Will The New Silica Dust Standard Rule Be Implemented?

Before a new MSHA rule to limit miner’s exposure to silica dust could take full effect, opponents threw up a new roadblock.

A human takes on average 20,000 breaths per day. Imagine each breath heavy and tight from a career underground working a seam for coal or valuable minerals, a constant reminder of what you sacrificed for your family’s well-being.

“I worked in the coal mine for 27 and a half years,” Gary Hairston, the National Black Lung Association’s president said. “I come out at 48 [years old] with black lung.”

Since leaving the mines, he has been advocating for miners’ rights and safe working conditions.

“I’m worried about young coal miners,” Hairston said. “I don’t want [them] to be like I am.”

The nation’s top health officials have urged the Mine Safety and Health Administration (MSHA), the federal agency in charge of mine safety, to adopt strict rules to protect miners from rock dust.

Black lung and silicosis are both forms of pneumoconiosis, a condition where inflammation and scarring make it hard for the lungs to get enough oxygen. It is incurable but steps can be taken to slow the disease and improve quality of life.

Black lung diagnoses doubled in the last decade. Advanced disease has quadrupled since the 1980s in Virginia, West Virginia and Kentucky.

In recent decades, cases have risen further as miners dig through more rock layers to get to less accessible coal, generating deadly silica dust in the process.

“What’s happening is a lot of these mines, especially in Appalachia have been mined for hundreds of years decades and they are now mining rock, and so it’s this constant hitting of rock from these machines that is causing an increase of silica dust in these mines,” said Erin Bates, director of communications for the United Mine Workers of America (UMWA).

Respirable crystalline silica is a carcinogen. It can cause lung disease, silicosis, lung cancer, progressive massive fibrosis and kidney disease. Coal dust containing silica dust has been shown to increase the severity of black lung cases and affect miners even as early as their 30s and 40s.

Mine operators are supposed to ventilate mine work areas to lower the concentration of coal and rock dust, as well as methane.

But how much silica dust is too much? For years, MSHA set an upper limit of 100 micrograms per cubic meter averaged over an eight-hour shift.

But after years of pressure from advocates like Hairston, it cut that in half, to 50 micrograms per cubic meter.

Mine operators have a legal requirement to maintain safe levels of exposure in the mines at all times. Under the new rule, if levels are too high, mine operators must take immediate corrective action to lower the concentration of respirable dust to at, or below, the respirable dust standard and contact MSHA, according to Assistant Secretary Chris Williamson. 

“That was one of the new provisions in the final rule, that the mine operator will have to notify MSHA, because we want to know that too. They have to take immediate corrective action,” Williamson said. “And resample to be able to verify, did that corrective action address the issue?” 

Under the new rule, when respirable silica dust levels go above the 50-microgram limit, mine operators must provide miners with respirators and ensure they are worn until exposure levels are safe.

The use of respirators when levels are high is part of the rule that many advocates and miners say doesn’t go far enough.

“We truly believe that instead of requiring a miner to wear a respirator, they should shut that mine down and improve the ventilation in that mine, so that there is not any extreme case of silica dust exposure in that area,” Bates said.

The new, stricter safety rules went into effect in June, although coal producers have 12 months to comply.

Advocates like Vonda Robinson, the vice president of the National Black Lung Association, celebrated the new rule.

“I think with this new ruling, I think it’s going to be great for the coal, the coal mines, and also the coal miners,” Robinson said.

As a retired miner, Hairston won’t benefit from the new safety measures, but he’s worked tirelessly to push it through, visiting Capitol Hill to testify about working conditions in the mines.

“The rule is pretty good,” Hairston said. “There’s a lot of stuff we got put in, it is good. The thing is, is the defunding.”

In July, the U.S. House Appropriations Committee passed a spending bill for the federal Department of Labor that includes a line preventing any funds from being used to implement the new rule.

“To cut the funding from MSHA, an organization that already has very limited funding in the first place, is a travesty to all miners out there,” Bates said.

According to Policy and Advocacy Associate with the Appalachian Citizens Law Center, Brendan Muckian-Bates, MSHA’s Coal Mine Safety and Enforcement program has already lost about half its staff over the last decade.

