Coal Tattoo

W.Va. House resolution attacks EPA

My buddy Jared Hunt over at the Daily Mail was kind enough to point out to me on Twitter this morning a new resolution introduced this morning in the West Virginia House of Delegates attacking the U.S. Environmental Protection Agency’s efforts to make our state’s coal operators and poultry growers comply with water pollution laws.

The resolution says, in part:

West Virginia has faced an unprecedented attack on its coal industry by the EPA; and now agriculture in West Virginia is facing the same unwarranted scrutiny. The present attack is on the poultry industry in our Eastern Panhandle, with statewide implications for all agricultural operations; and

The EPA continues to attempt to expand its control over all industries, in clear violation of the Clean Water Act, and persistently attempts to reissue guidelines and regulations which are clearly outside their boundaries, placing undue burdens such as those placed on the poultry industry in our State; therefore, be it

Resolved by the House of Delegates:

That the House hereby expresses its concern regarding recent actions of the federal Environmental Protection Agency and urges the EPA to exercise restraint and moderation in its regulation of the agriculture industry in this State and to strike a fair balance between protecting the environment and the need to maintain and expand opportunities for employment in the agriculture industry …

For those not in West Virginia, keep in mind that today is the next-to-last day of our Legislature’s regular session … and they apparently don’t have anything better to do than propose resolutions that have absolutely no legal effect or authority … Jared correctly pointed out that, at this point during last year’s session, the House leadership spent a bunch of time debating a resolution supporting government workers and public school teachers in Wisconsin (subscription required) in their dispute with Republican Gov. Scott Walker.

It looks like everybody who is anybody is co-sponsoring this particular resolution. For the record, according to Jared, here are the Delegates who declined to do so:

Delegates Bonnie Brown, Barbara Fleischauer, Nancy Guthrie, Bobbie Hatfield, Charlene Marshall & Meshea Poore

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.

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What happened to ‘do all we can’ to protect miners?

So, West Virginia Democrats are citing the House passage of a mine safety bill as evidence that the Tomblin administration and their party’s legislative leadership are “getting the job done.”

But it’s interesting to see how their rhetoric about coal-mine safety has evolved in the nearly two years since the Upper Big Branch Disaster claimed 29 lives in our nation’s worst coal-mining disaster in nearly 40 years. We’ve been through some of this before, but it’s worth repeating and updating.

Back when the independent team led by Davitt McAteer issued its report on Upper Big Branch, Gov. Tomblin made a pretty sweeping statement:

Today is no doubt another difficult day for the family and friends of the brave men we lost on the afternoon of April 5, 2010. I hope that the Report will bring some closure to their families. They and all West Virginians have my commitment that we will do all we can to make sure that a disaster like this never happens again.

When the MSHA report was released, Gov. Tomblin said:

This report, coupled with those previously released by other parties, and the forthcoming report by the State Office of Miners’ Health Safety and Training, will provide us with the necessary analysis we will use moving forward to do all that is necessary to prevent another mining disaster.

And here’s the statement issued by Gov. Tomblin last week, in response to his state agency’s report:

Much like the other reports on the tragic explosion at the UBB mine — one common theme prevails; this disaster was preventable. I am committed to making sure that our laws are properly enforced and that we pass meaningful mine safety legislation. We simply cannot bear another mine disaster in West Virginia. I am working with the Legislature to make sure that my legislation, currently pending in the House of Delegates, passes so that we can work to prevent another mine disaster from occurring. I am confident that the Legislature will soon pass House Bill 4351 so that I can sign it and we can immediately begin its implementation.

Finally, here’s what the governor said yesterday after the House passed the mine safety bill:

Today, the House of Delegates passed House Bill 4351, one of the most significant pieces of mine safety legislation in recent memory. My staff and I have worked tirelessly over the past several weeks with the affected stakeholders and the legislative leadership, including the Speaker of the House of Delegates and President of the State Senate, to advance my comprehensive mine safety legislation towards final passage. Working with Speaker Thompson and President Kessler, we have improved and expanded HB 4351 and I’m confident that passage of the reforms in HB 4351 will not only make our coal mines safer, but will also save lives. I look forward to continuing to work with the State Senate to pass this important piece of legislation and to the day it arrives on my desk for signature.

If the unthinkable happens again in West Virginia’s coalfields, will Gov. Tomblin and legislative leaders be able to tell the families that they did everything they could to prevent it?

Written in blood: Another disaster, another law

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.

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The point of closed-door negotiations between various lobby groups — aside from insulating lawmakers from any real public accountability — is to get a product that everyone will agree to … to push legislation through with everyone on board.

