecting and Crediting of Fees

Fees authorized and collected under this subsection shall be deposited and credited as offsetting collections to the account providing appropriations to the Mine Safety and Health Administration and shall not be collected for any fiscal year except to the extent and in the amount provided in advance in appropriation Acts.

(d)

Citation; withdrawal order

Any operator who permits a person to perform any of the health or safety related functions described in subsection (a) without a current certification which meets the requirements of this section shall be considered to have committed an unwarrantable failure under section 104(d)(1), and the Secretary shall issue an order requiring that the miner be withdrawn or reassigned to duties that do not require such certification.

.

(b)

Conforming amendments

Section 318 (30 U.S.C. 878) is amended—

(1)

by striking subsections (a) and (b);

(2)

in subsection (c), by redesignating paragraphs (1) through (3) as subparagraphs (A) through (C), respectively;

(3)

in subsection (g), by redesignating paragraphs (1) through (4) as subparagraphs (A) through (D), respectively; and

(4)

by redesignating subsections (c) through (j) as paragraphs (1) through (8), respectively.

VI

Additional mine safety provisions

601.

Definitions

(a)

Definition of operator

Section 3(d) is amended to read as follows:

(d)

operator means—

(1)

any owner, lessee, or other person that—

(A)

operates or supervises a coal or other mine; or

(B)

controls such mine by making or having the authority to make management or operational decisions that affect, directly or indirectly, the health or safety at such mine; or

(2)

any independent contractor performing services or construction at such mine;

.

(b)

Definition of agent

Section 3(e) (30 U.S.C. 802(e)) is amended by striking the miners and inserting any miner.

(c)

Definition of miner

Section 3(g) (30 U.S.C. 802(g)) is amended by inserting after or other mine the following: , and includes any individual who is not currently working in a coal or other mine but would be currently working in such mine, but for an accident in such mine.

(d)

Definition of significant and substantial violations

Section 3 (30 U.S.C. 802) is further amended—

(1)

in subsection (m), by striking and after the semicolon;

(2)

in subsection (n), by striking the period at the end and inserting a semicolon;

(3)

in subsection (o), by striking the period at the end and inserting ; and; and

(4)

by adding at the end the following:

(p)

significant and substantial violation means a violation of this Act, including any mandatory health or safety standard or regulation promulgated under this Act, that is of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard as described in section 104(d).

.

602.

Assistance to States

Section 503 (30 U.S.C. 953(a)) is amended—

(1)

in subsection (a)—

(A)

in the matter preceding paragraph (1), by striking , in coordination with the Secretary of Health, Education, and Welfare and the Secretary of the Interior,;

(B)

in paragraph (2), by striking and after the semicolon;

(C)

in paragraph (3), by striking the period and inserting ; and; and

(D)

by adding at the end the following:

(4)

to assist such State in developing and implementing any certification program for coal or other mines required for compliance with section 118.

; and

(2)

in subsection (h), by striking $3,000,000 for fiscal year 1970, and $10,000,000 annually in each succeeding fiscal year and inserting $20,000,000 for each fiscal year.

603.

Black lung medical reports

Title IV of the Black Lung Benefits Act (30 U.S.C. 901 et seq.) is amended by adding at the end the following:

435.

Medical reports

In any claim for benefits for a miner under this title, an operator that requires a miner to submit to a medical examination regarding the miner’s respiratory or pulmonary condition shall, not later than 14 days after the miner has been examined, deliver to the claimant a complete copy of the examining physician’s report. The examining physician’s report shall be in writing and shall set out in detail the examiner’s findings, including any diagnoses and conclusions and the results of any diagnostic imaging techniques and tests that were performed on the miner.

.

604.

Rules of application to certain mines

(a)

Inapplicability of amendments to certain mines

(1)

Special rule

The amendments made by this Act shall not apply to—

(A)

surface mines, except for surface facilities or impoundments physically connected to—

(i)

underground coal mines; or

(ii)

other underground mines which are gassy mines; or

(B)

underground mines which are neither coal mines nor gassy mines.

(2)

Definition

For purposes of this section, the term gassy mine means a mine, tunnel, or other underground workings in which a flammable mixture has been ignited, or has been found with a permissible flame safety lamp, or has been determined by air analysis to contain 0.25 percent or more (by volume) of methane in any open workings when tested at a point not less than 12 inches from the roof, face of rib.

(b)

Rule of construction relating to applicability of certain provisions to surface mines

Title I is further amended by adding at the end the following:

119.

Applicability of certain provisions to certain mines

(a)

Rule of construction

With respect to the mines described in subsection (b), this Act as in effect on the date before the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, shall continue to apply to such mines as then in effect.

