WV House bill weakens mine safety, but is touted as a compromise

Coal operators could cut back on mine rescue teams, pay lower fines for not quickly reporting workplace accidents and exercise improved rights to challenge safety citations under a bill that's making its way through the West Virginia Legislature with the blessing of the United Mine Workers union.

The legislation also would rework the way the state Department of Environmental Protection handles complaints about blasting at strip-mine operations, but — as written — has DEP officials concerned there is not language that more clearly retains their ability to collect roughly $1 million in annual fees that fund the DEP's enforcement of blasting standards.

House members passed the bill early Tuesday evening on a 92-4 vote, with only Delegates Barbara Fleischauer, D-Monongalia; Mike Pushkin, D-Kanawha; Steven Shaffer, D-Preston; and Stephen Skinner, D-Jefferson; voting against it.

Officials from the UMW and the West Virginia Coal Association agreed to the bill (HB 4726) as part of a deal in which the industry backed off another piece of legislation that the union and the state's Office of Miners' Health, Safety and Training believed would be more dangerous.

“All sides agreed on this,” Delegate Randy Smith, a Preston County Republican who is a coal miner and lead sponsor of the bill, said when he explained the measure on the floor.

Phil Smith, a spokesman for the United Mine Workers union said earlier in the day, “After extensive negotiations, the union is supportive of this legislation. it is reflective of the negotiations process — neither party got all of what it wanted, but compromised where needed.”

House Minority Whip Delegate Mike Caputo, D-Marion and a UMW representative, said the union was seeking to avoid a repeat of last year, when Gov. Earl Ray Tomblin signed industry-backed changes in mine safety laws over the objections of the mine workers and other safety advocates.

“We just wanted to come up with a compromise we thought we could live with and not get in a big fight over,” said Caputo, who is a co-sponsor of the bill.

The bill, which originated in the House Energy Committee on Friday, says the intent of the legislation is to “enhance the state's mine safety and environmental statutes.”

Among other things, the bill would rework two key provisions of the state's mine safety law that were passed in the wake of the January 2006 explosion that killed 12 miners at the Sago Mine, in Upshur County.

One provision would allow the government leeway to reduce fines for operators who don't report serious accidents within 15 minutes. Existing law mandates a $100,000 fine for violations of the reporting law. The bill would provide for fines of “up to” $100,000 and give the state mine safety director authority to “later amend the assessment” of such penalties, “if so warranted.”

Smith said the change was intended to give the mine safety director “latitude” to lower the fines to less than $100,000 in cases where emergency situations and the requirement to report incidents to multiple agencies delay the call to a state hotline answered by the Division of Homeland Security.

Another section would permit mine operators to rely on the state agency's rescue teams to serve as backups for their own specially trained teams for response to explosions and fires. Existing law requires companies to provide at least two mine rescue teams to be available at all times when miners are underground.

The bill also would provide for court challenges of state safety violations and orders to go only to the circuit court where the mine operation is located, not to either those local courts or to Kanawha Circuit Court, where challenges of state agency actions generally end up being handled.

Also, the bill removes language that appears to limit the specific statutory authority for bringing court actions to challenge orders and violation notices issued by state inspectors.

Regarding the DEP, the bill would eliminate the Office of Explosives and Blasting, which was formed in 1999 in response to citizen complaints to better regulate strip-mine blasting and resolve complaints about blasting impacts on their homes.

The bill would transfer the office's duties to the DEP's Division of Mining and Reclamation, which handles other coal-related issues. DEP officials have not opposed the change, largely because the blasting office currently reports to the Mining and Reclamation division anyway.

But DEP Secretary Randy Huffman said Tuesday that the West Virginia Coal Association had agreed that changes in the agency's regulations of blasting would not strip the agency of its authority to charge mine operators a separate fee to support that program. However, Huffman said the versions of the bill he has seen do not clearly reflect that agreement.

The fee, based on the amount of explosives used, provided the DEP with nearly $1 million last year to support the blasting office's work.

“We are adamantly opposed to anything that would eliminate the blasting fees,” Huffman said.

Jared Hunt, the House communications director, said the the committee lawyer who worked on the measure believed the bill “in no way” limits the DEP's authority to collect blasting fees. On the House floor, Smith assured fellow lawmakers that “everything is still in place on that.”

On the mine safety side, Eugene White, director of the state mine safety office, said of the safety provisions of the bill, “I think it's doable for us.”

White said his office had been more concerned with the coal industry's other bill (SB 417), which was dubbed the “2016 Coal Jobs and Safety Act.”

That bill would have, among other things, eliminated job protections for state mine safety inspectors, making them “will and pleasure” employees. It also would have prohibited inspectors from belonging to any “employee organization,” language that might have affected some inspectors who are retired UMW miners who still pay union dues, White said.

“This is a lot less damaging than what could have happened,” White said of the compromise legislation.

However, Sam Petsonk, a mine safety lawyer with Mountain State Justice, questioned the changes in the way appeals of violations would be handled under the bill, noting that huge numbers of appeals by mine operators tied up the federal mine safety process prior to the Upper Big Branch Mine disaster.

“Numerous coal companies have challenged virtually every citation and order issued by the federal government, which caused a major backlog and gridlock in the collection of federal mine safety penalties,” Petsonk said.

Chris Hamilton, a vice president of the West Virginia Coal Association, said the language is intended to “expand due process” for mine operators and allow appeals to go to local circuit courts, which he said would “balance economic interests” when considering appeals.

Deputy Commerce Secretary Josh Jarrell, whose agency includes mine safety, said that while the current statute doesn't allow appeals to circuit courts of the office's enforcement orders and violation notices, the agency and the coal industry have, for some time, agreed to allow such appeals.

He said a small number of such cases — perhaps a dozen — are pending, and agency officials don't anticipate a huge increase if the bill passes.

“It's not an overwhelming caseload right now,” Jarrell said. “We don't anticipate that this will result in an avalanche of litigation.”

Reach Ken Ward Jr. at kward@wvgazettemail.com, 304-348-1702 or follow @kenwardjr on Twitter.

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