Coal And COVID-19: Lung Impairment Makes Miners Especially Vulnerable To Coronavirus Tuesday, May 5 2020 

Underground coal miners start their shifts getting changed in closely packed changing rooms. They ride rail cars to their worksite, shoulder-to-shoulder, sometimes for more than an hour. And once they’re underground, ventilation designed to tamp down coal dust blows air through the mine. All that makes a coal mine the kind of place where the coronavirus could spread like wildfire. 

Coal mines have been designated essential businesses in most states in order to keep the nation’s energy supply stable. But state and federal agencies are not tracking coronavirus transmissions or regulating sanitation to keep those essential workers safe. 

“I think there’s a concern by workers in this country that this is a government that gives workers second seat when it comes to their health and safety,” said Joe Main, former Assistant Secretary for the Mine Safety and Health Administration. 

Rather than implement rule changes or increase safety inspections, MSHA has reduced some enforcement actions and issued unenforceable recommendations for coal miners and mine operators. The language is similar to that used by MSHA’s sister agency, OSHA, which regulates meat packing plants and other work sites that also present risk of transmission. The difference, though, is that coal miners are particularly vulnerable to the coronavirus because of the high percentage of miners with lungs damaged due to exposure to toxic coal and rock dust. 

MSHA encourages workers to wash hands frequently, disinfect equipment, and maintain six feet of space between workers. Such actions can be difficult or impossible underground.

“Guidelines were a good first start, but it’s not enough in this situation,” Main said. “You have people who are totally vulnerable, and you just put out guidelines and let what happens, happen. You have to search in your tool bag and do everything you can to make sure people are protected.”

Main, who served as MSHA assistant secretary from 2009 to 2017 said there are plenty of tools at MSHA’s disposal. It could do more inspections, make sure miners know they can report unsafe conditions without fear of retribution, issue emergency standards, and make public information on which mines had had confirmed cases of the virus. 

Some Congressional members from the region, including West Virginia Sen. Joe Manchin, have also urged MSHA to issue emergency standards. A spokesperson for the Senator told the Ohio Valley ReSource, “We understand that individual coal mine operators and unions have developed their own protocols to prevent miners exposure, but [Sen.] Manchin wants to make sure they’re a uniform set of protocols.” 

MSHA did not respond to questions about why it had not made safety precautions mandatory, but a spokesperson for the Department of Labor, which houses MSHA, said, “MSHA’s primary goal, at all times, is ensuring the safety and health of American miners. The Department is actively working on many fronts to aid the American workforce during the COVID-19 response. MSHA encourages all Americans to follow state and federal guidance on safe practices.” 

Tracking Exposure

The first documented case of COVID-19 in a coal mine came from Pennsylvania. The Pittsburgh Post-Gazette reported at least two miners were infected with the disease in a Consol Energy mine that straddles the Pennsylvania-West Virginia border. Realizing contact tracing among hundreds of mine workers and their family members would be unfeasible, mine operators said they would close the facility for two weeks. 

Consol voluntarily reported the cases to MSHA, the Post-Gazette reported. But MSHA said it is not currently tracking coronavirus cases in the nation’s mines. 

Neither is the West Virginia Office of Mine Health Safety and Training. In a statement, a spokesperson for the OMHST said, “The agency encourages all employees to limit exposure, and otherwise functions at full capacity with office staff working remotely. The agency can only enforce the code under which it operates. There remains nothing in code that would extend the agency’s jurisdiction to public health. As a result, it has no authority to provide guidelines or mandate procedures related to pandemic response.”

West Virginia’s Department of Health and Human Resources also said it is not tracking coronavirus in the state’s coal mines. A spokesperson for the Kentucky Department of Natural Resources said in a statement, “While there have been no positive tests that we know of due to the coronavirus, either with miners or inspectors, we have distributed gloves, face masks and hand sanitizer to each mine safety specialist and have instructed them to observe social distancing. If during a mine inspection improper social distancing is observed, the inspector advises mine personnel on proper procedure and brings this to the attention of mine supervisors. Failure to comply after being brought to mine management could result in a violation being issued.”

