The 4th meeting of the Subcommittee on Natural Resources of the Interim Joint Committee on Agriculture and Natural Resources was held on Wednesday, October 8, 2003, at 2:00 PM, at the Ohio County Community Center in Hartford, Kentucky. Representative James Gooch, Chair, called the meeting to order, and the secretary called the roll.
Present were:
Members: Senator Ernie Harris, Co-Chair; Representative James Gooch, Co-Chair; Senators David Boswell, and Elizabeth Tori; Representatives Rocky Adkins, Tim Couch, Keith Hall, and Brandon Smith.
Legislative Guests: Representative C.B. Embry.
Guests: Commissioner Frank Delzer, Deputy Commissioner Kenny Johnson, Tracy Stumbo, Holly McCoy, and Tony Oppegard, Department of Mines and Minerals; Commissioner Tom Bennett and Dr. John Gassett, Department of Fish and Wildlife; Bob Cox, Beaver Dam miner; and Kori Jones, Kentucky Farm Bureau.
LRC Staff: Tanya Monsanto, Hank Marks, and Kelly Blevins.
Senator Harris noted that the subcommittee did not have a quorum and stated that the minutes from the September meeting could not be approved. He thanked Ohio County leaders for their hospitality and use of the community center. Sen. Harris called the first item on the agenda, an update on mine safety. Sen. Harris noted that the General Assembly considered a bill in 2003 that dealt with mine safety but that measure failed. He stated that there were concerns about the bill and there is a need for guidance about the efficacy of current enforcement measures. Perhaps this is more of an enforcement issue. Sen. Harris called Commissioner Frank Delzer and staff from Mines and Minerals to testify.
Commissioner Delzer introduced staff from Mines and Minerals that would also testify. They were Tracy Stumbo, Chief Investigator for Mines and Minerals, Kenny Johnson, Deputy Commissioner with Mines and Minerals and Tony Oppegard, General Counsel with Mines and Minerals. Commissioner Delzer spoke first. He stated that fatalities were down from previous years. However, the department has a goal of zero fatalities. Tracy Stumbo spoke next. He gave an update on enforcement and operations. Mr. Stumbo stated that enforcement is now being centralized. Fatalities are now being handled out of Frankfort rather than district offices. This fosters independence in the investigation and greater consistency in treatment of investigations. We have learned that most fatalities are due to willful disregard of rules and procedures. Most of Kentucky’s fatalities are not due to conditions in or about the mine. Mr. Stumbo then provided the co-chairs a handout disclosing the number of fatalities and provided details about each case. Copies of the handout are available in the LRC library.
Sen. Harris recounted a couple of the fatality details and expressed concern that they were due to willful acts of disregard or acts of God. Mr. Stumbo explained that inspectors will watch miners to discern whether they understand good procedure but when inspectors leave oftentimes they employ their own methods of doing the job. Sometimes they are not safe practices.
Mr. Kenny Johnson spoke next. He discussed the serious injury and injury accidents. There were eleven serious injuries which could have been fatalities. He described each of the serious injury accidents and indicated that most of them were due to electrical shock.
Sen. Harris asked if there are damp conditions in mines which make electrical hazards even greater. Mr. Johnson replied that damp conditions in mines exacerbate the electrical hazards. He then went on to discuss other serious accidents and how the department is working to improve those numbers. To date the department has issued 1,431 noncompliance citations and 1,028 closure orders. Of the total, 41% resulted in a closure order for reason of immanent danger. The department analysts are also contacting miners to review their work habits. The department has contacted 8,294 miners and want to do more one on one contacts.
Mr. Oppegard spoke next. He provided an update on the Mine Safety Review Commission. He stated that the Mine Safety Review Commission began work late in 2001. Last year 11 cases were filed. In 2003, there were 13 cases. The statutes require that prosecutions be based on intentional or willful violations. He noted they seek a suspension of a certificate often. Also, they use KRS 351.025 for the Commission’s authority. To date, of the 28 cases filed, only 2 trials are before the commission. There were 22 miners who had their cards revoked. Seven had their cards suspended and 2 were placed on probation. Mr. Oppegard then discussed specific cases of willful violation and stated the penalties were serious in these cases. Mr. Oppegard also discussed the jurisdictional differences between the department and MSHA. He said that industry doesn’t want 2 agencies regulating them, but Kentucky provisions are outdated. He described some areas where Kentucky statutes could be strengthened.
