I started my post yesterday with my version of the famous quote from the film Casablanca:
“I’m shocked, shocked to find an epidemic of black lung disease.”
It was my reaction to the latest story by NPR’s Howard Berkes about nearly 2,000 recently diagnosed cases of the most severe form of black lung disease. They’ve been diagnosed over the last six years among coal miners in central Appalachia.
I gave five reasons to explain why I’m not shocked by the epidemic.
#1: Mine operators were allowed to expose miners to concentrations of respirable coal dust and silica that were known to be too high and would cause lung disease.
#2: Mine operators cheated when air samples were collected to make dust levels appear lower than they were.
#3: Inspectors could not sanction mines for not controlling dust because of an arcane policy of averaging air sampling results.
#4: The mining industry used legal maneuvers and influence with lawmakers to obstruct policies that would have provided greater protections for miners.
#5: Many miners delay getting diagnostic tests for lung disease until they retire or are laid off indefinitely.
I explained #1 and #2 in a blog post yesterday. Now I’ll elaborate on the other three.
Not shocked #3: Averaging air sample results meant few citations issued.
- A policy in place for more than four decades made it particularly difficult for MSHA to cite a mine operator for exposing coal miners to excessive dust. The policy was based on a 1972 “finding” issued by the Secretaries of Interior and Health, Education and Welfare (now HHS) on the accuracy of coal dust sampling. The “finding” required MSHA to average the results of five samples in order to characterize the concentration of respirable dust in a mine environment. In order for an inspector to issue a citation for overexposing miners to respirable coal mine dust, the inspector had to use the average of five samples (from different job tasks or one occupation over five shifts.) If the average value did not exceed the permissible exposure limit, no citation could be issued.
The following data shows how coal miners in certain occupations were exposed to coal dust well in excess of the 2.0 mg/m3 limit.
This first one shows a mine inspector’s samples of respirable dust for a worker operating a continuous mining machine (3.72 mg/m3). This miner’s exposure was combined with the results from the samples, and then averaged. The outcome: no citation issued.
The second and third examples below show the results for a longwall mining operator over five consecutive shifts (overexposed on two days at 2.7 and 2.4 mg/m3) and a continuous mining machine operator (overexposed on three days at 2.1, 2.9, 2.4 mg/m3.)
In each of these examples, the MSHA inspector was unable to issue citations for overexposing miners’ to respirable coal dust. A citation would have forced the mine operators to fix the dust problems.
Remember this too: When miners are overexposed to respirable dust on the day in which an inspector is taking air samples, imagine what it’s like on the other days.
Note also the threshold for issuing a citation was 2.33 mg/m3 even though the permissible exposure limit was 2.0 mg/m3. I described that problem in yesterday’s post. It’s another way in which miners’ health was sacrificed for the benefit of the coal industry.
Not shocked #4: Industry’s legal maneuvers and influence.
- Beginning in 1991, MSHA tried to vacate the policy that called for the averaging of the dust sampling results. This change alone would have better protected miners who were working in the dustiest jobs. MSHA first tried to change the policy with new instructions for its inspectors. But the coal industry liked the averaging scheme and fought to keep it. They succeeded in a lawsuit against MSHA.
- In 1998, after three years of deliberations including public hearings, MSHA and NIOSH issued a new “finding” to replace the one from 1972. The new finding indicated that a single, full-shift measurement could be used to accurately determine the concentration of respirable coal mine dust over a work shift. The revised “finding” was consistent with standard industrial hygiene practices.
- The mining industry filed a lawsuit in federal court to challenge the new finding. Coal operators argued that MSHA had not demonstrated that miners were facing a material impairment of health, and that the finding was feasible, other things. MSHA’s position was that “finding” was a term used in the Mine Act and was something different from a regulation. For that reason, the agency argued that it was not required to make determinations of significant risk and feasibility. The U.S. Court of Appeals for the 11th Circuit sided with the mining industry.
