Is this ‘meaningful’ mine safety legislation?

February 26, 2012 by Ken Ward Jr.

Updated: Here’s our print story about this bill, and noting its passage — voice vote — to third reading in the House.

As we begin another week, expect movement perhaps as early as Monday morning to get a mine safety bill through the West Virginia House of Delegates before Wednesday’s deadline to approve legislation in its house of origin.

Officials from the Tomblin administration have worked out a deal with the House leadership, after the legislation appeared stalled last week because coal lobbyists wouldn’t go along with it. The deal, of course, was worked out in closed-door meetings between lawmakers, the governor’s office and lobbyists for the West Virginia Coal Association and the United Mine Workers. This is the preferred method of addressing changes to legislation up at the statehouse, mostly because it allows lawmakers on all sides to avoid having to put their names down as having voted one way or the other on amendments.

As we discussed here on Friday, it’s unlikely anybody is going to be claiming that this bill represents doing everything we can to protect the health and safety of West Virginia coal miners … look instead for political leaders and lobbyists for coal and mine workers to promote this as “meaningful” legislation, the term Gov. Earl Ray Tomblin have switched to in discussing the matter.

Still, both sides will claim victory, and the notion that just getting a bill — any bill — passed will get positive coverage from the statehouse press corps (See also here).

But is this really a  meaningful bill? Let’s take a look at where the agreed-to language stands right now, as it’s spelled out in a floor amendment filed on Friday by House Judiciary Chairman Tim Miley, D-Harrison.

First of all, make no mistake about it: Coal lobbyists got a drug testing provision, despite there being absolutely no evidence that drug or alcohol abuse played any role at all in the deaths of those 29 miners who got blown up at Massey Energy’s Upper Big Branch Mine on April 5, 2010. As currently written, the bill contains no provision to provide treatment or other help for workers who develop drug or alcohol problems — something that even the Bush administration thought should be included in a substance abuse regulation proposed by the federal Mine Safety and Health Administration.

Next, the UMWA lobby got the language it wanted to give families of mine accident victims the ability to appoint a someone to represent them during state government investigations of those accidents. As the UMWA wanted, this language would allow families to appoint union representatives if they want to, even if the UMWA doesn’t represent the mine’s workers for collective barganing purposes.

What’s fascinating about this section of the legislation — especially given the UMWA’s position in favor of public hearings in mine disaster investigations — is language that could effectively allow the state Office of Miners’ Health, Safety and Training to block from public release the entire interview transcript of any witness who asks that their statement to investigators be kept confidential.   This is much broader than the language proposed by House leaders, which allowed only the name of such witnesses to be withheld, while the content of their testimony would be made public (which is how the state and MSHA have handled a small set of transcripts of UBB witnesses who asked for confidentiality).

State mine safety officials have a long history of being very open about their investigations, releasing witness interview transcripts and recordings that federal investigators sought to keep private.  But the current language in the Miley floor amendment would allow, just for example, state officials to withhold unflattering testimony about their own agency if inspectors interviewed in an investigation sought confidentiality. It’s a major step backward in maintaining some public transparency in mining accident investigations.

What about the other major provisions of the bill? Here’s a summary:

Requiring more accountability from top mine managers — The bill would require mine superintendents to review fireboss safety books. But take a look at the specific language:

No less frequently than bi-weekly, the superintendent or, if there is no superintendent, the senior person at the mine shall obtain complete copies of the books of the fire bosses, and acknowledge that he or she has reviewed such copies and acted accordingly. This acknowledgment shall be made by signing a book prescribed by the director for that purpose.

Now, this was already a weakening from the House leadership’s original bill, which would have required mine superintendents to review fireboss books every day, but exactly what does this version mean when it requires superintendents to acknowledge that they have  “acted accordingly”? Anybody know? Why doesn’t it say, specifically, that the mine superintendent is required to certify that all hazards noted in the books have been fixed?  By the way, this particular language is also  one major weakening of the bill that was made since the House Judiciary Committee passed a substitute version of the bill.