Supposedly, that’s what has happened with the fairly mild mine safety legislation that is expected to be approved today in the West Virginia House of Delegates. When it comes to agreed-to bills involving powerful extraction industries, this mostly means that lawmakers are trying to soften the language enough that the industry in question — whether publicly or privately — get their friends in the Legislature to kill it off. Just look at the way the Marcellus Shale bill worked out during last December’s special session (see here and here).

Of course, one problem with this is when lawmakers or the governor start off with pretty weak legislation to begin with — legislation that is focused on a problem that had nothing to do with the disaster that is being responded to, and legislation that the state’s own investigators said doesn’t really go to the heart of the matter. If you start off with something weak, you really have nowhere to go when the industry starts complaining and you need to do something to quiet them down and get their approval for how they’ll be regulated.

That’s part of what’s happened with this mine safety bill, as I tried to explain in a blog post Sunday evening and a print story that was published this morning. After looking at the legislation and how it’s evolved, West Virginia University law professor Pat McGinley, a member of special investigator Davitt McAteer’s independent Upper Big Branch investigation team, told me in an e-mail message:

Twenty nine men died at UBB in the worst disaster in four decades and the Legislature won’t enact tough new mine safety requirements unless the coal industry agrees? It appears the post-mine-disaster “it will never happen again” dance is ending with coal lobbyists playing the tune and the Governor and legislature shamelessly dancing to it.

Think this bill is a strong, comprehensive piece of legislation that will keep any Upper Big Branch Mine Disaster from happening in West Virginia?

OK, then tell me what it means for a coal-mine superintendent to have “acted accordingly” after reviewing fireboss books — the safety records that are meant to be a list of hazards discovered and how those hazards are fixed before workers go underground.  Or, explain why it’s only a crime to commit a safety violation — or order a safety violation — that kills a miner, but it’s not a crime to cause a miner to be permanently maimed.

Better yet — why should someone face more serious punishment if they use the WVU logo without permission (see here and here) than if they kill a coal miners? That’s right, WVU trademark violators? Up to 10 years in jail and a $100,000 fine. Mine safety criminals? Up to five years in prison and a $10,000 fine.

But as the House moves to pass this mine safety bill, and the action moves to the Senate, part of AP reporter Larry Messina’s dispatch on the legislation caught my eye:

Another Upper Big Branch-related provision would mandate methane gas detectors on mining machines, and require that these shut down and cut off power when nearby gas reaches a dangerous level. While supportive of the bill as amended, the West Virginia Coal Association questions the proposed gas level standard, Vice President Chris Hamilton said Monday.

“There are concerns over sections dealing with methane gas that tend to be different than the current requirements found under federal law,” Hamilton said. “There’s nothing more fundamental to our business than detecting and controlling methane gas… We want state and federal law in this area to be consistent.”

As previously explained to me, the goal of this section was to have certain methane monitors in underground mines shut off equipment if the explosive gas reached 1.5 percent of the atmosphere, as opposed t0 2.0 percent under federal law (both numbers are well below the explosive range of 5 to 15 percent).  Some sources I’ve talked to aren’t sure this is such a revolutionary change. Others have said some of the amended language is very confusing, internally contradictory, and perhaps even weaker than current law in some respects, such as allowing potentially unsafe, highly-dusty movement of continuous miners.

But I’ve also continued to hear — as Chris Hamilton explained in Larry’s story — that industry doesn’t like parts of this bill. What will they do when it moves over to the Senate? Stay tuned …

We’ve got a little AP story in today’s paper about Senate passage of the bill that would increase the coal production tax that funds cleanups of West Virginia coal mines that were abandoned after 1977. Here’s the deal:

West Virginia lawmakers are considering at least one tax hike this session.

The state Senate unanimously passed a bill Monday that would increase the tax that funds the cleanup of abandoned coal mine sites. Environmental officials say West Virginia needs more money for treating water at these sites. Monday’s bill would increase the reclamation tax on processed coal from 14 cents to nearly 28 cents per ton.

Officials estimate that will increase the tax’s annual revenues from $19 million to $36 million. The water reclamation trust fund would get $20 million of that per year.

Regular readers know that West Virginia regulators, Gov. Earl Ray Tomblin and lawmakers are under facing a federal court lawsuit that could force an OSMRE takeover of the state’s special reclamation fund unless they come up with more money for this program. We’ve reported many times on the huge financial problems facing the state’s special reclamation program (see here, here, here and here).

You can read this particular piece of legislation here. It’s Senate Bill 579. It goes now to the House.

