State hasn't followed up on Manchin coal-dust order

Sep 24 - McClatchy-Tribune Regional News - Ken Ward Jr. The Charleston Gazette, W.Va.

Nine days after Massey Energy's Upper Big Branch Mine blew up, Gov. Joe Manchin issued an executive order that tightened West Virginia's requirements for mine operators to control explosive coal dust in underground mines.

Manchin ordered the coal industry to use more crushed stone to keep down the dust, and directed state inspectors to step up efforts aimed at preventing mine explosions.

"They'll start with the mines that have been cited repeatedly for these combustion risks during the last year, and take immediate steps to ensure compliance with the law," Manchin said at the time.

But in the five months since Manchin's order, inspectors from the state Office of Miners Health, Safety and Training haven't cited a single mine for violating the new "rock-dusting" standards the governor instituted.

Why not? Because state inspectors haven't actually taken any samples of underground mine dust, Manchin administration officials revealed this week.

"We do very little rock dust sampling," Ron Wooten, Manchin's mine safety director, said in an interview.

In a follow-up e-mail through his agency's media spokeswoman, Wooten added, "To my knowledge, the OMHST has not taken any rock-dust samples during an inspection. We do take rock-dust samples during special investigations, when deemed necessary."

The spokeswoman, Leslie Fitzwater, did not identify any such special investigations -- or any rock-dust samples taken by the state or violations issued by the state since Manchin's April 14 executive order.

After the Sago Mine Disaster and the Aracoma Mine fire in 2006, Manchin received national attention for moving quickly to pass landmark legislation aimed at improving systems to rescue miners trapped by fires or explosions.

In a new ad promoting Manchin's U.S. Senate campaign, the governor is shown -- clad in a hardhat -- standing with a group of miners. United Mine Workers President Cecil Roberts appears in the ad and says, "Joe Manchin worked with us to pass historic mine safety laws. He's always been there for us."

In the weeks after the Upper Big Branch Mine Disaster, there was talk from the governor's office about calling a special session to pass more mine safety legislation. Safety advocates gave the governor proposals to, among other things, toughen the ability of state inspectors to hold corporate officers accountable for violations. But so far, Manchin has not introduced any new legislation and the idea of a special session on mine safety has been dropped.

Manchin spokesman Melvin Smith said the governor is waiting for state investigators to complete their review of the Upper Big Branch explosion to seek any changes in state mine safety laws.

"He remains hopeful to have a full legislative package to present, based on those results," Smith said Thursday.

On the rock-dusting issue, Manchin's executive order appeared to put the state out ahead of the U.S. Mine Safety and Health Administration in addressing a long-standing weakness in rules aimed at preventing deadly explosions.

Under federal and state law, mine operators are required to spread crushed limestone -- or "rock dust" -- in underground mines to control the ability of coal dust to turn small methane ignitions in to huge, deadly explosions. Until it issued an emergency rule this week, MSHA had largely ignored scientific evidence that for years showed that more rock dust than mandated by federal regulations was needed to protect miners.

At a Capitol press conference the week after the Upper Big Branch explosion, Manchin instructed Wooten to "order the immediate inspection of all active underground coal mines in the state."

Manchin's executive order stated, "In addition to performance of any duties required by law ... mine inspectors conducting an inspection pursuant to this order shall collect dust samples in all mines where rock dust is required to be applied and maintained upon the roof, floor and sides of the mine."

In announcing the state was toughening its rock-dust rules, Manchin portrayed the move as an example of his state administration getting ahead of slow-moving federal bureaucrats.

"I'm going to do everything I can in this state," Manchin said in an interview. "I can't wait until the feds start moving."

But it turns out that, even if state inspectors were to take rock-dust samples, they would have had to rely on an MSHA lab in Mount Hope to analyze those samples for them. MSHA spokeswoman Amy Louviere said the state has not sent federal any rock-dust samples since the governor's executive order was issued.

Back in April, part of Manchin's plan was for the state mine safety office to open its own lab. The governor's executive order directed Wooten to "take immediate steps to secure necessary equipment and personnel to test dust samples collected by mine inspectors."

Lawmakers provided Wooten's agency with a more than $400,000 supplemental appropriation in July to fund eight new positions, seven vehicles and equipment required for the rock-dust analysis.

Earlier this week, Wooten said his agency had started to set up the lab at its offices in Washington Street in Charleston's East End. But then the governor's office told the agency that it wanted the lab to instead be located at the former Dow Tech Center in South Charleston, where Manchin has been promoting a "West Virginia Education, Research and Technology Park."

"We do not yet have a target date for completion," Fitzwater said in her e-mail to the Gazette. "But we are moving forward and will establish this testing facility as quickly as we are able to do so."

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