(b)

Applicable mines

(1)

In general

The mines referred to in subsection (a) are—

(A)

surface mines, except for surface facilities or impoundments physically connected to—

(i)

underground coal mines; or

(ii)

other underground mines which are gassy mines; and

(B)

underground mines which are neither coal mines nor gassy mines.

(2)

definition

As used in paragraph (1), the term gassy mine means a mine, tunnel, or other underground workings in which a flammable mixture has been ignited, or has been found with a permissible flame safety lamp, or has been determined by air analysis to contain 0.25 percent or more (by volume) of methane in any open workings when tested at a point not less than 12 inches from the roof, face of rib.

(c)

Savings provision

Nothing in this section shall impact the authority of the Secretary to promulgate or modify regulations pursuant to the authority under any such provisions as in effect on the date before the date of enactment of the Robert C. Byrd Miner Safety and Health Act of 2010, or shall be construed to alter or modify precedent with regards to the Commission or courts.

.

VII

Amendments to the Occupational Safety and Health Act

701.

Enhanced protections from retaliation

(a)

Employee actions

Section 11(c)(1) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 660(c)(1)) is amended—

(1)

by striking discharge and all that follows through because such and inserting the following:

discharge or cause to be discharged, or in any manner discriminate against or cause to be discriminated against, any employee because—

(A)

such

;

(2)

by striking this Act or has and inserting the following:

this Act;

(B)

such employee has

;

(3)

by striking in any such proceeding or because of the exercise and inserting the following:

before Congress or in any Federal or State proceeding related to safety or health;

(C)

such employee has refused to violate any provision of this Act; or

(D)

of the exercise

; and

(4)

by inserting before the period at the end the following: , including the reporting of any injury, illness, or unsafe condition to the employer, agent of the employer, safety and health committee involved, or employee safety and health representative involved.

(b)

Prohibition of retaliation

Section 11(c) of such Act (29 U.S.C. 660(c)) is amended by striking paragraph (2) and inserting the following:

(2)

Prohibition of retaliation

(A)

No person shall discharge, or cause to be discharged, or in any manner discriminate against, or cause to be discriminated against, an employee for refusing to perform the employee’s duties if the employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee or other employees.

(B)

For purposes of subparagraph (A), the circumstances causing the employee’s good-faith belief that performing such duties would pose a safety or health hazard shall be of such a nature that a reasonable person, under the circumstances confronting the employee, would conclude that there is such a hazard. In order to qualify for protection under this paragraph, the employee, when practicable, shall have communicated or attempted to communicate the safety or health concern to the employer and have not received from the employer a response reasonably calculated to allay such concern.

.

(c)

Procedure

Section 11(c) of such Act (29 U.S.C. 660(c)) is amended by striking paragraph (3) and inserting the following:

(3)

Complaint

Any employee who believes that the employee has been discharged, disciplined, or otherwise discriminated against by any person in violation of paragraph (1) or (2) may seek relief for such violation by filing a complaint with the Secretary under paragraph (5).

(4)

Statute of limitations

(A)

In general

An employee may take the action permitted by paragraph (3)(A) not later than 180 days after the later of—

(i)

the date on which an alleged violation of paragraph (1) or (2) occurs; or

(ii)

the date on which the employee knows or should reasonably have known that such alleged violation occurred.

(B)

Repeat violation

Except in cases when the employee has been discharged, a violation of paragraph (1) or (2) shall be considered to have occurred on the last date an alleged repeat violation occurred.

(5)

Investigation

(A)

In general

An employee may, within the time period required under paragraph (4)(B), file a complaint with the Secretary alleging a violation of paragraph (1) or (2). If the complaint alleges a prima facie case, the Secretary shall conduct an investigation of the allegations in the complaint, which—

(i)

shall include—

(I)

interviewing the complainant;

(II)

providing the respondent an opportunity to—

(aa)

submit to the Secretary a written response to the complaint; and

(bb)

meet with the Secretary to present statements from witnesses or provide evidence; and

(III)

providing the complainant an opportunity to—

(aa)

receive any statements or evidence provided to the Secretary;

(bb)

meet with the Secretary; and

(cc)

rebut any statements or evidence; and

(ii)

may include issuing subpoenas for the purposes of such investigation.

(B)

Decision

Not later than 90 days after the filing of the complaint, the Secretary shall—

(i)

determine whether reasonable cause exists to believe that a violation of paragraph (1) or (2) has occurred; and

(ii)

issue a decision granting or denying relief.