Is this ‘meaningful’ mine safety legislation?

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.

Telling the truth about W.Va. mineral taxation

The good folks over at the West Virginia Center on Budget and Policy just posted a fascinating new item on their blog. It’s headlined, “Getting the Story Right: Mineral Taxation in Wyoming and West Virginia” and it concludes:

West Virginia’s mineral property and severance taxes are not out line with a conservative state like Wyoming and not a barrier to creating a permanent mineral trust fund. Our only barrier seems to be that we are not doing as good a job as Wyoming in ensuring that our state benefits from its rich natural resources.

In short, this post by center executive director Ted Boettner and policy analyst Sean O’Leary found that state officials and local university researchers leave out a significant part of the story when they compare how West Virginia taxes coal and natural gas compared to Wyoming. As they explain:

Last week, I was asked to present before the Senate Economic Development Committee on our projected estimates regarding S.B. 182 – which creates the WV Future Fund proposed by Senate President Jeff Kessler.

During the meeting, Mark Muchow, the Deputy Secretary of the WV Department of Revenue, also presented the committee with a history of the WV severance tax. At the end of his presentation, Muchow also compared the mining (oil, natural gas, and coal) gross domestic product of Wyoming and West Virginia, showing that Wyoming’s natural resource economy was about twice the size of West Virginia. In response to questions about the taxation of minerals in Wyoming and West Virginia, Muchow also told legislators that West Virginia taxes mineral property while Wyoming does not.

After doing a little research after the meeting, I discovered that Muchow failed to mention that Wyoming does levy a county gross products tax based on the taxable value of minerals produced in the county. According to the Wyoming Department of Revenue, this ad valorem property tax brought in over $1.2 billion dollars in revenue for Wyoming county governments in 2009 based on 2008 taxable mineral production values. Of the $1.2 billion, approximately $967 million was from coal and natural gas. According to two reports conducted by West Virginia University on the economic impact of the natural gas and coal industry in the state, total West Virginia property tax revenue in 2008 for coal was $90.8 million and $58.3 million for natural gas – a total of $149.1 million. According to these estimates, West Virginia collected about 15.4 percent of the amount in natural gas and coal property taxes that Wyoming collected in 2009.

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Mine safety: Another push for drug testing?

On Sunday, we published a lengthy story in the Gazette-Mail that examined the two coal-mining deaths that Gov. Earl Ray Tomblin is citing as evidence to support making a mandatory drug-testing requirement the centerpiece of his legislative follow-up to the worst coal-mining disaster in nearly 40 years.

As we reported, the stories of those two deaths (read the official state reports here and here) are not nearly as clear-cut as Gov. Tomblin and his friends in the coal industry would have us all believe:

In one, the state Office of Miners Health, Safety and Training didn’t mention drug or alcohol use in its formal investigative report, but later tried to strip the license of a miner who was involved after he failed a drug test. In the other, agency investigators blamed mine managers who they said had allowed the miner who was killed to work his shift after he’d been drinking.

While reporting this story last week, I couldn’t help but be reminded of the major push for mandatory drug-testing of coal miners made by then-Dave Lauriski when he was head of the U.S. Mine Safety and Health Administration for the Bush administration. As his proposed rule stated, Lauriski geared up on this issue following a 2003 incident that killed one miner and seriously injured another at Cody Mining Company’s No. 1 Mine in Floyd County, Ky.:

Although there are limited data, anecdotal reports suggest a relationship between alcohol and drug use and mine accidents. Increased concern about the issue arose in 2003 after a blasting accident at an Eastern Kentucky coal mine (Cody Mining Co. in Floyd County) in which one miner was killed
and another seriously injured. Marijuana was found at the scene, and a witness reported having seen the miners snorting crushed painkillers. An autopsy of the dead miner confirmed the presence of painkillers. The surviving miner was not tested, and there was no federal or state requirement to do so.

But look at what MSHA’s own investigative report said caused this accident:

The fatal accident was the result of poor mining practices, inadequate or lacking mine examinations, use of a coal drill with a 12-foot drill auger, and improper blasting procedures. No sightline or directional controls were used. Hazardous conditions were not recorded and there was no indication found underground (date, time, and initials) that required examinations had been conducted. Persons were not removed from areas subject to blasting hazards. Contributing to the accident was a management system and philosophy which permitted miners to work under unsupported roof; permitted development, without correction, of excessive widths of entries and crosscuts; and caused alteration of the accident scene.

