Ken Ward Jr. stories from The Center for Public Integrity

GOP budget move stalls black lung plan

2012-07-09T00:03:01-04:00

CHARLESTON, W.Va. — Across the Appalachian coalfields these days, it's hard to go anywhere without hearing about what mining lobbyists and political leaders call the Obama administration's "war on coal."

Radio ads blare the message of lost jobs and stalled permits. Lawmakers propose measures to block U.S. Environmental Protection Agency air pollution rules. Industry lobby groups and state officials pursue lawsuits to stop new water quality guidance on mountaintop removal mining.

Seldom mentioned by coal industry advocates is a little-noticed move by their allies in Congress to delay — and potentially end altogether — another Obama effort, this one aimed at saving the lives of thousands of coal miners.

It happened in mid-December 2011, in a legislative maneuver that got little media attention. The tactic and its potential impacts certainly avoided the sort of outcry that has come each time the EPA proposed new restrictions on mountaintop removal mining or the disposal of toxic coal ash.

Lawmakers added language to a Department of Labor budget bill that barred the federal Mine Safety and Health Administration from implementing or enforcing a proposal to reduce miners' exposure to the coal dust that causes deadly black lung disease.

A House Appropriations Committee summary listed the black lung language among several provisions "to reduce government overreach, rein in excessive regulation, and help foster a good economic environment for job growth."

Buried in the 165-page legislation, the measure demanded an audit of MSHA data showing black lung still exists, and an assessment of the agency's methodology in writing its proposal.

The U.S. Government Accountability Office was ordered to complete that study within 240 days. MSHA can't act on the rule until after that deadline expires on Aug. 19. A GAO spokesman said the agency is on track to issue its report sometime in August.

But advocates for miners' health are worried the delays will end the rulemaking, especially if President Obama doesn't win re-election in November.

"I'm concerned about whether it will get through or whether it will be watered down," said Dr. Robert Cohen, a Chicago physician and leading expert on black lung.

Black lung, or coal workers' pneumoconiosis, is an irreversible and potentially debilitating disease caused by exposure to coal dust.

In 1969, Congress made eliminating black lung a national goal, with a law that required mine operators to take steps to limit exposure. The law greatly reduced black lung among the nation's coal miners.

Still, scientists have found that black lung is on the rise again. Researchers have warned of a doubling of black lung rates since 1997, and of alarming incidence of the disease among younger miners whose entire careers took place under the 1969 law's dust limits.

In West Virginia, more than 2,000 coal miners died of black lung between 1995 and 2004, second only to Pennsylvania, with 4,234 black lung deaths during the same period, according to government data. Nationwide, more than 10,000 miners died from black lung during those years.

Over the years, numerous reports and studies have recommended steps the coal industry could take to better protect miners. Two years ago, MSHA chief Joe Main proposed new rules based on such recommendations. Scientists and worker health advocates widely praised the MSHA proposal.

But in Congress, some Republican lawmakers quickly began to line up to oppose the MSHA plan.

In February 2011, Rep. Larry Bucshon, R-Ind., blamed black lung disease on coal miners themselves.

"I see a lot of patients with workplace related respiratory problems, some of which, to put it bluntly, are their own issue, because they refuse to wear safety equipment regardless of whether there are regulations in place to do so or not," said Bucshon, whose father and grandfathers were coal miners.

And in April 2011, Sen. Rand Paul, R-Ky., complained that the MSHA plan would be too costly for the industry.

"Every regulation doesn't save lives," Paul said. "There is a point or a balancing act between when a regulation becomes burdensome and our energy production is stifled. We have to assess the cost."

MSHA had, in fact, assessed the costs, estimating compliance costs for coal operators at between $72.4 million and $93.2 million for the first year, and between $40 million and $44.5 million each year after that.

Agency officials put the annual benefits — from thousands of reduced illnesses and deaths — far higher: Between $99 million and $197 million per year, depending on how the figure is calculated.

Paul also argued the government has done "a pretty good job" of fighting black lung. He said cases of the disease had declined over time, but ignored the most recent evidence of a resurgence of black lung.

By the fall of 2011, Rep. Denny Rehberg, R-Mont., was pushing an amendment to the Labor Department's budget bill to block the MSHA proposal. Rehberg acted as the National Mining Association pressed questions about data MSHA used to design its proposal, and while coal companies including Murray Energy and Arch Coal helped fund his campaign to try to unseat Democratic Sen. Jon Tester.

By mid-December, the measure had made it into the final budget bill, a move that gave the Obama administration little choice but to go along with it.

House Appropriations Chairman Hal Rogers, R-Ky., praised the amendment, saying it prevented MSHA "from shutting down mines around the country and handing pink slips to hard-working miners in southern and eastern Kentucky."

The United Mine Workers blasted the amendment.

"Including this language in the bill will have the effect of sentencing more miners to die a painful and premature death, choking on their last breath," said union spokesman Phil Smith.

Later, MSHA spokeswoman Amy Louviere said in January 2012 that the budget amendment would not restrict her agency from finalizing the black lung rule — only from implementing or enforcing it. But so far, MSHA has not sent a final rule to the White House for its approval.

Dust reforms stymied by years of inaction

2012-07-08T00:03:01-04:00

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.

"We believe that MSHA needs to go back to the drawing board and come out with a proposal that reflects the kind of things that miners have wanted and needed for many, many years," Main said during an August 2000 public hearing.

The UMW's opposition came as the Clinton White House was winding down, scrambling to decide which — if any — new initiatives to try to finish up before leaving office. And labor resistance was enough to kill the black lung plan.

