Proposed mine safety legislation from Gov. Earl Ray Tomblin will not be alone in the 2012 legislative session. A bill featuring numerous changes to mine safety law was introduced by House leadership Monday.
Speaker Rick Thompson, D-Wayne, like Delegate Charlene Marshall, D-Monongalia, has lost a relative to mining accidents.
"Our legislation, which has 11 total sponsors, is based on a thorough examination of the three complete UBB reports: (Davitt) McAteer, MSHA and the UMWA," Thompson said. "We drew from the conclusions those reports had in common to propose revisions to the state's underground mine safety enforcement procedures. The bill would also trigger a comprehensive study by the Office on Miners' Health, Safety and Training to consider an overhaul of our laws to promote timely and effective enforcement of mine safety measures."
The governor's mine safety package is expected later this week.
Del. Mike Caputo, D-Marion, majority whip and frequent advocate for labor in the state's mines, also rallied behind the bill introduced Monday.
"This bill is intended to empower miners to voice their concerns and take whatever steps necessary to protect themselves and their coworkers. We included many strong safety measures, but just as importantly are advocating a detailed study of all our laws and procedures to pinpoint what else must be done to keep our coal miners safe."
Representatives of the coal industry are still looking over the proposed legislation, but Chris Hamilton, vice president of the West Virginia Coal Association, already expressed concern lawmakers didn't wait to weigh the state mine officials' reports of Upper Big Branch.
"If the goal is to prevent a reoccurrence of the UBB accident, and that's clearly what everyone says, then it seems like we ought to look at the state's investigation report and see what their findings are and what contributed to the accident, what the basic cause of the accident was," Hamilton said.
Caputo said "the industry is always looking for excuses to slow things down," but insisted they be included in crafting the final bill.
"When we get to the table to put together a good safety package, we want everybody there that's involved, that's willing to help and is serious about safety," Caputo said. "If there are any parties intending on coming to the table to be an obstacle, or to be an obstruction or slow down safety legislation, I recommend they don't show up to the table."
So far, three reports – an independent investigation with charge from then-Gov. Joe Manchin, a federal safety agency report and a mine workers union report have reached mostly similar conclusions of the mechanics of the explosion. One report – produced by Massey Energy, the operator of the mine – disagreed with the other findings and was released, apparently without permission of Alpha Natural Resources, the company that acquired Massey after the explosion.
Hamilton said lawmakers may be moving too fast, responding to pressure from their constituency.
"If our goal is to improve mine health and safety generally, then the bill stops very short of what's needed to get to that point," Hamilton said. "We look forward to working with the governor and the legislative leaders towards both of those goals."
Prevention
Much of the bill focuses preventing future mining accidents, Caputo said. The bill intends to be sure the men of UBB "did not die in vain."
During the investigation of UBB, numerous investigators reported concerns about ventilation at UBB. Inadequate ventilation, several reports concluded, contributed to the buildup of suspended coal dust in the mine, which fed the methane-sparked explosion.
The bill introduced by House leadership would require a ventilation survey be conducted prior to approval of the mine ventilation plan.
"When an operator repeatedly submits amendments to a ventilation plan which the director rejects as being inadequate, or when the submissions exhibit a pattern of failure to use proper ventilation engineering design standards, the director shall revoke the ventilation plan, and order withdraw of the mine until proper plans are approved by the director are implemented," the bill states.
Hamilton said it will be important to see exactly what that provision allows for time and how it may affect production. He said the office already has a good deal of authority in approval of ventilation plans.
"It begs the question of whether or not the state has the technical expertise to approve every aspect of these plans as well," Hamilton said. "In some cases you have a mine plan that is planned and developed by a senior engineer with 20 or 30 years of mining experience and expertise in this area and you find that the plan gets reviewed by a person with little or no mining experience in one of the regional offices."
Methane, the suspected fuel of the initial explosion at UBB, is a common occurrence in underground mines. The safety bill seeks to require automatic cutoffs of longwall shearers and cutter heads when methane levels are detected above 1.25 percent. Methane levels must exceed slightly more than five percent to overcome the flammability limit of that gas.
