Coal Tattoo

Black lung is back: Where is the outrage?

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A marcher holds a grim message during a black lung rally. Photographer and date unknown, courtesy of West Virginia and Regional History Collection, West Virginia University Libraries.

Earlier this week, when I heard that Sen. Joe Manchin was heading to the floor for what his office said would be an important speech, I thought for a moment that perhaps the West Virginia Democrat was going to talk about black lung disease.

After all Sen. Manchin is forever going on about how much he cares about coal miners, about the important work they do for our nation, about how miners like the men he knew growing up in Marion County are the “salt of the earth” and deserve better than to have their jobs disappear because of what coalfield political leaders insist is a “war on coal” by President Obama.

But no, we didn’t hear a word from Sen. Manchin this week about black lung disease. His floor speech on Wednesday was a rather bizarre rant that blamed continue power outages in West Virginia following the “derecho” thunderstorm on Obama administration investments in building infrastructure in Afghanistan.

Then again, no one else in any position of authority in our nation’s coalfields had much to say this week about black lung, despite the shameful findings of a joint investigation by the Center for Public Integrity and NPR News (with additional reporting by yours truly for the Gazette).  Here’s the bottom line from the reporting, as explained by CPI’s Chris Hamby:

Throughout the coalfields of Appalachia, in small community clinics and in government labs, it has become clear: Black lung is back.

The disease’s resurgence represents a failure to deliver on a 40-year-old pledge to miners in which few are blameless, an investigation by the Center for Public Integrity and NPR has found. The system for monitoring dust levels is tailor-made for cheating, and mining companies haven’t been shy about doing so. Meanwhile, regulators often have neglected to enforce even these porous rules. Again and again, attempts at reform have failed.

A Center analysis of databases maintained by the federal Mine Safety and Health Administration found that miners have been breathing too much dust for years, but MSHA has issued relatively few violations and routinely allowed companies extra time to fix problems.

Now if there were an announcement or even the smallest bit of news that even smelled a little bit like something that might cost the region even one coal-mining job, political leaders would be falling all over themselves to attack President Obama, criticize environmental regulations, and declare their intention to do whatever it takes to protect miners’ jobs. But what about an epidemic of a disease that is completely preventable? Hardly a word.

As best I can tell, the first — and one of the only — politicians to have any response to the black lung stories was Sue Thorn, the Democrat who is challenging GOP Rep. David McKinley in West Virginia’s 1st congressional district. Her statement said, in part:

Black lung is a torturous disease that causes prolonged suffering and a painful demise for those afflicted by it. The systems set up to protect our miners have failed because federal lawmakers refuse to toughen 1969 coal dust standards. As politicians in the pockets of coal companies continue to play politics with people’s lives and spout talking points about “job-killing” federal regulation, our miners are the ones suffering and dying. In Congress, I will never put corporate profits and campaign contributions before people.

We also got a statement in from Sen. Jay Rockefeller, D-W.Va.:

The ravages of black lung disease are something that no miner should have to face. It’s a devastating disease for the affected miners, their families and communities. Despite years of working to improve safety and health standards for miners, the growing incidence rate of new black lung cases among younger miners is a stark reminder that more must be done. I have talked with MSHA about its proposed rule to reduce miner exposure and I intend to push hard to make sure that reforms are made and implemented.

And from Rep. Nick J. Rahall, also D-W.Va.:

The growing incidence of black lung disease is serious concern to all of us in coal mining regions and the Gazette is doing a service to miners by bringing well-deserved attention to the disease and its sufferers.

In the aftermath of Sago and Aracoma, when NIOSH reports initially identified this shocking rise the rate of black lung – a disease we had hoped was in decline – I supported increased funding for MSHA, including a carve out for several years aimed specifically at increasing spot inspections to enhance compliance with coal dust limits and to assist in updating respirable dust regulations. I also provided ongoing support of funding for NIOSH to continue its research into the unusual rise of black lung rates and to help develop real time dust monitors, and other technologies and practices that could help to prevent black lung disease. Despite aggressive budget cuts across the Federal government, these increased funding levels for MSHA’s enforcement and NIOSH research activities have been retained.

