W.Va. passes mine safety bill — such as it is …

March 8, 2012 by Ken Ward Jr.

In this April 6, 2010 file photo, Trevor, 11, and Rabekka Quarles, 9, watch news reports about the Upper Big Branch mine explosion, surrounded by their father’s mining gear at their home in Naoma, W.Va. On Monday Gary Quarles, 33, was killed in an explosion at Massey Energy’s Upper Big Branch Coal Mine. 29 coal miners were killed in the April 5 explosion. (AP Photo/Jeff Gentner, File)

There’s another photo of some of the folks that it’s so easy to forget … especially when we’re all going through the long-scripted narrative of what happens in the coalfields after yet another terrible mining disaster.

What public officials should be asking themselves about now — two years after 29 men got blown up at Upper Big Branch — is if this happens again in West Virginia, will they be able to look the widows and orphans in the eye and honestly say they did everything they could to prevent it?

Or maybe, at least according to the ever-moving target set by Gov. Earl Ray Tomblin, that’s not the goal anymore. Recall that in his State of the State address, the governor declared that even one death in our coal mines was too many. Gov. Tomblin talked for a while about doing “all we can” and “all that is necessary” to prevent another mine disaster, before backing off to a goal of “meaningful” legislation that would save lives. Earlier this week, when the state Senate passed the mine safety bill, the governor issued what appeared to be a pretty boastful statement:

Tonight the legislature passed one of the most significant pieces of mine safety legislation in decades. As I stated in my State of the State address, making our coal mines safer was one of my top priorities for this legislative session. I worked tirelessly with the legislature to pass wide-ranging mine safety reforms. Our state legislature just unanimously passed a comprehensive mine safety bill. Special thanks to both Speaker Thompson and President Kessler for their dedication to creating safer mines in the Mountain State.

Wide-ranging mine safety reforms? Comprehensive mine safety bill? Statehouse reporters are dutifully reporting this stuff (see here, here and here), having forgotten the testimony from mine safety experts just a few weeks ago who offered much more significant recommendations for how West Virginia lawmakers could respond to Upper Big Branch and improve working conditions for our state’s coal miners.

Probably the only significant language in the bill that can be considered a meaningful response to Upper Big Branch is the provision that allows families of miners killed on the job to designate a representative to sit-in on accident investigation interviews on their behalf. But frankly, this section amounts to one step up and two steps back, if you actually bother to read the bill. The rights of families to have a representative attend investigation interviews are subject to the whims of the person being interviewed who can demand absolute confidentiality for any reason they wish. And that confidentiality provision effectively seals off entire portions of important mine safety investigations from later public scrutiny, by exempting transcripts of those interviews from the state public records law. This is a far cry from the improved transparency pushed by then-Gov. Joe Manchin after the Sago Mine Disaster in 2006, when Davitt McAteer’s independent investigation team forced International Coal Group executives to be publicly questioned by the windows of the miners who died at Sago.

A young boy looks at the casket of miner William Roosevelt Lynch of Oak Hill, W.Va. during funeral services on Sunday, April 11, 2010 in Beckley, W.Va.  Lynch was one of 29 miners who died in the explosion at Massey Energy Co.’s Upper Big Branch mine in Montcoal, W. Va. on Monday. (AP Photo/Amy Sancetta)

We’ve been over and over the questions about this legislation (see here, here, here and here), but let’s quickly look at what’s being promoted by political leaders and the statehouse press corps as the significant reforms:

— The bill imposes mandatory drug testing programs on coal miners across the state, without also ensuring that their employers give miners who develop a problem — even if it’s a problem caused by prescription drugs taken after a work-related injury — to get treatment and return to work if they show they are clean. Mine safety advocates opposed including this measure in a bill that started off as the legacy of Upper Big Branch, given that drugs and alcohol had nothing to do with the worst U.S. coal-mining disaster in nearly 40 years.

— The legislation requires creation of an anonymous hotline for reporting of dangerous conditions in the mines — a hotline that already exists, having been implemented by then-Gov. Manchin after Sago and Aracoma.

–The bill writes into state law tougher standards for the distribution of “rock dust“, or crushed limestone, as a tool to control the buildup of explosive coal dust underground. These are standards that every coal mine in West Virginia must already follow, under a federal standard implemented by those meddlesome federal regulators from the Obama administration.

