Coal Tattoo

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FILE- In this May 5, 2016 photo, Coal miners wave signs as Republican presidential candidate Donald Trump speaks during a rally in Charleston, W.Va. Trump's election could signal the end of many of President Barack Obama's signature environmental initiatives. Trump has said he loathes regulation and wants to use more coal and expand offshore drilling and hydraulic fracturing. (AP Photo/Steve Helber, File)

 

In this May 5, 2016 photo, coal miners wave signs as President-elect Donald Trump speaks during a rally in Charleston, W.Va.  (AP Photo/Steve Helber, File)

We’ve been discussing this week the things that President-elect Donald Trump simply isn’t going to be able to do for West Virginia’s coal miners, and the things that President Obama failed to do. So it seemed like a good idea to try to identify some things that the Trump administration could do for coal miners once it takes office in January.

So I asked Sam Petsonk, a mine safety lawyer with the non-profit firm Mountain State Justice, for some ideas. Here’s what he had to say:

America’s companies have often promised us that, if you work for a living, you will be kept safe and healthy at work and you will have some financial security once you retire. Yet, tens of thousands of miners all across the Appalachian Region are losing health insurance after becoming disabled or retired, and others are confronting safety and health challenges on the job if they are still in the workplace. So, the new presidential administration faces serious challenges in assuring that companies keep those promises to coal miners—both for active workers and for retirees whose healthcare benefits are terminated or denied.

Will our companies and government leaders keep the promise to America’s workers and seniors?

This is an essential question for us to be asking. Coal miners have educated me about several increasingly important challenges as we have advocated together on workers’ and retirees’ rights over the past decade.  Here are some of those challenges, and some steps that the new administration could take to address them.

First, coal companies are laying off underground maintenance crews as a way to save money during a downturn in the market. Failing to provide basic levels of safe staffing at underground mines can cause major ventilation problems and other life-threatening hazards.  When operators fail to employ ‘outby’ maintenance crews or additional workers to hang ventilation curtains, the remaining workers often find that they do not have enough time to perform all the necessary work to keep the mine safe and productive. We have long relied upon these maintenance crews to keep our mines safe and healthful. Cutbacks on maintenance can cause a mine to lose control of its ventilation system, or to fail to identify and to clean up roof falls and dust accumulations. It takes a good bit of time to maintain the ventilation systems (repairing or plastering stoppings to prevent air leakage, and maintaining other ventilation controls, etc.). It takes more time to conduct comprehensive preshift examinations and other safety-sensitive tasks.

In many mines, the firebosses or preshift examiners cannot be relied upon to accomplish all of their firebossing tasks as well as to make up for non-existent outby maintenance crews. There is not enough time, and critical tasks will be short-changed. These are serious concerns because inadequate maintenance of ventilation structures can cause a lethal mixture of methane gas and coal dust—especially in sensitive areas like dead-air zones and methane mixing chambers. These concerns are also especially acute on a so-called “supersection” where there are two continuous mining machines on a single stream or “split” of air.  In that setting, twice as much dust is generated and the need for full staffing is therefore greater.

If the market picks up again, perhaps companies will start hiring back those maintenance crews and necessary helpers on supersections.  But in the meantime, the federal Mine Safety and Health Administration (MSHA) can take important steps to assure adequate maintenance. For instance, coal mine operators are currently required to maintain roof control and ventilation plans for their mines. MSHA has the power to mandate that the roof control and ventilation plans provide for more frequent maintenance of ‘outby’ areas, so that stoppings are regularly plastered, spillages and falls are promptly cleaned up, and maintenance crews cannot be laid off.  As for supersections, MSHA Assistant Secretary Joe Main has stated that best practices for staffing a supersection include a total of 16 miners: 1 foreman; 2 continuous miner operators; 2 continuous miner helpers that are also responsible for ventilation curtains; 4 shuttle car operators; 2 scoop operators; 4 roof bolter operators and 1 mechanic. This does not include outby maintenance crews, such as stopping builders or supply haulage positions (i.e., miners who are not regularly assigned to work at the mine face).  MSHA can also work with the West Virginia Office of Miners’ Health, Safety, and Training to include similar requirements in the comprehensive safety plans that West Virginia coal operators are required to maintain.

Second, black lung has been on the rise for years, and MSHA should continue addressing that problem by reducing coal miners’ exposure to all forms of breathable coal mine dust (both coal and silica dust)—including by prohibiting companies from ever permitting miners to work downwind from the active cutting of coal.  The promise to end the advanced forms of black lung disease has long been a basic tenet of America’s law and policy for coal miners. But miners report that companies routinely force roof bolt crews to spend hours each night drilling into the mine roof while downwind from active mining machines, in flagrant and intentional disregard of the lethal dust exposure for those downwind miners.  It is no surprise that we have a new surge in advanced black lung disease in the twenty-first century when we allow coal operators to treat miners in this fashion.