Mr. Oppegard then stated that the commission must rely on state law. MSHA enforces federal. The commission wants to have access to federal law to protect miners but they cannot file except on the most serious willful acts. It sends the wrong message to industry.
Sen. Harris asked if miners who have their special certifications revoked return to being regular miners. Mr. Oppegard replied that they can. However, in a number of cases the miners leave the industry altogether. If the certificates are revoked, the miners must retake their tests. Suspensions do not have those requirements to retest.
Commissioner Delzer stated that contractors are not covered under the Mine Safety requirements. They want to bring them under control so they are required to get necessary training. Prep plants and crews for ventilation and construction do not have to abide by the Mine Safety requirements. They also have a problem with abuse of workers compensation for private contractors.
Sen. Harris thanked the presenters. He then asked if there were problems with certain companies or if the fatalities and accidents were normal across all companies. He also asked if accidents are due in part to fatigue and does the industry have standards for hours worked. Mr. Johnson replied that fatigue is a problem in the coal industry. There are no standards for underground mining as pertains to hours worked.
Sen. Harris asked if drug usage among miners is a problem. Mr. Oppegard replied that it is a problem. Statute states that it is unlawful to be intoxicated or under a controlled substance, but they cannot drug test. So, they cannot prove it.
Sen. Harris asked for clarification. The commission cannot do random drug testing? Do you need statutory authority? Mr. Oppegard and Commissioner Delzer both replied yes.
Rep. Adkins stated that many companies do require drug testing; however, some companies won’t do it because their employees leave. Mr. Oppegard stated that there are miners that go to other jobs if they test positive for drugs. Most companies do not require drug testing. Some companies may begin a drug testing program if they think there is a drug usage problem.
Rep. Adkins asked if the companies can do random testing. Mr. Oppegard replied yes. Commissioner Delzer stated that nothing goes on record with the commission.
Rep. Smith stated that there are a lot of places where the miners quit because they don’t want to get tested. Many companies are being responsible and we need to encourage them to do a good job.
Rep. Adkins inquired about the Mine Safety Review Commission. Mr. Oppegard stated that it went into operation January 2003. There are 3 commissioners who are appointed by the Governor. The commission makes a finding of probable cause. Rep. Adkins asked if the commission could prosecute under federal law. Mr. Oppegard stated no the commission cannot prosecute under federal law. Under federal mine safety act, every violation is a misdemeanor. There are few prosecutions because they aren’t felonies. Only paperwork is considered a felony.
Rep. Gooch asked how many of the 500 mines are in operation, and how many state inspectors there are? Commissioner Delzer discussed the number of mines in Kentucky and the number of inspectors in the program. He stated that the development of the analyst program was to increase oversight.
Rep. Gooch stated that there are currently more inspectors going into fewer mines than in the past. Commissioner Delzer stated yes. Rep. Gooch replied that there is no need to make regulation more stringent and difficult on the industry. If there are accidents it doesn’t mean the workplace is inherently unsafe.
Rep. Smith discussed a construction company in his district that wants to donate coal but cannot get approval from Natural Resources to do so. The company will have to bury the coal rather than use if for charitable purposes.
Rep. Couch stated that there are mine fatalities. Then he discussed the specifics of one case where the miner was hurried through his work.
Sen. Tori asked about the ratio of accidents to worker both today and in previous years. She asked if there are more accidents as a percentage of the workforce? Commissioner Delzer replied that in 1978 there were 18 fatalities with a workforce of approximately 64,000. In 2003, there were 9 fatalities with a workforce of approximately 14,000.
Sen. Tori replied that safety is better today than in the past. Technology differs and social pressures may be causing the increase in accident rates.