(6)

Preliminary order following investigation

If, after completion of an investigation under paragraph (5)(A), the Secretary finds reasonable cause to believe that a violation of paragraph (1) or (2) has occurred, the Secretary shall issue a preliminary order providing relief authorized under paragraph (14) at the same time the Secretary issues a decision under paragraph (5)(B). If a de novo hearing is not requested within the time period required under paragraph (7)(A)(i), such preliminary order shall be deemed a final order of the Secretary and is not subject to judicial review.

(7)

Hearing

(A)

Request for hearing

(i)

In general

A de novo hearing on the record before an administrative law judge may be requested—

(I)

by the complainant or respondent within 30 days after receiving notification of a decision granting or denying relief issued under paragraph (5)(B) or paragraph (6) respectively;

(II)

by the complainant within 30 days after the date the complaint is dismissed without investigation by the Secretary under paragraph (5)(A); or

(III)

by the complainant within 120 days after the date of filing the complaint, if the Secretary has not issued a decision under paragraph (5)(B).

(ii)

Reinstatement order

The request for a hearing shall not operate to stay any preliminary reinstatement order issued under paragraph (6).

(B)

Procedures

(i)

In general

A hearing requested under this paragraph shall be conducted expeditiously and in accordance with rules established by the Secretary for hearings conducted by administrative law judges.

(ii)

Subpoenas; production of evidence

In conducting any such hearing, the administrative law judge may issue subpoenas. The respondent or complainant may request the issuance of subpoenas that require the deposition of, or the attendance and testimony of, witnesses and the production of any evidence (including any books, papers, documents, or recordings) relating to the matter under consideration.

(iii)

Decision

The administrative law judge shall issue a decision not later than 90 days after the date on which a hearing was requested under this paragraph and promptly notify, in writing, the parties and the Secretary of such decision, including the findings of fact and conclusions of law. If the administrative law judge finds that a violation of paragraph (1) or (2) has occurred, the judge shall issue an order for relief under paragraph (14). If review under paragraph (8) is not timely requested, such order shall be deemed a final order of the Secretary that is not subject to judicial review.

(8)

Administrative appeal

(A)

In general

Not later than 30 days after the date of notification of a decision and order issued by an administrative law judge under paragraph (7), the complainant or respondent may file, with objections, an administrative appeal with an administrative review body designated by the Secretary (referred to in this paragraph as the review board).

(B)

Standard of Review

In reviewing the decision and order of the administrative law judge, the review board shall affirm the decision and order if it is determined that the factual findings set forth therein are supported by substantial evidence and the decision and order are made in accordance with applicable law.

(C)

Decisions

If the review board grants an administrative appeal, the review board shall issue a final decision and order affirming or reversing, in whole or in part, the decision under review by not later than 90 days after receipt of the administrative appeal. If it is determined that a violation of paragraph (1) or (2) has occurred, the review board shall issue a final decision and order providing relief authorized under paragraph (14). Such decision and order shall constitute final agency action with respect to the matter appealed.

(9)

Settlement in the Administrative Process

(A)

In general

At any time before issuance of a final order, an investigation or proceeding under this subsection may be terminated on the basis of a settlement agreement entered into by the parties.

(B)

Public policy considerations

Neither the Secretary, an administrative law judge, nor the review board conducting a hearing under this subsection shall accept a settlement that contains conditions conflicting with the rights protected under this Act or that are contrary to public policy, including a restriction on a complainant’s right to future employment with employers other than the specific employers named in a complaint.

(10)

Inaction by the review board or administrative law judge

(A)

In general

The complainant may bring a de novo action described in subparagraph (B) if—

(i)

an administrative law judge has not issued a decision and order within the 90-day time period required under paragraph (7)(B)(iii); or

(ii)

the review board has not issued a decision and order within the 90-day time period required under paragraph (8)(C).

(B)

De novo action

Such de novo action may be brought at law or equity in the United States district court for the district where a violation of paragraph (1) or (2) allegedly occurred or where the complainant resided on the date of such alleged violation. The court shall have jurisdiction over such action without regard to the amount in controversy and to order appropriate relief under paragraph (14). Such action shall, at the request of either party to such action, be tried by the court with a jury.

(11)

Judicial review

(A)

Timely Appeal to the court of appeals

Any party adversely affected or aggrieved by a final decision and order issued under this subsection may obtain review of such decision and order in the United States Court of Appeals for the circuit where the violation, with respect to which such final decision and order was issued, allegedly occurred or where the complainant resided on the date of such alleged violation. To obtain such review, a party shall file a petition for review not later than 60 days after the final decision and order was issued. Such review shall conform to chapter 7 of title 5, United States Code. The commencement of proceedings under this subparagraph shall not, unless ordered by the court, operate as a stay of the final decision and order.

