The investigator, J. Davitt McAteer, said legislators should look to a recent Pennsylvania measure that aims to hold mine managers responsible for accidents. West Virginia law now looks to the mine's foreman, but McAteer said higher-ups make the decision that determine safety and production.
"I know of no mine foreman who ever bought a longwall, or a continuous miner for that matter," McAteer said, referring to machinery that can cost tens of millions of dollars. "They don't have that kind of authority. They shouldn't have that kind of responsibility."
For that reason and others, the mine safety bill proposed by Gov. Earl Ray Tomblin falls short, McAteer told the House and Senate Judiciary committees. McAteer was among several experts asked to weigh in during a two-day series of hearings on that legislation and one proposed by House members.
"I don't believe the bill is comprehensive enough to address the problems that we found in the Upper Big Branch mine disaster," McAteer said of the governor's bill.
Dennis O'Dell, administrator of occupational health and safety for the United Mine Workers union, offered a similar view of both pending bills. Also invited to speak at Tuesday's House Chamber hearing, O'Dell said each also has good provisions, and the two together offer lawmakers a good starting point. The Legislature began the year's regular session Jan. 11, and it ends March 10.
Invoking the 29 miners killed and one severely injured in Upper Big Branch, McAteer said West Virginia cannot look to Congress to respond — at least not anytime soon.
"If there is to be any result coming out of the Upper Big Branch disaster and the loss of these 29 plus one miners, that result will be from this chamber and nowhere else," McAteer said. "So, you have an awesome responsibility and a burden. Deal with that. If there is to be correction, if we are to prevent any more, it is to come from here."
The investigative reports from McAteer, the UMWA and the U.S. Mine Safety and Health Administration all reached similar conclusions about the 2010 Raleigh County disaster. They found that then-owner Massey Energy Co. allowed highly explosive methane gas and coal dust to build up in the mine. Worn and broken cutting equipment created the spark that ignited this fuel. Broken and clogged water sprayers allowed a mere flare-up to turn into an inferno that ripped through miles of underground tunnels and killed men instantly.
Each report also blamed Massey's attitude toward safety laws and regulators. MSHA, for instance, concluded the root cause of the explosion was Massey's "systematic, intentional and aggressive efforts" to conceal life-threatening problems. The reports from McAteer and the union further faulted both state and federal agencies for their handling of the mine and its poor safety record.
Among his bill's wide-ranging provisions, Tomblin has proposed embracing a stricter standard for diluting coal dust with inert crushed rock. He also wants methane detectors installed on longwalls. The House bill would require the shut-off of such machinery if methane levels grow too high.
Tomblin's bill creates a process for overseeing mine ventilation plans. It would also make it a state crime to announce when inspectors enter a mine. Such alerts violate federal law, and MSHA cited Massey for illegal tip-offs at Upper Big Branch. Massey has since been acquired by Virginia-based Alpha Natural Resources.
Both pending bills would seek to improve the state's anonymous, toll-free hotline for whistleblowers. Tomblin has also proposed requiring random drug screenings at all mines. Neighboring Virginia and Kentucky have begun mandating them, and have since suspended nearly 2,000 miners' certificates.
McAteer recommended that lawmakers instead study the drug testing proposal, citing an absence of research and data.
"It is important, I think, that we address the problem, and first of all learn the size and nature of the problem," McAteer told the committees.
The UMWA has taken issue with random drug testing. Given that a number of operators already test their miners, O'Dell questioned why, with coal under fire as an energy source, officials would be considering "something that makes us look like a bunch of druggies and alcoholics, when we're not."
Lawmakers also raised concerns with the testing proposal during Monday's hearing. Kurt Dettinger, Tomblin's general counsel, called such criticisms of including this provision in the governor's bill "short-sighted." He referred to the figures from Kentucky and Virginia's state-mandated screening programs.
"There is, unfortunately, drug use in the mining community that we must recognize and deal with," Dettinger said late Tuesday. "It is the administration's position that if we're going to make significant reforms to make the underground environment safer, then making sure that the workforce is a safer workforce goes hand in hand with that."
Tomblin's legislative agenda also includes a 68-page bill that targets several forms of substance abuse, including methamphetamine, methadone and prescription pain pills.
McAteer also called on lawmakers Tuesday to adopt stricter limits on breathable mine dust to stem a rise in black lung cases. More powerful machinery, mining into rock with silica and quartz and other factors are contributing to an increase in this irreversible and potentially debilitating lung disease, he said. MSHA's report found that at least 17 of the miners killed at UBB had black lung.