Hamilton said the methane cutoffs may not be problematic, but it will depend on if the law would allow certain adjustments of the machine. Currently, Hamilton said, there is an automatic cutoff of 2 percent.
"You have an ample safeguard in current law at 2 percent," Hamilton said. "You have to ask what benefits are really being derived here by lowering the percentage of methane that will trigger the automatic shutoff."
Hamilton said automatic shutoffs are not currently a frequent occurrence.
The bill also provides for the creation of an education and training program that provides at least one hour of instruction on miners' rights related to unsafe conditions and machinery and the miners right to exit those conditions. Those mines with a poor pattern of conduct may be required to provide more instruction.
A toll-free hotline for anonymous reporting of mine safety violations, hazardous conditions and practices is also outlined under the bill. The messages would be confidential and no information identifying the caller would be collected or accepted.
"If we have to increase penalties to show people that we are serious about things like warning the company an inspector is coming into the mine, or if you willfully violate the law, then so be it," Caputo said. "Every miner should have the right to a safe workplace. Every worker should have the right to a safe workplace."
Following an accident
Establishment of an Underground Mining Accident Investigative Panel to investigate "serious" mining accidents is also outlined in the bill. The panel is to consist of five non-conflicted people.
The chairperson would be from the Board of Coal Mine Health, and the second member of the panel would be a designee of the National Institute for Occupational Safety and Health Office of Mine Safety.
The remaining members would be appointed by the governor to represent industry interests and labor interests, along with an objective expert in the field of mine safety.
Each member would be allowed to submit separate reports, contrary to the findings of the other members, to be appended to the panel's report.
"The report shall include recommended legislation, regulations and policies, consider various options for improving inspections, accountability and equitable and timely administrative procedures that cause remediation of hazardous working conditions," the bill states.
If a withdrawal order is posted at a mine, the workers at the mine would be compensated at their regular rate of pay for the balance of the shift. If the order is not terminated prior to the start of their next shift, the miners will be entitled to pay during the eight hours of the next shift as well.
If the operator refuses to comply, miners are entitled for full pay for up to 10 days during the idled period.
The new safety law would make it clear that miners would be allowed to provide statements to investigators of an accident without permission of their operator/employer. Family members of a miner entrapped, killed or otherwise prevented from attending witness interviews would also be entitled to attend witness hearings and interviews.
Culpability
The House leadership's mine safety bill will make it easier to officially level blame on those believed to be involved in mine accidents.
The bill requires a mine superintendent or owner-operator to verify all mine reports and establishes and enhances criminal and civil penalties for violations of mining laws and regulations.
In the wake of the Upper Big Branch disaster, a number of concerns arose in regard to the culpability of upper-level management at Massey Energy. Particularly of concern was that investigators discovered two sets of safety records, one a doctored version with important information removed.
Violations of health or safety rules would carry a maximum civil penalty of up to $10,000 for each violation, a $7,000 increase over the current maximum penalty.
Providing false statements, representation or certification, another issue that arose from the UBB investigation, could now carry double the penalty – up to $10,000 and/or one year in prison.
Broader language for penalizing those involved in mining accidents was also added in the House mine safety plan.
"Any person who knowingly permits or willfully contributes to a violation of any safety standard pursuant to this chapter or a rule promulgated thereunder is guilty of a felony and, upon conviction thereof, shall be fined not more than $10,000 or imprisoned in a state correctional facility not less than one year and not more than five years, or both fined and imprisoned," the proposed bill states.
Providing advance notice of inspectors, another activity Massey Energy was accused of at UBB and other mines, would be punishable with a fine of up to $15,000 and imprisonment for between one and five years.
Hamilton said the connection between increasing safety and increasing fines is not always appropriate, and industry will be looking closely at the bill.
"What we need to do … is talk to the author of the bill and see what their intent was here and see how they feel this would contribute," Hamilton said. "You might say, ‘it's common sense; you raise penalties and it will improve safety,' but would it have prevented from UBB coming? Maybe the state's report will shed some light on that whole area."
Caputo said the House bill is not intended to compete with the governor's bill. It is expected to be combined with Tomblin's bill in the House Judiciary committee, he said.
Additionally, the bill also includes language encouraging the state to examine other needs in the field of mine safety and to report findings to the Legislature.
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