Robert C. Byrd Mine Safety Protection Act of 2020

II 116TH CONGRESS 2D SESSION S. 5048 To improve compliance with mine safety and health laws, empower miners to raise safety concerns, and prevent future mine tragedies, and for other purposes. IN THE SENATE OF THE UNITED STATES DECEMBER 17, 2020 Mr. CASEY (for himself, Mr. BROWN, and Mr. MANCHIN) introduced the fol- lowing bill; which was read twice and referred to the Committee on Health, Education, Labor, and Pensions A BILL To improve compliance with mine safety and health laws, empower miners to raise safety concerns, and prevent future mine tragedies, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Robert C. Byrd Mine Safety Protection Act of 2020’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. References. VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 5048 IS TITLE I—ADDITIONAL INSPECTION AND INVESTIGATION AUTHORITY Sec. 101. Independent accident investigations. Sec. 102. Subpoena authority and miner rights during inspections and inves- tigations. 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. Procedures and criteria for determining a pattern of violations. 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 program or plan. Sec. 206. GAO study on MSHA underground 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—MINERS’ RIGHTS AND PROTECTIONS Sec. 401. Protection from retaliation. Sec. 402. Protection from loss of pay. Sec. 403. Underground coal miner employment standard for mines with pat- terns of violations. 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. Study on respirable dust standards. Sec. 505. Refresher training on miners’ rights and responsibilities. Sec. 506. Authority to mandate additional training. Sec. 507. Brookwood-Sago Mine Safety Grants. Sec. 508. Certification of personnel. Sec. 509. Electronic records requirement. TITLE VI—ADDITIONAL MINE SAFETY PROVISIONS Sec. 601. Definitions. Sec. 602. Assistance to States. Sec. 603. Double encumbrance; succession plan. TITLE VII—AMENDMENTS TO THE OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 Sec. 701. Coverage of public employees. Sec. 702. Enhanced protections from retaliation. Sec. 703. Victims’ rights. VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 5048 IS Sec. 704. Correction of serious, willful, or repeated violations pending contest and procedures for a stay. Sec. 705. Conforming amendments. Sec. 706. Civil penalties. Sec. 707. Criminal penalties. Sec. 708. Penalties. Sec. 709. Authorization of cooperative agreements by NIOSH Office of Mine Safety and Health. Sec. 710. Effective date. SEC. 2. REFERENCES. 1 Except as otherwise expressly provided, whenever in 2 this Act an amendment is expressed as an amendment to 3 a section or other provision, the reference shall be consid- 4 ered to be made to a section or other provision of the Fed- 5 eral Mine Safety and Health Act of 1977 (30 U.S.C. 801 6 et seq.). 7 TITLE I—ADDITIONAL INSPEC- 8 TION AND INVESTIGATION 9 AUTHORITY 10 SEC. 101. INDEPENDENT ACCIDENT INVESTIGATIONS. 11 (a) IN GENERAL.—Section 103(b) (30 U.S.C. 12 813(b)) is amended— 13 (1) by striking ‘‘(b) For the purpose’’ and in- 14 serting the following: 15 ‘‘(b) ACCIDENT INVESTIGATIONS.— 16 ‘‘(1) IN GENERAL.—For all accident investiga- 17 tions under this Act, the Secretary shall— 18 ‘‘(A) determine why the accident occurred; 19 ‘‘(B) determine whether there were viola- 20 tions of law, mandatory health or safety stand- 21 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 5048 IS ards, or other requirements, and if there is evi- 1 dence of conduct that may constitute a violation 2 of Federal criminal law, the Secretary may 3 refer such evidence to the Attorney General; 4 and 5 ‘‘(C) make recommendations to avoid any 6 recurrence. 7 ‘‘(2) INDEPENDENT ACCIDENT INVESTIGA- 8 TIONS.— 9 ‘‘(A) IN GENERAL.—There shall be, in ad- 10 dition to an accident investigation under para- 11 graph (1), an independent investigation by an 12 independent investigation panel (referred to in 13 this subsection as the ‘Panel’) appointed under 14 subparagraph (B) for— 15 ‘‘(i) any accident involving 3 or more 16 deaths; or 17 ‘‘(ii) any accident that is of such se- 18 verity or scale for potential or actual harm 19 that, in the opinion of the Secretary of 20 Health and Human Services, the accident 21 merits an independent investigation. 