Coal Tattoo

Will West Virginia lead on coal-mine safety?

Pam Napper, mother of deceased coal miner Josh Napper, holds Josh’s daughter Jenna Leigh Napper, 20 months, Wednesday, April 7, 2010 at a candlelight vigil in Cabin Creek, W.Va. Josh Napper was among the 29 miners killed, along with his uncle Timmy Davis Sr. and his cousin Cory Davis at an explosion at Massey Energy’s Upper Big Branch Coal Mine in Montcoal, W.Va.  (AP Photo/Jeff Gentner)

It’s so easy for the rest of us to forget what the Upper Big Branch Mine Disaster did to 29 families … the photographs of widows and orphans, even the names of all of the dead miners, it all fades too easily from memory. As the late Sen. Robert C. Byrd said:

First, the disaster. Then the weeping. Then the outrage. And we are all too familiar with what comes next. After a few weeks, when the cameras are gone, when the ink on the editorials has dried, everything returns to business as usual. The health and the safety of America’s coal miners, the men and women upon whom the Nation depends so much, is once again forgotten until the next disaster.

And so it is here in Charleston. My friend Rick Wilson, one of the Gazette’s contributing columnists took on the issue this morning of how in the world legislation that was supposed to have been inspired by the worst U.S. coal-mining disaster in a generation — an explosion that had nothing at all to do with drugs or alcohol in the mineshas somehow become the vehicle for the coal industry’s lobbyists to push their mandate of drug testing (but no drug treatment) for our state’s coal miners. He writes:

… Given the current leadership of the U.S. House of Representatives, Congress is not going to pass any substantial mine safety legislation no matter how many bodies pile up. It is devoted, with a purity seldom seen in the realms of love or religion, to protecting the interests of corporations and the very wealthy.

If any action is going to be taken to protect miners, it’s going to come down to our Legislature, where an example may be set that will eventually lead to federal action. So it is good news.

Now the bad news. One of the mine safety bills under consideration, SB 448, introduced by the governor, seems to be more concerned with drug testing than mine safety.

Don’t get me wrong. Substance abuse is a serious problem in West Virginia, in Appalachia and around the country. And I’m sure that most people would prefer not to mine coal or engage in other dangerous occupations with people under the influence. But such issues would best be addressed in separate legislation where they could be considered on their merits. They shouldn’t be allowed to divert attention from the issue at hand.

Rick adds in conclusion:

… It would be better to focus legislation on addressing the issues that we know have really led to mining disasters.

On the way to work this morning, I heard our buddy Hoppy Kercheval opining about how Gov. Earl Ray Tomblin and legislative leaders “are trying to settle the differences remaining in  “a comprehensive coal mine safety bill.”

A comprehensive mine safety bill? Is there some new piece of legislation that I’m not aware of? What’s the bill number, guys?

Sure, there are some things in bills proposed by both Gov. Tomblin and House Speaker Rick Thompson that mine safety advocates agree would be good. Who is going to argue with more and better training for miners or protecting safety whistle-blowers?

But I’ve yet to hear anyone who isn’t sponsoring one of these bills and knows much about coal-mine safety sound all too excited, or convinced  that either piece of legislation will actually put West Virginia out in front nationally or help ensure we never have another mine disaster.

Many of the things in these bills are already required by federal law, or are already being done by the state, or are really just picking around the edges, without making major reforms. Some examples:

Rock dusting — Proposed legislation would toughen the requirement for mine operators to spread crushed limestone in underground mines, to control the buildup of explosive coal dust like that most experts say caused Upper Big Branch. Mine operators are already required to do this, under an emergency regulation put in place by the U.S. Mine Safety and Health Administration, and by an executive order issued by then-Gov. Joe Manchin not long after the UBB mine blew up. (Not for nothing, but these changes were long overdue, having been recommended by the National Institute for Occupational Safety and Health for years.)

Independent investigation panel — Proponents of Speaker Thompson’s bill make much of this provision, saying the panel would review major mining accidents and recommend needed changes in state law and regulations. But isn’t that what the state Board of Coal Mine Health and Safety – composed of representatives from the United Mine Workers and the West Virginia Coal Association — is already supposed to be doing after every single one of the state’s fatalities?