Black Lung 

“The coal company you work for does not care how you feel, they one only care how much coal you put out,” miner Bobby Stevens of Smilax, Kentucky, told me over Facebook Messenger. Stevens worked underground for 11 years before being laid off in the high-profile bankruptcy of Blackjewel last summer. He took another mining job but was again laid off by Perry County Coal. “And then you even got these older guys who have lung problems and possibly black lung who are still underground working, and you would think these companies would know that those men are in great danger considering the virus attacks your respiratory system.”

Stevens is referring to the occupational disease that, after decades of declining rates, has reared back up to epidemic levels in the Appalachian coal fields. Epidemiologists at the National Institute for Occupational Safety and Health estimate one in five experienced Appalachian coal miners has some degree of black lung. 

Advanced stages of black lung disease can disable miners. That’s what happened to Arvin Hanshaw, 63, of Nicholas County, West Virginia. Hanshaw left the industry in 2012 because of his lung disease. “With my lungs in the situation they are now, I wouldn’t be able to fight the infection off.”

Before the coronavirus, Hanshaw received treatment for his black lung at a respiratory clinic in nearby Scarbro. The clinic specializes in helping disabled coal miners adapt to their new limitations and breathe as normally as possible. But the clinic closed its doors temporarily to protect its vulnerable patients. Hanshaw feels the difference. 

“It’s going to be really hard to find out actually how many people with the disease in the ICU or how many people who pass away have the underlying condition of black lung,” said Pikeville, Kentucky, radiologist and black lung researcher Dr. Brandon Crum. Crum raised the alarm about black lung rates in 2015 when he noticed rates of the illness at his clinic that were far higher than official data would suggest.

Crum has been calling all 300 of his complicated black lung patients — those with the most severe forms of the disease — to make sure they have the masks, gloves and social support they need to stay safe.

In Letcher County, Courtney Rhoades, a black lung association organizer with the Appalachian Citizens’ Law Center, has set up a phone tree to reach out to disabled miners. “We’ve been getting a lot of calls from people who are really struggling with food, so we’ve been trying to get them set up with Meals on Wheels and things like that.” 

The pandemic hit when the coal industry was already in sharp decline.  Several companies declared bankruptcy in 2019, and according to notices about mass layoffs filed with state agencies in Kentucky and West Virginia, the coronavirus has already spurred more to close temporarily or for good. 

The industry trade group National Mining Association asked Congress and the White House in March for relief from fees that go toward health care for black lung victims and environmental cleanup on abandoned mine sites. The NMA’s requests have not yet been acknowledged.

This post has been updated to include a statement from the Kentucky Energy and Environment Cabinet.

UMWA Wants More Coronavirus Protection For Coal Miners Thursday, Mar 26 2020 

The United Mine Workers of America is asking federal regulators to set uniform, enforceable guidelines to help protect coal miners from contracting COVID-19.

In a letter dated Tuesday, March 24, UMWA President Cecil Roberts wrote to the Mine Safety and Health Administration requesting the agency issue a “safeguard” or “emergency standard” that would require coal mine operators to take actions to protect miners from the coronavirus.

Union officials are requesting operators obtain N-95 respirators, set procedures for disinfecting equipment between shifts, provide extra personal protective equipment and create disinfectant strategies for bathhouses and other communal gathering places.

“While these are certainly difficult times for all workers, it is especially challenging for workers who are unable to work from home and have valid concerns about their health and safety and that of their loved ones,” Roberts said in the letter. “Our miners work in close proximity to one another from the time they arrive at the mine site. They get dressed, travel down the elevator together, ride in the same man trip, work in confined spaces, breathe the same air, operate the same equipment, and use the same shower facilities.”

UMWA spokesperson Phil Smith said while some mines are voluntarily taking precautions to protect workers, the efforts are not uniform across the industry. He said many coal miners suffer from impaired lung function due to exposure to coal and silica dust and may be more vulnerable to the coronavirus. In addition, he said many mines and miners are located in rural communities, which have less access to medical care and have faced high levels of hospital closures over the past decade.

“There’s no consistency out there,” Smith said in a phone interview. “Even among the same companies [and] mines operated by the same companies. There’s certainly no consistency with mines where we do not represent the workers.”