No mention of drugs in there anywhere. MSHA’s own news release said:

MSHA investigators issued 71 citations and orders to Cody Mining for violations of federal mine safety and health regulations, 62 of which were considered an “unwarrantable failure” to comply with the law.

These citations are a reflection of the appalling and egregiously unsafe manner in which this mine was operated. This was one of the most poorly managed and operated coal mines where safety is concerned that I’ve seen in more than 30 years in the field of mine safety. This company recklessly disregarded rules intended to protect workers on the job. We intend to pursue this case to the fullest extent allowable by law. This matter will be reviewed for maximum civil and criminal penalties.

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Where did Gov. Tomblin get miner drug-testing bill?

We all know that the official federal investigation of the Upper Big Branch Mine Disaster didn’t find that drugs or alcohol had anything to do with the April 5, 2010, explosion that killed 29 West Virginia coal miners. And it’s clear that separate reports by independent investigator Davitt McAteer and the United Mine Workers union made no recommendations about instituting a state-run drug-testing program for miners, especially when most of the state’s major coal producers already have such programs.

So how did Gov. Earl Ray Tomblin come up with the cornerstone of his mine safety legislation, a proposal to require drug-testing of miners?

Well, to hear the governor tell it — on statewide radio no less — the proposal was among the measures the state Office of Miners Health, Safety and Training recommended be included in the administration’s legislative response to the worst U.S. coal-mining disaster in nearly 40 years.  That sure sounded like what the governor said on Thursday, when he appeared on the MetroNews program “Talkline,” to defend his proposal following two days of legislative hearings that included harsh criticisms of it. The governor said:

My staff sat down with both labor and industry in joint meetings, when the recommendations come to us from the director of mines to propose this bill … This is not something that just came unilaterally from my office.

That just didn’t sound right to me … What I knew was that the state mine safety office back before the session had sent the governor’s office nine legislative proposals to the governor’s office. Some of those ended up in Gov. Tomblin’s bill once it was finally introduced. Others didn’t. But drug-testing language was not among those recommendations.

I asked the public relations spokeswomen for Gov. Tomblin and for the state mine safety office about this … and here’s what gubernatorial communications director Jaqueline Proctor told me in an e-mail yesterday afternoon:

OMHST did offer 9 recommendations to the Governor’s office.  A drug testing program was not included. The Governor did not intend to suggest otherwise.  It should be noted, however, that OMHST strongly believes that we need a drug testing policy.   He believes that his legislation will make our mines safer, and he looks forward to working with the Legislature in accomplishing that goal.

So who did recommend this language? Whose idea was it to turn a bill about Upper Big Branch — a disaster caused not by drugs or alcohol, but by the flagrant violation of long-standing and recognized safety practices by Massey Energy — into a piece of legislation aimed at making coal miners relieve themselves in a cup?

Good question. I’ve asked the governor’s office that, but haven’t heard back from them yet. If they respond, I’ll update this blog post.

In the meantime, it’s worth remembering that Gov. Tomblin and his staff made significant and industry-friendly changes in a committee-written Marcellus Shale bill after meeting with oil and gas lobbyists — and then refused to make public any correspondence or other documents about those discussions with the industry, saying company lobbyists had acted as “consultants” for them on the issue

Davitt McAteer, who led the independent team that investigated the Upper Big Branch Mine Disaster was just on Hoppy Kercheval’s Talkline statewide radio show, giving West Virginians a preview of his testimony this afternoon up at the Capitol. Lawmakers are holding the second in two days of discussions about rival mine safety bills proposed by Gov. Earl Ray Tomblin and the House Democratic leadership.

We learned during yesterday’s session that the problem of drug abuse in the mines — the cornerstone of the governor’s bill — had nothing to do with the Upper Big Branch Mine Disaster. Really, anybody who has followed the issue knew that already, but the governor’s effort to get the industry bill through under the guise of his legislative response to UBB prompted lawmakers to ask the question.

On the radio this morning, Davitt McAteer reported that his team’s review of autopsies of the miners who died at Upper Big Branch revealed no drug issues — only one mine who had a small amount of cough syrup in his system.

It’s always, well, interesting, to listen in to long sessions where our state’s lawmakers ask questions. It was pretty disappointing yesterday, though, when nobody bothered to ask the witnesses the crucial question at hand: How specifically would either of these bills prevent the next mine disaster?

Maybe House leaders would have done so, if they weren’t so busy chasing down stuff related to the governor’s drug testing proposal, which while perhaps an issue worth dealing with, threatens to take attention away from any reforms that are actually based on the state’s experience at Upper Big Branch. Of course, maybe that’s exactly what the coal industry wants, as expressed in West Virginia Coal Association lobbyist Chris Hamilton’s remarks yesterday:

I would never attempt to defend what happened at UBB.  But please, don’t anyone think that is common place or happens elsewhere in the industry.