Enhanced fines for safety violations — Nothing wrong with the idea of increasing the state Office of Miners’ Health, Safety and Training’s ability to issue civil penalties for violations its inspectors cite. But the maximum under Speaker Thompson’s bill — $10,000 per violation — really doesn’t amount to much, when you consider that the maximum fine under federal law is $70,000 for most violations and $220,000 for violations MSHA deems to be “flagrant.”

New criminal offenses and penalties — Language that would make it a felony under state law — with a penalty of up to five years in prison — to provide advance notice of government inspections is a step forward from federal law, where advance notice is a misdemeanor punishable with only up to six months in jail. But seriously now, when is the last time that a prosecuting attorney in West Virginia charged someone with a crime related to coal-mine safety violations? Does anyone really see this particular provision ever being used?

Giving families their say — As has been discussed before, Speaker Thompson’s father died in a mining accident. So he’s got a personal interest in trying to see families who go through that treated fairly. Language that would mandate that families be able to appoint a representative to take part in mining death investigations is a step forward in that area. Of course, the coal lobby is vigorously opposing that mandate. But if the goal is more transparency, both for families and the public, why don’t legislative leaders and the governor follow the example that then-Gov. Manchin set after Sago and require a public hearing into all mining deaths? The Obama administration promised public hearings into Upper Big Branch, but seems to have forgotten that promise. A state-mandated public investigation into all coal-mining deaths would put West Virginia ahead of what anyone else in this country is doing in this area.

— Methane monitors with shut-0ff devices on mining equipment — Proposed language would make West Virginia’s requirements tougher than current federal law. MSHA rules require automatic shut-off of equipment when methane reaches 2.0 percent, while the proposal is to make West Virginia law 1.25 percent. Both numbers are well below the explosive range for methane of 5 to 15 percent. So if the goal here is to really do something about methane problems in underground mines, why don’t lawmakers call down to the federal building and talk to U.S. Attorney Booth Goodwin about his agency’s deal with Alpha Natural Resources? Under that settlement, Alpha must install new, digital monitoring systems in all of its underground mines to continuously monitor ventilation to ensure safe levels of methane and proper movement of fresh air.

Why aren’t lawmakers and the governor acting on the recommendation from independent investigator Davitt McAteer to require all mine operators across West Virginia to do what Goodwin has required Alpha to do? For that matter, why aren’t they taking McAteer’s recommendation to also force the state’s entire coal industry to do as Alpha now must and begin using state-of-the-art explosibility meters to determine if safe levels of “rock dust” have been applied underground? Why don’t they go another step ahead of the federal government, and move on something MSHA has proposed, but hasn’t yet required: Use of “proximity detection” devices that would help keep miners from being killed or hurt by fast-moving underground mining equipment?

Nearly a year ago, when McAteer released his report on Upper Big Branch, Gov. Tomblin couldn’t have been more clear about his intentions, saying in a prepared statement:

… All West Virginians have my commitment that we will do all we can to make sure that a disaster like this never happens again.

House Speaker Thompson, when his legislation was introduced last month, said:

… I feel a deep, personal need to do everything we can to ensure that the laws are in place to prevent another mine tragedy like the UBB disaster.

If reports from the Capitol are correct, the “comprehensive mine safety legislation” Hoppy mentioned this morning is headed for the sort of deal that ends with a big bill-signing ceremony in the governor’s office, with Gov. Tomblin surrounded by lawmakers, all mugging for the cameras and congratulating each other on what a great job they’ve done.

I wonder if any of them will be thinking about the letter that 25-year-old Josh Napper wrote to his fiance and daughter before he got blow up just for going to work one morning at the Upper Big Branch Mine:

Dear Mommy and Jenna, if anything happens to me, I will be looking down from heaven. If you take care of my baby girl, watch over (her), tell her all the good things about her daddy. She was so cute and funny. She was my little peanut. And Jennifer, I know things have never been the greatest sometimes, but I just want you to know I love you and I care about you.

Will West Virginia’s elected leaders be able to tell Napper’s little girl that they truly did everything they could to make sure no other coal miners’ kids grow up without their fathers?