Wednesday, September 23, 2015

2/6/12 Testimony WV House of Delegates, Davitt McAteer & Associates

Statement of
J. Davitt McAteer, Vice President of Wheeling Jesuit University
Before the
Joint Meeting of the West Virginia House of Delegates Judiciary Committee
and the West Virginia Senate Judiciary Committee
February 7, 2012

Good morning Mr. Speaker and Members of the Judiciary Committee’s. Thank you for this opportunity to appear before you today to testify about the important changes which are needed in the West Virginia Mine Safety Laws growing out of the lessons learned from the Upper Big Branch mine disaster of April 5, 2010. Also, Mr. Speaker, let me express my appreciation for the opportunity to comment on your proposed bill HR 4085 and on Governor Tomblin’s Senate Bill 448.

On April 13, 2010, eight days after the explosion, then Governor Joe Manchin, III, requested that I conduct an independent investigation into the Upper Big Branch disaster and to determine the underlying cause of that disaster and to make recommendations as to what could be done to prevent another disaster from occurring in West Virginia and all United States mines. I assembled a team and we issued our report in May of 2011. I will submit a copy of our report for the record.
As we concluded in our report, "Ultimately, the responsibility for the explosion at the Upper Big Branch mine lies with the management of Massey Energy. The company broke faith with its workers by frequently and knowingly violating the law and blatantly disregarding known safety practices while creating a public perception that its operations exceeded industry safety standards.

The story of Upper Big Branch is a cautionary tale of hubris. A company that was a towering presence in the Appalachian coalfields operated its mines in a profoundly reckless manner, and 29 coal miners paid with their lives for the corporate risk-taking. The April 5, 2010, explosion was not something that happened out of the blue, an event that could not have been anticipated or prevented. It was, to the contrary, a completely predictable result for a company that ignored basic safety standards and put too much faith in its own mythology.

The investigation concluded, among other things, that the UBB disaster was caused by several factors which pointed to failures of the Massey Energy management to ensure that fundamental basic safety precautions were followed and failed to comply with the laws of this state and the federal mine safety and health laws. In addition, we identified shortcomings in the West Virginia and federal mine safety laws and enforcement of these laws. Our recommendations therefore focused on these failures and shortcomings.

First, dangerous amounts of coal dust were allowed to accumulate despite the legal requirement that it be removed or made harmless by the addition of rock dust.

The West Virginia and federal coal dust requirement was that coal dust contain less than sixty-five per cent combustible content for intake airways. This requirement was established in 1927. Following the disaster, in September of 2010, MSHA issued an emergency temporary standard increasing that requirement to 80%.

Governor Tomblin’s Senate Bill 448 will raise the West Virginia state requirement to 80%, this is a positive proposal which should be adopted. However, it needs to be said that the chief shortcoming in the coal / rock dust scheme is the fact that at Upper Big Branch and at all other mines in the country, until recently no method existed to immediately determine the combustible level. However, there is today a device which can give an instant reading of the combustible level.

Sensidyne Industrial A&S Instrument of Sarasota, Florida with an assembly facility in Fairmont, West Virginia, recently announced the availability of the CDEM 1000 Portable Coal Dust Explosibility Meter which measures the percentage of rock dust in coal mine dust samples and gives an instantaneous explosion indicator. It is MSHA approved.

The cost of one CDEM 1000 device is $2,995.00, one device could cover a large mine. I would urge this Committee to adopt a requirement that each underground coal mine be required to obtain and use on a daily basis such a device in order to have access to constant and instant knowledge of the combustibility of the coal dust.

Second, with respect to other dangers of coal dust, our investigation revealed that of the 24 available autopsies, 71% of the victims had Coal Worker Pneumoconiosis (CWP). The national average for CWP among active underground miners is 3.2%. The West Virginia rate is 7.6%. Of the seven not having CWP, four had what is characterized as "anthracosis," a term that is often used in lieu of pneumoconiosis. Most troubling is that of the 71%, five had less than 10 years of experience as a coal miner. This high percentage of more experienced and less experienced victims with CWP is especially troubling as their work life experiences came after the federal requirement of 2.0 mg/m3 had been in effect for many years, strongly suggesting that the 2.0 mg/m3 is not as low as it should be. I strongly urge this Committee to adopt a requirement to limit the exposure of West Virginia miners to the occupational exposure of respirable coal mine dust. I also urge the Committee to adopt full shift sampling during a normal production shift, require certification and decertification requirements for persons taking samples, provide for single shift compliance sampling and expand requirements for medical surveillance. The new level of exposure should be set at no more than 1.0 mg/m3.

The issue has been analyzed for more than 16 years (since 1995) at the Federal level with extensive industry and labor participation and the federal government has concluded that the requirement should be lowered to 1.0 mg/m3, therefore I strongly urge you to accept the Federal rulemaking record and adopt a 1.0 mg/m3, standard. The evidence from the Upper Big Branch autopsies and recent NIOSH studies strongly suggest that the U.S. coal mining industry is facing a reemergence of the black lung epidemic. Increased exposure is caused by a number of factors including mining in thin seams, mining quartz bearing rock and sandstone, higher speed equipment and the creation of finer dust particles. There is a real concern that more and more miners are contracting black lung, and certainly the UBB evidence strongly points in that direction. I urge that this Committee take action to protect our miner’s health.

