The Return of Black Lung. Who is to Blame?

NPR’s Howard Berkes, working with Frontline in a multiyear investigation, has produced one of the most important workplace safety and health story in years. Berkes tells the tragic story of corporate and regulatory failures over the last couple of decades that have allowed thousands of coal miners to sicken and die from Black Lung disease, or progressive massive fibrosis (PMF). 

You can read the story here, and PBS will air the story on television next month.

But I would suggest listening to the story if you can take it. Listening to the miners tell their stories is heartbreaking.  Hearing them struggling to breath and lamenting their lost health, their inability to play with their grandchildren,  their lives foreshortened and concern about their families when they’re gone is hard to take.

Berkes interviews several black lung sufferers who are “part of a tragic and recently discovered outbreak of the advanced stage of black lung disease, known as complicated black lung or progressive massive fibrosis.” 

Some, like Danny Smith, are literally coughing up their lungs: 

His lung tissue is dying so fast, his respiratory therapist says, it just peels away.  “I’m terrified,” Smith said, as he remembered his father’s suffering when he was struggling with the same coal miner’s disease.  “I sure don’t want to go through what he went through. I seen a lot of guys that died of black lung and they all suffered like that.”

Smith had only worked in the mines for 12 years and is in his 40’s. He was diagnosed with PMF at age 39.

The cases had been largely hidden until NPR’s work revealed the real story:

A federal monitoring program reported just 99 cases of advanced black lung disease nationwide from 2011-2016. But NPR identified more than 2,000 coal miners suffering from the disease in the same time frame, and in just five Appalachian states.

Who is to blame?

There are several stories behind this ongoing tragedy and more than one villain, although from the overall message this story sends, one might think there was only one villain: the regulators — specifically the Mine Safety and Health Administration.

Some tweets about the story, for example:

“An epidemic is killing thousands of coal miners and regulators could have stopped it.”

“Regulators Failed To Stop An Epidemic That Is Killing Thousands Of Coal Miners”

“@NPR and @frontlinepbs found government regulators failed to act on evidence that coal miners were exposed to toxic dust that can lead to advanced black lung disease.”

From just reading the Tweets. one may get the impression that miners are suffering from some “epidemic” of infectious disease that randomly floated in from some forest, instead of a preventable epidemic of industrial disease caused by work with the full knowledge of the mining companies that employ these workers. 

Berkes has put together an impressive case for regulatory failure, but the case for corporate malfeasance is not as well done. 

Regulatory Failure

He explains that the main culprit in the current PMF cases is not coal dust as much as silica dust that comes largely from drilling through rock, which contains quartz, to get to the coal. As mines have played out over the last decades, miners have spent more and more time drilling through quartz rock to get to the coal. 

The toxic mine dust that causes severe disease isn’t coal dust alone. It includes silica, which is generated when miners cut sandstone as they mine coal. Many coal seams in central Appalachia are embedded in sandstone that contains quartz. And when quartz is cut by mining machines, it creates fine and barbed particles of silica dust — fine enough to be easily inhaled and sharp enough to lodge in lungs forever. The silica dust that resulted from cutting that rock was far more dangerous than coal dust alone.

MSHA has a coal dust standard, but no silica standard. Although the agency has been working on a silica standard for many years, in the meantime the theory has always been that if you control the coal dust and overall dust levels in the mine, you’ll also control the silica exposure. But Berkes has amassed evidence from monitoring records collected by MSHA that show that even when the coal dust — and overall dust levels — were low, miners were still often overexposed to deadly silica dust.  And given the fact that the evidence is there, he also asks why MSHA never figured out that just controlling coal dust didn’t adequately reduce silica levels.

Why did MSHA not have a regulation controlling silica? The National Institute for Occupational Safety and Health (NIOSH) had recommended to OSHA and MSHA in 1974 that silica levels be significantly reduced.  

