Coal Tattoo |

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

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.

(AP Photo/Evan Agostini for The Greenbrier Resort, File)

There’s been a flurry of response from both Jim Justice and his supporters to the blockbuster story by NPR (along with West Virginia Public Broadcasting and Ohio Valley ReSource) about Justice’s $15 million in unpaid taxes and fines. Some supporters, like the United Mine Workers, are rushing to defend Justice, and others — like the state Democratic Party — are trying to deflect attention with one of those “I know you are, but what am I” stories the career campaign consultants want our elections to be all about.

Justice himself stooped to a silly attack on respected NPR reporter Howard Berkes, saying that Berkes was “twisting things” and trying to make Justice out to be a bad guy.

Having watched the national media kick our butts on this story, pulling together all of the pieces in a way that they hadn’t been before, it seemed like the least we could do was to do a little bit of fact-checking on the response to the NPR story. So here is a little question-and-answer session I did via email with Howard Berkes:

Coal Tattoo: In a statement issued yesterday, the United Mine Workers of America defended Jim Justice, saying that Mr. Justice’s “fines are, in fact, being paid right now.” What can you say from your reporting about that? To what extent are the MSHA fines “being paid right now”?

Berkes: It is true that Justice’s mining companies are making $75,000 a month in payments as stipulated in a payment plan with the Mine Safety and Health Administration (MSHA). That payment plan was signed on December 30,2015, and covers $1,546,363.04 in delinquent mine safety penalties that are under MSHA’s jurisdiction (payment plan documents [posted here]) in the form provided by MSHA in response to a FOIA request). Another $1,751,107 in delinquent mine safety penalties (including interest and fees) is at the Treasury Department for collection and is not covered by a payment plan, according to a detailed list of delinquencies as of 7/31/2016 and provided to NPR in response to a FOIA request. Some of the delinquent penalties at the Treasury Department have been referred to the Department of Justice for possible litigation and others are pending referral to DOJ.

Coal Tattoo: Exactly how far overdue are these penalties, generally speaking? Are any of them penalties that are still being contested, or appealed, by the Justice companies involved?

Berkes: All of the penalties in our analysis are officially final. They have been through any challenges and appeals. None are contested. We eliminated from our analysis any delinquent penalties listed by MSHA as “On Hold” because they were recalled for further review. The oldest penalties go back to August, 2009, and as we reported, there were $1,381,408 in newly delinquent penalties since January of 2014, when we first engaged with Justice and his mining companies, who said the delinquent penalties would be paid.

Coal Tattoo: What can you tell use from your reporting about the extent to which the total overdue debts you reported on — some $15 million — were for taxes or other things that are not MSHA fines and therefore not part of any payment plans with the federal government?

Berkes: Only $1,546,363.04 in mine safety penalties is covered by a payment plan with the federal government. There are county payment plans for $4,555,297.29 in delinquent county taxes in Kentucky. Some of those plans were in default until the last few weeks. But as of last week, the Justice companies are making payment on all payment plans in Kentucky. We documented one county payment plan in Virginia in Tazewell County. That payment plan began after the county sheriff seized mining equipment. We also documented one county payment plan in Alabama.

We found no evidence of payment plans, and the Justice companies did not assert the existence of payment plans, for $3,107,854.95 in federal tax liens in Kentucky, Virginia and West Virginia, and $3,941,541.59 in state tax liens in South Carolina, Tennessee, Virginia and West Virginia. Our spreadsheet summarizing Justice company debts by states and counties [is posted here].

Coal Tattoo: Are you aware of any movement since the publication of your story toward paying these other overdue debts? And have Justice, his companies or his campaign questioned the accuracy of anything you reported?

Berkes: We have been in contact with the Justice companies and campaigns about our findings since early August, sharing our data and offering an opportunity to dispute the data and comment. In our first contact, Justice mining executives noted that some of the delinquent penalties listed by MSHA as unpaid in the data provided to us were listed as paid in MSHA’s Mine Data Retrieval System (MDRS). We then reviewed every delinquent penalty and also confirmed with MSHA the status of penalties listed in the MDRS. We then removed from our analysis and findings the penalties listed as paid in the MDRS. Justice COO Tom Lusk has provided updates on payment plans. We documented the revival of dormant payment plans, some of which occurred after county attorneys threatened lawsuits and after we contacted Lusk. Some counties confirmed that they were discussing payment plans before we contacted Lusk. There’s no question that Lusk was pursuing some of these payment plans, and some existed, before we contacted the Justice companies. We’re not aware of any payments since our story was published last week.

Coal Tattoo: Justice indicated in Tuesday night’s debate that he doesn’t believe that not paying fines or taxes on time is part of any buiness plan or practice or pattern of his. But didn’t your reporting describe a pattern in which such debts weren’t paid, until attention was brought — either by the press or a lawsuit — over one particular set of bills, and those bills would then be paid, while perhaps others not brought to public attention continued to go unpaid or even got larger?

Berkes: We found coincidental timing of some payments and payment plans. When the Gazette-Mail reported nearly $4 million in delinquent county taxes in West Virginia in April, most were completely paid-off in two weeks. When the county sheriff in Tazewell County, Virginia, seized mining equipment at a Justice mine in March, a payment plan began. When the county attorney in Harlan County, Kentucky, filed suit in October, a payment plan followed. When the county attorney in Knott County, Kentucky, sued and filed two motions for summary judgement in August and September, a payment plan followed. When NPR reported delinquent mine safety penalties in 2014, a payment plan followed (though two years later). In Pike County, Kentucky, we were told, a Justice mining company was not responsive until after NPR told Justice representatives that we were going to report delinquent taxes.

We also found that some Kentucky county payment plans defaulted in this same time frame. Payments suddenly stopped, county officials told us, in January, April and May, and recently resumed.