One further related item bears mentioning, the proposed Senate Bill 448 contains an extensive drug testing scheme for miners. In light of that proposal, we recently made a review of the UBB autopsies and found that not one of the victims had any evidence of illegal drug use and only one victim had evidence of the presence of cough medicine.

Further, I know of no study of West Virginia miner fatalities which shows any evidence of the presence of illegal drugs in the victims system following a mine related death. In light of these findings, perhaps a study of fatal and non-fatal accident evidence related to illegal or prescription drug use would be more appropriate than the dramatic drug screening proposal. Certainly, no one would disagree that an impaired miner is a hazard to his or her fellow miners. However, it is important to lay a factual basis for establishing such a policy.

Furthermore, among our most compelling finding was the fact that under Federal and West Virginia law, only mine foreman are certified and held responsible for mine law infractions. And as is evident from the public comments following UBB, under current law, company officials who make production decisions which can and do affect miners’ health and safety can avoid responsibility for their decisions. Legal responsibility should rest upon those with corporate authority. Therefore we would urge that this Committee require that every mine superintendent be certified by the West Virginia Office of Miners’ Health Safety and Training in underground mining and in carrying out mine health and safety law with regard to the individual mines.

In addition, we recommend that the West Virginia Code be amended to:

- Require a quarterly report certifying that all safety standards are being complied with. Sanction for knowingly or negligently falsifying the report would be the revocation of the mine superintendent’s license.

- Adopt provisions similar to those contained in the Sarbanes-Oxley Act to make a Board of Directors accountable for mine safety compliance. Boards should utilize existing health and safety committees or form a committee to oversee health and safety aspects of the mines under the company’s control. The committee would be responsible for ensuring the compliance with all federal and state regulations and would be required to certify that the mines are in compliance each quarter. A criminal penalty should be assessed on these board members who certify, negligently and willfully, that the mine is in compliance when it is not.

The State of Pennsylvania has recently adopted similar processes which address qualifications and general responsibility of the Superintendent. The Pennsylvania Code states:

Section 221. Qualifications and general responsibility of superintendent. The following shall apply:

(1) Beginning one year after the effective date of this paragraph, no individual may be appointed as a superintendent at any mine in this Commonwealth unless the individual holds a current, valid mine foreman certificate. In the event that a superintendent is found by the department to be in breach of his or her responsibilities as superintendent, the department may suspend or revoke the superintendent's mine foreman certificate.

(2) No individual may serve as the superintendent for more than one mine.

(3) The superintendent shall not obstruct the mine foreman or other official in the fulfillment of his duties as required by this act. The superintendent shall ensure that the mine foreman and all other employees of the mine comply with the law. The superintendent shall immediately respond to a violation of this act upon notification by the department. The superintendent shall be responsible for all the outside workings and all individuals employed at the mine. At a mine where a superintendent is not employed, the mine foreman shall have all the duties and responsibilities otherwise given to the superintendent in addition to the regular duties of the mine foreman.
In addition, our findings concluded that 21st century coal mine safety and health practices have failed to keep pace with 21st century coal mine production practices and improved technology is required to ensure that the lives of miners are safeguarded. Therefore we recommend the following:

First, "Black box" technology must be instituted for mining equipment, including shearers, continuous miners, roof bolters, shuttle cars, motors, conveyors, shields and longwalls. The black boxes should provide information regarding methane, oxygen, carbon monoxide and coal dust levels, among other information.

Moreover, we found that the pre-shift/on-shift examination system, established in the early 1990s to identify hazards and take corrective actions, has in many instances, become a meaningless paperwork exercise. Examiners are overly dependent on paper, and their examinations are characterized by monotonous routines and the reliance on "dittos" and abbreviations. Moreover, evidence shows that certified foremen, mine foremen and examiners at UBB were not adequately trained to understand and perform their safety inspections and how their recognition of hazards provides essential information to assure miners’ safety.

Therefore, we recommend the current system of safety examinations should be modernized and made more effective.

- Pre-shift and on-shift examinations must be computerized with the information transmitted to regulatory agencies, much like coal truck weights are transmitted to the Department of Transportation of a daily basis.

- The West Virginia Office of Miners’ Health Safety and Training should re-double its efforts to ensure that all examiners are trained and tested as many times as necessary, including in-mine demonstrations on their skills, to ensure the examiners understand their duties and perform them as they should be operated.

The proposals being considered in the House bill and Senate bill are a starting point. A remake of the prevention systems using new but available technology is necessary if we are to bring mine safety and health in West Virginia into the 21st century.

In 2006, the West Virginia Legislature and West Virginia Governor faced a similar dramatic situation following the Sago and Aracoma-Alma deaths. In that instance, they acted with speed and with thoroughness to address the issues before them. They put our state in the forefront of mine safety and health. Tragically, year-in and year-out West Virginia continues to lead or nearly lead the nation in the number of fatal and non-fatal accidents. Last year, 2011 was no exception as six miners died just trying to make a living.

We are unfortunately again faced with a dilemma on how to respond to the calamity of the April 5th UBB catastrophe.

I urge this Committee, this Legislature, to step forward and rise to the occasion, to show by your actions your strong commitment to miners’ safety and health and adopt meaningful changes which will place our state once again in the forefront of miners’ safety and health protection. The victims of UBB deserve no less and the miners of West Virginia deserve no less.

In our report, we listed eleven findings and fifty-two recommendations. I would urge the Committee to consider these during your deliberation and I would be happy to discuss these as well.

Thank you.

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