(B)

Limitation on collateral attack

An order and decision with respect to which review may be obtained under subparagraph (A) shall not be subject to judicial review in any criminal or other civil proceeding.

(12)

Enforcement of order

If a respondent fails to comply with an order issued under this subsection, the Secretary or the complainant on whose behalf the order was issued may file a civil action for enforcement in the United States district court for the district in which the violation was found to occur to enforce such order. If both the Secretary and the complainant file such action, the action of the Secretary shall take precedence. The district court shall have jurisdiction to grant all appropriate relief described in paragraph (14).

(13)

Burdens of proof

(A)

Criteria for determination

In making a determination or adjudicating a complaint pursuant to this subsection, the Secretary, administrative law judge, review board, or a court may determine that a violation of paragraph (1) or (2) has occurred only if the complainant demonstrates that any conduct described in paragraph (1) or (2) with respect to the complainant was a contributing factor in the adverse action alleged in the complaint.

(B)

Prohibition

Notwithstanding subparagraph (A), a decision or order that is favorable to the complainant shall not be issued in any administrative or judicial action pursuant to this subsection if the respondent demonstrates by clear and convincing evidence that the respondent would have taken the same adverse action in the absence of such conduct.

(14)

Relief

(A)

Order for relief

If the Secretary, administrative law judge, review board, or a court determines that a violation of paragraph (1) or (2) has occurred, the Secretary or court, respectively, shall have jurisdiction to order all appropriate relief, including injunctive relief, compensatory and exemplary damages, including—

(i)

affirmative action to abate the violation;

(ii)

reinstatement without loss of position or seniority, and restoration of the terms, rights, conditions, and privileges associated with the complainant’s employment, including opportunities for promotions to positions with equivalent or better compensation for which the complainant is qualified;

(iii)

compensatory and consequential damages sufficient to make the complainant whole, (including back pay, prejudgment interest, and other damages); and

(iv)

expungement of all warnings, reprimands, or derogatory references that have been placed in paper or electronic records or databases of any type relating to the actions by the complainant that gave rise to the unfavorable personnel action, and, at the complainant’s direction, transmission of a copy of the decision on the complaint to any person whom the complainant reasonably believes may have received such unfavorable information.

(B)

Attorneys’ fees and costs

If the Secretary or an administrative law judge, review board, or court grants an order for relief under subparagraph (A), the Secretary, administrative law judge, review board, or court, respectively, shall assess, at the request of the employee against the employer—

(i)

reasonable attorneys’ fees; and

(ii)

costs (including expert witness fees) reasonably incurred, as determined by the Secretary, administrative law judge, review board, or court, respectively, in connection with bringing the complaint upon which the order was issued.

(15)

Procedural Rights

The rights and remedies provided for in this subsection may not be waived by any agreement, policy, form, or condition of employment, including by any pre-dispute arbitration agreement or collective bargaining agreement.

(16)

Savings

Nothing in this subsection shall be construed to diminish the rights, privileges, or remedies of any employee who exercises rights under any Federal or State law or common law, or under any collective bargaining agreement.

(17)

Election of venue

(A)

In general

An employee of an employer who is located in a State that has a State plan approved under section 18 may file a complaint alleging a violation of paragraph (1) or (2) by such employer with—

(i)

the Secretary under paragraph (5); or

(ii)

a State plan administrator in such State.

(B)

Referrals

If—

(i)

the Secretary receives a complaint pursuant to subparagraph (A)(i), the Secretary shall not refer such complaint to a State plan administrator for resolution; or

(ii)

a State plan administrator receives a complaint pursuant to subparagraph (A)(ii), the State plan administrator shall not refer such complaint to the Secretary for resolution.

.

(d)

Relation to enforcement

Section 17(j) of such Act (29 U.S.C. 666(j)) is amended by inserting before the period the following: , including the history of violations under section 11(c).

702.

Victims’ rights

The Occupational Safety and Health Act of 1970 is amended by inserting after section 9 (29 U.S.C. 658) the following:

9A.

Victims' rights

(a)

Rights before the Secretary

A victim or the representative of a victim, shall be afforded the right, with respect to an inspection or investigation conducted under section 8 to—

(1)

meet with the Secretary regarding the inspection or investigation conducted under such section before the Secretary’s decision to issue a citation or take no action;

(2)

receive, at no cost, a copy of any citation or report, issued as a result of such inspection or investigation, at the same time as the employer receives such citation or report;

(3)

be informed of any notice of contest or addition of parties to the proceedings filed under section 10(c); and

(4)

be provided notification of the date and time or any proceedings, service of pleadings, and other relevant documents, and an explanation of the rights of the employer, employee and employee representative, and victim to participate in proceedings conducted under section 10(c).