In addition, the Byrd Mine Health and Safety Act, which I cosponsored, contains language that Senator Byrd had wanted and that I fought to include after his death, that requires the Secretary of Labor to promulgate regulations to ensure that coal operators provide miners with ‘the maximum feasible protection from respirable dust, including coal and silica dust, that is achievable through environmental controls.’ The bill also requires real-time testing of dust levels to enable corrective actions to be taken immediately as necessary and provides greater whistle-blower protections to help miners actively advocate their own health and safety, including ensuring proper use of dust monitors and accurate testing.

The strongest statement I’ve seen so far came from Rep. George Miller, a California Democrat who is ranking minority member of the House Committee on Education and the Workforce:

Obsolete monitoring requirements make it too easy for some mine operators to game the system and circumvent their responsibility to protect miners. It is regrettable that powerful special interests and Washington red tape continue to stand in the way of proper protections, especially since some major mine operators agree that the present system is broken and improvements are needed.

Inaction should not be an option. Republicans should be working with Democrats to clear the bureaucratic hurdles so that long overdue protections can be finalized. Further delays will cost lives, careers, and family income for those who go underground every day to mine energy that drives our economy.

UPDATED: Giving Miller a run for the strongest statement is this, just in from Sen. Tom Harkin, D-Iowa:

These groundbreaking reports should be a call to action for everyone connected to the mining industry.  We must all face the disturbing fact that black lung is getting worse not better, and ask ourselves how long will we tolerate deadly working conditions for our nation’s miners?  The crisis is particularly acute because we know there are solutions that will save thousands of lives.  I think the Department of Labor, under the leadership of Secretary Solis and MSHA head Joe Main, is taking important steps to help break this deadly cycle, and I believe that it is the moral obligation of everyone in the industry and every political leader that represents hardworking miners to help make these reforms a reality.  Everyone has responsibility to help eradicate this deadly disease — MSHA is not omnipresent, and there are things that the agency alone cannot achieve.  We need to strengthen our safety and health laws, no doubt, but we also need a change in the culture of this industry, so that shirking the law is no longer tolerated, and no operator is permitted to put profits over miners’ lives.

One new development since our stories were published was the filing this week of a new lawsuit against Massey Energy/Alpha Natural Resources by a coal miner, Terry Evan Lilly, who alleges that mining practices — including cheating on respirable dust sampling — led to him getting the most serious form of black lung disease. Among other things, the suit filed by Morgantown lawyer Al Karlin  accuses mine management where he worked (including Upper Big Branch) of the following:

— Instructing miners to hang air sampling pumps designed to measure dust exposures in areas where the air was clean instead of keeping the sampling pumps with them in the air where they were actually working thereby creating a false and misleading records of the actual level of coal dust to which miners were exposed;

Covering up air sampling pumps to prevent the pumps from properly measuring the respirable dust in areas where miners were working;

— Instructing miners to sit in the intake area on a day when they carried an air sampling pump;

— Instructing miners to run a continuous miner without an air sampling pump that had been assigned to them.

The lawsuit is similar to many that have been filed against coal companies by Charleston lawyer Tim Bailey, as Chris Hamby explained:

In general, the only option for miners who get the disease is to file a claim with the state or the U.S. Department of Labor to try to get benefits.  But Bailey takes a different tack, drawing on a state law that allows workers to sue their employer in cases of knowing exposure to dangerous conditions.

This often amounts to proving that the company manipulated its dust samples. In depositions, miners have described hanging dust pumps in cleaner air or getting advance warnings of inspections. Over the past eight years, he’s handled about 40 such cases. In each case, he said, the coal company eventually settled.

“These are criminal acts,” Bailey said. “What’s different about these black lung cases is that the cheating is such a part of everyday practices.”

