Coal control: How safety board members get picked

July 24, 2014 by Ken Ward Jr.

MineBoardIndustry

Industry members of the state Board of Coal Mine Health and Safety include West Virginia Coal Association Vice President Chris Hamilton, right, and Patriot Coal’s Terry Hudson, center. To the left is now-former board member Charles Russell of Arch Coal.

When we last left the West Virginia Board of Coal Mine Health and Safety, board members had just managed to somehow pass a rather watered-down version of a rule to eventually require mine operators to install life-saving proximity detection systems on at least some underground mining equipment in our state’s coal industry. Board members did this after months of pleas from the widow of a miner whose life could have been saved by such technology, and after struggling with something the board wasn’t used to — and didn’t seem to care for — public involvement in its deliberations and transparency of its discussions and decisions.

That was more than three months ago. Fast-forward to Monday, when the board had a regular monthly meeting scheduled over at the Charleston Civic Center.

When the meeting started, there was a new face at the table:  Brian Keaton, a safety official with Alpha Natural Resources. Keaton had been appointed to the seat that had previously been held by Arch Coal official Charles Russell. Now, there was no indication that I’ve heard of that Mr. Russell wanted off the board. And it appeared that even some fellow board members were surprised — or at least acted surprised — at the change. When board member Terry Hudson of Patriot Coal came into the room, for example, he said, “Where’s Charlie?”

So, I wondered what was going on. My first inquiry to the office of Gov. Earl Ray Tomblin, who appoints the board members, produced this emailed response from deputy press secretary Shayna Varner:

Gov. Tomblin is responsible for thousands of appointments on boards and agencies and consults with key leaders to make those appointments, as appropriate.

In order to provide as many qualified citizens as possible with an opportunity to serve West Virginia and with the expiration of Charles Russell’s term, the governor has appointed Brian Keaton to serve on the Coal Mine Safety Board. Brian’s experience and expertise will be a great asset to improving mining safety in the Mountain State.

 Gov. Tomblin is extremely appreciative of Mr. Russell’s service.

OK … now the problem with all of that is that Charlie Russell wasn’t the only board member whose term had expired. In fact, Terry Hudson was the only board member whose term hadn’t expired.  Coal Association Vice President Chris Hamilton’s term expired on June 30, 2009.  So did the terms of United Mine Workers representatives Carl Egnor and Gary Trout.  UMW member Terry Hapney’s term expired two years before that, in June 2007.

So why did Gov. Tomblin replace only Charles Russell, and leave the terms of four other board members — on both sides of the table — expired?

At this point, it’s probably worth providing just a little bit of background. The mine safety board, which writes safety rules that govern the state’s coal industry, is made up of six voting members, all appointed by the governor. But it’s important to understand what state law says about those appointments. Here are the key paragraphs:

The Governor shall appoint, by and with the advice and consent of the Senate, three members to represent the viewpoint of those operators in this state. When such members are to be appointed, the Governor shall request from the major trade association representing operators in this state a list of three nominees for each such position on the board. All such nominees shall be persons with special experience and competence in health and safety. There shall be submitted with such list a summary of the qualifications of each nominee. If the full lists of nominees are submitted in accordance with the provisions of this subdivision, the Governor shall make the appointments from the persons so nominated. For purposes of this subdivision, the major trade association representing operators in this state is that association which represents operators accounting for over one half of the coal produced in mines in this state in the year prior to the year in which the appointment is to be made.

The Governor shall appoint, by and with the advice and consent of the Senate, three members who can reasonably be expected to represent the viewpoint of the working miners of this state. When members are to be appointed, the Governor shall request from the major employee organization representing coal miners within this state a list of three nominees for each position on the board. The highest ranking official within the major employee organization representing coal miners within this state shall submit a list of three nominees for each such position on the board. The nominees shall have a background in health and safety. The Governor shall make the appointments from the requested list of nominees.

After the governor’s prepared statement didn’t really address my questions, I talked with Chris Stadelman, the governor’s communications director. Chris explained that some while back, the governor’s office asked the West Virginia Coal Association (“the major trade association representing operators”) for nominees for board seats with expired terms. Here’s a copy of the letter to the Coal Association and of the association’s response.

If you read those letters closely, you might see a couple of interesting things:

First, notice that the governor’s office wrote to the Coal Association in May of 2013, but the association didn’t respond until March of 2014.

Second, notice that the governor’s office is clear that there are two industry seats with expired terms, and they want three nominees for each seat, or a total of six nominees.

Third, if you read Coal Association President Bill Raney’s letter, it’s like Chris Hamilton’s term hasn’t expired and the governor’s office didn’t ask for three nominees to fill that spot.

Letter

Fourth, while the Coal Association’s letter lists the companies each of its nominees work for, it doesn’t include — as required by the statute — “a summary of the qualifications of each nominee.” I’m told that there was a resume submitted, at least for Mr. Keaton.

Finally, so far the governor’s office says that a similar letter seeking nominees for seats with expired terms didn’t go out to the United Mine Workers of America. All three of their members are serving with expired terms.

One Response to “Coal control: How safety board members get picked”

  1. Bill Howley says:

    Leaving expired commissioners in place seems to be a favorite tactic of WV governors to get around statutory requirements. WV PSC Commissioner Jon McKinney is over three years past his expiration date. http://www.statejournal.com/story/22754602/tomblin-silent-on-reason-for-leapfrogging-mckinney-appointment

    Keeping expired appointees in place allows governors to treat them as at will positions instead of positions with set terms of service. This is clearly contrary to the intent of the Legislature when it establishes terms for WV’s boards and commissions.

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