In any event, all this talk about the governor’s drug testing proposal made me want to go back and see what stance the National Mining Association took on the MSHA drug-testing proposal made in 2008 during the Bush Administration. Surprise: The industry opposed this proposed rule, at least in part because the language would have required coal operators to give miners who test positive the first time a chance to seek treatment and get their lives straightened out before they could be fired.

NMA lobbyist Bruce Watzman (pictured above) explained his organization’s thoughts during an MSHA public hearing in October 2008:

Most importantly, we believe that by denying mine operators the ability to exercise all disciplinary actions for a first offense of the operator’s program, up to and including dismissing the employee, the proposed rule will diminish rather than enhance the current level of workplace safety provided by NMA’s members.

Bruce elaborated in this NMA comment letter, calling the language the “most far-reaching regulatory provision” in the MSHA proposal:

NMA urges that consideration be given to whether the Mine Act provides authority for MSHA to displace the employment-at-will doctrine as it relates to the employer-employee relationship. More specifically, NMA does not believe that a legally sound basis has been articulated to substantiate authority for MSHA, under the Mine Act, to displace the employer-employee relationship under state law as it relates to more stringent policies for an alcohol- and drug-free workplace nor do we believe such Mine Act authority exists.

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Mine safety: Are lawmakers doing all they could?

Today and tomorrow, the House and Senate Judiciary committees at the West Virginia Legislature are holding informational sessions to discuss the Upper Big Branch Mine Disaster and to hear about at least two pending pieces of mine safety legislation.

We’ve talked before about Gov. Earl Ray Tomblin’s bill (see here and here), and you can read that legislation for yourself here (It’s SB 448, the same as HB 4351)  The House leadership’s bill was discussed here and the full text is available here.

Probably the most fascinating thing about all of this is how Gov. Tomblin — perhaps with the help of some coal industry lobbyists — managed to turn legislation that was prompted as a response to the worst U.S. coal-mining disaster in 40 years into a drug-testing bill for the mining industry.

As best I’ve been able to tell from reading the reports out so far, there’s absolutely no evidence — none at all — that drug use had anything at all to do with the Upper Big Branch Mine Disaster. Yet a drug-testing mandate is the cornerstone of the governor’s bill. And somehow the legislation doesn’t include a requirement that mine operators provide drug treatment for miners with problems, even if those problems developed while a miner was taking prescription medication as part of recovering from a workplace injury.

Over at the State Journal, Taylor Kuykendall did a piece that compared the governor’s bill and the House leadership proposal.

But what about what isn’t in either of the bills?

— There’s really no legitimate question that the Upper Big Branch explosion on April 5, 2010, was the almost inevitable result of a a huge buildup of highly explosive coal dust in the Massey Energy mine. Yet neither piece of legislation does much about this problem. Gov. Tomblin’s bill purports to do so, by really all it’s doing is repeating a tighter rock-dusting standard that’s already been adopted by the federal Mine Safety and Health Administration.

If lawmakers wanted to take the lead in this area, they could mandate that every underground coal mine in West Virginia do what U.S. Attorney Booth Goodwin has forced Alpha Natural Resources to do: Install new meters that would allow better monitoring and detection of coal-dust problems and violations.

— Independent investigator Davitt McAteer’s team found that most of the miners who died at Upper Big Branch already were suffering from black lung, a deadly disease that claimed the lives of 10,000 U.S. coal miners in the last decade. While black lung wasn’t a contributing factor in the disaster, the McAteer teams’ findings were a clear indication of the continuing public health disaster from this disease.

Public health experts know how to end black lung — tighten the legal limit of coal dust in the nation’s underground mines. But the industry has succeeded in getting its friends on Congress to block the Obama administration’s effort in that direction. So if Gov. Tomblin really believes that one coal-mining death is too many, he could urge lawmakers to amend his bill to implement the tighter standard in all of West Virginia’s underground coal mines.

Those are just two examples, drawn from a very quick review of reports issued by McAteer, MSHA and the United Mine Workers of America … Look for more recommendations during testimony today and tomorrow, and watch and see if the governor and legislative leaders quickly adopt the absolute strongest among those recommendations.