“One of the challenges that MSHA faces is they’ve never been funded at the appropriate level, the level that they have requested of Congress,” Muckian-Bates said. “In fiscal year 2023 for example, the agency requested over $423 million, and that year received just shy of $388 million. And this is a real challenge that the agency has, because with the new silica dust rule, certainly there will be a need for more mine safety and health inspectors, who are already overworked, who already have to travel and conduct appropriate inspections and make sure, obviously, that the health and safety of miners is taken care of.”

Sam Petsonk is an Oak Hill-based lawyer who practices employment law and represents miners seeking black lung benefits. He said the rule would benefit the coal industry and coal mining by saving money and lives.

“The silica rule is 30 years overdue, and this administration has implemented it, and the Republicans in Congress are trying to repeal that new rule legislatively, by defunding the agency,” Petsonk said.

Some miners and their advocates are also dubious about relying on mine operators to tell MSHA about increases in dangerous dust.

“Our concern is that, if left to their own devices, operators will find another way, another loophole around this silica dust rule, and miners will continue to be exposed to dangerous levels of silica dust,” Muckian-Bates said.

But Williamson said he’s already heard from mine operators who, because of the new rule, are evaluating their mines to get ahead of things.

“We’re moving full steam ahead to implement this rule,” Williamson said. “So unless there’s, you know, a law that’s passed that tells me that I cannot do that, or there’s a court that, you know, put something in place, like an injunction, or issues an injunction that says I can’t, we’re moving full steam ahead. And we’ve asked everybody in the mining community, labor industry, everybody to come together and really do what’s right, and all of us to focus on protecting, you know, miners’ health.”

Since the fate of the new rule is now in the hands of the U.S. Congress, West Virginia Public Broadcasting reached out to all the state’s federal lawmakers to learn where they stand.

Replying by email, Sen. Joe Manchin’s office said they could not say anything on the record about the new rule or its implementation.

Also by email, Sen. Shelley Moore Capito said, “The safety of miners’ health is paramount,” and noted that the Senate version of the bill would actually increase funding for MSHA, not cut it, like the House version.

Representatives Carol Miller and Alex Mooney did not respond to our request for comment.

“I have full confidence that the Senate Democratic Caucus will prevent the Republicans from blocking this new silica rule,” Petsonk said. “But you know, if control of the Senate changes in the next year, this rule may be in jeopardy.”

Editor’s Note: This story is part of a series we’re calling “Public Health, Public Trust,” running through August. It is a collaboration with the Global Health Reporting Center and is supported by the Pulitzer Center. 

W.Va. Political Analysts Size Up Next Week’s Midterms

Both agreed the statewide Amendments on the ballot, especially two and four, will drive voters to the polls.

What do some of West Virginia’s political experts see as deciding factors in next week’s midterms?

Marybeth Beller has more than two decades with Marshall University’s School of Political Science.

Beller notes that two Senate and 22 House of Delegates seats are uncontested by Democrats. She said even though the state democratic party is reorganizing under new leadership, the disparity is disconcerting.

“It’s bad for democracy, not to have any opposition whatsoever, suggesting to the incumbent that he or she is very safe,” Beller said. “I think looking at it from a theoretical perspective, it’s always good for us to have challenges. Unchecked power is not healthy in our democracy.”

John Kilwein is the chair of the political science department at West Virginia University.

Kilwein said it would be a complete earthquake if anything changed in terms of the grip that the Republicans have on the state legislature. He said there’s despondency in the Democratic Party right now.

“If you go to their websites, it was clear to me that the Republicans just have it together right now,” Kilwein said. “Most every Republican link worked. Whereas democratic links, in some counties, they didn’t have somebody, you couldn’t contact somebody.”

Both agreed that nationally, the thought that a change in abortion rights would drive more women to the polls has been tempered.

Beller said a previous state abortion amendment that narrowly passed may set a women’s voting preference for this midterm election. In 2018, an amendment passed 52 percent to 48 percent, noting that nothing in the constitution secured or protected a right to abortion or funding for abortion. The amendment negated a 1993 Supreme Court decision that said low-income women had a right to an abortion with medicaid funding.