(b)

Rights before the Commission

Upon request, a victim or representative of a victim shall be afforded the right with respect to a work-related bodily injury or death to—

(1)

be notified of the time and date of any proceeding before the Commission;

(2)

receive pleadings and any decisions relating to the proceedings; and

(3)

be provided an opportunity to appear and make a statement in accordance with the rules prescribed by the Commission.

(c)

Modification of Citation

Before entering into an agreement to withdraw or modify a citation issued as a result of an inspection or investigation of an incident under section 8, the Secretary shall notify a victim or representative of a victim and provide the victim or representative of a victim with an opportunity to appear and make a statement before the parties conducting settlement negotiations. In lieu of an appearance, the victim or representative of the victim may elect to submit a letter to the Secretary and the parties.

(d)

Secretary Procedures

The Secretary shall establish procedures—

(1)

to inform victims of their rights under this section; and

(2)

for the informal review of any claim of a denial of such a right.

(e)

Commission procedures and considerations

The Commission shall—

(1)

establish procedures relating to the rights of victims to be heard in proceedings before the Commission; and

(2)

in rendering any decision, provide due consideration to any statement or information provided by any victim before the Commission.

(f)

Family liaisons

The Secretary shall designate at least 1 employee at each area office of the Occupational Safety and Health Administration to serve as a family liaison to—

(1)

keep victims informed of the status of investigations, enforcement actions, and settlement negotiations; and

(2)

assist victims in asserting their rights under this section.

(g)

Definition

In this section, the term victim means—

(1)

an employee, including a former employee, who has sustained a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8; or

(2)

a family member (as further defined by the Secretary) of a victim described in paragraph (1), if—

(A)

the victim dies as a result of a incident that is the subject of an inspection or investigation conducted under section 8; or

(B)

the victim sustains a work-related injury or illness that is the subject of an inspection or investigation conducted under section 8, and the victim because of incapacity cannot reasonably exercise the rights under this section.

.

703.

Correction of serious, willful, or repeated violations pending contest and procedures for a stay

Section 10 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 659) is amended by adding at the end the following:

(d)

Correction of serious, willful, or repeated violations pending contest and procedures for a stay

(1)

Period permitted for correction of serious, willful, or repeated violations

For each violation which the Secretary designates as serious, willful, or repeated, the period permitted for the correction of the violation shall begin to run upon receipt of the citation.

(2)

Filing of a motion of contest

The filing of a notice of contest by an employer—

(A)

shall not operate as a stay of the period for correction of a violation designated as serious, willful, or repeated; and

(B)

may operate as a stay of the period for correction of a violation not designated by the Secretary as serious, willful, or repeated.

(3)

Criteria and rules of procedure for stays

(A)

Motion for a stay

An employer that receives a citation alleging a violation designated as serious, willful, or repeated and that files a notice of contest to the citation asserting that the time set for abatement of the alleged violation is unreasonable or challenging the existence of the alleged violation may file with the Commission a motion to stay the period for the abatement of the violation.

(B)

Criteria

In determining whether a stay should be issued on the basis of a motion filed under subparagraph (A), the Commission may grant a stay only if the employer has demonstrated—

(i)

a substantial likelihood of success on the areas contested under subparagraph (A); and

(ii)

that a stay will not adversely affect the health and safety of workers.

(C)

Rules of Procedure

The Commission shall develop rules of procedure for conducting a hearing on a motion filed under subparagraph (A) on an expedited basis. At a minimum, such rules shall provide:

(i)

That a hearing before an administrative law judge shall occur not later than 15 days following the filing of the motion for a stay (unless extended at the request of the employer), and shall provide for a decision on the motion not later than 15 days following the hearing (unless extended at the request of the employer).

(ii)

That a decision of an administrative law judge on a motion for stay is rendered on a timely basis.

(iii)

That if a party is aggrieved by a decision issued by an administrative law judge regarding the stay, such party has the right to file an objection with the Commission not later than 5 days after receipt of the administrative law judge’s decision. Within 10 days after receipt of the objection, a Commissioner, if a quorum is seated pursuant to section 12(f), shall decide whether to grant review of the objection. If, within 10 days after receipt of the objection, no decision is made on whether to review the decision of the administrative law judge, the Commission declines to review such decision, or no quorum is seated, the decision of the administrative law judge shall become a final order of the Commission. If the Commission grants review of the objection, the Commission shall issue a decision regarding the stay not later than 30 days after receipt of the objection. If the Commission fails to issue such decision within 30 days, the decision of the administrative law judge shall become a final order of the Commission.