If MSHA issues an “emergency standard” requiring mine operators to implement coronavirus precautionary measures,  mine inspectors could issue citations if operators are found out of compliance.

A spokesperson for the agency did not immediately respond to a request for comment.

Black Lung Benefits Drop For Kentucky Coal Miners After Controversial Law Change  Monday, Feb 24 2020 

Lynn Estel Stanley was the kind of coal mine foreman who wanted to know if there was a safety problem, and would always be the one to go fix it himself. He was also the kind of miner who refused to slow down, even when his men told him he was overexerting himself. But when he was 69, his doctor told him it was time to stop for good.

Stanley wasn’t surprised. He knew he was getting sick. “It kept getting progressively worse and harder to breathe to the point where I just couldn’t do my job, I didn’t have enough oxygen,” he said.

He had watched coal-miner relatives die of black lung, a form of lung disease caused by breathing in coal and rock dust. Particulates lodge in the lungs, causing the tissue to harden and restrict the amount of oxygen that can enter the bloodstream.

Stanley also knew that if he could prove to a judge that he had the disease, he would be entitled to financial benefits.

Sydney Boles | Ohio Valley ReSource

Lynn Stanley, left, is caught up in changes to the law that may make it more difficult for him to win black lung benefits. On right, his attorney Tom Moak.

So he got a chest X-ray, and was diagnosed with progressive massive fibrosis, the most serious form of black lung disease, by a radiologist named Brandon Crum. Over the next few months, three more physicians would tell Stanley he had a serious case of the disease.

But in court, none of that would matter.

As the epidemic of black lung disease continues in Appalachian coal country, Stanley is one of many Kentucky miners caught up in changes to state law limiting who can diagnose black lung.

Two years ago, Kentucky lawmakers made a controversial change to the rules for black lung benefits. Now, state records show that since that change, the percentage of Kentucky miners diagnosed by state-approved experts as having the disease fell from 54 percent before the law change to just 26 percent. An analysis of state data by the Ohio Valley ReSource also suggests that the doctors now making decisions on claims more often side with coal companies than with coal miners.

For Stanley that change means that the opinion of one pulmonologist will hold more weight than three other physicians, potentially costing him benefits he’ll need to live with his disease.

A Difficult Diagnosis

In order to be awarded benefits for black lung in Kentucky, a miner or a family member of a miner applies for benefits with the state’s Labor Cabinet. The application includes a blood gas analysis indicating breathing impairment, and an X-ray demonstrating that the impairment is caused at least in part by black lung disease. Pulmonologists typically perform the blood gas study, and radiologists typically diagnose the disease by reading the X-ray.

Alexandra Kanik | Ohio Valley ReSource

Once the claim is filed, the miner’s most recent employer’s insurance company can request to have an X-ray read by a physician of their choosing, and the judge overseeing the case can require a third reading from a “designated evaluator,” whose analysis is presumed to be correct unless there is overwhelming evidence to the contrary.

In 2018 Kentucky lawmakers overhauled many aspects of the state’s workers’ compensation system in legislation known as House Bill 2. One provision of that bill prevented radiologists, whose expertise is in analyzing X-rays, from serving as designated evaluators in state claims, and said only certain pulmonologists could serve in that role. Only two pulmonologists in the state opted to serve in the new system: Dr. Bruce Broudy and Dr. Byron Westerfield. Both have reputations for being more sympathetic to industry.

The designated evaluator who read Stanley’s X-ray, Dr. Broudy of the Lexington Clinic, disagreed with the three other physicians involved in Stanley’s case. Dr. Broudy said the miner had a simpler form of the disease, and would therefore be entitled to less money.

“Unfortunately, that’s not uncommon in these cases,” said Tom Moak, a Prestonsburg attorney representing Stanley in his benefits case. “Somebody like Dr. Broudy, who has a history of working for coal companies, generally is considered more conservative. He almost always finds that somebody doesn’t have any black lung, or has one of the lower levels of black lung.”