Over and over, that's been the story of government efforts to improve the system intended to protect miners and end black lung. One proposal or another has died, been dropped or thrown out in court after one side or the other wasn't satisfied with the details.

Industry groups have blocked rule changes with lawsuits. Labor has used its muscle with Democrats in Congress or the White House. Political leaders have stepped in to keep MSHA, the expert agency charged with protecting miners, from acting at all.

"It's pretty much every problem in the book that comes up during the regulatory process," said Rena Steinzor, a professor at the University of Maryland School of Law and president of the Center for Progressive Reform, a left-leaning think tank.

When Congress passed the federal coal-mine safety law in 1969, the black-lung protection provisions were supposed to be flexible. Things like the legal dust limit, the testing procedures, and the enforcement scheme, were to change over time as experts learned more about the disease and how to prevent it.

But the intent was clear: Congress wanted black lung to end.

Under the law, MSHA was supposed to make sure "to the greatest extent possible, that working conditions in each underground coal mine are sufficiently free of respirable dust to permit each miner the opportunity to work underground during the period of his entire life without incurring any disability from pneumoconiosis or any other occupation-related disease during or at the end of such period."

By the early 1990s, one problem became obvious. The initial method of calculating dust levels for compliance purposes didn't work. Federal inspectors were averaging multiple samples taken over different shifts. Experts say this averaging allowed lower dust measurements on one shift to mask higher levels that miners were actually being exposed to on the job.

So in November 1991, MSHA announced its inspectors would begin citing mine operators for dust violations based on "single-shift sampling," or the results of dust tests performed during individual shifts, rather than averages from numerous days.

One mine operator, Keystone Coal Mining Corp., challenged three violations issued to it under this new policy. A three-year legal battle ensued. MSHA lost in 1994, not because the single-shift sampling method was wrong, but because agency officials had instituted it through a policy, rather than a former rulemaking.

Later in 1994, MSHA took that ruling to heart, and issued a formal rule to adopt single-shift sampling. The National Mining Association filed a lawsuit to block the rule. Another nearly four-year court battle followed, ending in September 1998, when a federal appeals court threw out the MSHA rule, saying the agency improperly did not consider its "economic feasibility."

At the same time, efforts by then-MSHA chief Davitt McAteer to focus on black lung — and many other issues — were diverted.

When Newt Gingrich and the Republicans took over the House of Representatives, among their government streamlining proposals was to eliminate MSHA. Mine safety duties would be given instead to the Occupational Safety and Health Administration, weakening the greater protections federal law gives to miners. McAteer and other top Labor Department officials spent years fighting the change. They eventually won, but the damage to their agenda — including black lung reforms — was significant.

"It was dramatic," McAteer recalled. "You spent your time not at the task of improving mine safety and health, but defending yourself against what they were trying to do."

Two years after another legal defeat on single-shift sampling, McAteer's MSHA in July 2000 published another rule aimed at that reform and at forcing mine operators to verify their plans to control dust in underground mines.

Main and other UMW officials felt it wasn't strong enough. Among other things, while they favored an MSHA takeover of the sampling process, they were concerned that — with inadequate staffing and money — the agency would never take as many samples as the industry had on its own. At least in part because of the union's opposition, the Clinton White House never finalized the rule.

After George W. Bush became president in 2001, he appointed longtime coal operator Dave Lauriski to run MSHA. Among Lauriski's first moves was to halt work on more than a dozen agency regulations, including McAteer's black-lung reforms.

But in March 2003, Lauriski proposed his own version of a plan to end black lung. It contained some components of previous proposals, such as single-shift sampling and requiring operators to verify dust-control measures.

Labor leaders and their friends in Congress, though, jumped to oppose Lauriski's plan. They complained language intended to foster use of dust-control breathing helmets was really a sneak attack to weaken the existing coal-dust limits, which miner health advocates said were already too weak.

Rep. Nick J. Rahall, D-W.Va., went so far as to call for an ethics investigation, citing a Gazette-Mail report about how Lauriski's plan was similar to one he pushed when he worked in the coal industry.

Lauriski defended his plan and observed, "Changing the status quo often sparks protest." The political heat was too much, though, and the Bush administration pulled the plug.

McAteer said the inability of multiple administrations from both parties to implement even the black lung reforms that they all agreed on shows how broken the government's system for protecting worker health and safety really is.

"Even if you recognize a very serious and obvious worker health problem, the system just can't get anything done about it," McAteer said.

Miners say Upper Big Branch mine cheated on dust sampling

2012-07-08T00:03:01-04:00

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."

Mark Edwards, who ran a shuttle car at Upper Big Branch, told investigators the company cut back from two continuous miners to one such machine on days when workers were wearing dust pumps.

"They didn't care about coal that day," Edwards testified. "Any other day, we're running two miners. It was so dusty down there it was awful.

"I thought, man, something isn't right with this," Edwards said. "And I think there was — I mean, I would hear the boss tell the miner man, stay back out of the entry. Don't go up there where the dust is. Stay back."

Miner Bruce Vickers had worked at Upper Big Branch since 1995. When he would wear a dust pump, mine managers told him to sit in the mine's fresh air intake tunnel, and let somebody else do his work, Vickers told investigators.

"Well, if they can ... keep me in the intake, in fresh air, then that's what they'll do," Vickers said.

Vickers said he testified in 1998 to a federal grand jury that asked him about dust pump falsification at Upper Big Branch.

Court records and government documents don't show any charges ever being brought.