New criminal penalties — The bill makes it a crime for “any person” to willfully violate or order someone else to violate a state mine safety standard, but only if that violation causes the death of a worker. Interestingly, the state mine safety office has stopped classifying violations as “contributing” to fatalities, so it’s not clear how it would be decided what violations do and don’t directly cause deaths.  This language is also weaker than the House leadership proposal, which would have made all willful violations a crime — punishable with fines and jail time — regardless of whether they led to a death. And not for nothing, this is another major weakening of the bill that was made after House Judiciary Committee approval of a substitute bill.

More importantly in this regard, the legislation provides absolutely no new mechanism by which criminal violations under state law would actually be prosecuted. State mine safety officials have been unable to point me to any examples in recent memory where county prosecutors — the only ones with legal authority to bring such charges — have used the state’s existing criminal statutes. And in fact, state officials haven’t been able to point to cases where they referred potential criminal violations to county prosecutors for further investigation. If state mine safety criminal statutes aren’t going to be used, what good does it do to enhance those laws?

Mine ventilation plans — The proposed amendment mirrors the governor’s office proposal in some ways, including the fact that it eliminates a provision of current law which requires coal operators to obtain state approval of ventilation plans before using those plans underground. Operators would have to submit their plans to the state, and state officials would have the authority to review and comment on them. But operators would have to implement changes recommended by the state only if  mine company officials considered those changes “practicable.” Oddly — coming from a state that continually wants federal officials to stay out of the coal industry’s business — state recommendations that companies refuse to implement would be forwarded to MSHA, in the hopes, I suppose, that federal officials would do something about it. The floor amendment language is weaker than what was recommended by state mine safety Director C.A. Phillips and what was proposed by the House leadership.

— Advance notice of inspections — Warning companies or workers about impending state inspections would be made a crime, but only if it can be proven that the advance notice was done with the intent to disrupt the inspection. This is a much narrower definition than existing federal law, which makes it a crime to provide advance notice of inspections – period.

— Dealing with repeat mine safety violators — The only additional tools given to state inspectors to deal with mine operators that repeatedly violate safety standards and create hazards to miners is to call in the state’s mine safety training board, which is then charged with instituting additional educational programs aimed at the hazards inspectors found.

— Increasing civil penalties — The maximum fine for most safety violations would be increased from $3,000 to $5,000 — that’s compared to $10,000 maximum fines sought by the House leadership, and $70,000 maximum fines under current federal law.

— Paying miners during imminent danger closures — The new legislation removes language that the House Judiciary Committee added to the governor’s bill to expand the amount of time for which miners are paid if their workplace is shut down because an operator created an imminent danger to them and then did not promptly correct the hazard.

— Methane and coal dust — The bill would increase the requirements for ensuring explosive coal dust is controlled by “rock dusting,” but that change is already required by new MSHA rules. The bill would also institute some additional methane testing, and tighten the language for when mining equipment must be shut down in the presence of explosive gases. But more importantly, the legislation completely ignores the recommendation from independent investigator Davitt McAteer that state officials require all mine operators to install the advanced coal dust sampling equipment and ventilation monitors that Alpha Natural Resources agreed to use under its non-prosecution agreement with U.S. Attorney Booth Goodwin.

Perhaps the most fascinating thing in this legislation is a few words tucked into the provision giving families of miners who die on the job to appoint a representative to sit in on the accident investigation:

No more than five representatives designated pursuant to this section may attend witness interviews and investigatory hearings for the purpose of observing such interviews and hearings and conveying information to accident victims’ family.

If I’m reading this correctly, somebody working on this bill was concerned that, after a major mining disaster, you could end up with representatives of more than five miners’ families wanting to sit in on interviews. Whoever wrote that must think it’s likely we’ll see more mine disasters in our state’s future — more explosions or roof falls or fires where more than five miners are killed.

Maybe they’re right.

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