Gov. Tomblin’s mine safety bill finally introduced

Gov. Earl Ray Tomblin waves to the crowd Wednesday, Jan. 11, 2012 prior to delivering his state of the state address at the Capitol in Charleston, W.Va. (AP Photo/Jeff Gentner)

UPDATED: The state mine safety office’s spokeswoman, Leslie Fitzwater says today:

The WVOMHS&T report [on the UBB Disaster]  is in the final stages of completion, and we expect to release it by the end of February 2012.

Nearly three weeks into the legislative session, and Gov. Earl Ray Tomblin’s mine safety bill — promised in the State of the State address — has finally been introduced. The Senate version is SB 448, and I’m told the House version should come out today.

Of course, the House leadership has its own legislation, and it will be interesting to see if lawmakers and the governor insist on weakening the language in one or a combination of these bills to ensure that the coal industry is on board with the changes — or if Delegate Mike Caputo can manage to get the Legislature to focus not on compromise but on what’s best for miners’ health and safety.

A few points to consider about the governor’s legislation:

–In expanding the requirements for new miners to work as supervised apprentices, the bill increases from 90 days to 120 days the length of time “red hat” miners must work within sight and sound of an experienced miner. The state Office of Miners’ Health, Safety and Training had wanted to increase that apprentice period to 180 days.

— The bill does not close a loophole that allows mine operators to not report serious accidents to the mine safety office — the folks who dispatch mine rescue teams — within 15 minutes, as long as they call local 911 dispatchers within that time period. The language proposed allows calls to the state’s industrial accident hotline to come 15 minutes after that initial notification to 911.

As we’ve discussed on this blog before (see here and especially here), it’s not clear what any of these bills will actually do to deal with the root of mine safety enforcement problems: The control of the political process, and therefore captive regulatory agencies, by the coal industry.

Speaking of agencies, one last interesting thing here is that, while we’ve seen reports from special investigator Davitt McAteer, the United Mine Workers, and the federal Mine Safety and Health Administration, we have not yet seen a report on the state mine safety office’s investigation of Upper Big Branch.  The last I heard, state investigators were to complete their report by the end of January, but it was not clear when it might be made public.

Should we only have rules coal lobbyists agree to?

In case anyone missed it, I wanted to go back and focus some attention on remarks that our friend Delegate Mike Caputo, D-Marion (and a UMWA representative):

“I’m not saying ‘Something we can call agree on,’ I’m not saying ‘Compromise,’ I’m saying something that protects the health and safety of miners,” Caputo said. “If the industry doesn’t like it, that’s just too damn bad.”

That’s what Delegate Caputo told the Daily Mail’s Ry Rivard when asked about the House leadership’s new mine safety bill, introduced yesterday — ahead of legislation promised in last week’s State of the State address by Gov. Earl Ray Tomblin.

Delegate Caputo’s comments highlight what appears to me to be an increasing trend, in which political leaders don’t want to tackle tough issues at the statehouse before first making sure that a powerful industry isn’t going to derail their efforts. This happened here in West Virginia with last month’s special session on natural gas drilling in the Marcellus Shale. The governor’s office has said it hasn’t finalized its mine safety bill because it was still talking with industry lobbyists about it, to ensure there was consensus support for it.

What ever happened to proposing a bill you think is good, debating its merits, and then voting it up or down? That way, if lawmakers vote with industry over miners’ safety, the public will know and can base their own votes on Election Day accordingly …

Will Tomblin, Legislature fix mine cleanup fund?

Ry Rivard has an important story at the top of the front page of today’s Daily Mail, reporting:

Coal companies should pay more to help clean up forsaken mine sites in West Virginia, the board overseeing state mine reclamation money said Monday.

The state Department of Environmental Protection’s Special Reclamation Advisory Council voted unanimously to recommend the state nearly double a mine reclamation tax on coal companies.

The story continues:

The proposed reclamation tax increase, which has to be approved by the Legislature, would add to the money the state now receives to clean up mine sites when mining companies don’t.

The state currently collects about $21 million a year from the reclamation tax, which is levied on each ton of coal produced in the state. This tax is different from the state’s much larger severance tax on coal, which is expected to raise about $400 million this year for the state and funds numerous programs.

If the increase were approved, the reclamation tax would go from 14.4 cents per ton to 27.9 cents. That would bring in an additional $17.4 million next year to clean up mine lands, a DEP spokeswoman said.

West Virginia Coal Association President Bill Raney, who is also a member of the reclamation fund advisory council, said nobody likes to see tax increases but the tax has to be raised to help keep reclamation funds solvent. Costs to the state for cleaning up mine sites is rising because, among other things, a 2011 court agreement requires the state to comply with stricter environmental standards than before.

“When all of these things come together, it just had to be done,” Raney said.