Data from Kentucky’s Department of Workers’ Claims showed that taken together, Drs. Broudy and Westerfield disagreed with the initial diagnosis in 85.5 percent of cases they examined. Both pulmonologists declined to be interviewed for this story.

Dr. Broudy told Moak in a recent deposition that in his 40 years of work in black lung cases, 90 to 95 percent of the time he had been working for coal companies or their insurance firms.

The changes to state law have not resulted in a backlog of cases, as opponents had feared. But state records indicate that the restrictions have had an impact on the share of miners who win their claims. The ReSource found that 161 benefits claims were filed but only 16 coal miners were awarded black lung benefits in 2019. That’s the lowest ratio of claims awarded to claims dismissed in the past seven years. (It is important to note, though, that not all claims are resolved in the same calendar year in which they’re filed.)

Physicians’ Protest

Black lung disease can be difficult to diagnose because it can manifest in a number of different ways, said Virginia-based radiologist Kathy DePonte, a nationally recognized expert in diagnosing black lung. “But you can look at the radiograph and, with enough experience, make a fairly confident diagnosis.”

DePonte looks for what are called opacities on the X-ray. “What’s the size, shape, density of those opacities? Are they symmetric, are they asymmetric?” Multiple small opacities may masquerade as one large one; thinning edges of an opacity may make it appear smaller than it really is. Black lung is easy to misdiagnose as other diseases because it can look so many different ways in an image.

“When you’re looking at a radiograph, it’s what do you expect to see, what do you want to see,” DePonte said.

The combination of the skill it takes to look for a “polar bear in a snow storm” and the perspective an individual reader takes toward black lung means that over time, physicians develop a reputation for reading more or less liberally. But with the right training, DePonte said, both pulmonologists and radiologists can and do adequately diagnose black lung.

DePonte was baffled by Kentucky lawmakers’ decision in 2018 to block radiologists from reading X-rays. “My first thought is maybe it was a political decision.”

Introduced by state Rep. Adam Koenig, a Kenton Co. Republican, the black lung provisions in HB 2 made Kentucky the only state to prevent radiologists from reading X-rays in state claims.

Republican state Sen. Phillip Wheeler, a lawyer who represents black lung claimants, alleged the bill was intended to limit the number of miners who won benefits. He referred to the new law as the “Brandon Crum Exclusion Bill.”

A radiologist based in Pikeville, Crum is certified by the National Institute for Occupational Safety and Health to diagnose black lung. In 2016, Crum alerted researchers at NIOSH to the extraordinary levels of complicated black lung, or PMF, he was identifying in his clinic. He later worked with NIOSH on a 2016 study confirming a cluster of black lung in central Appalachian coal communities. Follow-up research found that one in five experienced central Appalachian coal miners would develop some form of the disease.

The law change came at a time when struggling coal companies were laying off a record number of workers and when more miners were applying for and winning benefits in state cases. The bill had strong support from the coal industry, including Kentucky’s Coal Association.

“What we’ve seen is a more accurate diagnosis and treatment plan post-House Bill 2,” Coal Association President Tyler White said. “A lung specialist should be diagnosing lung issues. Not radiologists.”

The professional associations for both pulmonologists and radiologists disavowed the provision in the 2018 law and have called for its repeal. Speaking on behalf of the American Thoracic Society, which represents over 1,500 pulmonologists, Dr. Robert Cohen of the University of Illinois at Chicago told NPR in 2018 that the Kentucky law was “ill-considered” and a “disservice to miners.”

An Uphill Battle 

The issue has caught the attention of Kentucky state Rep. Angie Hatton, a Democrat who represents Letcher Co. in eastern Kentucky. Hatton has introduced a bill in the 2020 legislative session that would essentially undo the provision that excluded Crum, DePonte and other radiologists.

The bill has the support of Kentucky Gov. Andy Beshear, a Democrat, who has called attention to the geographic challenges posed by the restrictions in the 2018 law. “Almost all of our coal miners live in western and eastern Kentucky — the two sides of our state. But in order to get the diagnosis they need to receive treatment for a very difficult disease, guess where they have to go? To Lexington or to Louisville. I think that’s wrong,” Beshear said.