- In July 2000, MSHA and NIOSH again proposed the single-shift sample “finding.” The agencies followed the court’s instructions to treat the “finding” as if MSHA was proposing a regulation. The mining industry again objected to the “finding.” Two coal industry leaders made a plea to Secretary of Labor Alexis Herman. They asserted that they were committed to updating regulations on coal dust, but that MSHA was rushing the process. Six months later, the “finding” had not been finalized and President George W. Bush took office.
- Beginning in 2009, the Obama Administration ramped up efforts to address miners’ exposure to coal dust. It proposed in 2010 numerous regulatory changes to address the problem. Some mine operators, including Murray Energy and Alliance Coal made the ridiculous assertion that the new regulation would result in 230,000 violations annually (compared to only about 200 violations under the existing system.) The industry’s assertion turned out indeed to be ludicrous.
- In response to MSHA’s proposed protections, the coal industry recruited Members of Congress to question MSHA’s rulemaking and put other obstacles in the agency’s way. This included language added in July 2012 to a House appropriations bill. It would have prohibited MSHA from spending any funds to develop its regulation. A statement from Congressman Hal Rogers (R-KY), who chaired the appropriations committee said:
It is the chairman’s position and the position of the subcommittee that that particular regulation is harmful and costly to the industry and to the economy in general.
The coal mining industry has many powerful allies on Capitol Hill. Coal miners with black lung disease, and those who want to avoid getting it, do not.
Not shocked #5: Miners postpone medical screening for as long as possible.
- Most miners do not willingly get a chest x-ray or lung function test. Experience tells them that if your employer finds out, there may be repercussions, such as finding a way to get rid of you.
- Under the Mine Act, a working miner has the right to a less dusty job if s/he is diagnosed with black lung. In order to get the less dusty job, however, your employer has to be notified about your lung impairment. Miners are reluctant to do so. They fear they will be discriminated against in their current job or in a future mining position.
- Rules under workers’ compensation insurance programs may also influence a miner’s decision to undergo a diagnostic test. If a miner receives evidence of work-related disease, s/he is required to file a claim with workers’ compensation within a certain time period (e.g., 3 years.) Failing to do so precludes the miner from filing a claim later on for the disease. There is a statute of limitations for filing a claim.
- I try to put myself in the shoes of a coal miner. Say I’m a 35 year old miner who has 10 years of exposure to coal mine dust. If mining is the way I support my family and there are no practical prospect for other work, why would I take the chance of learning I have early stages of black lung? It is not as if I’m going to quit my job. Plus, my employer or future employers might find out about my diagnosis and try to use it against me. Proving that kind of discrimination is difficult. On top of that is the requirement to notify workers’ compensation of the diagnosis. I can see why miners postpone for as long as possible the diagnostic tests to identify black lung disease.
Why are there so many cases being diagnosed now? It’s the convergence of two factors: an aging workforce of miners and a shrinking coal industry.
- Around the time I left my job at MSHA in 2000, the agency and the coal industry were discussing a looming skills gap. Mine workers and inspectors were part of the same workforce and it was dominated by 40 to 60 year olds. The industry was wondering who would be in line to replace these workers. Government Accountability Office and NIOSH were looking into the issue as well (here, here).
- Fifteen or so years later, some these miners are retiring. Others have lost their jobs because of the shrinking coal industry, especially in Appalachia.
The number of coal miners in West Virginia, Kentucky, and Virginia has decreased by 71%, 68%, and 48%, respectively, since 1990. Most of those jobs are not coming back. The age of the workforce and these economic conditions are contributing to the newly diagnosed cases of black lung disease. The severity of the disease, as I mentioned in yesterday’s post, is likely related to respirable silica in the coal dust.
The coal industry, MSHA, and lawmakers are responsible for this new epidemic of black lung disease and progressive massive fibrosis. In today and yesterday’s posts, I offer five reasons why I’m not shocked to learn about it. It’s the consequence of greed and regulatory failure.
I support efforts by NIOSH and other researchers to identify as many cases of coal workers’ pneumoconiosis as possible. We need an accurate number to put a price tag on the cost of long-term medical care and lost wages, physical function and life enjoyment. What would shock me? That the coal industry (and all of us who benefited from coal-powered electricity) would accept responsibility and use that price tag to fund appropriate compensation for coal miners’ respiratory disease.