The Center for Public Integrity

PRESTONSBURG, Ky. — Ray Marcum bears the marks of a bygone era of coal mining. At 83, his voice is raspy, his eastern Kentucky accent thick and his forearms leathery. A black pouch of Stoker’s 24C chewing tobacco pokes out of the back pocket of his jeans. “I started chewing in the mines to keep the coal dust out of my mouth,” he says.

Plenty of that dust still found its way to his lungs. For the past 30 years, he’s gotten a monthly check to compensate him for the disease that steals his breath — the old bane of miners known as black lung.

In mid-century, when Marcum worked, dust filled the mines, largely uncontrolled. Almost half of miners who worked at least 25 years contracted the disease. Amid strikes throughout the West Virginia coalfields, Congress made a promise in 1969: Mining companies would have to keep dust levels down, and black lung would be virtually eradicated.

Marcum doesn’t have to look far to see that hasn’t happened. There’s his middle son, Donald, who skipped his senior year of high school to enter the mines here near the West Virginia border. At 51, he’s had eight pieces of his lungs removed, and he sometimes has trouble making it through a prayer when he’s filling in as a preacher at Solid Rock Baptist Church.

There’s James, the youngest, who passed on college to enter the mines. At 50, his ability to breathe is rapidly declining, and his doctor has already discussed hooking him up to an oxygen tank part-time.

Both began working in the late 1970s — years after dust rules took effect — and both began having symptoms in their 30s. Donald now has the most severe, fastest-progressing form of the disease, known as complicated coal workers’ pneumoconiosis. James and the oldest Marcum son, Thomas, 59, have a simpler form, but James has reached the worst stage and is deteriorating.

CHARLESTON, W.Va. — For more than a quarter-century, government efforts to end deadly black lung disease have hit various brick walls, built by opposition from one side or the other.

Industry lobbyists object that tougher dust limits and more rigorous sampling requirements go too far. Labor leaders complain those same proposals are far too weak.

Miners are left with the same system that experts have agreed hasn't worked for decades. And thousands of those miners have paid with their health or their lives.

"We can't get a regulation out to save our souls," said former federal Mine Safety and Health Administration staffer Celeste Monforton, who now studies workplace health issues and advocates for workers and their families.

Take the case of the Obama administration's MSHA chief, Joe Main.

About a year into his tenure as the nation's top mine safety regulator, Main announced an ambitious plan he said was aimed at ending black lung.

Main proposed to tighten the legal limit on dust that causes black lung, to require more accurate continuous personal dust monitors, and to reform sampling methods and enforcement of dust limits.

"I hope the miners and the mining community embrace this approach," Main, assistant labor secretary for MSHA, told reporters in October 2010. "It is the right thing to do."

A decade earlier, Main was director of safety for the United Mine Workers union when the Clinton administration announced its plan to end black lung. It included a government takeover of dust monitoring and similar changes to sampling techniques, but no tightening of the dust limit.

Main said the Clinton proposal didn't go far enough. In particular, the UMW was upset that the government monitoring would involve fewer samples, because of budget and staffing constraints at the federal Mine Safety and Health Administration. Main urged MSHA to scrap the proposal and start over.

CHARLESTON, W.Va. — Evidence from the Upper Big Branch Mine Disaster investigation shows not only that black lung is back, but also one reason the deadly disease is again on the rise.

Falsification of the dust sampling used to enforce federal black lung protections was common at Upper Big Branch, according to miners who worked at the Massey Energy operation.

To measure coal dust that causes black lung, some miners wear sampling devices commonly called dust pumps. In order to ensure accurate monitoring, it's important that miners work in the same areas and do the same jobs they would normally do when not wearing the pumps.

But Mike Kimblinger, a construction foreman who worked at Upper Big Branch for more than 14 years, told federal and state investigators that wasn't the way it worked.

"I was told to stay away from the dust and not do certain things while I was wearing the dust pump," Kimblinger said in sworn testimony. He said such instructions to miners were common at Upper Big Branch, and were given by top mine managers.

Former MSHA chief Davitt McAteer led a team of investigators who conducted an independent probe of the April 5, 2010, explosion that killed 29 miners at Upper Big Branch.

McAteer and his team obtained autopsy reports for the miners who died, and had a black lung expert examine them for evidence of the disease. Of the 24 victims with sufficient lung tissue for the analysis, 17 of them — or 71 percent — were found to have black lung.

This compares to the national black lung rate among miners of 3.2 percent, and the West Virginia rate of 7.6 percent, the McAteer report noted.

"At least four of the 17 worked almost exclusively at UBB," the report said. "All but one of the 17 victims with [black lung] began working in the mines after the 2.0 milligram coal mine dust limit was put in effect in 1973."

Citing a 2011 Center for Public Integrity investigation, a Labor Department official said Thursday that the Occupational Safety and Health Administration has reformed a program that rewards workplaces reporting lower-than-average injury and illness rates.

OSHA’s Voluntary Protection Programs (VPP), which exempt “model workplaces” from routine inspections, were established in 1982. VPP tripled in size between 2000 and 2011, as OSHA’s inspection staff diminished and membership requirements were relaxed. The Center’s investigation found that at least 80 workers had died at VPP sites during that period.