Sydney Boles | Ohio Valley ReSource

Kentucky Gov. Andy Beshear voiced his support for reform of the black lung law at a February 14 event in Pikeville.

Sen. Wheeler has suggested he may introduce a similar bill in the Senate, but only if Hatton’s bill does well in the House. And that depends on the chair of the House Economic Development & Workforce Investment Committee, Rep. Russell Webber, Republican of Shepherdsville.

“I have spoken with Chairman Webber and with the sponsor of the original reform bill, Representative Koenig. I am presenting them with more evidence every time I speak with them, gathering evidence from the miners themselves, from the health care facilities here, and from the Department of Workers’ Claims,” Hatton said. “And I think that once I give them enough evidence, that they’re going to give me a hearing.”

Rep. Webber has not indicated he will bring Hatton’s bill up for a hearing.

The road ahead looks difficult for coal miner Lynn Stanley, too. He may be working with attorney Tom Moak for years as his state and federal black lung claims wind through parallel systems. (According to the U.S. Department of Labor, 32 percent of Kentucky miners who file black lung claims win benefits in the federal system.) If he wins his case, the insurance company representing his most recent employer might appeal, which could drag the case on even longer.

But Stanley is patient, and he’s understanding.

“I’m not putting the coal companies down, I realize they’re in a fight for survival right now,” he said. But, he added, “If they harm an individual and that individual can prove that he has been harmed by that dust, then he should be compensated for it.”

Scientists, Mine Safety Officials Discuss Black Lung Protections Wednesday, Feb 5 2020 

Officials with the Mine Safety and Health Administration met for the first time with miners’ health researchers Wednesday in a new partnership designed to discuss ways to better protect coal miners from the dust that causes black lung disease. In future meetings, representatives from the two agencies will discuss recommendations made by the National Academy of Sciences in a 2018 report on monitoring underground coal dust exposure. That report said the coal mining industry needs a “fundamental shift” in the way it controls exposure to coal and rock dust.

“A common theme that occurred throughout the National Academy recommendation is the need for an industry, labor, academia, manufacturers and government to work together on an investigation, training and solution related to respirable coal mine exposure,” said MSHA Director of Office of Standards, Regulations, and Variances Sheila McConnell. “This partnership comes directly from those recommendations.” 

The meeting comes as researchers with the National Institute for Occupational Safety and Health, or NIOSH, continue to track epidemic-levels of black lung disease among coal miners; as many as one in five experienced Appalachian coal miners has some form of the disease. But collaboration between the scientists and the regulators has been tense. Scientists with NIOSH have been encouraging MSHA to regulate silica dust for almost 50 years, while MSHA has resisted those recommendations. 

MSHA head David Zatezelo has been reluctant to embrace the science on silica’s toxicity, saying his agency would need to wait to determine the effects of a 2014 coal dust rule. That rule strengthened protections on overall coal dust exposure but did not specifically regulate dust from silica. That wait could last at least a decade.

“Due to the decades-long latency period between exposure and disease manifestation, a medically valid study cannot be completed in the near term,” Zatezelo told a Congressional panel in June. “But MSHA anticipates the study will confirm that dramatic increases in sampling and compliance translate into reduced black lung incidence going forward.”

NIOSH has continued to release research demonstrating more severe cases of black lung disease among younger miners and showing that miners at surface sites are also at risk of disease. 

Study Shows Surface Coal Miners Are Exposed To Toxic Dust That Causes Black Lung Tuesday, Dec 10 2019 

Appalachian surface coal miners are consistently overexposed to toxic silica dust, according to new research from the National Institute for Occupational Safety and Health, and surface mine dust contains more silica than does dust in underground coal mines. 

The research released Tuesday is the first to specifically analyze long-term data on exposure to toxic silica dust for workers at surface mines. The work reveals that while attention has been trained on a surge in disease among underground coal miners, surface miners are similarly at risk of contracting coal worker’s pneumoconiosis, or black lung disease. 

Black lung disease has been identified in coal miners in every coal-mining state at both surface and underground mines. NIOSH researchers were specifically interested in surface miners’ exposure because those mines produce the most coal and, in 2017, twice as many miners worked at surface mines compared to underground mines. 