But throughout the years, both agencies were plagued with a burdensome regulatory process and fierce industry opposition. Republicans, who have controlled MSHA for over half of its existence, generally don’t do regulations, leaving it to Democratic administrations.  Berkes interviewed Davitt McAteer, who ran MSHA during the Clinton administration. 

McAteer proposed a major overhaul of the dust sampling system, which included other loopholes that permitted excessive exposures and inaccurate measurement of coal mine dust. But the effort encountered stiff opposition from the National Mining Association, the industry’s biggest lobbying group. The group sued over some elements of the plan and won. “And then we ran out of time,” McAteer says. “And it’s something that’s unfortunate and put a lot of lives at risk.”

While OSHA in the Obama administration finally issued an updated silica standard in 2016 — more than 40 years after the NIOSH recommendation —  MSHA again ran out of time.

And we’re unlikely to get an MSHA silica standard out of the current administration.  Berkes records a disturbing audio of  Trump’s current MSHA director (and former coal company executive and industry lobbyist) David Zatezalo telling a conference that “To me, I believe those are all clearly silica problems. Silica is something that has to be controlled.”

But when Berkes approached him after the meeting, Zatezalo backtracked:

“I don’t think that the science of the causation is that well-defined.” Zatezalo said. Asked about the direct link between silica and disease he described in his speech, Zatezalo became defensive. 

“No, I said I suspect silica. I didn’t say it was. … I think until such time as you figure out what it is you don’t really know,” Zatezalo responded.

So far, under Zatezalo, MSHA has no plan to address a tougher limit for silica dust or separate regulation of silica in coal mines.

Aside from not having a silica standard, there are a number of other enforcement related obstacles and loopholes to effectively controlling dust in coal mines. And by “loopholes,” we don’t just mean innocently overlooked items. “Loopholes” in the enforcement process means that MSHA did not have the regulatory and enforcement tools to keep the mine companies from cheating — knowingly over-exposing workers with little fear of being caught. 

For example, mines were required to sample only 5 shifts bimonthly, they were allowed to average exposures, rather than report on each over-exposure, allowing overexposure to be diluted by the lower numbers. There were able to wait weeks or months to fix the dust problem and they were allowed to drop production to 50% to get a false lower dust sample. And finally, miners reported wide-spread cheating on the samples that the mine companies turned in to MSHA. 

Berkes points out that Joe Main went after many of these problems during the Obama years.

Main was successful in closing major mine dust loopholes, and he deployed new technology — dust sampling devices that measured coal dust in real time and helped make sampling more immediate, honest and accurate. Main also made the exposure limit for coal mine dust tougher. But not the exposure limit for silica.

In a separate interview with me, Main explained that because of all of the enforcement “loopholes,” the previous dust limits were never real.  He also pointed out that as a result of closing many of the loopholes and issuing a new coal dust regulation in 2014, there was a significant reduction in average silica levels measured in the mines. Too many miners are still being over-exposed, but the efforts of MSHA — even without a silica standard — have resulted in significant overall improvements for miners. 

Corporate Malfeasance

So, coming back to the question above: Who is to blame? There is no doubt that had MSHA issued an effective silica regulation decades ago, many lives would have been saved. (Just as many lives would have been saved had OSHA issued its silica standard years before 2016.) And MSHA should have realized that while reducing overall dust levels helped, it didn’t solve the silica problem or prevent the resulting PMF cases.

But Berkes’ only touches briefly on the the fierce opposition from the regulated industry and Republicans in Congress that regulatory agencies routinely face.  The bottom line is that throughout history, practically since the beginning of recorded time, the mining industry has fought every enforcement and regulatory initiative MSHA has initiated. 

It is the mine owners (and even Republican agency heads) who have tried to cast doubt that coal dust or silica cause disease — and continue to do so today.

