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Tomblin administration defends progress on mine safety legislation

CHARLESTON, W.Va. -- The Tomblin administration on Tuesday defended the pace of its work to implement last year's mine safety legislation, as state regulators moved forward with a previously stalled requirement to increase fines for safety and health violations.

State officials sought public comment on the civil penalties rule, but said that more time was likely needed to finalize two other key proposals aimed at preventing explosions fueled by coal dust and methane gas.

Amy Shuler Goodwin, communications director for Gov. Earl Ray Tomblin, said the administration has been working hard for months to put in place the provisions of the governor's legislative response to the deaths of 29 miners in the Upper Big Branch Mine Disaster.

"It may not be done quickly, but it's going to be done right," Goodwin said Tuesday. "It has always been [the governor's] goal to make sure that these rules are implemented."

Goodwin said that Tomblin "has been engaged since day one" on mine safety issues and on implementing the 2012 legislation. Goodwin said the administration has been trying to bring together industry, labor and regulators and reach consensus on the rules, a strategy she said produces better results but sometimes takes more time.

"He has been working with all interested parties on this," Goodwin said. "[But] there are lots of questions and there is lots of review."

The increase in civil penalties is one of several key requirements of the governor's bill that the state Office of Miners' Health, Safety and Training has yet to begin fully enforcing. Others include citing and fining coal operators for violations of tougher standards to control coal dust and a stricter requirement for shutting down mining machines when explosive methane gas is detected.

Lawmakers adopted the legislation, and Tomblin signed it into law in March 2012, but only after many provisions of the bill were softened during closed-door discussions with coal industry lobbyists and the United Mine Workers union.

Tomblin has repeatedly called the legislation a "comprehensive mine safety bill," and Goodwin said Tuesday that questioning that description is "extremely unfair."

"They addressed some of the most significant things we have in mine safety - drug testing, rock dusting and methane," Goodwin said.

The legislation mandated drug testing for West Virginia coal miners, and a rule to implement that provision was filed in late December, in time to meet a deadline set by lawmakers.

Davitt McAteer, who led an independent team that investigated Upper Big Branch, has said that drug use was not a factor in the April 2010 explosion, and that the drug-testing provision in the legislation was a "distraction" from other issues that played a role in the disaster.

McAteer's team and other investigators concluded that the disaster occurred when a small methane spark in the longwall-mining section of the Raleigh County operation ignited coal dust that Massey Energy had allowed to accumulate throughout the mine.

One part of the legislation aimed at addressing this would lower the methane concentration at which mining equipment is automatically shut off underground. The state Board of Coal Mine Health and Safety missed an October deadline to issue a rule to implement that change.

Another part of the legislation wrote into state law an executive order that then-Gov. Joe Manchin issued shortly after the disaster, to toughen state requirements for the amount of crushed limestone, or "rock dust," mine operators spread underground to control explosive coal dust. State officials took more than a year to begin taking rock dust samples, and despite finding hundreds of violations have not taken enforcement action against any mine operators who violated the tougher standards.

A rule to require citations and fines was proposed last July, but withdrawn after complaints from the West Virginia Coal Association. State officials say they are close to finalizing a new version of that rule.

Also under the bill the maximum monetary fine for most mine safety violations was to be increased from $3,000 to $5,000. State officials have not been using that authority, pending finalization of a rule to implement the provision, agency director Eugene White said.

"That will take place when the rule is promulgated," White said.

Last July, then-mine safety director C.A. Phillips moved to implement the increased fines through an emergency rule. That rule was withdrawn after complaints from the West Virginia Coal Association, and it has yet to be reissued.

Chris Hamilton, vice president of the association, said in email messages to the state that industry was concerned that the rule increased not only the maximum civil penalties, but also all fines "across the board."

In the proposed rule, state officials said that changes in the penalty formula to increase the maximum fines would also result in increases in lesser fines, but that overall the total impact "is not a dramatic increase" and involved "relatively minor" increases in penalties for mine operators. Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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