We’ve reported many times on the huge financial problems facing the state’s special reclamation program (see here, here, here and here) and, of course, the question now is whether Gov. Earl Ray Tomblin and legislative leaders will listen to the advisory council. Last year, the Legislature did nothing, at least in part because the administration did not back the advisory council’s recommendation to increase the tax.

Stay tuned …

House Speaker Rick Thompson on McAteer report

West Virginia House Speaker Rick Thompson issued this statement today:

“I would like to take this opportunity to congratulate and thank Davitt McAteer and his team for all the hard work that went into the completion of this report. It is a sobering wake-up call to both coal companies and regulators responsible for mine safety compliance.

“Having lost my father to a coal mine accident, I know that coal mining is an inherently dangerous process. But as the findings contained in this report clearly show, we are not doing enough to protect our miners from preventable and catastrophic fatal incidents such as the one that occurred at UBB.

“The report makes 52 specific recommendations that should be considered carefully. Included in these recommendations is the suggestion to make Boards of Directors accountable for mine safety compliance. Such accountability would include criminal penalties against board members who negligently or willfully certify that a mine is in compliance when it is not.

“I am directing my staff to look into this and the report’s other recommendations so that we can take whatever steps are necessary to see to it that such an incident never occurs again.”

What’s Acting Gov. Tomblin’s mine safety plan?

Acting Governor Early Ray Tomblin, center, stands before an assembly of West Virginia legislators and other public officials as he is flanked by House Clerk Gregory Gray, left, and Senate Clerk Darrell Holmes as he is announced, Wednesday, Jan. 12, 2011, in Charleston, W.Va., at the start of the State of the State address. Also pictured are Acting Senate President Jeffrey Kessler and Speaker of the House Richard Thompson. (AP Photo/Howie McCormick)

The Associated Press has a story out this morning which describes a budget proposal by Acting W.Va. Gov. Earl Ray Tomblin to beef up the state’s mine safety inspection efforts:

Acting Gov. Earl Ray Tomblin included nearly $1 million for new inspectors in his proposed 2012 budget, but a spokeswoman says the push is coming from the state Office of Miners’ Health Safety and Training.

State safety director C.A. Phillips says his agency has struggled to keep inspectors because West Virginia pays less then the federal Mine Safety and Health Administration.

Phillips says that means the agency is barely able to meet its obligation of inspecting each mine four times a year. If approved, the number of inspectors would increase to 100.

That sure is interesting, given the acting governor’s comments in his State of the State address Wednesday evening regarding what sorts of actions he might take to improve mine safety efforts once investigations into the Upper Big Branch Mine Disaster are completed, especially the part where he said:

If it means changing the way our Office of Mine, Health, Safety, and Training is structured, we will change it!

I got wondering what exactly the acting governor was talking about, but then a Coal Tattoo reader pointed out this story (see page 19) by my buddy Bill Reed in Reed’s publication, Coal News, in which West Virginia Coal Association lobbyist Chris Hamilton opines about what the industry wants Tomblin to do:

According to Hamilton, mine safety reform should also include drug testing, deep cut mining, and a review of the state mine safety function.

The WV mine safety function is a microcosm of MSHA with a complete complement of inspectors and similar inspection requirements. The difference is budgetary and manpower resources. The coal industry is the only industry or business that has not one, but two, separate safety regulatory and enforcement agencies dedicated to it. No other business or industry, no matter how hazardous or unsafe, has such governmental attention.

The WV Mine Safety Office is either a duplicate or complement of MSHA. It develops expertise in mine emergency operations, training in geotechnical capability, and could maintain a more focused inspectorate.

Hamilton suggested that every day and routine inspections be left to MSHA and that new priorities be established for state mine safety functions. These will include mine emergency operations, training, accident prevention, and technical assistance. He suggested that inspections be adjusted, not eliminated, to focus on problem mines.

Is Acting Gov. Tomblin ’embracing the future’?

Gazette photo by Chris Dorst

In talking with WVDEP Secretary Randy Huffman after tonight’s State of the State address, Randy offered this unsolicited assessment of the part of the speech where Acting Gov. Earl Ray Tomblin talked about carbon capture and sequestration, or CCS.

I thought it was very progressive on his part to talk as openly and bluntly about the greenhouse gases and the carbon issues that the country faces. He is obviously acknowledging that as important as he thinks coal is to West Virginia it’s not without consideration of these very important issues.

Don Garvin, lead lobbyist for the West Virginia Environmental Council, disagreed. Garvin noted that Tomblin has been on record opposing federal legislation that would have helped the coal industry and coal-fired utilities move the ball forward toward perfecting and developing carbon capture and storage technologies.

