Black Lung Is Back: Easily Cheated Regulations and Little Oversight Lead to Severe Cases in Young Miners
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Tim Bailey, a lawyer in Charleston, W.Va., zeroes in on this type of cheating when he sues a coal company on behalf of a miner with black lung. In general, the only option for miners who get the disease is to file a claim with the state or the U.S. Department of Labor to try to get benefits. But Bailey takes a different tack, drawing on a state law that allows workers to sue their employer in cases of knowing exposure to dangerous conditions.
This often amounts to proving that the company manipulated its dust samples. In depositions, miners have described hanging dust pumps in cleaner air or getting advance warnings of inspections. Over the past eight years, he’s handled about 40 such cases. In each case, he said, the coal company eventually settled.
“These are criminal acts,” Bailey said. “What’s different about these black lung cases is that the cheating is such a part of everyday practices.”
Then there are the numbers themselves. For decades, the average sample submitted by a coal company has been far below the limit. NIOSH researchers used a formula to estimate the prevalence of black lung that would be expected based on the dust samples and compared this with the disease rates actually occurring.
What the researchers found was surprising: The two didn’t match up at all. In some areas of the country, there was actually less black lung than they’d predicted. But in central Appalachia, the disease rates were much higher — more than three times the predicted levels in eastern Kentucky, for example.
It was possible, researchers concluded, that the nature of the dust had become more potent. Another possibility: The dust samples reflected the results of rampant cheating.
Many of the games described by miners today remain unchanged from those outlined by miners who testified at a 1978 MSHA hearing. The early 1990s saw the “abnormal white center” scandal, in which MSHA figured out that many coal company officials had blown dust off the sampling filters, leaving a white center, before submitting them. A spate of criminal convictions of companies and some employees and contractors followed. This time period accounted for the bulk of the 185 guilty pleas or convictions for dust sampling fraud between 1980 and 2002, according to data provided by MSHA to the Center and NPR.
The agency said it had no records of criminal convictions or guilty pleas since 2002 and wouldn't say whether any criminal cases had been pursued. MSHA did provide data indicating that it had decertified 14 mine officials since 2009, pulling their authority to conduct dust samples.
“I don’t know if any [cheating] is going on today,” said Bruce Watzman, the National Mining Association’s senior vice president for regulatory affairs. “I hope not. We encourage our members to fulfill their obligations under the law.”
Cheating aside, the system for monitoring dust levels is almost designed not to detect problems. Nor has MSHA always been swift to act when violations do surface.
From 2000 to 2011, MSHA received more than 53,000 valid samples — both from companies and its own inspectors — that showed an underground miner had been exposed to more dust than was allowed, yet the agency issued just under 2,400 violations, a Center analysis of MSHA data showed.
This may be attributable, in part, to the way the rules are written. When companies submit five samples to MSHA, some are allowed to be above the limit. Only the average of these five has to be low enough, allowing companies to negate high samples taken from miners enshrouded in dust. What’s more, the pump runs for only eight hours, even if the miner works 10 or 12.