It is the mine owners (and even Republican agency heads) who have tried to cast doubt that coal dust or silica cause disease — and continue to do so today. It is the mining companies who lobby Congress to cut MSHA’s funding and stop the agency from issuing “burdensome, job killing” regulations. It is the mining companies that challenge almost every MSHA enforcement initiative and challenge almost every enforcement action.

And it was a mine owner, who a few years before a devastating mine explosion that killed 29 miners, wrote this memo to his employees:

“If any of you have been asked by your group presidents, your supervisors, engineers, or anyone else to do anything other than run coal (i.e., build overcasts, do construction jobs, or whatever) you need to ignore them and run coal. This memo is necessary only because we seem not to understand that coal pays the bills.”

Even OSHA faced fierce opposition to its silica standard from the mining industry — even thought OSHA doesn’t cover mines — because  they feared it would make it easier for MSHA to issue a similar standard. 

Berkes mentions industry opposition only briefly, although he did interview Bruce Watzman, the National Mining Association’s top lobbyist, asking him why mining companies didn’t act on their own to protect their workers.

“Sure they could have done that,” responded Watzman, “But … I’m not going to speculate on why they did or didn’t do what they chose.”

“Our focus here is forward looking,” he said. “How do we prevent this in the future? I can’t answer for … what happened in the past.”

Really? Watzman has been the mining industry’s top lobbyist for more than 30 years. He is the past.

Watzman also took credit for the lower quartz levels resulting from MSHA’s closing the enforcement loopholes, arguing that the industry “is doing far better today than we did in the past, far better.”

The Role of the Regulators

So what role do the regulators have and how much of the blame do they share? (Disclaimer: I was a regulator. I was also a union staffer who regularly criticized the regulators.)

First, regulatory agencies do not to directly protect workers. Ultimately — and legally — it is the employer who is responsible for protecting the health and safety of its employees and it is the role of the regulatory agency to do whatever it can within the law to encourage or force employers to protect their employees. Congress gave them the authority to do that by issuing protective regulations, enforcing those regulations and using education and the bully pulpit to change employer behavior. Their success, of course, is dependent on whether they have the legal means, adequate resources, the political ability and the will to accomplish their mission.  

Interestingly, Berkes focuses most of his criticism on the Clinton and Obama administrations for not issuing a silica standard. Why? Maybe because, being Democrats, they should have known better? (The audio contains speeches by Bill Clinton pledging to better ensure miners’ health.)

It takes three things for a mine to be consistently operated in a safe and healthy manner: First, a company that is willing to follow the law; second a government that is willing to enforce the law; and third, a workforce that is empowered to speak up for itself about health and safety issues in the mine. — UMWA President Cecil Roberts

Little mention is made of the decades that Republicans controlled MSHA and didn’t even attempt to issue regulations. Both the Clinton and Obama administrations tried to improve the working conditions of miners by strengthening enforcement and issuing improved standards. Sometimes they succeeded and often they failed. But Republican administrations (which have controlled MSHA for over half of its existence) never even tried.  And the current administration won’t even admit that silica is bad for miners. 

This is not to absolve Democratic administrations. Berkes quotes two former Clinton administration MSHA officials: Celeste Monforton, a former MSHA official,  who admits that “We failed. “Had we taken action at that time, I really believe that we would not be seeing the disease we’re seeing now.”

And Jim Weeks, a former government and mine union official, admits that “They didn’t pay sufficient attention. And …we’ve got the bodies to prove it. I mean these guys wouldn’t be dying if people had been paying attention to quartz. It’s that simple.”

Simple, and not so simple. We operate in a twisted time machine. The tragic health effects we see today result from exposures that occurred 20 years ago. Twenty years ago — when the agencies should have issues standard to protect workers — we were looking at the effects of exposures twenty years or more before that. 

And, of course, even if MSHA had recognized the extent to which miners had been over-exposed to silica, would the agency have been able to overcome industry resistance and issue a silica standard? 