So was Acting Gov. Tomblin’s speech as “progressive” overall on coal issues as Randy Huffman suggested it was on climate change and CCS?

First, if you didn’t watch the speech, I’d urge you to watch or read it online. Then you decide. But along the way, here are a few things that caught my eye as I read the prepared text and my ear as I watched Tomblin deliver his address.

Acting Gov. Tomblin chose to adopt the industry’s catch phrase when he said:

We all know that coal keeps the lights on. But we cannot forget – or let others ignore – that it is vital to the economic and national security of our country to utilize West Virginia’s natural resources.

In doing so, the acting governor cited the coal lobby’s data:

According to recent studies, coal means 63,000 jobs to West Virginia and over twenty-five billion dollars to our State’s economy.

Of course, that’s from the industry-funded WVU-Marshall study that we’ve talked about before here in Coal Tattoo.

And, Tomblin threw out the ever-popular statistic:

And it’s not just about West Virginia. Our Country relies on coal for almost half – HALF – of all its electric generation.

But, wouldn’t a progressive — or even just open-minded — governor balance those figures, by talking about a few other things?

For example, what about the studies that show the coal industry actually costs the state budget money every year? What about those that suggest the coal industry costs Appalachia more in adverse health effects than it provides in economic benefits?

Along with that, does the acting governor realize that coal’s share of the nation’s electricity supply continues to decline, or that projections indicate a major decline in Central Appalachian coal in the coming years — regardless of what happens with climate change legislation or mountaintop removal rules?

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Acting W.Va. Governor Earl Ray Tomblin said tonight in his State of the State address:

We need to remember those we lost at the Upper Big Branch mining disaster.

But apparently remembering them doesn’t include any new laws, regulations or tougher enforcement to protect our state’s miners — at least not yet. Acting Gov. Tomblin is sticking with former Gov. Joe Manchin’s belief that there’s no point in trying to improve mine safety efforts generally until a report on the Upper Big Branch Mine Disaster is completed.

Tomblin said tonight in his State of the State address:

And as we look for ways to use coal in a more environmentally friendly manner, we must also keep a vigilant eye on making sure that our mines are safe. We have had too many disasters – places like Sago, Aracoma, and Upper Big Branch should be known for their coal production, and not for their disasters. Right now, investigators are working hard to determine the cause of the horrific tragedy that struck the Upper Big Branch mine.

When we determine the causes that contributed to that accident, we will do all that is necessary to make sure it never happens again.

If it means changing the way our Office of Mine, Health, Safety, and Training is structured, we will change it!

If it means changes in regulations, we will change them!

We will not rest until we know that we have done all that we can to keep our miners safe, each and every shift!

I wonder if Acting Gov. Tomblin is aware of the common-sense mine safety reforms that were previously proposed to then-Gov. Manchin that the Manchin administration decided never to take up …

Here in West Virginia, as our state Senate argues over who is running the place, we’re all waiting to hear tonight from Acting Gov. Earl Ray Tomblin, who is scheduled to give his State of the State address at 7 p.m.

It seems likely that the acting governor will touch on coal industry issues, probably to confirm he’s willing to continue fighting the Obama administration’s efforts to curb the impacts of mountaintop removal. But it will also be interesting to hear if Gov. Tomblin mentions the Upper Big Branch Mine Disaster and makes any commitment to push legislation to improve mine safety in the state.

But even more interesting: Will the acting governor talk at all about West Virginia embracing the future, moving toward accepting efforts to limit the negative impacts of coal rather than hiding our heads in the sand?

These questions came to mind today as I clicked through some links that my friend Jeff Goodell of Rolling Stone was posting on Twitter about new questions being raised about one of the most widely touted carbon capture and sequestration (CCS) project in the world.

It seems that this consultant’s report has found that CO2 from the Weyburn Field CCS project in Saskatchewan at levels twice that which would asphyxiate a person. According to the Toronto Globe and Mail:

First there were the strange blooms of algae on water that had pooled in a gravel pit near Jane and Cameron Kerr’s house. Then there were the dead animals – a cat, an African goat, a rabbit, a duck, a half-dozen blackbirds. Then there were the night-time blowouts, which sounded like cannons and left gashes in the side of the pit.

But what started as a series of worrisome problems on a rural Saskatchewan property has now raised serious questions about the safety of carbon sequestration and storage, a technology that has drawn billions in spending from governments and industry, which have promoted it as a salve to Canada’s growth in greenhouse-gas emissions.

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