Some statehouse reporters are touting the language “setting new requirements for detecting and responding to excess methane in mines, including requiring withdrawing all individuals from areas with 1.5 percent methane concentrations.”  What they don’t tell readers is that this is probably only a marginal improvement over existing federal standards, which require mining equipment to automatically shut down at 2.0 percent methane (remember that methane is explosive between 5 percent and 15 percent). Some observers have noted that the amended language is very confusing, internally contradictory, and perhaps even weaker than current law in some respects, such as allowing unsafe, highly-dusty movement of continuous miners. And these provisions of the bill are nowhere near what could have been done, if lawmakers had followed the lead of U.S. Attorney Booth Goodwin, who forced Alpha Natural Resources to install new, advanced coal-dust meters and ventilation monitoring systems, something even the federal Mine Safety and Health Administration is now saying need to be done industry-wide.

— Sure, the legislation increased the maximum penalties for state mine safety violations, but only from $3,000 for violation to $5,000 per violation. Those closed-door negotiations between industry and labor lobbyists resulted in cutting this in half, from the $10,000 House leaders had proposed. (Kudos to the AP’s Larry Messina, by the way, for pointing out that legislators did not debate, discuss, or vote on these changes in an actual public committee meeting).

— And yes, the bill imposes a new felony offense for anyone providing advance notice of a government safety inspection — but given that county prosecutors around West Virginia coalfields aren’t interested in bringing mine safety cases, what’s the point?

— Finally, there’s this notion out there that this legislation does something to bring more accountability down on higher-up mine managers. But as I’ve pointed out before, the actual language in the bill makes any sort of enforcement pretty much impossible:

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.

And not for nothing, but the Senate significantly weakened any effort at accountability for mine managers, by removing this language:

Upon completing his or her examination he or she shall report by suitable communication system or in person the results of this examination to a certified person designated by mine management to receive and record the report, at a designated station on the surface of the premises of the mine or underground, before other persons enter the area of the mine subject to the supplemental examination. The results of the examination shall be recorded with ink or indelible pencil by the examiner in the book referenced in subsection (a) of this section before he or she leaves the mine on that shift.

When asked to explain the change, Senate Judiciary Chairman Corey Palumbo, D-Kanawha, didn’t explain how the change made the bill any better, or made coal mines safer. He just said that the “stakeholders” had agreed to it … I guess if all the lobbyists think it’s OK, there’s no need for lawmakers to really ask any questions about it. The last time I checked, nobody elected Chris Hamilton or Ted Hapney to write legislation.

Now, the House floor discussion of this legislation got a lot of media attention, mostly because of emotional speeches from House Speaker Rick Thompson and Delegate Charlene Marshall, both of whom know personally the pain that mine accidents bring to coalfield families, and from my buddy, Delegate/UMWA leader Mike Caputo.

But what jumped out at me was when Speaker Thompson and Delegate Caputo decried the fact that the Legislature only does anything about mine safety after a disaster, in the way of a large number of deaths — legislation “written in blood,” as the saying goes. I don’t doubt that both of these men really want nothing more than for coal mines in West Virginia to be safe. Come on, though — they are the leaders in the House. They set the agenda, and have power to get legislation at least up for a vote. Thompson became speaker in 2007, after lawmakers had already approved then-Gov. Manchin’s response to Sago and Aracoma. Where was the major mine safety legislation in 2008, 2009 and 2010? It took lawmakers nearly two years after April 5, 2010, to even put the issue on their agenda.

In his floor speech, Speaker Thompson noted this particular provision of this year’s bill:

The director shall, by December 31, 2013, report to the Legislature and Governor on the need for revisions in the state’s underground mine safety enforcement procedures. The director shall initiate the study using appropriate academic resources and mining safety organizations to conduct a program review of state enforcement procedures to evaluate what reforms will assure that mining operations follow state mandated safety protocols. The report shall include recommended legislation, rules and policies, consider various options for improving inspections, accountability and equitable and timely administrative procedures that cause remediation of hazardous working conditions.

Commenting on that language, Speaker Thompson said:

That is in this bill. That’s what I insisted on, and I insist today that this not be the last step in protection our coal miners.

Watching that speech again today, and re-reading the final version of West Virginia’s response to the worst U.S. coal-mining disaster in nearly 40 years, I just can’t help but be reminded yet again of the words of the late Sen. Robert C. Byrd:

… I have seen it all before. Yes, I have seen it all before. 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.


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