Dust reforms stymied by years of inaction

Introduction

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.