Coal miners, advocates concerned over MSHA proposed silica rule

‘Putting the fox in charge of the henhouse’

By: - August 14, 2023 5:55 am

23 people attended MSHA’s public hearing to speak on the proposed rule from the agency to limit silica exposure in mines. (Appalachian Voices | Courtesy photo)

BEAVER, W. Va. — Vonda Robinson’s granddaughter is only five years old, but she knows all about black lung. For as long as she’s been alive, she’s watched her grandfather cart around an oxygen tank that helps him breathe.

“She knows how to turn it on, how to turn it up, she knows everything and she’ll tell me, ‘Nana, I wish Papaw didn’t have black lung — he can’t play with me, he can’t run with me,’” Robinson shared with federal regulators last week. “She’ll say, ‘I don’t like that black lung.’”

Vice president of the National Black Lung Association, Robinson was one of 23 people who came to the Mine Safety and Health Administration Academy near Beckley on Thursday to speak on a proposed rule from the agency to limit silica exposure in mines.

Currently, there is no MSHA rule to regulate silica dust in coal mines, which is known to be a leading cause of pneumoconiosis, or black lung. The proposed rule — published in the Federal Register in July — would, for the first time, implement a separate exposure limit for silica dust, cut the maximum exposure limit to 50 micrograms per cubic meter for a full-shift and create an “action level” for when exposure comes at 25 micrograms per cubic meter for a full shift.

These guys go in, they give their total bodies — their lungs, their life, everything — to go in a hole and help power America.

– Vonda Robinson, Vice president of the National Black Lung Association

The proposal comes at the same time as a resurgence of black lung among coal miners, who are being diagnosed at younger ages than their predecessors due to a lack of easily accessible coal and an increase in the amount of silica-rich sandstone they have to dig through to reach what remains.

The Centers for Disease Control and Prevention estimates that 20% of coal miners in Central Appalachia are suffering from black lung — the highest rate detected in more than 25 years. One in 20 of the region’s coal miners are living with the most severe form of the condition.

“My husband is 57 now. We’re now looking at guys who are 32 years old getting complicated black lung [diagnoses],” Robinson said. “These guys aren’t even papaws yet — they have small children. These guys go in, they give their total bodies — their lungs, their life, everything — to go in a hole and help power America.”

Robinson is one of a number of advocates, doctors, coal miners and more who are concerned about weaknesses in the proposed MSHA rule. Notably, they said Thursday, there isn’t a proper enforcement mechanism written out or penalties for operators who fail to comply with it. The rule, as it stands, wouldn’t meaningfully change sampling procedures to track exposure levels. And the solution proposed in the rule for unsafe conditions — requiring respirators for workers where levels are elevated — is unfeasible.

“Respirators are effectively a Band-Aid in this situation,” said Dr. Leonard Go, a pulmonologist and assistant director of the Mining Education and Research Center at the University of Illinois Chicago School of Public Health. “I, as a physician, cannot reasonably expect a miner to do physically harder work than I do with a tighter fitting mask than what I wear in a hospital.”

Retaliation a serious concern

Every person who spoke Thursday was in support of strengthening the rule to protect miners, not just from silica dust exposure, but also from retaliation by mine operators for speaking out about dangerous conditions.

Nearly all the speakers affiliated with the coal industry shared personal anecdotes about them or loved ones witnessing mine operators “manipulating” and “tricking” sampling requirements to skirt penalties, putting workers at higher risk of developing potentially fatal conditions like black lung.

Debbie Johnson is a nurse who has worked for more than 20 years as the black lung program director at Bluestone Health in Princeton. She remembers getting angry when her husband would return from his shifts in the mines and tell her how he and others were told to wrap their air sampling devices in cloth to rig results when inspectors visited.

“I came today to listen, but as I was listening I heard a lot of comments on the dust samples — that they’re going to be in the control of the mine operators, at least to a point. That point is where the problem is,” Johnson said. “These men have no choice in the things they do because of the retaliation. It’s like putting the fox in charge of the henhouse — it doesn’t make good sense.”

Gary Hairston, president of the National Black Lung Association, spent almost 28 years in coal mines before being diagnosed with black lung at the age of 48. When he was there and still today, he said, it’s an open secret that if workers truthfully report results or attempt to blow the whistle on fraudulent practices, they will lose their jobs. Oftentimes, he continued, those jobs are the best paying in their region and unemployment isn’t something they or their families can afford.

“I blame the coal companies but I blame us too. If we could speak up, we would speak up, but we’re scared,” Hairston said. “You’re scared because this is [your] livelihood. When something is your livelihood, you do everything you can to [assure] your family is provided for … When I was in there, they told us if we got bad sampling they would shut the mines down. We were doing stuff to keep from getting bad samples.”

Even though it’s not MSHA policy — and actually explicitly against MSHA policy, according to Patricia Silvey, Deputy Assistant Secretary for Operations at MSHA and the moderator of Thursday’s public hearing — mine operators are often aware of when federal inspectors are scheduled to survey their operations.

“The pre-notification system is real,” said Robert Cash, a member of the United Mine Workers of America. “We need better laws.”

Silvey said MSHA is aware of allegations of retaliation in mines, and is quick to respond when instances of such are reported.

“I want to think we [respond] with energy and fervor,” Silvey said.

A toxic culture

When a final rule is decided upon and published, she continued, the federal agency plans to develop outreach and compliance assistance materials to help operators meet the new standards.

But retired miners and those familiar with the industry don’t believe that will be enough to combat the toxic culture that often leads to fraudulent sampling results and a lack of safety.

“I’m as guilty as [anyone] for hiding dust samples,” said Terry Lilly, a retired coal miner who struggled to breath throughout his testimony due to having only 40% of his lung capacity. “Cheating the samples is what we need to stop. If we can stop this, we can save lives.”

None of the speakers at Thursday’s hearing were mine operators. Every person who spoke thanked MSHA for finally making progress on limiting silica exposure for miners. Willie Dodson, the central Appalachian field coordinator for advocacy group Appalachian Voices, said that while there is no safe level for silica exposure, strengthening the proposed rule would at least give miners the same protections that have been afforded to workers in other industries for nearly half a century.

“If MSHA gets this right, fewer families will have to reckon with the tragic, premature death of a loved one. Fewer papaws will have to explain to their grandbabies that they can’t play with them in the yard,” Dodson said. “If MSHA gets this wrong, we will look back on this process as its own sort of tragedy. A moment when we came close to doing right by coal miners, but ultimately failed them.”

Thursday’s meeting was the second of three public hearings held for the proposed rule. The first was in Arlington last week and the last one will be held in Denver on August 21.

Initially, there was no meeting scheduled for the proposed rule in Central Appalachia despite the high rates and impact of silica dust here. Days after the rule was published and the public comment period set, however, MSHA added the Beckley meeting in response to advocates’ outcries.

The public comment period for the rule will remain open until September 11. Those wishing to submit testimony or comments on the proposal can do so by visiting the Federal Register.

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Caity Coyne
Caity Coyne

Caity Coyne covers state policy and how it intersects with individuals and communities for West Virginia Watch. She's been reporting in West Virginia for 10 years, most recently covering public health and the Southern Coalfields for the Charleston Gazette-Mail.