(iv)

For notification to employees or representatives of affected employees of requests for such hearings and shall provide affected employees or representatives of affected employees an opportunity to participate as parties to such hearings.

.

704.

Conforming amendments

Section 17(d) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666(d)) is amended to read as follows:

(d)

Any employer who fails to correct a violation designated by the Secretary as serious, willful, or repeated and for which a citation has been issued under section 9(a) within the period permitted for its correction (and a stay has not been issued by the Commission under section 10(d)) may be assessed a civil penalty of not more than $7,000 for each day during which such failure or violation continues. Any employer who fails to correct any other violation for which a citation has been issued under section 9(a) of this title within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 10 initiated by the employer in good faith and not solely for delay of avoidance of penalties) may be assessed a civil penalty of not more than $7,000 for each day during which such failure or violation continues.

.

705.

Civil penalties

(a)

In General

Section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) is amended—

(1)

in subsection (a)—

(A)

by striking $70,000 and inserting $120,000;

(B)

by striking $5,000 and inserting $8,000; and

(C)

by adding at the end the following: In determining whether a violation is repeated, the Secretary or the Commission shall consider the employer’s history of violations under this Act and under State occupational safety and health plans established under section 18. If such a willful or repeated violation caused or contributed to the death of an employee, such civil penalty amounts shall be increased to not more than $250,000 for each such violation, but not less than $50,000 for each such violation, except that for an employer with 25 or fewer employees such penalty shall not be less than $25,000 for each such violation.;

(2)

in subsection (b)—

(A)

by striking $7,000 and inserting $12,000; and

(B)

by adding at the end the following: If such a violation caused or contributed to the death of an employee, such civil penalty amounts shall be increased to not more than $50,000 for each such violation, but not less than $20,000 for each such violation, except that for an employer with 25 or fewer employees such penalty shall not be less than $10,000 for each such violation.;

(3)

in subsection (c), by striking $7,000 and inserting $12,000;

(4)

in subsection (d), as amended, by striking $7,000 each place it occurs and inserting $12,000;

(5)

by redesignating subsections (e) through (i) as subsections (f) through (j), and subsections (j) through (l) as subsections (l) through (n) respectively; and

(6)

in subsection (j) (as so redesignated) by striking $7,000 and inserting $12,000.

(b)

Inflation Adjustment

Section 17 is further amended by inserting after subsection (d) the following:

(e)

Amounts provided under this section for civil penalties shall be adjusted by the Secretary at least once during each 4-year period beginning January 1, 2015, to account for the percentage increase or decrease in the Consumer Price Index for all urban consumers during such period.

.

706.

Criminal penalties

(a)

In General

Section 17 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) (as amended by section 705) is further amended—

(1)

by amending subsection (f) (as redesignated by section 705) to read as follows:

(f)
(1)

Any employer who knowingly violates any standard, rule, or order promulgated under section 6 of this Act, or of any regulation prescribed under this Act, and that violation caused or significantly contributed to the death of any employee, shall, upon conviction, be punished by a fine in accordance with title 18, United States Code, or by imprisonment for not more than 10 years, or both, except that if the conviction is for a violation committed after a first conviction of such person under this subsection or subsection (i), punishment shall be by a fine in accordance title 18, United States Code, or by imprisonment for not more than 20 years, or by both.

(2)

For the purpose of this subsection, the term employer means, in addition to the definition contained in section 3 of this Act, any officer or director.

;

(2)

by amending subsection (g) (as redesignated by section 705) to read as follows:

(g)

Unless otherwise authorized by this Act, any person that knowingly gives, causes to give, or attempts to give or cause to give, advance notice of any inspection conducted under this Act with the intention of impeding, interfering with, or adversely affecting the results of such inspection, shall be fined under title 18, United States Code, imprisoned for not more than 5 years, or both.

.

(3)

in subsection (h) (as redesignated by section 705), by striking fine of not more than $10,000, or by imprisonment for not more than six months, and inserting fine in accordance with title 18, United States Code, or by imprisonment for not more than 5 years,;

(4)

by inserting after subsection (j) (as redesignated by section 705) the following:

(k)
(1)

Any employer who knowingly violates any standard, rule, or order promulgated under section 6, or any regulation prescribed under this Act, and that violation caused or significantly contributed to serious bodily harm to any employee but does not cause death to any employee, shall, upon conviction, be punished by a fine in accordance with title 18, United States Code, or by imprisonment for not more than 5 years, or by both, except that if the conviction is for a violation committed after a first conviction of such person under this subsection or subsection (e), punishment shall be by a fine in accordance with title 18, United States Code, or by imprisonment for not more than 10 years, or by both.