One of my stories in the black lung package documented allegations of such cheating at Upper Big Branch and other Massey mines, and the investigation by NPR and CPI showed how such abuses are widespread in the industry.  As NPR’s Howard Berkes explained:

Coal companies continued to routinely deceive federal regulators with sampling that minimized dust exposure, according to coal miners, former mine inspectors, federal records and testimony in lawsuits.

David Neil, who worked underground in West Virginia through most of the 1980s, said he was told by a company foreman to hang a measuring device called a dust pump out in mine shafts with clean air and away from coal dust.

“Maybe if we didn’t do it this way, they’d come in and shut down the mines,” Neil remembers thinking. “Then we’d be out of work.”

Neil now suffers from advanced black lung, as does Randall Wriston, whose last job underground was in a West Virginia coal mine four years ago.

“If I would have [worn] a dust pump 50 percent of the time, they would have shut down,” Wriston says, because the mine would be out of compliance for having too much dust. “If they would get a bad sample they’d turn them upside down and shake them, and that would give a false reading. So, they’d come back and do it some other time.”

Miners, former miners and current and former federal regulators told NPR and CPI about dust pumps tucked into lunch boxes or under clothing or out in mine shafts with fresh air — anywhere away from coal dust.

But, Howard notes:

It’s unclear what happened with vigorous criminal prosecution after 2002. MSHA tells CPI and NPR that there were no “closed cases” of dust sampling fraud in the last decade, which indicates no criminal convictions. The agency refuses to disclose how many violations, if any, were sent to the Justice Department for possible prosecution, citing a policy forbidding disclosure of the “existence or potential existence of open criminal cases.”

UPDATED:

U.S. Attorney Booth Goodwin confirmed this afternoon that his office is examining potential criminal violations related to dust-cheating, as part of its continuing probe of the Upper Big Branch Mine Disaster —

Without going into detail, I can say we’ve been aware for some time of alleged improprieties in respirable dust sampling, and that’s an area that would be of interest in our investigation.

Still unclear is whether the Obama administration will move forward with its propose rulemaking on dust limits and other measures aimed at ending black lung, or allow the proposal to die the way the Clinton administration did in 2000.  Previously, MSHA had said it could — and likely would — move forward to finalize the rule, without waiting for an expected GAO report due out next month.

MSHA chief Joe Main’s friends at the United Mine Workers of America said today that they want to see the agency press ahead more quickly:

As you know, we were not completely satisfied with the proposed rule and expressed our disagreements in comments we’ve filed with the agency. We hope that the final rule that comes from the agency takes into account our concerns, and we have met with the White House and MSHA and urged them get a dust rule sent to OMB and finalized, irregardless of the timing of the GAO report.

UPDATED:

NPR and CPI are reporting more response to the black lung articles —

NPR and the Center for Public Integrity (CPI) have learned that the Mine Safety and Health Administration (MSHA) and the Labor Department are putting together a team of agency experts and lawyers to specifically consider how to bolster coal mine dust enforcement given the statutory and regulatory weaknesses detailed by NPR and CPI this week in stories about the resurgence of black lung.

The effort includes discussion of how the agency might be more aggressive in filing civil and criminal actions against mining companies that violate coal mine dust standards, according to an internal Labor Department communication obtained by NPR.

All of this aside, it seems hard to believe that the continued illnesses and deaths of thousands of coal miners from black lung don’t bring more outrage from coalfield political leaders — or anyone else, for that matter.  Is it really acceptable for workers to die like this in America:

Black lung leaves miners’ lungs scarred, shriveled and black. They struggle to do routine tasks and are eventually forced to choose between eating and breathing.

“No human being should have to go through the misery that dying of [black lung] entails,” said Dr. Edward Petsonk, who treats patients with black lung and works with NIOSH. “It is like a screw being slowly tightened across your throat. It is really almost a diabolical torture.”