22 ‘‘(B) APPOINTMENT.— 23 ‘‘(i) IN GENERAL.—As soon as prac- 24 ticable after an accident described in sub- 25 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 5048 IS paragraph (A), the Secretary of Health 1 and Human Services shall appoint 5 mem- 2 bers for the Panel required under this 3 paragraph from among individuals who 4 have expertise in accident investigations, 5 mine engineering, or mine safety and 6 health that is relevant to the particular in- 7 vestigation. 8 ‘‘(ii) CHAIRPERSON.—The Panel shall 9 include, and be chaired by, a representative 10 from the Office of Mine Safety and Health 11 Research of the National Institute for Oc- 12 cupational Safety and Health (referred to 13 in this subsection as ‘NIOSH’). 14 ‘‘(iii) CONFLICTS OF INTEREST.— 15 Panel members, and staff and consultants 16 assisting the Panel with an investigation, 17 shall be free from conflicts of interest with 18 regard to the investigation, and be subject 19 to the same standards of ethical conduct 20 for persons employed by the Secretary of 21 Health and Human Services. 22 ‘‘(iv) COMPOSITION.—The Secretary 23 of Health and Human Services— 24 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 5048 IS ‘‘(I) shall appoint as members of 1 the Panel— 2 ‘‘(aa) 1 operator of a mine 3 or individual representing mine 4 operators; and 5 ‘‘(bb) 1 representative of a 6 labor organization that rep- 7 resents miners; and 8 ‘‘(II) may not appoint more than 9 1 of either type of individuals de- 10 scribed in items (aa) and (bb) as 11 members of the Panel. 12 ‘‘(v) STAFF AND EXPENSES.—The Di- 13 rector of NIOSH (referred to in this sub- 14 section as the ‘Director’) shall designate 15 NIOSH staff to facilitate the work of the 16 Panel. The Director may accept as staff 17 personnel on detail from other Federal 18 agencies or reemploy annuitants. The de- 19 tail of personnel under this paragraph may 20 be on a non-reimbursable basis, and such 21 detail shall be without interruption or loss 22 of civil service status or privilege. The Di- 23 rector shall have the authority to procure 24 on behalf of the Panel such materials, sup- 25 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 5048 IS plies or services, including technical ex- 1 perts, as requested in writing by a majority 2 of the Panel. 3 ‘‘(vi) COMPENSATION AND TRAVEL.— 4 All members of the Panel who are officers 5 or employees of the United States shall 6 serve without compensation in addition to 7 that received for their services as officers 8 or employees of the United States. Each 9 Panel member who is not an officer or em- 10 ployee of the United States shall be com- 11 pensated at a rate equal to the daily equiv- 12 alent of the annual rate of basic pay pre- 13 scribed for level IV of the Executive Sched- 14 ule under section 5315 of title 5, United 15 States Code, for each day (including travel 16 time) during which such member is en- 17 gaged in the performance of duties of the 18 Panel. The members of the Panel shall be 19 allowed travel expenses, including per diem 20 in lieu of subsistence, at rates authorized 21 for employees of agencies under subchapter 22 I of chapter 57 of title 5, United States 23 Code, while away from their homes or reg- 24 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 5048 IS ular places of business in the performance 1 of services for the Panel. 2 ‘‘(C) DUTIES.—The Panel shall— 3 ‘‘(i) assess and identify any factors 4 that caused the accident, including defi- 5 ciencies in safety management systems, 6 regulations, enforcement, industry prac- 7 tices or guidelines, or organizational fail- 8 ures; 9 ‘‘(ii) identify and evaluate any con- 10 tributing actions or inactions of— 11 ‘‘(I) the operator; 12 ‘‘(II) any contractors or other 13 persons engaged in mining-related 14 functions at the site; 15 ‘‘(III) any State agency with 16 oversight responsibilities; 17 ‘‘(IV) any agency or office within 18 the Department of Labor; 19 ‘‘(V) the Federal Mine Safety 20 and Health Review Commission; or 21 ‘‘(VI) any other person or entity 22 (including equipment manufacturers); 23 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 5048 IS ‘‘(iii) review the determinations and 1 recommendations of the Secretary under 2 paragraph (1); 3 ‘‘(iv) prepare a report that— 4 ‘‘(I) includes the findings regard- 5 ing the causal factors described in 6 clauses (i) and (ii); 7 ‘‘(II) identifies any strengths and 8 weaknesses in the Secretary’s inves- 9 tigation; and 10 ‘‘(III) includes recommendations, 11 including interim recommendations 12 where appropriate, to industry, labor 13 organizations, State and Federal 14 agencies, or Congress, regarding pol- 15 icy, regulatory, enforcement, adminis- 16 trative, or other changes, which, in 17 the judgment of the Panel, would pre- 18 vent a recurrence at other mines; and 19 ‘‘(v) publish such findings and rec- 20 ommendations (excluding any portions 21 which the Attorney General requests that 22 the Secretary withhold in relation to a 23 criminal referral) and hold public meetings 24 to inform the mining community and fami- 25 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 5048 IS lies of affected miners of the Panel’s find- 1 ings and recommendations. 2 ‘‘(D) HEARINGS; APPLICABILITY OF CER- 3 TAIN FEDERAL LAW.—The Panel shall have the 4 authority to conduct public hearings or meet- 5 ings, but shall not be subject to the Federal Ad- 6 visory Committee Act (5 U.S.C. App.). All pub- 7 lic hearings of the Panel shall be subject to the 8 requirements under section 552b of title 5, 9 United States Code. 10 ‘‘(E) MEMORANDUM OF UNDER- 11 STANDING.—Not later than 90 days after the 12 date of enactment of the Robert C. Byrd Mine 13 Safety Protection Act of 2020, the Secretary of 14 Labor and the Secretary of Health and Human 15 Services shall conclude and publicly issue a 16 memorandum of understanding that— 17 ‘‘(i) outlines administrative arrange- 18 ments which will facilitate a coordination 19 of efforts between the Secretary of Labor 20 and the Panel, ensures that such Sec- 21 retary’s investigation under paragraph (1) 22 is not delayed or otherwise compromised by 23 the activities of the Panel, and establishes 24 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 5048 IS a process to resolve any conflicts between 1 such investigations; 2 ‘‘(ii) ensures that Panel members or 3 staff will be able to participate in inves- 4 tigation activities (such as mine inspections 5 and interviews) related to the Secretary of 6 Labor’s investigation and will have full ac- 7 cess to documents that are assembled or 8 produced in such investigation, and en- 9 sures that the Secretary of Labor will 10 make available to the Panel all of the au- 11 thority provided under this section to such 12 Secretary relating to obtaining information 13 and witnesses, which may be requested by 14 the Panel; and 15 ‘‘(iii) establishes such other arrange- 16 ments as are necessary to implement this 17 paragraph. 18 ‘‘(F) PROCEDURES.—Not later than 90 19 days after the date of enactment of the Robert 20 C. Byrd Mine Safety Protection Act of 2020, 21 the Secretary of Health and Human Services 22 shall establish procedures to ensure the consist- 23 ency and effectiveness of Panel investigations. 24 In establishing such procedures, such Secretary 25 VerDate Sep 11 2014 23:40 Jan 22, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S5048.IS S5048 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 5048 IS shall consult with independent safety investiga- 1 tion agencies, sectors of the mining industry, 2 representatives of miners, families of miners in- 3 volved in fatal accidents, State mine safety 4 agencies, and mine rescue organizations. Such 5 procedures shall include— 6 ‘‘(i) authority for the Panel to use evi- 7 dence, samples, interviews, data, analyses, 8 findings, or other information gathered by 9 the Secretary of Labor, as the Panel deter- 10 mines valid; 11 ‘‘(ii) provisions to ensure confiden- 12 tiality if requested by any witness, to the 13 extent permitted by law, and prevent con- 14 flicts of interest in witness representation; 15 and 16 ‘‘(iii) provisions for preservation of 17 public access to the Panel’s records 18 through the Secretary of Health and 19 Human Services. 20 ‘‘(G) SUBPOENAS; WITNESSES; CON- 21 TEMPT.— 22 ‘‘(i) SUBPOENA AUTHORITY.—For the 23 purpose of making any investigation of any 24 accident or other occurrence relating to 25 VerDate Sep 11 2014 23:40 Jan 22, 2021 J [Text truncated for display. Full text available on Congress.gov.]