Written in blood: Another disaster, another law

February 28, 2012 by Ken Ward Jr.

Members of the West Virginia House of Delegates just passed — with a unanimous vote — a much-watered down version of a mine safety bill (see previous posts on the bill here, here and here) with language worked out in closed-door meetings with industry and labor lobbyists, and a key provision that everyone admits is aimed at addressing a problem that had absolutely nothing to do with the Upper Big Branch Mine Disaster.

Among the most telling moments — about coal and West Virginia’s history — was when Delegate Charlene Marshall, D-Monongalia, spoke in favor of the bill, noting that she had lost a grandfather, her father and then her step-father, all to coal-mining accidents. Imagine that. Just imagine. Delegate Marshall said of the bill:

This is such a great day that we have this bill before us. I’ve been looking forward to this day. Even as a child, I often wondered if there was anything I could do. When something like this strikes close to your home, if you don’t get it now, you’ll get it then.

House Judiciary Chairman Tim Miley explained the bill, and the changes made to it during those private negotiations among legislative leaders, the governor’s office, the West Virginia Coal Association and the United Mine Workers. It was baffling, though, when Miley got into the language regarding mine superintendents being required to periodically review fireboss books. Miley told fellow lawmakers:

The culture of any business starts at the top. This was our effort to begin to hold management accountable.

Miley then said the bill would require mine superintendents, after they review the fireboss books to “make appropriate changes if there safety issues to be addressed.”

With all due respect to Delegate Miley, that’s not what the bill says. Here’s the 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.

I’m not burdened with having attended law school — but does anyone know what “acted accordingly” means and exactly how it would be enforced?

House Speaker Rick Thompson and Delegates Tim Miley, Charlene Marshall, Tim Armstead and Mike Caputo discussed the mine safety bill that passed the House today. Photo via W.Va. Legisalture.

It was nice to hear that my buddy, Delegate Mike Caputo, D-Marion and a UMWA official, reads Coal Tattoo. He said in his floor speech:

There are those in the press who have been critical of what we’re doing. That’s OK. I welcome that. I want the press to let the world know that we need to be vigilant when it comes to mine safety. I want them to keep an eye on this body and I want them to keep an eye on Congress.

Delegate Caputo walked us through the history of coal mining, and how lawmakers on both state and national levels have acted to protect miner health and safety only in the immediate aftermath of mine disasters.  He said he’s told fellow lawmakers that he’s not happy about the bill:

Hell no I’m not happy. We’re doing a bill because people died. That’s the only time we pass meaningful legislation in this country.

But he’s also gone from talking very tough — saying he wasn’t looking to compromise with the coal industry — to explaining that the bill will save lives, and thus is worth supporting.

[kml_flashembed movie="http://www.youtube.com/v/isqmrLhOO0M" width="425" height="350" wmode="transparent" /]

The Daily Mail posted the above video of today’s House discussion.

Delegate Caputo didn’t mince words when giving his opinion of Massey Energy, its former CEO Don Blankenship, and what happened at UBB:

It’s no big secret how Massey Energy and Don Blankenship conducted business at the upper big branch mine and any other mine under that umbrella: Workers were intimidated, records were falsified … There was a lack of enforcement, and the list goes on and on.

The more I read about the Upper Big Branch tragedy. This wasn’t only bad business practices, this was akin to organized crime, and it should be treated as such. I hope that this federal investigation starts at the bottom and works its way clear to the top.

Delegate Caputo said he celebrated his 35th year in the coal industry last week, and he bragged about having worked at a safe mine before he became a UMWA employee. He offered a line that is very popular in West Virginia among coal industry officials in the post-Massey Energy days:

Every operator should not be painted at that Massey brush, and every CEO should not be painted with that Don Blankenship brush.

What Delegate Caputo didn’t mention is that his old mine — Patriot Coal’s Federal No. 2 — while frequently cited as a model of safety and labor-management cooperation, is the subject of a federal criminal investigation of faked methane testing.  But he finished strong, telling fellow lawmakers:

This industry has created far, far too many widows. This industry has created far, far too many orphans.

Then came House Speaker Rick Thompson, D-Wayne. As has been mentioned before, Speaker Thompson’s father was killed in a mining accident in March 1952. His father was just 21 at the time, and left behind a widow with a two-year-old son who was three months pregnant with Thompson. The official Bureau of Mines report on his father’s death ends with this fascinating line about the mine superintendent at that operation:

We took warrants for Moses T. Damron and prosecuted him in a Justice of the Peace court in Wayne, W.Va.

Of course, that’s not what happens today. State criminal charges — while beefed up under this legislation — are seldom if ever used by county prosecutors. And state mine safety officials don’t have authority to prosecute anybody. Neither does the Attorney General.

Speaker Thompson noted that the legislation requires a study of mine safety enforcement by the state Office of Miners’ Health, Safety and Training (among several studies the bill requires), and promised to use the study results to push more reforms:

And I insist today that this not be the last step in protecting our coal miners.

A few other delegates also spoke. House Minority Leader Tim Armstead, R-Kanawha, said safety isn’t a partisan issue. Delegate Greg Butcher of Logan County said the bill should have done more, but didn’t offer any examples or propose any amendments. Delegate Rick Snuffer, R-Raleigh, reminded us that investigators have concluded the Upper Big Branch Mine Disaster could have been prevented if existing mine safety rules had only been followed:

If we’re not going to enforce the laws that are already on the books now, why are we going to pass more?

Of course, there are reasons existing laws aren’t enforced. Independent investigator Davitt McAteer explained in his report how mine safety agencies on both the federal and state level are often hindered by a variety of things from lack of funding to inadequate regulations to the mighty political interference of the coal industry. We’ve written before about the very real political pressures that might prompt a state or federal inspector to hesitate to shut down even a terribly dangerous coal mine. One job for Speaker Thompson and other legislative leaders going forward might to take a more measured tone with their coal industry cheerleading, so mine safety director C.A. Phillips and his inspectors would know that lawmakers understood what  McAteer and his team of experts observed:

There are within the WVMHST many dedicated, committed and safety-conscious inspectors and supervisors who are not afraid to issue citations or provide tough enforcement. However, the overwhelming scope of the job, the economic circumstances of a booming coal industry, the pressure to get along, the recognition of the importance of mining jobs within the state are factors that place immense pressures on state inspectors, pressures which make the regulatory enforcement process difficult to carry out. For those dedicated safety officials and for the workers whose lives hang in the balance, the politics of coal must be acknowledged in any discussion of workplace safety and a commitment must be made to ensure that the public interest – miners’ safety – is the foremost consideration.

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