A group of Ohio Valley senators says a watchdog agency’s recent report shows that federal regulators must do more to protect coal miners from silica dust, an especially toxic form of dust created when mining equipment cuts into rock layers near coal seams.
In a Monday morning press release, six Democratic senators, including Joe Manchin of West Virginia and Sherrod Brown of Ohio, called the findings in last week’s Inspector General’s report “extremely troubling,” saying the Mine Safety and Health Administration knew what it needed to do to lower miners’ exposure to deadly silica dust.
The senators’ pressure comes after the Department of Labor’s Office of the Inspector General found that MSHA’s standards for exposure to deadly silica dust were out of date, and that the mine safety agency’s sampling methods were too infrequent to guarantee that miners were protected.
“We are asking that you take immediate action to implement the recommendations contained in the OIG report,” the senators wrote in a jointly issued letter addressed to MSHA head David Zatezelo. “We further ask that you provide us with a thorough description of the measures currently being conducted by the agency to ensure that our brave and patriotic coal miners are shielded from excess exposure to silica dust on the job site.”
Zatezelo, a former mining executive, has been slow to act on a separate standard for silica exposure, and, in a response to the Inspector General’s report included in its appendix, said he could not agree with two of the IG’s three recommendations for improvements.
Silica is a component in the coal dust that is released in the mining process and is a major contributor to the ongoing black lung epidemic in coal country. The shocking surge in black lung cases was first revealed by NPR. Certain coal mining practices and a higher silica content in the rock surrounding Appalachian coal make miners in the region more likely to contract the progressive and deadly disease.
The National Institute for Occupational Safety and Health has found that as many as one in five experienced Appalachian coal miners has some form of black lung disease. Traditionally considered an older miner’s disease, a growing number of young miners suffer from black lung, as well.
Also Monday, United Mine Workers of America president Cecil Roberts issued a statement calling the Inspector General’s report quote “right on the money,” and said he looked forward to working with the Biden administration on the workplace protections.
The Mine Safety and Health Administration is not doing enough to protect coal miners from deadly silica dust, according to a new report from the Department of Labor’s Office of the Inspector General. The IG found that MSHA’s standards for exposure to deadly silica dust were out of date, and MSHA lacked the ability to issue fines when coal companies violate air quality standards. The IG also said the mine safety agency’s sampling methods were too infrequent to guarantee that miners were protected.
The report comes after years of increased scrutiny following reporting from NPR and the Ohio Valley ReSource that found clusters of advanced black lung disease among Appalachian coal miners.
“They’ve finally admitted that they know now that they need to do more testing, and that they need to regulate silica dust, and that there’s a direct correlation between coal dust and silica,” said black lung clinic director Marcy Martinez. “I really think it’s going to be different this time.”
The average time it takes for federal agencies to implement a rule change is four years, the report said, but MSHA has spent 20 years studying a rule change that would help protect coal miners from deadly silica dust.
MSHA’s current standards for silica have not substantively changed in over 50 years, the report found, despite growing consensus that silica, also known as respirable quartz dust, is a major contributor to a surge in black lung disease that’s centered in the Ohio Valley.
According to the report, the agency gestured towards making a change in 1996, 1998, 2003, 2010 and 2014 amid growing pressure from stakeholders, with no substantive change implemented in any of those efforts. MSHA again initiated the rulemaking process in August of 2019 with a request for information and has since said it would publish a proposed rule, but has not provided a timeframe for that announcement.
“All MSHA is doing is saying, ‘We are aware of these cases, there’s a suggestion that it’s related to silica, so tell us what you think about this, let us know if you have any ideas,’” Celeste Monforton, a former MSHA regulator and now an outspoken critic of her former agency, said of the 2019 effort.
“Decades of scientific evidence and real world experience have proven that exposure to respirable silica dust is deadly and MSHA has not sufficiently protected miners,” said Rep. Bobby Scott, a Virginia Democrat and the chair of the House Committee on Education and Labor. “MSHA should have acted sooner to issue a more protective regulation.”
Scott said his committee is exploring legislation to require that MSHA strengthens silica dust exposure rules.
In 2014, MSHA did institute a rule that reduced the limit on exposure to coal dust, of which silica is a component, from 2.0 to 1.5 milligrams per cubic meter of air. That rule has significantly lowered incidences of high silica exposure, with the percent of samples that exceeded the recommended silica levels falling from 57% in 1990 to 6% in 2019. “This shows that coal mines have and can meet the recommended silica limit,” the OIG said in the report.