“There are a lot of angry women out there and maybe angry men,” Beller said. “The policy that the legislature has passed on abortion makes it so restrictive that it’s going to be very difficult for a woman to have access to that kind of health care. I think we could still see that being a big issue.”

Kilwein said with the expected dominance of incumbent Republican U.S. Representatives Carol Miller and Alex Mooney, the change in state abortion law won’t have much of an impact.

“Is it going to be that much of a factor that abortion would help Wendell to beat Mooney?” Kilwein said. “I just don’t think it’s going to be asking too much.”

Beller said 12 independent legislative candidates on the ballot is a high number for this midterm. She said those candidates could siphon votes from the Republican or Democrat, depending on campaign activity.

She said several races could be closely contested.

“In House District 26 you might want to look into incumbent Dr. Matt Rohrbach, R-Cabell, being challenged by Sydnee Smirl McElroy,” Beller said. ”McElroy is the granddaughter of Jody Smirl, who was in the House for many years and is beloved throughout the state. She could be a real challenge to Dr. Rohrbach.”

Beller pointed out two other races of interest.

“In House District 73. Majority Leader Amy Summers. R-Taylor, is the incumbent but she’s running against Mike Manypenny, who served in the House for many years and is well known to West Virginians. That could be a race that would be of interest,” Beller said.

“A big race to look out for though is in Senate District 13, is going to be something to watch,” she said. “Del. Barbara Fleischauer, D-Monongahelia, has been in the House for many years and is very well respected. She’s now running for that Senate seat. She’s running against Mike Olivererio, who has also served in the legislature for many years. Most recently he lost a bid for a congressional seat.”

Kilwein said he would be shocked if the state republican supermajority didn’t stay the same or get higher.

“You don’t want to get into the habit of predicting that this is going to be this way forever,” Kilwein said. “It sure feels like there’s a pretty significant control of the legislature by the Republicans for the foreseeable future.”

Both agreed the statewide Amendments on the ballot, especially two and four, will drive voters to the polls.

Rep. Miller Speaks Against Articles Of Impeachment Ahead Of Full House Vote

This is a developing story and may be updated.

Debate continues on the floor of the U.S. House on whether to impeach President Donald Trump — and West Virginia’s delegation is expected to oppose the articles and support the president. 

Rep. Carol Miller, a Republican who represents West Virginia’s 3rd Congressional District, spoke on the floor early in Wednesday’s debate.

House Democrats are accusing the president of abuse of power and obstruction of Congress. Miller argued those charges don’t hold up. 

“There are two charges claimed by House Democrats and there is zero cause for either. While President Trump has led our country has thrived, and Washington liberals have failed,” Miller said.

Miller, who sits on the House Oversight Committee, protested the earliest of proceedings into the impeachment inquiry into the president.

She is expected to vote against the articles of impeachment, as is David McKinley and Alex Mooney — the two other Republican members of the House from West Virginia. 

Should the Democratic-led House adopt articles of impeachment, the president would stand trial in the Senate. 

West Virginia Representatives Vote Against Formalizing Impeachment Procedures

Updated Thursday, October 31, 2019 at 3:45 p.m.

The U.S. House of Representatives has adopted a resolution formalizing its impeachment inquiry into President Donald Trump. As the first official vote in what’s sure to be many related to impeachment, the roll call showed a stark divide between majority Democrats who’ve already begun holding closed-door depositions on the matter and Republicans who continue to back the president. West Virginia’s three House members — all Republicans — voted against the measure.

H. Res. 660 authorizes the chairman of the House Intelligence Committee to conduct open hearings and allows the president and his attorneys the opportunity to cross-examine witnesses should Democrats approve. The resolution also directs the three panels leading the ongoing inquiry — the House Intelligence, Oversight and Foreign Affairs committees — to report their findings to the House Judiciary Committee, which will decide whether to move forward with drafting and voting on articles of impeachment.