Sen. Harris said last year there was concern about this issue and this meeting has been insightful. He would like to continue examining the topic. He also thanked Rep. Embry for having the subcommittee in his district. Rep. Embry thanked everyone for coming to Ohio County.
Rep. Gooch asked Commissioner Tom Bennett and staff from the Department of Fish and Wildlife Resources to provide an update on shooting preserves.
Commissioner Bennett introduced himself and Dr. John Gassett. Commissioner Bennett discussed the incidence of chronic wasting disease (CWD) in the United States. There are now 11 states with CWD. It is a disease that affects the cervid population. It has a 5 year latency period and there is no cure.
In Kentucky there are approximately 650 to 700 wild deer that could be affected by CWD. There are 70 facilities for captive deer and they must meet specific requirements to prevent their contact with wild deer populations. There are 2 permitted shooting preserves, one in Muhlenburg and one in Trigg county. Commissioner Bennett then discussed the precautions taken with shooting preserves to prevent the spread of CWD to Kentucky. Then he discussed violations of transportation rules at the two shooting preserves and the incidence of illness in the captive deer populations there.
Sen. Harris asked about the size and if the preserves are fenced. He also asked about the mode of transmission for CWD. Commissioner Bennett stated that there are 3,000 acres in the Nelson county preserve and it is fenced. Dr. John Gassett stated that transmission happens through nose to nose contact, contact with fecal matter and dead animals.
Commissioner Bennett noted that most captive deer operations are in compliance. There is also an opportunity to move deer inside Kentucky. They think the industry will be fine.
Rep. Adkins remarked that there are 70 captive cervid holders. He stated that cervid holders in his district are upset by these rules. Commissioner Bennett replied that CWD is a serious disease epidemic and the rules are meant to keep it under control.
Rep. Adkins stated that he agreed about the importance of controlling CWD; however, these are legitimate business operations. They sell legitimate by-products for hunters. There are 70 business operations that are harmed by these rules. Commissioner Bennett replied that new regulations before the administrative regulations review subcommittee next Tuesday will permit the transport of deer between permitted facilities. When these rules go into effect, those operations will be able to transport deer again.
Rep. Adkins stated that the order bans all new shooting preserves. Commissioner Bennett remarked that the ban on permits lasts until it is lifted by statute or by the Governor. The problem with the preserves is that it is impossible to tag new fawns and to identify them as wild or captive. The two facilities have agreed not to import deer but rely on tags to determine what is wild and what is captive.
Rep. Adkins stated he doesn’t understand the importance of tagging captives. Commissioner Bennett replied that captive facilities confine animals in a smaller space and this is where CWD is most likely to occur.
Rep. Adkins stated that he wants to control the disease and permit these operations to do business. Why not let permitted facilities that will only transport deer in the state sell to shooting preserves? Commissioner Bennett replied that their desire is to prevent new deer from coming into the state. Rep. Adkins remarked that there is room for a solution and still protect Kentucky from CWD.
Commissioner Bennett stated that the commission will go back and consider Rep. Adkins suggestion.
Rep. Gooch stated that Kentucky has 70 facilities and 2 preserves. Other facilities want to sell deer to the two preserves. Rep. Gooch stated he had a constituent wanting to set up a preserve. Commissioner Bennett asked for time to work on the ideas presented today. He stated he would provide an update on the 2 cases mentioned at the next meeting.
Sen. Tori stated that there were 64 dead deer in her district. She asked if Fish and Wildlife was investigating this situation. Commissioner Bennett stated that the department is investigating. It could be a case of hemmoragic disease.
Sen. Tori asked if hemmoragic disease kills in such large numbers. Commissioner Bennett replied yes. He then compared the methods to control deer disease to the method of disease control in the poultry facility that the subcommittee members visited today. He stated that captive deer facilities are animal operations the same way poultry facilities are.
Rep. Adkins asked if the regulations were supported by an array of stakeholders. Commissioner Bennett replied, "Yes, I think so."
Sen. Harris asked Commissioner Bennett to update the subcommittee on the summer hires. Commissioner Bennett stated that he will report to the subcommittee later in the week in writing.
The meeting adjourned at approximately 3:30 p.m.