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Lawsuit targets W.Va. inaction on mine safety

CHARLESTON, W.Va. -- Two state agencies have failed to protect West Virginia's coal miners by not requiring the industry to install technology that would save workers from being crushed by underground mining equipment, according to a lawsuit filed Friday afternoon.

The lawsuit, filed on behalf of a miner and a miner's widow, targets long-standing inaction by the state government's Office of Miners' Health, Safety and Training and the Board of Coal Mine Health and Safety.

In a 41-page emergency petition filed with the West Virginia Supreme Court, lawyers from the public interest firm Mountain State Justice argue the agencies have ignored dozens of deaths and hundreds of injuries that could have been prevented by requiring mine operators to buy and install "proximity detection systems."

The petition says West Virginia law requires OMHST Director Eugene White and the mine safety board to force the coal industry to use the best available safety systems to protect miners.

The petition also alleges that lawmakers essentially turned West Virginia's mine-safety rulemaking system over to industry officials when they eliminated a seventh board member who could stop its three industry representatives from blocking votes in favor of any new regulations.

"West Virginia's coal miners have a right to go to work each day with the benefit of the strong health and safety protections they have been promised by the state of West Virginia for decades," said Jennifer Wagner, a lawyer with Mountain State Justice. "The current structure of the board, which leads to total gridlock, eviscerates that right."

Mountain State Justice, headed by longtime crusading attorney Dan Hedges, filed the lawsuit as part of its new Miner Safety and Health Project.

Plaintiffs in the lawsuit are Marshall Justice, a safety committee member from United Mine Workers Local 1503 in Boone County, and Caitlin O'Dell, a Greenbrier County woman whose husband, Steven O'Dell, was killed when he was pinned by a battery-powered "scoop" in an Alpha Natural Resources mine on Nov. 30, 2012. O'Dell has become a mine-safety advocate and attended a board meeting in October to urge adoption of a rule requiring proximity detection systems.

Friday afternoon, officials from the state mine safety office did not respond to a request for comment. Joel Watts, the board's administrator, said he would not comment on pending litigation.

The lawsuit comes amid a series of missteps and inactions by Gov. Earl Ray Tomblin's administration on coal-mine safety issues, including the delay of key regulations to implement the governor's legislation that passed nearly two years ago. The mine safety agency is part of the administration's Department of Commerce. While the board is technically independent, the governor appoints its members, with half coming from labor recommendations and half from the industry's suggestions.

Specifically, the lawsuit targets inaction by government regulators to prevent one of the more common types of mining injuries: being crushed by underground equipment. Mine safety experts say proximity detection systems could prevent these incidents by stopping mining machines and coal-haulage vehicles when they get too close to workers.

Since 1991, more than 25 West Virginia miners have been killed and more than 1,000 have been injured in accidents involving mining machinery, and many of those incidents could have been prevented by proximity detection systems, the petition says.

State law requires the mine safety board to review every mining death and, after its review, issue whatever rules "are necessary to prevent the recurrence of such fatality."

Also, state law requires the board to annually review the "major causes of coal mining injuries" and issue "rules as may be necessary to prevent the recurrence of such injuries." Further, the law says state government is required to "continuously update" safety rules so that the "paramount objective" of the rules is to protect miners.

However, the petition explains, the board has not written any rules to require proximity detection systems or otherwise prevent crushing and pinning injuries, "despite the persistent rate of injuries and fatalities involving miners being struck, pinned or otherwise crushed by mobile mining equipment."

Also, the petition states, the mine safety office has not taken several steps available to it, such as requiring mine operators to include proximity detection in their comprehensive mine safety plans.

On the federal level, the Mine Safety and Health Administration has been working on two rules to require proximity detection systems nationwide. One proposal, covering only continuous-mining machines, is stuck inside MSHA. The other, addressing all other mobile underground equipment, has been pending at the White House's Office of Management and Budget for more than two years.

In West Virginia, government mine safety officials, at one point, hoped to move to require proximity detection systems ahead of any federal mandate. The state's Mine Safety Technology Task Force began studying the issue and planned to have a draft regulation ready by January 2009.

Also, in September 2008, four top mine inspectors drafted a memo recommending specific language that would have given mine operators a year to install the equipment. The effort stalled, until the task force voted in September to resurrect its proposal after a Gazette-Mail story in August detailed the previous recommendations and noted that state government never moved forward.

At meetings in September, October, November and December, though, mine safety board members remained split 3-3 on moving forward on a labor proposal to require proximity devices. At the December meeting, board members sent the matter to a subcommittee -- scheduled to meet on Jan. 9 -- for still more discussion.

"Regulators have been talking about proximity detection for years, yet miners continue to be crushed and die needlessly," Mountain State Justice's Wagner said Friday. "It is well past time for the state to take action and honor its commitment to protect West Virginia coal miners and their families."

The petition notes that, in 2010, lawmakers revised the makeup of the mine safety board, eliminating the mine safety office director as a seventh member who could break tie votes between the labor and industry members. It argues that the change violates constitutional requirements for separation of powers and due process.

"After the restructuring, three coal-operator-designated members now block all new safety regulations," the petition states. "This means no safety initiative can be pursued. Delegating to coal operators the total control of state regulation of this dangerous industry effectively precludes safety enforcement."

Reach Ken Ward Jr. at kward@wvgazette.com or 304-348-1702.


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