Every miner (non-union and union alike) has the right to complain to management about working in dusty conditions downwind from active mining machines in what is known as “return air.”  A growing number of miners are exercising that right, and are outright refusing to work in such conditions.  I routinely speak with and represent young men in their thirties or forties who have already worked as roof bolters for over fifteen years in the coal mines of eastern Kentucky and southern West Virginia. Several of them have banded together to refuse to operate their roof bolt machines in return air at such mines as the Gateway Eagle Mine in Boone County, and others.  These miners are demonstrating that it is possible to run good coal and not expose miners to toxic levels of dust.

Despite the courageous efforts of a growing number of miners who are banding together and refusing to bolt in return air, additional action by MSHA is necessary in order to prevent companies from pressuring miners to resume working in return air. MSHA can stop this practice altogether by prohibiting companies from ever permitting miners (roof bolters, buggy men, or anyone) to work downwind while a machine is actively cutting coal on a section.  No miner should have to stand for hours just a few feet from a continuous mining machine, breathing unfathomable amounts of highly-toxic coal and silica dust.  MSHA has the power to outlaw that type of work practice.

Under the leadership of Assistant Secretary Joe Main, MSHA has taken some very important first steps to address the issue of black lung, such as reducing the permissible exposure limit and mandating better dust monitors. MSHA recently introduced a new generation of dust control technology via the continuous personal dust monitors. These new dust monitors are empowering miners with real-time information about dust exposure. Dust control is a major challenge nationwide, but especially in Central Appalachia, where miners are often forced to work in highly-toxic sandstone and silica dust, mixed with coal dust, in order to access the thin-seam coal reserves that are still left over for mining in this region. The new dust monitors are helping miners to avoid toxic dust exposures that can cause early onset of black lung in young miners.  But the monitors alone may not halt the surge of black lung if the new administration does not take additional steps to strengthen enforcement and eliminate acute dust exposure in “return air” downwind from active mining.

Third, it takes far too long for miners to receive federal black lung benefits. The new administration should hire additional claims examiners and administrative law judges to speed up the process for the sake of miners and their families.  The time that it takes to issue an initial proposed decision in a federal black lung claim has increased from 219 days in fiscal year 2012 to 273 days in fiscal year 2015.  Disturbingly, miners routinely have to wait for years longer than that if the responsible coal mine operator appeals the decision—which they often do. The federal black lung benefit system is intended to compensate miners in a timely manner. It also helps to incentivize coal operators to reduce dust exposure and prevent black lung disease. Yet, when claims take so long to resolve, the cost of the claims declines and the coal operators lose this additional incentive to prevent the deaths and disabilities of miners in the first place.

If the Affordable Care Act is repealed, we must also ensure that the Byrd Amendments to the federal black lung program are not repealed along with it. The Byrd Amendments are a part of the Affordable Care Act that provided lifetime benefits to the dependent widows who survive the death of a miner if that miner had received federal black lung benefits before the miner died. They also provided that, if a miner has fifteen or more years of coal mine employment, and has totally-disabling lung disease, then that miner is presumptively entitled to federal black lung benefits. In prior years, only around 10% of applicants would receive federal black lung benefits—and sometimes even much less than that. The Affordable Care Act improved the award rate, and prevented miners from having to be autopsied or have their lungs biopsied just to prove that coal dust caused their total breathing disability. Repealing the black lung provisions of the Affordable Care Act would represent a sizeable economic loss for our part of the country where black lung benefits are an essential source of support for families and where the federal black lung program is an important payor of health bills in clinics and hospitals.

Fourth, we need Supreme Court and judicial nominees who will protect retirees’ benefits by strengthening the legal principles that prohibit companies from terminating retirees’ benefits.  For too long now, companies have gotten away with terminating or reducing the healthcare, pension, life insurance, dental, vision, and other benefits for tens of thousands of mining families. Many of those miners and their families were not yet eligible for Medicare when the companies terminated their health insurance. These miners have suffered serious financial and medical hardship due to the termination of those benefits.

In order to keep the promises made to the many retired miners whose benefits were denied or terminated, the Supreme Court and judicial nominees should be called upon to enforce legal rules that enhance the protections of retirees’ benefits and help all workers to secure adequate healthcare and essential benefits throughout their lives.

These four challenges represent only one part of the many problems that our nation is facing. And the answers discussed here can only be one part of our actions going forward. But it would be morally wrong, truly unnecessary, and quite unwise to break the basic promises that our workers and seniors have relied upon and have planned their lives around for so many years.