At a hearing before a subcommittee of the House Committee on Education and the Workforce, Jordan Barab, the Labor Department’s deputy assistant secretary for occupational safety and health, said the department “is committed to VPP. But like every other federal agency, we need to make some very hard decisions about how to allocate our limited resources where we will get the most worker protection bang for our buck.”

After the Center’s investigation, an internal OSHA workgroup reviewed VPP and submitted recommendations for improved management, Barab said. Reforms include increased funding for a program that offers free advice to small businesses on worker safety practices, he said. A whistleblower program has been expanded, with four new laws designed to protect workers from retaliation for reporting potential safety hazards.

Barab also reported a shift away from incentive programs based on keeping injury and illness rates low. Such programs often discourage workers from reporting injuries, he said; OSHA now promotes programs that encourage and reward employee involvement instead.

NASHVILLE, Tenn. — Laboring in the blackberry fields of central Arkansas, the 18-year-old Mexican immigrant suddenly turned ill. Her nose began to bleed, her skin developed a rash, and she vomited.

The doctor told her it was most likely flu or bacterial infection, but farmworker Tania Banda-Rodriguez suspected pesticides. Under federal law, growers must promptly report the chemicals they spray.

It took the worker, and a Tennessee legal services lawyer helping her, six months to learn precisely what chemical doused those blackberry fields. The company ignored her requests for the information. The Arkansas State Plant Board initially refused to provide records to her lawyer, saying it didn’t respond to out-of-state requests. An Arkansas inspector, dispatched after the complaint, didn’t initially discern what pesticides were used the day the worker became ill, records show.

When answers finally arrived — the fungicide was Switch 62.5WG, a chemical that can irritate the eyes and skin — Banda-Rodriguez had already left Arkansas to follow the season to Virginia and ultimately returned to Mexico. She never learned whether the pesticide sickened her.

The episode is as telling a snapshot today as it was six years ago for one of America’s most grueling and lowest-paying vocations. Pesticides can endanger farmworkers, but thin layers of government protect them and no one knows the full scope of the environmental perils in the fields.

The Environmental Protection Agency administers a Worker Protection Standard meant to regulate pesticides and protect workers and handlers. Yet the agency maintains no comprehensive database to track pesticide exposure incidents nationwide.

The Natural Resources Defense Council condemned eight coal-burning utility companies Tuesday for flouting the Clean Air Act and spending millions to lobby against pollution controls.

In a report, the NRDC detailed how the companies have poured money into blocking or delaying clean air protections. The American public pays the price in the form of illnesses, higher health costs and more than 10,000 deaths annually, the environmental group said.

The report was released on the eve of a Senate vote on a resolution by Sen. James Inhofe, R-Okla., to nullify an Environmental Protection Agency rule aimed at reducing emissions of mercury and other air toxics from power plants.

“The ‘Gang of Eight’ utilities are putting their profits over protecting kids and communities from deadly, dangerous air pollution,” Pete Altman, the NRDC’s climate and clean air campaign director, said during a news teleconference. “The health and welfare of millions of Americans, including children, who are most vulnerable to air pollution, hang in the balance.”

The utilities pinpointed by the NRDC are AEP, Ameren, DTE Energy, Energy Future Holdings, FirstEnergy, GenOn, PPL and Southern Company. They are based in Ohio, Illinois, Texas, Michigan, Pennsylvania and Georgia.

The report uses 2011 emissions data from each of the utilities’ power plants, as reported to the EPA, to calculate health and economic impacts. An analysis done for the NRDC by consulting firm MSB Energy Associates Inc. estimates a toll of 10,400 deaths, 65,000 asthma attacks, 6,600 hospital visits, 3.4 million lost workdays, and $78 billion in total costs to the U.S. economy in 2011.

Christine Todd Whitman, Environmental Protection Agency chief under George W. Bush, urged the EPA Tuesday to use its authority under the Clean Air Act to impose stricter safety standards on American chemical facilities vulnerable to accidents or terrorist attacks.

“I cannot understand why we have not seen some action when the consequences of something happening are so potentially devastating,” Whitman said in a teleconference that included representatives of labor and environmental groups.  

As Bush’s EPA administrator, Whitman was prepared to unveil a proposal requiring chemical plants to use safer processes in the months after 9/11. Under the Clean Air Act’s general duty clause, Whitman said, the EPA had the authority to require hazard reduction at facilities at risk of catastrophic chemical releases.

But the plan was scuttled by the White House, which maintained that chemical hazards could be better addressed by legislation, Whitman said. Congress had moved quickly to pass bills on water safety and bioterrorism, and the EPA thought it was “on the right track” to pass a bill on chemical security as well.

Bob Bostock, Whitman’s homeland security adviser at the time, said EPA officials expected litigation from the chemical industry if it used the general duty clause. “It wasn’t so much that we were afraid we’d lose the litigation,” Bostock said. “We didn’t want to be tied up in litigation for years and years, leaving this unaddressed.”