Democrats said the procedures — which give them the ability to curb the president’s lawyers from calling witnesses — are similar to rules used during the impeachment proceedings of Presidents Richard Nixon and Bill Clinton. Republicans complained they were skewed against Trump.

The measure was approved Thursday on a 232-196 vote, with two Democrats — Rep. Jeff Van Drew (N.J.) and Rep. Collin Peterson (Minn.) joining Republicans in opposing the measure. The House’s lone Independent, Justin Amash (Mich.) voted in favor of the resolution.

West Virginia’s House delegation, comprised of three Republicans, has backed President Trump as the impeachment investigation has mounted. They’ve called the inquiry “partisan” and “baseless.” 

Reps. David McKinley, Alex Mooney and Carol Miller — of the state’s 1st, 2nd and 3rd districts, respectively — all voted against Thursday’s resolution.

“Our Founding Fathers never intended for impeachment to be used as a tool for scoring political points. Alexander Hamilton wrote in Federalist Papers No. 65, that there is always a danger that the decision to use the power of impeachment would be driven by partisan ‘animosities’ instead of ‘real demonstrations of innocence or guilt.’ Today’s purely partisan vote has proven Hamilton right,” McKinley said in a statement Thursday. “This process has continued to be unfair and unproductive, Democrats have created a biased narrative by using selective leaks and secretive interviews. Under Speaker Pelosi’s leadership, the House, has had more subpeoenas issued than bills signed into law.”

McKinley and Miller said Democrats in the House have been too focused on impeachment and not other issues affecting West Virginia and the rest of the country. 

In a statement following Thursday’s vote, Miller also argued that the resolution falls short in providing President Trump the same rights as other presidents who have been impeached. 

“The resolution brought to the floor today fails to provide my Republican colleagues and I, as well as the Trump Administration, the same rights offered in past presidential impeachment proceedings,” Miller said in part. “Their investigation is centered around secret hearings and selective leaks designed to damage the President. This process lacks transparency and fairness.”

Mooney issued a statement through a video posted to Facebook. 

“There’s already been 37 days of secret hearings — I attended once and attempted to attend many other times. Those secret hearings will still go on with this inquiry vote — supporting of it with his vote,” Mooney said in the video. “I’m glad they had a vote, so the American people can see where their representatives stand on this issue.”

Last week, Mooney joined dozens of other Republicans in a protest of the closed-door depositions as they made their way into a sensitive compartmented information facility — known as a SCIF — were being held. Like other GOP lawmakers, Mooney argued the depositions were being done in “secret” and called for proceedings to take place in view of the public and the news media. 

In a tweet posted Tuesday, Mooney said he again tried to make his way into a deposition being held in the SCIF. 

Miller also participated in last week’s protest. She sits on the House Oversight Committee, which is one of the three House committees that have had access to the depositions.

In a press conference as members gathered in the House ahead of Thursday’s vote, House Speaker Nancy Pelosi pushed back on Republican claims that the process is a “sham” and unfair to President Trump. She said procedures laid out in the resolution are “very transparent and open.” Pelosi also said the resolution gives “more privileges to the president and his argument than were given in the past.”

The Associated Press contributed reporting to this story. 

West Virginia Delegation Reacts To Impeachment Inquiry Launched Against President Trump

Updated Wednesday, September 25, 2019 at 2:40 p.m.

West Virginia’s congressional delegation has weighed in on a formal impeachment inquiry launched against President Trump and the contents of a phone call between Trump and Ukranian President Volodymyr Zelenskiy.

Speaker Nancy Pelosi, D-Ca., announced Tuesday, Sept. 24, that House Democrats are moving forward with an impeachment inquiry related to a whistleblower complaint about the president. Additionally, the White House released a partial transcript of the July 25, 2019, Trump-Zelenskiy phone call. That account of the phone conversation was based on notes taken by White House staff assigned to listen. 

According to a partial transcript the White House released Wednesday, Trump asked Zelenskiy for “a favor” by looking into Democratic presidential candidate Joe Biden and his son, Hunter Biden.

The conversation has raised concerns that Trump may have broken the law by asking for foreign help against a potential presidential contender in 2020. However, the Justice Department has concluded that prosecutors “did not and could not make out a criminal campaign finance violation.”