(2)

For the purpose of this subsection, the term employer means, in addition to the definition contained in section 3 of this Act, any officer or director.

(3)

For purposes of this subsection, the term serious bodily harm means bodily injury or illness that involves—

(A)

a substantial risk of death;

(B)

protracted unconsciousness;

(C)

protracted and obvious physical disfigurement; or

(D)

protracted loss or impairment, either temporary or permanent, of the function of a bodily member, organ, or mental faculty.

.

(b)

Jurisdiction for Prosecution Under State and Local Criminal Laws

Such section is further amended by adding at the end the following:

(o)

Nothing in this Act shall preclude a State or local law enforcement agency from conducting criminal prosecutions in accordance with the laws of such State or locality.

.

707.

Pre-final order interest

Section 17(n) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 666) (as redesignated by section 706(a)(4)) (29 U.S.C. 666(n)) is amended by adding at the end the following: Pre-final order interest on such penalties shall begin to accrue on the date the party contests a citation issued under this Act, and shall end upon the issuance of the final order. Such pre-final order interest shall be calculated at the current underpayment rate determined by the Secretary of the Treasury pursuant to section 6621 of the Internal Revenue Code of 1986, and shall be compounded daily. Post-final order interest shall begin to accrue 30 days after the date a final order of the Commission or the court is issued, and shall be charged at the rate of 8 percent per year..

708.

Review of State Occupational Safety and Health Plans

Section 18 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 668) is amended—

(1)

by amending subsection (f) to read as follows:

(f)
(1)

The Secretary shall, on the basis of reports submitted by the State agency and the Secretary’s own inspections, make a continuing evaluation of the manner in which each State that has a plan approved under this section is carrying out such plan. Such evaluation shall include an assessment of whether the State continues to meet the requirements of subsection (c) of this section and any other criteria or indices of effectiveness specified by the Secretary in regulations. Whenever the Secretary finds, on the basis of such evaluation, that in the administration of the State plan there is a failure to comply substantially with any provision of the State plan (or any assurance contained therein), the Secretary shall make an initial determination of whether the failure is of such a nature that the plan should be withdrawn or whether the failure is of such a nature that the State should be given the opportunity to remedy the deficiencies, and provide notice of the Secretary’s findings and initial determination.

(2)

If the Secretary makes an initial determination to reassert and exercise concurrent enforcement authority while the State is given an opportunity to remedy the deficiencies, the Secretary shall afford the State an opportunity for a public hearing within 15 days of such request, provided that such request is made not later than 10 days after Secretary’s notice to the State. The Secretary shall review and consider the testimony, evidence, or written comments, and not later than 30 days following such hearing, make a determination to affirm, reverse, or modify the Secretary’s initial determination to reassert and exercise concurrent enforcement authority under sections 8, 9, 10, 13, and 17 with respect to standards promulgated under section 6 and obligations under section 5(a). Following such a determination by the Secretary, or in the event that the State does not request a hearing within the time frame set forth in this paragraph, the Secretary may reassert and exercise such concurrent enforcement authority, while a final determination is pending under paragraph (3) or until the Secretary has determined that the State has remedied the deficiencies as provided under paragraph (4). Such determination shall be published in the Federal Register. The procedures set forth in section 18(g) shall not apply to a determination by the Secretary to reassert and exercise such concurrent enforcement authority.

(3)

If the Secretary makes an initial determination that the plan should be withdrawn, the Secretary shall provide due notice and the opportunity for a hearing. If based on the evaluation, comments, and evidence, the Secretary makes a final determination that there is a failure to comply substantially with any provision of the State plan (or any assurance contained therein), he shall notify the State agency of the withdrawal of approval of such plan and upon receipt of such notice such plan shall cease to be in effect, but the State may retain jurisdiction in any case commenced before the withdrawal of the plan in order to enforce standards under the plan whenever the issues involved do not relate to the reasons for the withdrawal of the plan.

(4)

If the Secretary makes a determination that the State should be provided the opportunity to remedy the deficiencies, the Secretary shall provide the State an opportunity to respond to the Secretary’s findings and the opportunity to remedy such deficiencies within a time period established by the Secretary, not to exceed 1 year. The Secretary may extend and revise the time period to remedy such deficiencies, if the State’s legislature is not in session during this 1 year time period, or if the State demonstrates that it is not feasible to correct the deficiencies in the time period set by the Secretary, and the State has a plan to correct the deficiencies within a reasonable time period. If the Secretary finds that the State agency has failed to remedy such deficiencies within the time period specified by the Secretary and that the State plan continues to fail to comply substantially with a provision of the State plan, the Secretary shall withdraw the State plan as provided for in paragraph (3).