The report continued, “With no legal requirement for mines to keep silica levels well below MSHA’s current limit, which scientific evidence has shown to be unsafe, workers in coal mines with silica levels above recommended safety limits continue to be at risk of developing life threatening health problems.”
MSHA head David Zatezelo, a former coal company executive appointed by President Donald Trump, was slow to agree with the scientific consensus on silica’s role in the black lung epidemic, though he acknowledged it in a June, 2019 hearing in Congress. In the same hearing, Zatezelo argued that because it takes decades for a miner exposed to silica dust to manifest the symptoms of black lung disease, the agency could not take further regulatory action until the results of the 2014 rule change could be analyzed.
“But MSHA anticipates the study will confirm that dramatic increases in sampling and compliance translate into reduced black lung incidence going forward,” he said.
In a written response to the Inspector General’s report, Zatezelo disagreed with the recommendation that MSHA adopt a lower silica exposure standard, saying that because the rulemaking process was ongoing, he was not able to comment on the proposed substance of a potential new rule.
The DOL report also urged MSHA to increase the frequency of silica sampling, saying, “Silica levels … fluctuate frequently and unpredictably. Changes in geology and movement of personnel within mines mean that miners’ exposure to silica may change on a daily, if not hourly basis. As a result, MSHA’s infrequent sampling protocols — two or four times a year — placed miners at unnecessary risk for silica exposure.”
Coal companies owned by the family of West Virginia Governor Jim Justice have agreed to pay more than $5 million in overdue mine health and safety fines and fees.
According to a press release released Wednesday, a total of 24 coal companies owned by the Justice family agreed to settle millions of dollars in unpaid penalties and fines owed to the federal Mine Safety and Health Administration, or MSHA.
The fines stemmed from nearly 3,000 citations issued to Justice mine operators between May 2014 and May 2019 under the federal Mine Safety and Health Act.
The civil lawsuit, brought by U.S. Attorney Thomas Cullen of the Western District of Virginia and the Mine Safety and Health Administration, alleged 23 Justice coal companies located in five states — Virginia, West Virginia, Tennessee, Alabama and Kentucky — owed more than $5 million in delinquent debts.
In the release, Cullen said the Justice-owned companies agreed to pay all outstanding debts and penalties associated with their mine safety violations.
“It is our hope that this landmark collection action and settlement agreement sends a clear message that the Department of Justice will aggressively pursue mine safety violations and hold owners and operators accountable,” Cullen said.
In total, the Justice companies will pay $4,065,578.29 to satisfy the debts identified in the original lawsuit. In addition, another Justice company, Bluestone Coal Corporation, also agreed to pay $1,064,547.18 for other unpaid fines and fees.
The original 23 companies in the settlement include: Southern Coal Corporation, Justice Coal of Alabama, A&G Coal Corporation, Black River Coal, Chestnut Land Holdings, Double Bonus Coal Company, Dynamic Energy, Four Star Resources, Frontier Coal Company, Infinity Energy, Justice Energy Company, Justice Highwall Mining, Kentucky Fuel Corporation, Keystone Service Industries, M&P Services, Nine Mile Mining, Nufac Mining Company, Pay Car Mining; Premium Coal Company, S and H Mining, Sequoia Energy, Tams Management and Virginia Fuel Corporation.
As Congress hears testimony on the epidemic of black lung disease among Appalachian miners, two labor leaders are calling on Congress and regulators to do more to protect miners.
In a letter to the federal Mine Safety and Health Administration, or MSHA, the United Mine Workers of America and the United Steel Workers of America urged stricter standards on silica dust. A growing body of research indicates silica dust exposure contributes to the sharp rise in cases of black lung disease, which now afflicts as many as one in five experienced central Appalachian coal miners.
A 2018 investigation from NPR, PBS Frontline and the ReSource found that far more miners had the most severe form of black lung disease, progressive massive fibrosis, than had been recognized in government reports, and that those cases were concentrated in central Appalachia. Silica dust can be 20 times as harmful as coal dust alone, and the quartz-rich rock that produces it is common in central Appalachian mines. But federal regulators have resisted regulating silica dust exposure.