Capito Calls Impeachment Inquiry ‘Partisan Theatrics,’ Manchin Takes Non-Prejudicial Tone

On Tuesday evening, Republican Sen. Shelley Moore Capito offered a statement characterizing the impeachment inquiry as politically motivated and partisan in nature. 

“West Virginians have made it clear to me time and time again that they would rather Congress focus on the issues that truly affect their day-to-day lives — not political and partisan theatrics,” Capito said. “Earlier this afternoon, in good faith, the president said he is willing to release the ‘complete, fully declassified and unredacted transcript,’ and I applaud that decision. Moving forward with an impeachment inquiry before that transcript is even public proves that House Democrats are more interested in partisan politics than in following the facts.”

Since the release of the partial transcript, Capito has not returned West Virginia Public Broadcasting’s request for comment on what is publicly known about the Trump-Zelenskiy phone call. 

Sen. Joe Manchin, the only Democrat to represent West Virginia in Congress, struck a cautious, unprejudiced tone with news of the House Democrats’ impeachment inquiry. 

“Any allegation of misconduct with a foreign country must be investigated. I firmly believe it is premature to jump to any conclusion until an investigation of the facts is complete,” Manchin said in a statement issued just after noon on Wednesday.

Manchin went on to say that he takes his “responsibility in the process very seriously” and that “the Senate’s role is to evaluate the facts.” The senior senator did not make mention of or comment on the partial transcript released Wednesday by the White House. 

“It would be irresponsible of me to comment on each piece of the process until all of the facts come out and the Senate begins to review the findings,” Manchin said, adding that he hopes the Senate rises above party and politics to do what is best for the country.

Republican House Representatives Take Aim At Speaker Pelosi

By midday Wednesday, all three of West Virginia’s Republican members in the House of Representatives had also offered a reaction to the impeachment inquiry, but only one has specifically mentioned the partial transcript of the Trump-Zelenskiy call. 

Reps. David McKinley, Alex Mooney and Carol Miller all took aim at Speaker Pelosi and described the impeachment inquiry as politically motivated.

“Speaker Pelosi’s call for impeachment is just another partisan attack on President Trump,” McKinley, of the 1st District, said in a statement issued Tuesday. “This Congress has featured countless investigations, and today’s announcement is nothing more than Democrats continuing to put partisan politics ahead of getting real legislation done.”

Rep. Alex Mooney, a Republican from the 2nd District, echoed McKinley’s sentiments about the impeachment inquiry. 

“Nancy Pelosi and her liberal allies in Congress have launched a baseless and purely partisan impeachment inquiry against President Donald Trump. The liberals in Congress have been clear from day one that their goal was to take down President Trump and remove him from office,” Mooney said. “As I travel across West Virginia, I talk to folks who are sick and tired of this purely partisan investigation aimed at reversing the results of the presidential election. It is time for Democrats to move on and start focusing on issues that matter to all Americans.” 

Rep. Carol Miller, a freshman from the 3rd District, offered a statement similar to McKinley’s and Mooney’s. She released a statement Wednesday morning via Twitter, also accusing Speaker Pelosi of politically attacking the president. 

“Nancy Pelosi and House Democrats have once again proven they are willing to stop at nothing to discredit the 2016 election and take down President Trump by any means necessary,” Miller wrote. “It’s time for Washington liberals to stop playing politics and embrace the success of the Trump administration. I encourage my colleagues across the aisle to repurpose this misguided impeachment effort and work with House Republicans to grow our economy, end the opioid epidemic and solve the crisis on our Southern border. I stand with our president.”

Responding to a Wednesday afternoon email from West Virginia Public Broadcasting, Rep. Miller downplayed the contents of the partial transcript of the Trump-Zelenskiy phone call. 

“The transcript of the conversation between President Trump and President Zelenskyy clearly shows there was no wrongdoing. How many more times will President Trump have to be exonerated before this Witch Hunt ends?” Miller said.

Other members of the congressional delegation have not yet returned additional requests for comment on the partial transcript released by the White House. 

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