In Conclusion

United Mine Workers of America President Cecil Roberts issued a statement praising the NPR story, but also explaining the necessary elements for protecting workers.  Roberts noted that the NPR article

failed to drive home who the real culprits are for the rise of this insidious workplace disease: The coal companies that chose to break the law and ignore the respirable dust standards in place over the last 30 years. It takes three things for a mine to be consistently operated in a safe and healthy manner: First, a company that is willing to follow the law; second a government that is willing to enforce the law; and third, a workforce that is empowered to speak up for itself about health and safety issues in the mine. When any one of those three things are missing, miners are at risk. When they are all missing, as was the case in the mines NPR/Frontline cited in its story, miners die.

So, more accurate Twitter headlines may have been: 

“Epidemic caused by mining industry is killing thousands of coal miners. How could regulators have stopped it? “

“Regulators Failed To Stop A Corporate Epidemic That Is Killing Thousands Of Coal Miners”

“@NPR and @frontlinepbs found government regulators unable to stop mining companies from exposing coal miners to toxic dust that can lead to advanced black lung disease.”

What Is To Be Done?

I may complain about regulatory agencies being criticized, but on the other hand I’m thankful that Berkes is at least criticizing the agencies for not being tough enough — for not issuing more and better regulations to protect workers — rather than the usual criticism we hear: that agencies like MSHA, OSHA and EPA are stifling the economy and killing jobs.

Ultimately, of course, it issuing good regulations won’t matter if the agencies don’t have the will or resources to enforce them, and there is not doubt that neither OSHA nor MSHA are funded adequately to carry out the mission that Congress gave them.

The Trump administration needs to fully enforce the existing respirable dust regulations and enforcement policies put in place during the Obama administration and issue a fully protective silica rule. 

Looking forward, the Trump administration needs to fully enforce the existing respirable dust regulations and enforcement policies put in place during the Obama administration and issue a fully protective silica rule.  I’m also hopeful that Berkes’ story will lead to strong Congressional oversight and legislation.

The good news is that Congressman Bobby Scott (D-VA), incoming chairman of the House Education and Labor Committee, has committed to holding hearings next year in response to the NPR/Frontline investigation. 
 
“Congress has no choice but to step in and direct MSHA and the mining industry to take timely action,” Scott said in a statement.

Scott is looking at possible legislation “so that we can prevent the physical, emotional, and financial toll of this completely preventable disease.”

The true significance of this investigation, the the audio piece and the eventual television show — more important than the debates on who is to blame — is bringing the voices and the hidden suffering of these miners to public notice. Miners will continue to get sick, suffer and die from exposures they suffered ten, twenty and thirty years ago. Even though conditions in most mines have improved, many miners will continue to be overexposed to silica. Berkes has done an amazing job bringing to public attention the plight of America’s coal miners and the struggles ahead.

“We was all young and strong and stout and they took advantage of us. Every one of us is either crippled or dead. We was all young men,” — Danny Smith

We should never forget.

Smith pulled up to another mine, which was also closed but had no guards in its weed-choked parking lot. This Solid Energy mine, along with the Rockhouse mine he drove by earlier, was operated by Massey Energy, now a defunct company with deadly mine disasters in its history and a CEO who went to prison for conspiracy to violate mine safety laws.

Smith got out and walked up to a rusted fence with a padlock. A ball cap shaded his face. Sunglasses hid his tears.

“It’s [been] eating at me for the last two years,” he said, “that I’m going to die over this. … Of all the things that could’ve killed me while I did work there, the rockfalls and all that stuff, I lived through all of that. And I find out years later I’m going to die over black lung. And it’s heartbreaking.”

Smith then mentioned his wife and two daughters and wondered what will happen to them when he’s gone. He wondered about the grandchildren he may never see. His voice breaking again, he talked about the excitement of being a young miner, about the hope and promise of good pay and good lives.

“We was all young and strong and stout and they took advantage of us. Every one of us is either crippled or dead. We was all young men,” he said, crying softly.