CHARLESTON, W.Va. -- Lawmakers are moving forward this week with mine safety legislation that would add at least two new criminal offenses for advance notice of government mine inspections and certain willful safety violations.
But state regulators say that existing criminal sanctions under West Virginia's mine safety law have seldom -- if ever -- been used in recent years.
West Virginia law already makes it a crime to lie on safety records, to sell counterfeit safety equipment, to remove certain safety devices from underground mines, and to violate a requirement for mandatory safety programs at mining operations.
Barry Koerber, lawyer for the state Office of Miners' Health, Safety and Training, said last week that his agency has no authority to bring criminal charges for such offenses.
Only county prosecutors can do that, Koerber said. He said he couldn't recall county prosecutors bringing a mine safety case anytime in the last five to 10 years. Koerber said his agency is supposed to refer potential criminal cases to county prosecutors -- but he couldn't recall an instance where that was done, either.
Such inaction raises questions about the potential effectiveness of any new criminal offenses added to West Virginia's mine safety law, even as Gov. Earl Ray Tomblin and legislative leaders are touting a compromise that appears to have an agreed-to bill headed for final approval.
And changes to the proposed criminal offense language in the current bill illustrate just one example of how lawmakers and the governor's office have weakened a bill that already ignored the strongest recommendations of mine safety experts who investigated the Upper Big Branch Mine Disaster.
For example, the bill that passed out of House Judiciary Committee two weeks ago made it a felony for anyone to willfully violate any state mine safety standard. The new compromise bill makes the criminal offense apply only to willful violations that cause the death of a miner.
The language making it a crime to warn underground workers of an impending government inspection applies only if it can be proven that the advance notice was done "with the intent of undermining" that inspection. Federal law makes any advance notice of inspections a crime, regardless of intent.
"For a century, from the Monongah disaster until today, thousands of coal miners have been maimed at killed in West Virginia's mines, while criminal prosecutions of responsible company officials has been virtually nonexistent," said West Virginia University law professor Pat McGinley, who served on Davitt McAteer's independent team investigating Upper Big Branch. "It is a cruel hoax to assert that criminal sanctions in West Virginia's mine safety law have any deterrent affect when criminal conduct by mine managers is not prosecuted."
At the start of the legislative session, the governor promised mine safety legislation as part of his State of the State address. Tomblin then introduced a bill that focused on drug and alcohol abuse in the mines, a problem all investigators have agreed played no role at Upper Big Branch. House leaders -- including Speaker Rick Thompson, whose father died in a mining accident -- introduced their own bill.