By Lee Buchsbaum, associate editor & photographer

Almost two years after the tragic explosion at the Upper Big Branch (UBB) mine explosion, West Virginia Governor Earl Ray Tomblin signed new comprehensive legislation that will continue to improve mine safety throughout the state. The new law establishes drug testing requirements, revises the process for developing ventilation plans, establishes the requirements for methane monitoring and rock dusting, and changes several safety-related miner training requirements.

Among the provisions included in House Bill 4351 are legislation:

  • Making it a felony, punishable by a fine of up to $15,000 and up to five years in prison, to provide advance notice of an unannounced mine inspection;
  • Putting into state law an ongoing mine safety hotline;
  • Requiring mine supervisors to review and sign off on daily mine operating reports at least once every two weeks;
  • Toughens methane standards and rock dusting requirements in underground mines in an attempt to reduce the chances of an explosion;
  • Increases the average penalty for underground violations from $3,000 to $5,000;
  • Setting new requirements for detecting and responding to excess methane in mines, including requiring withdrawing all individuals from areas with 1.5% methane concentrations;
  • Allow surviving family members to have representation of their choice on mine fatality investigations; and
  • Requiring pre-employment and random drug testing.

The bill passed 95-0 in the West Virginia House of Delegates and 34-0 in the Senate. “Making our coal mines safer was one of my top priorities for this legislative session,” Tomblin said. “I worked tirelessly with the legislature to pass wide-ranging mine safety reforms. Our state legislature just unanimously passed a comprehensive mine safety bill. Special thanks to both Speaker Thompson and President Kessler for their dedication to creating safer mines in the Mountain State.”

Does the Bill Go Too Far or Not Far Enough?
It took West Virginia two years to address the tragedy legislatively. The Mountain State’s coal industry has been besieged with federal regulators and it endured a change in gubernatorial leadership following the late Senator Byrd’s passing. This contrasts with swifter decision-making in 2006 when lawmakers quickly passed sweeping mine rescue legislation following fires and explosions at Sago and Aracoma. Despite numerous equipment purchases and high profile media events, up until this new legislation, West Virginia lawmakers had not reacted to the UBB incident with a new body of law. This new bill has been touted as that response.

While there is no doubt the new law will increase mine safety in the state, several of the provisions of the bill have garnered a lot of criticism for not going far enough or for simply repeating provisions and statutes already mandated by the Mine Safety and Health Administration (MSHA) and other federal agencies.

Drug testing, which is a center piece of the legislation and was extremely controversial, is not really the issue. At no point has drug use or abuse been cited as a factor that led to the UBB explosion. In all 29 autopsy reports, the only drug detected inside any of the deceased miners was a cold medicine. And throughout the industry, virtually every coal operators and contractor already adheres to drug and alcohol standards.

Under the new law, producers are mandated to conduct testing during inspections and investigations. Prior to hire, re-hire or transfer, mine operators have to test all miner applicants, no matter what job they are seeking. And if an applicant fails those tests, the producer is now required to notify the director of the Office of Miner’s Health, Safety and Training.

Another new but only slightly different provision is the mine safety hotline. Several years ago, former West Virginia Gov. Manchin created a new phone hotline following mine disasters at Aracoma and Sago in 2006. That hotline still exists and is in service.

The bill does create tougher state standards for the use and disbursement of rock dust, which is used to help render the explosive nature of coal dust inert. But, MSHA has already implemented similar standards that clearly go further.

The bill will require more accountability from top mine managers by demanding that mine superintendents review log books for mine examiners more frequently. The law is written with such vague language it’s difficult for anyone to understand what is actually mandated. The text of the law reads that “No less frequently than bi-weekly, the superintendent or, if there is no superintendent, the senior person at the mine shall obtain complete copies of the books of the fire bosses, and acknowledge that he or she has reviewed such copies and acted accordingly. This acknowledgment shall be made by signing a book prescribed by the director for that purpose.” What does “acted accordingly” mean? And how will those actions affect the overall safety of the mine?

Under the legislation, coal operators must withdraw all personnel from areas with 1.5% methane. This is an improvement from existing federal statutes that require evacuation once levels reach 2%. Methane gas becomes explosive at much higher percentages.

