Lawmakers have amended Gov. Joe Manchin’s mine safety bill to severely limit the types of repeat violations that can prompt inspectors to temporarily close West Virginia coal mines.The legislation (SB68) was changed to allow regulators to consider only “significant and substantial” violations in deciding if a mine operator’s record warrants a closure order.Lawmakers modeled the language after a federal definition that Manchin mine safety adviser Davitt McAteer tried to overturn as too narrow when he was head of the U.S. Mine Safety and Health Administration.At the time, McAteer argued that the definition had “increasingly impeded MSHA’s attempts to improve health and safety by imposing meaningful sanctions for violations of the mine act’s mandatory standards.”
The federal definition — written by the federal Mine Safety and Health Review Commission — was added to Manchin’s bill on Feb. 7 as part of a substitute version advanced by the Senate Judiciary Committee.Judiciary Chairman Jeff Kessler, D-Marshall, said the language was inserted at the request of Manchin’s staff. Lobbyists for the coal industry and the United Mine Workers agreed to the change, Kessler said.Ronald Wooten, director of the state Office of Miners’ Health, Safety and Training, said he supports the amended language.“I don’t have a problem with that,” Wooten said Friday.The language allowing Wooten’s inspectors to temporarily shut down mines for repeated violations was one of the cornerstones of Manchin’s latest effort to reform state mine safety regulation.The governor touted the measure in his State of the State address at the start of the legislative session.“At times, state officials may observe individual violations at a facility that could collectively create an imminent danger,” the governor said. “Unfortunately, our current response to these situations is limited by existing law.“That is why I am seeking legislation that would authorize the director of the Office of Miners’ Health, Safety and Training to shut down mines and levy appropriate penalties against repeat offenders where multiple violations continue to exist.”Under the governor’s original bill, state inspectors could temporarily close a mine if they found that “the mine has a history of repeated violations of a particular standard, a history of repeated violations of standards related to the same hazard, or a history of repeated violations caused by unwarrantable failure to comply, and such history or histories demonstrate the operator’s disregard for the health and safety of miners.”If mines were shut down under this provision, operators could not reopen them until inspectors concluded that all of the violations were fixed.Kessler said all sides agreed that the types of violations to be considered under this language needed to be more clearly defined.
“There was concern that folks would go out and just willy-nilly try to shut folks down for violations that really didn’t pose any serious safety problems,” Kessler said.Kessler said his staff worked up a proposal but the governor’s office rejected it.Instead, Kessler said, the governor’s office proposed language to limit the types of violations that could prompt a mine closure to those that were “significant and substantial” under federal law.Lara Ramsburg, the governor’s communications director, said the administration did not propose the language but went along with it to resolve a dispute that was holding up the bill.“It was suggested by others,” Ramsburg said. “We agreed to it as a compromise. We wanted to see the bill move.”Under federal mine safety law, MSHA inspectors can shut down portions of mines when they find violations “of such nature as could significantly and substantially contribute to the cause and effect of a coal or other mine safety or health hazard.”
In a series of rulings in the early 1980s, the federal Mine Safety and Health Review Commission defined the phrase “significant and substantial.”Commissioners found that a violation is “significant and substantial” if “based upon the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious nature.”In February 1998, McAteer announced MSHA was going to write its own policy on the issue and try to overturn the commission’s definition.As part of the announcement, McAteer offered several examples of the kinds of violations the commission definition had ruled were not significant and substantial.The commission in one series of cases, for example, overruled inspectors’ determinations that the use of impermissible electrical equipment constituted a significant and substantial violation.Commissioners disagreed with inspectors because there was not enough methane in the mine at the time of the violations for the impermissible equipment to have sparked an explosion.Under this “confluence of factors” test by the commission, it was not enough for MSHA to prove that dangerous levels of methane were in a mine. Inspectors must also show there was an ignition source, and that the ignition source was actually sparking, to prove a violation was significant and substantial.“More generally, the commission’s narrow interpretation of the ‘significant and substantial’ phrase as applying only to violations which present hazards that are virtually certain to result in injury-producing events impedes MSHA’s ability to improve health and safety conditions in mines in a broad variety of other cases, because it effectively removes the ‘significant and substantial’ tool from MSHA’s enforcement arsenal,” McAteer wrote in a Federal Register notice.McAteer said his view was that a violation must be found to be “significant and substantial” as long as it is shown to present a hazard that is more than remote or speculative.”After McAteer’s announcement, the coal industry objected to his plans to overturn the commission’s definition. MSHA put the plan out for public comment, but it was never completed before McAteer left his post when President Bush took office.