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New WV Senate bill leaves mine safety enforcement, targets water standards

F. BRIAN FERGUSON | Gazette-Mail file photo
Sen. Randy Smith, R-Tucker

A new coal industry bill unveiled Thursday in a West Virginia Senate committee meeting would preserve the ability of state inspectors to enforce mine-safety standards, but still attempts to give companies another tool to fight federal lawsuits over water pollution from mountaintop removal mining.

The bill is a wholesale retreat from previously proposed legislation that would have eliminated almost all the authority of the state Office of Miners’ Health, Safety and Training to issue citations or levy fines when safety hazards or violations are discovered in West Virginia’s mines.

Under the new legislation, six of the various mine safety boards that handle appeals and write rules would be consolidated into three panels. Existing powers, duties and staff would be retained.

Members of the Senate Committee on Energy, Industry and Mining chose by unanimous voice vote to move the new bill on to the full Senate.

Sen. Randy Smith, R-Tucker, again portrayed his original legislation as simply an effort to get various sides to the negotiating table to sort out some form of a bill to help the state’s declining coal industry.

“There were a lot of problems with the original bill,” said Smith, who is chairman of the EIM committee and is employed as a safety director for Mettiki Coal. “The original bill was kind of ‘shock and awe.’ We pulled a bunch of stuff out that we never had any intention of running.”

As originated in committee Thursday, though, the bill contains only one practical improvement in mine safety: A requirement that all mines include in their first-aid equipment an automated external defibrillator.

Lobbyists for the United Mine Workers union and the West Virginia Coal Association told lawmakers they support the new bill. However, environmental groups complained that they weren’t consulted by Smith on portions of the bill affecting how the state regulates strip mining.

“Nobody consulted with us,” said John Street, legislative director for the West Virginia Environmental Council. “Nobody consulted the West Virginia Rivers Coalition.”

The bill does away with additional scrutiny before bonds are released for reclamation at mountaintop removal mines with variances allowing them to ignore the general requirement that mines be reclaimed to their “approximate original contour,” or AOC. That language was added to state law nearly two decades ago, when the Department of Environmental Protection settled a citizen lawsuit over lax enforcement of the AOC standard.

Retained in the new bill is language from the original proposal that would eliminate a requirement that the DEP ensure West Virginia’s water quality standards support “a balanced aquatic community that is diverse in species composition.”

Asked to explain that language, Smith referred a reporter to a coal industry lobbyist.

“I’m not the one to speak on the environmental [language],” Smith said. “That was Jason Bostic and the West Virginia Coal Association.”

Bostic said later that the changes are part of the industry’s continuing effort to fight U.S. Environmental Protection Agency guidance and rulings by U.S. District Judge Robert Chambers related to water pollution discharges from mining operations. Citizen lawsuits have targeted the effects on aquatic communities and species diversity from coal mining operations in successful court actions against mining operators.

Bostic said the issue is that state officials — not the EPA or federal judges — should decide how West Virginia regulates water quality.

“There is nobody in this country that can determine West Virginia’s water quality standards but the people in this building.” Bostic said at the Capitol. “Not the EPA or Judge Chambers or anybody else.”

The original coal legislation caused a bit of a national stir, prompting an editorial in The New York Times and a Los Angeles Times commentary in which Coalwood native and “Rocket Boys” author Homer Hickham called moves to reduce state safety in enforcement in West Virginia and Kentucky “foolish ideas.”

The new bill contains none of the broad-reaching changes to West Virginia’s mine safety program that were in the original bill. That original bill, introduced by Smith, came from the coal association, a committee lawyer said Thursday, while the new bill was drafted by the committee lawyer, with input from other groups.

“The original language of Senate Bill 582 was prepared by the West Virginia Coal Association,” said committee attorney Stephanie Ojeda, who formerly worked for Patriot Coal and Massey Energy.

“This originating bill in front of the committee came from some discussions with other stakeholders, in addition to the West Virginia Coal Association.”

The new bill transfers functions of the state’s Mine Inspectors’ Examining Board, the Board of Miner Training, Education and Certification, and the Mine Safety Technology Task Force to the Board of Coal Mine Health and Safety.

It leaves two other panels, the Board of Appeals and the Coal Mine Safety and Technical Review Committee, intact. The bill also contains language to eliminate a board related to the use of diesel equipment in underground mines, but that board actually was abolished two years ago.

Smith called representatives of the coal association and the UMW to the podium during Thursday’s committee meeting and asked if they supported the bill.

“As far as we can see, it looks like something we can live with,” UMW lobbyist Ted Hapney said. Chris Hamilton, vice president of the coal association, said, “We do support the proposed bill.”

Also, Bill Tucker, administrator of the state mine safety office, told lawmakers that, while he had only just received the bill, it did not appear to diminish safety protections for West Virginia’s miners.

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

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