In Wednesday’s letter, UMW president Cecil Roberts and USW president Leo Gerard asked regulators to lower respirable silica standards and require more frequent monitoring inside coal mines. “We anxiously await MSHA’s plan to address one of the worst occupational health crises of our time,” the union presidents wrote.
Roberts and MSHA administrator David Zatezalo are both scheduled to testify Thursday morning before the workforce protections subcommittee of the House Committee on Education and the Workforce.
Congressional Oversight
Committee chairman Rep. Bobby Scott (D-VA) pledged to hold hearings on the resurgence of the disease shortly after the release of the NPR investigation. “I will be calling hearings in the 116th Congress to forge legislative solutions so that we can prevent the physical, emotional, and financial toll of this completely preventable disease,” Scott said.
MSHA chief Zatezelo will likely face tough questions at the hearing over his agency’s reluctance to regulate silica exposure.
In what was hailed as a long-overdue change, MSHA in 2014 implemented a rule further limiting coal dust exposure, but that rule did not specifically target silica. Under the rule, when a mine exceeds coal dust or silica limits, it is placed on a reduced standard for coal dust, but not silica. Regulators say silica is difficult and expensive to monitor, so coal dust is used as a proxy for silica exposure. But the 2018 NPR investigation found thousands of instances where lowering coal dust standards overall did not bring silica dust to a safe level.
MSHA head Zatezelo has agreed that silica is a problem, but speaking to the ReSource at a West Virginia black lung conference in early June, he declined to answer repeated questions on whether or not he believes silica dust is contributing to the surge in disease.
MSHA has put out a request for information to study whether or not the 2014 coal dust rule will make a difference in miners’ health. Because it can take 10-15 years for black lung to develop, any study of the 2014 rule will likely not be completed for decades.
Speaking at the same West Virginia conference, UMW president Cecil Roberts told an enthusiastic crowd, “Anyone who tells you, ‘We need more information.’ They’re lying.”
Robert Cohen directs the Mining Education and Research Center at the University of Illinois at Chicago. In an interview, Cohen said he’ll use his testimony to encourage Congress to force MSHA to adopt the silica exposure standards recently implemented by another worker safety agency, the Occupational Safety and Health Administration. That standard applies to construction workers and others exposed to silica, but not to miners.
“Those regulations are stricter, they call for a lower level of silica dust to be the permissible limit, and I think that’s something we should really strongly consider,” Cohen said.
Cohen called on Congress to step in and regulate silica if MSHA would not. Such a proposal will likely be on the table at this week’s hearing.
Trust Fund Concerns
Also discussed in the hearing will be the Black Lung Disability Trust Fund, which helps pay medical costs for many miners disabled by the disease.
After initially promising to support the fund, Senate Majority Leader Mitch McConnell of Kentucky allowed the tax on coal companies that supported the trust fund to lapse to a lower level at the end of last year.
As the black lung epidemic worsens, more miners and their families will likely rely on the trust fund, a federal program that provides benefits to about 25,600 miners and their dependents.
The Government Accountability Office has found that if funding for the trust fund is not restored to its pre-2019 level or higher, it may not have enough money to make its payments to disabled miners by 2020 and will have to begin using taxpayer money.
The U.S. Department of Justice has filed a civil lawsuit against 23 coal companies owned by the family of West Virginia Gov. Jim Justice, seeking more than $4.7 million in unpaid fines and fees for mine safety and health violations.
The delinquent fines were brought to light by investigations by NPR and the Ohio Valley ReSource as the Justice companies’ overdue debts ballooned from just under $2 million in 2014 to more than $4 million in 2018.
The lawsuit was announced Tuesday by U.S. Attorney Thomas Cullen of the Western District of Virginia and David Zatezalo, the head of the Mine Safety and Health Administration, or MSHA.
In a news release, the DOJ said the 23 companies named in the lawsuit incurred nearly 2,300 mine safety and health violations over the last five years. According to a 2019 financial disclosure filed with the West Virginia Ethics Commission, all 23 companies are owned by the Justice family.
The civil complaint says the companies failed to pay nearly $4 million in penalties associated with those violations. The companies are located across five states: Virginia, West Virginia, Tennessee, Alabama and Kentucky.
The DOJ said the Justice-owned companies ignored multiple demands by MSHA, the Department of Treasury, and the U.S. attorney’s office to pay the delinquent debts.
