West Virginia Safety Bill Responds to Upper Big Branch Tragedy

By | March 1, 2012

A father crushed in a roof fall. A former schoolmate suffocated by poisoned air. Sharing stories of loved ones and friends killed in West Virginia’s coal mines, a unanimous House of Delegates passed safety legislation this week that largely seeks to respond to the 2010 Upper Big Branch explosion that killed 29 state miners.

Delegate Charlene Marshall was 6 when she lost her father — as one of five children with a sixth on the way — as well her stepfather and a grandfather in the mines. Now 78, she recounted how her mother was told little after each tragedy. Urging support, Marshall singled out the bill’s requirement allowing miners, their surviving family members or a representative to attend interviews and hearings during accident investigations.

“When something like this strikes close to your home, if you don’t get (the message) now, you will get it then,” the Monongalia County Democrat said. “I know that everyone wants to go to their job and return home to their families. We didn’t have that in my family.”

Among its other provisions, the measure proposed by Gov. Earl Ray Tomblin mandates greater scrutiny of methane gas levels and a further tamping down of explosive coal dust. Both fueled the 2010 blast. Causing a death by violating a safety standard would be a felony under the bill, which also increases jail and civil penalties for other safety violations. The state would also step up oversight of how each mine’s operator plans to provide it with a sufficient flow of clean air.

Sometimes angrily, several who spoke during debate on Tuesday also invoked investigative reports that blamed Upper Big Branch’s then-owner Massey Energy, instead of a lack of safety laws, for the worst U.S. coal mining disaster in four decades.

“Workers were intimidated. Records were falsified. Advance warnings of inspections were given,” thundered House Majority Whip Mike Caputo. He later added: “This wasn’t only bad business practices. This was akin to organized crime, and it should be treated as such.”

The Virginia-based Massey was later acquired by a rival, Alpha Natural Resources, which late last year reached a $210 million settlement with federal regulators. A senior United Mine Workers union official, Caputo called out Massey’s since-retired chief executive, Don Blankenship.

The blunt-speaking Blankenship gained a high profile for his frequent, defiant run-ins with regulators. He also once tried to bankroll a GOP takeover of the House of Delegates, in 2006. Several of those who voted Tuesday received contributions from him and his allies as part of that $3 million effort, which ended with Democrats increasing their majority. One such lawmaker, Delegate Troy Andes of Putnam County, was a Massey spokesman now working for Alpha.

“It is my hope that someday, I can watch Don Blankenship be hauled off in shackles and sent to jail for the murder of these 29 men,” said Caputo, D-Marion.

Even some the bill’s vocal supporters questioned whether it goes far enough before voting to advance it to the Senate.

Two of Delegate Bill Hamilton’s uncles died in mine accidents. The Upshur County Republican recalled attending a 2005 high school home football game in Buckhannon with an old classmate. Six weeks later, the man was among a dozen miners killed by carbon monoxide poisoning in the January 2006 Sago Mine disaster.

“I’ll support this bill. I’m not real happy with it,” said Hamilton, who later echoed a recurring theme that preceded Tuesday’s passage: “I’m just curious. When will we ever be proactive? Why do we have to wait until a disaster happens?”

Parts of the bill reflect agreements reached by industry, labor, lawmakers and Tomblin’s office. Those include a mandate that a mine’s superintendent or its most senior person to sign off on safety logs at least every other week. An Upper Big Branch investigator had advocated a measure adopted in neighboring Pennsylvania meant to hold mining executives accountable.

House Speaker Rick Thompson said he accepted this and other compromises after the state’s mine safety chief pledged to speak up whenever his agency needs resources or changes to the law.

He said he told the state’s mine safety chief to let him know what is needed to make sure such an accident never happens again.

“I don’t want to wait until it happens again,” the Wayne County Democrat said. “They know as long as I’m speaker, I’m going to expect that out of the people that enforce our laws. Because they did not enforce our laws … they didn’t enforce existing laws, or this would not have happened.”

Thompson referred to findings by Upper Big Branch investigators that also faulted state and federal regulators. Stepping down from the speaker’s podium to address the bill, Thompson’s voice cracked as he recounted the 1952 death of his father in a roof fall. Thompson was not yet born; with a 2-year-old son, his mother was three-months pregnant and 17 when she lost her 21-year-old husband.

Thompson also cited the ongoing federal criminal investigation into Upper Big Branch, its former security chief faces sentencing Wednesday for seeking to mislead investigators and destroy mine records. The mine’s superintendent was charged with a fraud-related conspiracy count as part of what may be a cooperative plea agreement with prosecutors. Thompson recalled the vow by U.S. Attorney Booth Goodwin there should never be another Upper Big Branch disaster.

“For far too long, we’ve accepted the idea that catastrophic accidents are an inherent risk of being a coal miner,” Thompson said. “It’s long past time that we put that myth to rest. We believe that this agreement does that.”

The bill also mandates several studies, including of the training of miners and mine inspectors, and of its proposed random substance abuse screenings of people with safety-sensitive jobs at coal mines. House Judiciary Chair Tim Miley reminded fellow delegates that the random testing provision is unrelated to Upper Big Branch: no evidence from that disaster, including from autopsies performed when possible, showed that drugs played any role.