Under section §22A-2-43 of the new bill, “Actions to detect and respond to excess methane,” readings of 1% will require the shutdown of electrically powered equipment and the shutdown of mechanized equipment. Following more extensive hand-held methane testing, “when 1% or more methane is present in a working place or an intake air course, including an air course in which a belt conveyor is located or in an area where mechanized mining equipment is being installed or removed, changes or adjustments shall be made at once to the ventilation system to reduce the concentration of methane to less than 1% and no other work shall be permitted in the affected area until the methane concentration is less than 1%.”

If and when 1.5% or more methane is present in a working place or an intake air course, including an air course in which a belt conveyor is located or in an area where mechanized mining equipment is being installed or removed with the exception of the mine foreman, his or her assistants, or “individuals authorized by the mine foreman or assistant mine foreman, all individuals shall be withdrawn from the affected area.”

According to the new bill, “in any mine, no electrical equipment or permissible diesel powered equipment may be brought inby the last open crosscut until a qualified person tests for methane. If 1% or more methane is present, the equipment may not be taken into the area until the methane concentration is reduced to less than 1%. Thereafter, subsequent methane examinations shall be made at least every 20 minutes while any electrical or diesel powered equipment is present and energized.”

However, once methane concentrations exceed 1.5% and the affected area of the mine is evacuated, “no other work shall be permitted in the affected area until the methane concentration in the return air is less than 1%.”

Regarding machine mounted methane monitors, the new bill stipulates that “approved methane monitors shall be installed and maintained on all face cutting machines, continuous miners, longwall face equipment and other mechanized equipment used to extract coal or load coal within the working place.” Moreover, the methane monitoring sensing devices installed on longwall shearing machines shall be placed “at the return air end of the longwall face. An additional sensing device also shall be installed on the longwall shearing machine, downwind and as close to the cutting head as practicable. An alternative location or locations for the sensing device required on the longwall shearing machine may be approved in the ventilation plan.” And all methane monitors shall be installed as close to the working face as “practicable.” All methane monitors will need to be calibrated at least every 15 days and a record shall be kept of all calibrations.

In the event of a higher than permissible methane reading by any machine-mounted monitor, a visible warning will go off and “the methane monitor shall automatically de-energize the extraction apparatus on the machine on which it is mounted, but not the machine as a whole to facilitate proper mining procedures.”

The new bill’s rules will come into effect 120 days after it is signed. During this time, the Board of Coal Mine Health and Safety is directed to “promulgate legislative rules… establishing calibration procedures” and “establishing a compliance schedule setting forth the timeframe in which all new and existing face cutting machines, continuous miners, longwall face equipment and other mechanized equipment used to extract coal or load coal within the working place shall be refitted with methane monitors.” Enforcement of these laws will begin after these rules have been created.

However, one of the biggest criticisms of the bill is that it really does not address many of the major findings of several reports by MSHA, the UMWA and investigator Davitt McAteer that suggested the UBB disaster was caused by the company’s failure to follow safety protocol surrounding mine ventilation and prevent the build up of explosive coal dust.

Not mentioned in the law nor directed by its widespread use and implementation of additional coal dust monitors, coal dust explosibility meters, methane detectors and ventilation monitors. This is significant because as part of a settlement with various state and federal authorities in December 2011 designed to prevent further corporate criminal prosecution, Alpha Natural Resources, which acquired Massey Energy, agreed to test, adopt and use precisely this technology. As part of an agreement with U.S. Attorney Booth Goodwin, Alpha has agreed to install coal dust explosibility meters and install real-time ventilation monitors to keep track of fresh air flow underground in all of its mines by the end of 2013. By installing these meters, Alpha will be able to measure and track fresh-air velocity, direction and methane content in all of the company’s underground operations.

Under the settlement, Alpha will spend more than $80 million to install this equipment and perform a study to determine if its mines have adequate staffing to clean up accumulations of explosive coal dust, accelerate research on new ways to control dust accumulations, and install new emergency oxygen equipment for miners. The new West Virginia Mine Safety Bill does not ask, recommend or require any other coal producer to take similar measures.