“As alleged in the complaint, the defendants racked up over 2,000 safety violations over a five-year period and have, to date, refused to comply with their legal obligations to pay the resulting financial penalties,” Cullen stated in the news release. “This is unacceptable, and, as indicated by this suit, we will hold them accountable.”
“MSHA stands with the Department of Justice in seeking to hold mine operators responsible for the penalties they owe,” Zatezalo said in the same release. “Failure to pay penalties is unfair to miners who deserve safe workplaces, and to mine operators who play by the rules.”
Michael Carey, a lawyer who represents the Justice companies, said in an interview that the Justices have been actively negotiating with both the U.S. attorney’s office and MSHA and felt blindsided by the suit.
“The Justice companies are frustrated that the U.S. attorney’s office decided to go through with this litigation at this point because we’ve been negotiating with them to resolve this matter for several months now,” he said.
Carey also repeated an oft-cited concern from the Justice family that a large chunk of the assessed fines referenced in the complaint were accrued when some of the companies the Justice family currently owns were controlled by Russian mining company Mechel OAO.
In May 2009, Mechel OAO purchased Bluestone Coal Company from Justice. In 2015, Justice bought the company back. The metallurgical mining company has operations in West Virginia’s McDowell and Wyoming counties.
Carey said “approximately 50 percent of the fines that have been assessed are in relation to when the Russians operated the property.”
“We believe there is a basis to contest those and we simply don’t owe it simply because we bought it,” he said. “But that was part of the ongoing negotiation.”
However, an Ohio Valley ReSource analysis of delinquent debt information casts doubt on that argument.
ReSource Investigation
Last month, an Ohio Valley ReSource analysis of federal mine safety data found that the Justice family companies owed $4.3 million in delinquent debt for mine safety violations. That meant the Justice companies had by far the highest delinquent mine safety debt in the U.S. mining industry. And it was also far more than the companies owed when Justice ran for governor in 2016, when he pledged to make good on such debts.
In 2016, an investigation by NPR, the ReSource and partner station West Virginia Public Broadcasting found that Justice’s mines owed $2.6 million in overdue mines safety fines, as well as millions more in unpaid tax debt.
Credit Alexandra Kanik / Ohio Valley ReSource
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Ohio Valley ReSource
Then-candidate Justice said those debts would be paid.
“When it all really boils right down to it we’re taking care of them,” Justice said at a rally announcing his gubernatorial bid. “We’ll absolutely y’know, take, make sure that every one of them is taken care of.”
But the ReSource analysis of 2018 MSHA data shows that more than four years after that initial investigation, the Justice companies — now mainly controlled by the governor’s children, James Justice III and Jillean Justice — had allowed that debt to grow.
The investigation also addressed the Justice companies’ claim that Mechel OAO is responsible for much of the debt from overdue fines. The ReSource analysis examined debt for violations assessed to owners at the time of the initial violation. The debts associated with violations assessed to those mines while they were owned by Mechel are not included in the $4.3 million total that MSHA data show the Justice companies are responsible for. Even if the Justice companies are successful in their argument regarding the debt incurred by Mechel OAO, that would represent a small portion of the overall sum the companies owe.
The United Mine Workers of America is suing the federal Mine Safety and Health Administration, or MSHA, after the agency reduced its heightened oversight of a West Virginia coal mine with a poor safety record.
MSHA has the power to declare mines with a history of significant safety violations as having a “Pattern of Violations.” Known as “POV status,” the declaration is an enforcement tool that allows the agency to increase regulatory scrutiny at a mine with repeated safety issues.
Under the Obama administration, MSHA used that authority to place the Pocahontas Coal Company’s Affinity mine in southern West Virginia on POV status in October, 2013, after two minerswere killed in separate incidents within a two-week span.
This year, under the Trump administration, agency officials decided to remove POV status for the Affinity mine in an agreement with the company that resolved litigation on the matter, despite a continued record of spotty safety performance at the mine.
The UMWA’s complaint claims that MSHA’s actions violate the Administrative Procedures Act and the Mine Act. UMWA spokesperson Phil Smith said MSHA should keep the pattern of violations status in place until the Affinity mine is proved safe.
“The message that this sends to operators and miners is that the Mine Safety and Health Administration is not going to fully enforce the law is a wrong one,” Smith said. “We think that message needs to be countered immediately.”
