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Deal with industry weakened mine safety bill

CHARLESTON, W.Va. -- Lawmakers are moving forward this week with mine safety legislation that would add at least two new criminal offenses for advance notice of government mine inspections and certain willful safety violations.

But state regulators say that existing criminal sanctions under West Virginia's mine safety law have seldom -- if ever -- been used in recent years.

West Virginia law already makes it a crime to lie on safety records, to sell counterfeit safety equipment, to remove certain safety devices from underground mines, and to violate a requirement for mandatory safety programs at mining operations.

Barry Koerber, lawyer for the state Office of Miners' Health, Safety and Training, said last week that his agency has no authority to bring criminal charges for such offenses.

Only county prosecutors can do that, Koerber said. He said he couldn't recall county prosecutors bringing a mine safety case anytime in the last five to 10 years. Koerber said his agency is supposed to refer potential criminal cases to county prosecutors -- but he couldn't recall an instance where that was done, either.

Such inaction raises questions about the potential effectiveness of any new criminal offenses added to West Virginia's mine safety law, even as Gov. Earl Ray Tomblin and legislative leaders are touting a compromise that appears to have an agreed-to bill headed for final approval.

And changes to the proposed criminal offense language in the current bill illustrate just one example of how lawmakers and the governor's office have weakened a bill that already ignored the strongest recommendations of mine safety experts who investigated the Upper Big Branch Mine Disaster.

For example, the bill that passed out of House Judiciary Committee two weeks ago made it a felony for anyone to willfully violate any state mine safety standard. The new compromise bill makes the criminal offense apply only to willful violations that cause the death of a miner.

The language making it a crime to warn underground workers of an impending government inspection applies only if it can be proven that the advance notice was done "with the intent of undermining" that inspection. Federal law makes any advance notice of inspections a crime, regardless of intent.

"For a century, from the Monongah disaster until today, thousands of coal miners have been maimed at killed in West Virginia's mines, while criminal prosecutions of responsible company officials has been virtually nonexistent," said West Virginia University law professor Pat McGinley, who served on Davitt McAteer's independent team investigating Upper Big Branch. "It is a cruel hoax to assert that criminal sanctions in West Virginia's mine safety law have any deterrent affect when criminal conduct by mine managers is not prosecuted."

At the start of the legislative session, the governor promised mine safety legislation as part of his State of the State address. Tomblin then introduced a bill that focused on drug and alcohol abuse in the mines, a problem all investigators have agreed played no role at Upper Big Branch. House leaders -- including Speaker Rick Thompson, whose father died in a mining accident -- introduced their own bill.

Last week, with a bill set to move on the House floor, the legislation was pulled over complaints about it from the West Virginia Coal Association. The governor's office and legislative leadership quickly huddled behind closed doors with lobbyists from the coal association and the United Mine Workers.

On Friday, all sides reached a deal, in the form of a floor amendment that was approved Monday afternoon by voice vote.

Along with the drug-testing program, other key provisions of the bill include:

* Language to require mine superintendents to review the mine safety books in which foremen or "firebosses" are to record hazards discovered in various mine examinations and information about what was done to correct those problems. The agreed-to amendment allows this review to occur every two weeks, as opposed to every day, as required under the House Judiciary bill. The agreed-to amendment requires superintendents to sign the book, acknowledging that they have reviewed the fireboss records and "acted accordingly," but does not spell out what "acted accordingly means."

* A provision to increase maximum civil penalties for mine safety violations from $3,000 to $5,000. The House leadership's original bill would have increased the maximum fines to $10,000. Federal law sets maximum federal fines for most violations at $70,000.

* A section that removes the requirement that changes in mine ventilation plans -- key to controlling explosions and reducing black lung disease -- be approved by the state mine safety director before they're implemented. Under the current bill, state officials could comment on ventilation changes, but mine operators would only have to follow state recommendations if companies believed those recommendations were "practicable."

* Changes aimed at dealing with repeat violators of state mining law would give inspectors only one new tool: When they find operators who repeatedly violate standards and ignore hazards, inspectors can call in the state training board, which is then charged with instituting new educational programs at the mine in question.

During a two-day legislative hearing three weeks ago, McAteer offered little enthusiasm for the Legislature's approach. McAteer said the provision in the governor's bill was a "distraction" from efforts to prevent another mine disaster.

Among other things, McAteer urged the state to consider requiring every mine operator to implement the safety reforms -- new coal-dust meters and more advanced ventilation monitoring systems -- required in a deal between U.S. Attorney Booth Goodwin and Alpha Natural Resources, which bought Upper Big Branch after the disaster.

When they released their Upper Big Branch report last week, state mine safety office representatives said that they really hadn't looked at Goodwin's agreement to see whether it could be turned into an industry-wide initiative.

"We have not studied that in depth at the present time," Koerber said.

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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