; and

(2)

by adding at the end the following new subsection:

(i)

Not later than 18 months after the date of enactment of this subsection, and every 5 years thereafter, the Comptroller General shall complete and issue a review of the effectiveness of State plans to develop and enforce safety and health standards to determine if they are at least as effective as the Federal program and to evaluate whether the Secretary’s oversight of State plans is effective. The Comptroller General’s evaluation shall assess—

(1)

the effectiveness of the Secretary’s oversight of State plans, including the indices of effectiveness used by the Secretary;

(2)

whether the Secretary’s investigations in response to Complaints About State Plan Administration (CASPA) are adequate, whether significant policy issues have been identified by headquarters and corrective actions are fully implemented by each State;

(3)

whether the formula for the distribution of funds described in section 23(g) to State programs is fair and adequate; and

(4)

whether State plans are as effective as the Federal program in preventing occupational injuries, illnesses and deaths, and investigating discrimination complaints, through an evaluation of at least 20 percent of approved State plans, and which shall cover—

(A)

enforcement effectiveness, including handling of fatalities, serious incidents and complaints, compliance with inspection procedures, hazard recognition, verification of abatement, violation classification, citation and penalty issuance, including appropriate use of willful and repeat citations, and employee involvement;

(B)

inspections, the number of programmed health and safety inspections at private and public sector establishments, and whether the State targets the highest hazard private sector work sites and facilities in that State;

(C)

budget and staffing, including whether the State is providing adequate budget resources to hire, train and retain sufficient numbers of qualified staff, including timely filling of vacancies;

(D)

administrative review, including the quality of decisions, consistency with Federal precedence, transparency of proceedings, decisions and records are available to the public, adequacy of State defense, and whether the State appropriately appeals adverse decisions;

(E)

anti discrimination, including whether discrimination complaints are processed in a timely manner, whether supervisors and investigators are properly trained to investigate discrimination complaints, whether a case file review indicates merit cases are properly identified consistent with Federal policy and procedure, whether employees are notified of their rights, and whether there is an effective process for employees to appeal the dismissal of a complaint;

(F)

program administration, including whether the State’s standards and policies are at least as effective as the Federal program and are updated in a timely manner, and whether National Emphasis Programs that are applicable in such States are adopted and implemented in a manner that is at least as effective as the Federal program;

(G)

whether the State plan satisfies the requirements for approval set forth in this section and its implementing regulations; and

(H)

other such factors identified by the Comptroller General, or as requested by the Committee on Education and Labor of the House of Representatives or the Committee on Health, Education, Labor and Pensions of the Senate.

.

709.

Health Hazard Evaluations by the National Institute for Occupational Safety and Health

Section 20(a)(6) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 669(a)(6)) is amended by striking the second sentence and inserting the following: The Secretary shall determine following a written request by any employer, authorized representative of current or former employees, physician, other Federal agency, or State or local health department, specifying with reasonable particularity the grounds on which the request is made, whether any substance normally found in the place of employment has potentially toxic effects in such concentrations as used or found or whether any physical agents, equipment, or working condition found or used has potentially hazardous effects; and shall submit such determination both to employers and affected employees as soon as possible..

710.

Authorization of cooperative agreements by NIOSH Office of Mine Safety and Health

Section 22(h)(3) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 671(h)(3)) is amended—

(1)

in subparagraph (B), by striking and at the end;

(2)

by redesignating subparagraph (C) as subparagraph (D); and

(3)

by inserting after subparagraph (B) the following:

(C)

enter into cooperative agreements or contracts with international institutions and private entities to improve mine safety and health through the development and evaluation of new interventions; and

.

711.

Effective date

(a)

General Rule

Except as provided for in subsection (b), this title and the amendments made by this title shall take effect not later than 90 days after the date of the enactment of this Act.

(b)

Exception for States and political subdivisions

A State that has a State plan approved under section 18 (29 U.S.C. 667) shall amend its State plan to conform with the requirements of this Act and the amendments made by this Act not later than 12 months after the date of the enactment of this Act. The Secretary of Labor may extend the period for a State to make such amendments to its State plan by not more than 12 months, if the State’s legislature is not in session during the 12-month period beginning with the date of the enactment of this Act. Such amendments to the State plan shall take effect not later than 90 days after the adoption of such amendments by such State.

July 29, 2010

Reported with an amendment, referred to the Committee on the Judiciary for a period ending not later than July 29, 2010, for consideration of such provisions of the bill and amendment as fall within the jurisdiction of that committee pursuant to clause 1(k), rule X

July 29, 2010

Committee on the Judiciary discharged; committed to the Committee of the Whole House on the State of the Union and ordered to be printed