Credit MSHA
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An MSHA inspection photograph of the equipment that killed Affinity scoop operator Edward Finney in 2013.
The union’s lawsuit echoes concerns from mine safety experts and some lawmakers, including a former MSHA director, a former member of a federal mine safety review commission, and the incoming chair of a Congressional committee with oversight on mine safety.
Path To POV
In the wake of the 2010 Upper Big Branch mine disaster in West Virginia, MSHA leadership used the POV designation to press for safety improvements at problem mines. In 2010, MSHA identified 51 mines that had safety records that could place them at risk for being given a pattern of violations notice.
In order to have the POV designation removed, the Federal Mine Safety and Health Act of 1977 mandates that the mine must receive a full inspection with no serious and substantial violations.
MSHA data show the Affinity mine has received a total of 37 significant and substantial violations in 2018. Three were issued as recently as August.
Robert Cohen, then a member of the federal mine health and safety commission, pointed out that record in a dissent to the Affinity decision when it was made public over the summer. The commission is an independent agency that provides review of legal disputes that arise under the Mine Safety Act. Cohen, who has since left the commission, said MSHA’s decision on Affinity was “legally unsupportable.”
Cohen stressed that under federal law, mines must have a clean health and safety inspection in order to have POV status changed.
Undermining Safety?
Joe Main, MSHA director under President Obama, said in a September interview that the agency’s decision to remove the POV designation from the Affinity mine may undermine the effectiveness of one of MSHA’s most powerful enforcement tools.
“I think whenever things happen where a mine can get into litigation and free themselves through a settlement agreement of the statutory penalty, that raises concern about…what kind of perception is this leaving in the mining industry?” he said.
Tony Oppegard, a mine safety lawyer based in Kentucky, said the agency’s decision to settle the lawsuit with Affinity sends the wrong message to the industry.
“They took the Affinity mine off of the pattern even though they had never complied with the statutory requirements,” he said. “I just think it’s wrong.”
The issue also caught the attention of some members of Congress who oversee MSHA. Rep. Bobby Scott of Virginia, the ranking Democrat on the House Committee on Education and the Workforce, wrote to the Department of Labor in September requesting more information about the Affinity POV decision.
Specifically, Scott wanted “to assess whether MSHA’s actions to terminate the POV exceeded its statutory authority and whether the Department of Labor acted properly.”
As Democrats assume control of the House next year Scott will likely become become the committee chair, greatly enhancing his power to investigate.
Credit Jesse Wright / West Virginia Public Broadcasting
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West Virginia Public Broadcasting
Former mining executive David Zatezalo leads the U.S. Mine Safety and Health Administration.
Industry Connections
In an August press release, United Coal Company, Pocahontas Coal’s parent company, said the Affinity site has greatly increased its safety record.
“The Affinity team was very relieved to hear that the POV is terminated, but understand our commitment and actions towards safety and compliance will not change,” Jeff Birchfield, Affinity mine manager wrote.
At a September event at West Virginia University, Assistant Secretary of Labor for Mine Safety and Health David Zatezalo, President Trump’s choice to lead MSHA, defended the Affinity mine’s safety record, calling it one of the best in West Virginia.
Zatezalo added that he has no concerns that the settlement might dilute the POV as an enforcement tool.
However, the agency’s Affinity decision has also raised questions about Zatezalo’s industry connections. Zatezalo worked for 40 years in the coal mining industry, including a stint as chairman at Rhino Resources, which operates mines in West Virginia and Kentucky.
In 2010 and 2011 the company received two POV notices from the agency Zatezalo now leads. Zatezalo also had leadership roles with coal industry associations in Ohio and Kentucky, both of which are parties to lawsuits challenging MSHA’s regulatory changes in 2013.
MSHA officials referred questions regarding the UMWA lawsuit to the Department of Justice, which did not immediately respond to a request for comment.
The agency’s controversial decision comes amid a mixed two years of industry safety under the Trump administration. Following an uptick in mining fatalities in 2017, the U.S. coal industry is on track to complete one of its safest years on record in 2018. Eight coal miners have died on the job in 2018, half of them in West Virginia. Last year, 15 U.S. coal miners were killed during work, an unexpected spike in fatalities after a long downward trend.
The general decline in mining fatalities reflects both improvements in safety practices and a decline in the size of the coal workforce.
