By Ken Ward, Jr.
March 14, 2017 - State safety inspectors wouldn’t inspect West Virginia’s coal mines anymore. They would conduct “compliance visits and education.”
Violations of health and safety standards wouldn’t produce state citations and fines, either. Mine operators would receive “compliance assistance visit notices.”
And West Virginia regulators wouldn’t have authority to write safety and health regulations. Instead, they could only “adopt policies ... [for] improving compliance assistance” in the state’s mines.
Those and other significant changes in a new industry-backed bill would produce a wholesale elimination of most enforcement of longstanding laws and rules put in place over many years — as a result of hundreds of deaths — to protect the health and safety of West Virginia’s coal miners.
Opponents are furious about the proposed changes but also fearful that backers of the bill could easily have the votes to push through any language they want. Longtime mine safety experts and advocates are shocked at the breadth of the attack on current authorities of the state Office of Miners’ Health, Safety and Training and the Board of Coal Mine Health and Safety.
“It’s breathtaking in its scope,” said mine safety expert Davitt McAteer, who ran the U.S. Mine Safety and Health Administration during the Clinton administration and led a team that called for strengthening — not weakening — the state’s mine safety efforts after the deaths of 29 miners at Massey Energy’s Upper Big Branch Mine just seven years ago next month.
Senate Bill 582 is billed as legislation “relating generally to coal mining, coal mining safety and environmental protection.”
Various lobbyists and advocates, even many lawmakers, are still trying to sort out and understand its many provisions, which range from language rewriting the state’s program for holding mine operators responsible for cleaning up abandoned strip mines and properly classifying streams that are trout waters to consolidating existing state mine safety boards into one panel and creating a new mandate for state-funded mine rescue teams.
A legislative committee lawyer indicated that some provisions intended for the bill didn’t make it into the initial text, including a rewrite of language in water quality standards that has been the subject of much litigation aimed at reducing water pollution from large-scale surface mines. Those provisions would have to be amended into the bill or added through a committee substitute, the lawyer said.
The heart of the legislation is a section that simply eliminates the ability of state mine safety office inspectors to issue notices of violation or levy fines for mine operators or coal companies for any safety hazards unless they can prove there is an “imminent danger” of death or serious physical harm.
Language in the bill offers somewhat confusing answers about what inspectors would do if they found imminent danger. One part of the bill maintains the current law, which says that inspectors must issue an order to pull all miners out of the affected part of the mine until the hazard is corrected. Another section, though, refers to a new type of process involving a “notice of correction,” that appears to carry no monetary penalty.
One thing that is clear is that the bill would maintain and encourage the use of “individual personal assessments,” which target specific mine employees — rather than mine operators or coal companies — for violations, fines and, possibly, revocation of certifications or licenses needed to work in the industry. In addition, the requirement for four inspections every year for each underground coal mine would be reduced to one compliance assistance visit for each of those mines.
And, the bill would require that, by Aug. 31, the state rewrite all of its coal mine safety standards so that, instead of longstanding and separate state rules, mine operators would be responsible for following only U.S. Mine Safety and Health Administration regulations. The list of areas covered by this provision includes electrical standards, mine ventilation, roof control, safety examinations, dust control and explosives.
“It completely guts the state law,” said Josh Roberts, international health and safety director for the United Mine Workers union. “You’re taking back decades of laws.”
Roberts and McAteer agreed that the notion of deferring almost all state mine safety standards to the federal government is especially concerning, given the promises made by President Donald Trump to remove regulations the coal industry says have been hampering production and employment. McAteer noted that West Virginia led the nation in coal-mining deaths last year and has had two deaths already in 2017.
“It is shocking that, after all these years and the numbers of West Virginians who have died in the mines, for the state to even consider this,” McAteer said Monday, after reviewing the legislation. “The state needs to be involved in making sure we are protecting our citizens. This should be one of the primary goals of the state government.”
Word that the coal industry was planning to have one of its supporters in the Legislature drop such a bill has been circulating since the start of the session in early February.
Chris Hamilton, senior vice president of the West Virginia Coal Association, said Tuesday that he isn’t sure that his organization fully supports the reduced enforcement authority spelled out in the legislation.
Asked if that meant the industry feels the bill goes too far, Hamilton said, “We’re okay with it the way the bill is, but we just think it can be tweaked and maybe improved on.”
Hamilton said federal inspectors spend plenty of time at West Virginia’s coal mines and that having state inspectors doing the same thing is duplicative.
The current version of the bill was introduced during a Senate session on Saturday. The lead sponsor is Sen. Randy Smith, R-Tucker. Smith chairs the Senate Energy, Industry and Mining Committee and is employed as a safety manager for Mettiki Coal. Officials from Mettiki’s parent corporation, Alliance Resource Partners, were major contributors to Smith’s campaign. Alliance bills itself as the second-largest Eastern U.S. coal producer. It’s Mettiki arm operates a large underground mine in Tucker County.
On Tuesday, with a near-packed committee room full of industry officials and some rank-and-file coal miners, and with the legislation on the agenda, Smith announced that he was sending the bill to a three-person subcommittee that would be chaired by EIM Committee Vice Chairman Dave Sypolt, R-Preston. Other subcommittee members will be Sen. Chandler Swope, R-Mercer, and Sen. Glenn Jeffries, D-Putnam, Smith said.
In an interview, Smith said he doesn’t necessarily support all provisions of the bill he introduced. For example, he said he doesn’t really support taking away so much of the state mine safety office’s enforcement power.
“I’m the committee chairman, and we always introduce a bill and then we go through it and try to get something that everybody is good with,” Smith said. “If I could do it, I would conform with state laws and do away with federal laws, but that’s not going to happen. I would 10 times rather have the state agency telling us what to do instead of the federal.”
“This is a huge bill,” Smith said. “Some of it will be in there, and I”m sure some of it won’t.”
Last year, the UMW agreed to a bill that weakened several mine safety protections in an effort to avoid industry-pushed legislation that the union viewed as even worse. In 2015, then-Gov. Early Ray Tomblin signed legislation that weakened mine safety protections, despite a union call for a veto of that bill. Three years before that, in 2012, Tomblin’s legislative response to the Upper Big Branch Mine disaster — where drug use by miners was not an issue — was a bill that focused on drug testing the state’s coal miners.
Tomblin’s legislation also called for a report that examined ways to improve the state’s mine safety program. That report was published in 2013, but lawmakers have never fully implemented its recommendations.