Researchers analyzed 54,040 coal dust samples taken on surface mines between 1982 and 2017 to determine the percent of that coal dust that was silica, and found that the level of silica was above the permissible limit in 15 percent of those samples. Silica dust comes from quartz in the rock layers near coal seams, and it is significantly more harmful to lung tissue than coal dust alone. 

“The exposure to coal mine dust declined over time,” said lead researcher and industrial hygienist Brent Doney. “However … when you look at the percentage of silica that was in those samples, that didn’t drop.” 

After decades of successful reduction in black lung disease through safety controls in coal mines, black lung disease has been on the rise among coal miners for the last two decades. Central Appalachia has seen a marked increase in the most severe form of black lung, known as progressive massive fibrosis. A recent investigation from NPR and PBS Frontline found that federal regulators and the mining industry knew that exposure to silica dust was a major factor contributing to the surge in disease but failed to act to protect miners’ health. 

The surge in disease is putting strain on the already-indebted federal Black Lung Disability Trust Fund, and as younger miners become disabled due to black lung, the strain on Appalachian mining communities continues to grow. 

“Unfortunately, I’m not sure this is a particularly novel finding,” NIOSH epidemiologist Scott Laney said. “The evidence is very clear. We know that silica and mine dust are toxic, and we have the technology to suppress it, and yet coal miners are still exposed to way too much of it. So from a public health perspective, there’s ample evidence to suggest that further safeguards are necessary.”

The federal Mine Safety and Health Administration, which regulates coal mining, issued in August a request for information to determine whether additional regulation of silica was necessary, and if so, how best to proceed. Some critics of the administration argued the move was too little given what is already known about silica’s role in disease. 

 

MSHA Comment Period Shows Divide On Measures To Protect Miners Health Monday, Nov 25 2019 

The comment period has closed for the Mine Safety and Health Administration’s proposed rule on respirable silica, a major contributor to skyrocketing rates of lung disease among coal miners. The 49 relevant comments included a striking testimony from an anonymous coal miner sharing details of the ways in which current mine operators cheat on dust monitoring protocols.

MSHA issued the request for comment following an NPR/PBS Frontline investigation that found the agency had failed to adequately protect miners despite knowing that silica dust was contributing to an epidemic of black lung disease. Silica is a component of coal mine dust, and is released when miners cut into rock layers surrounding seams of coal. Particulates lodge in miners’ lungs for the rest of their lives, hardening lung tissue and preventing them from getting enough oxygen. 

The miner submitted testimony through the Appalachian Citizens Law Center, which withheld the miner’s name out of concern for the safety of his job. The miner said he worked underground for eight years before getting an MSHA dust sampling certification in 2017. 

I only did the dust sampling for a few months because the mine I was working for appeared to be violating the rules so much that I was afraid they would get caught and I would be held responsible,” the miner wrote.

“I learned that the company would hang the CPDMs in the intake air,” the miner continued. 

CPDMs refer to Continuous Personal Dust Monitors, devices designed to be worn by miners and to report real-time dust levels. Hanging the device in the flow of clean air would trigger its motion sensor, tricking the device into recording that a miner was wearing it while working while ensuring it only tracked clean air. 

“This letter reflects what a lot of miners tell me when they come to me for black lung evaluations,” said Dr. Robert Cohen, director of the Mining Education and Research Center at the University of Illinois at Chicago. “They often report that they could get in trouble if they turned in what they called a bad sample, that they were told to or encouraged to make sure their dust samples did not exceed the exposure limits.” 

In its request for comment, MSHA said it would consider stronger environmental controls and a lower exposure limit, but it also suggested it was open to the use of personal protective equipment, or PPE, such as airstream helmets, which miners say are too bulky and uncomfortable for frequent use. 

“A lot of the mines buy what they want and they’re big and uncomfortable,” wrote commenter John Ormsbee, who identified himself as a current miner, speaking of the challenges of using personal protective equipment to meet silica standards. “Most make your glasses fog up and create a bigger hazard.”

Cohen submitted a comment on behalf of the American Thoracic Society, which supports a separately enforceable silica standard. “PPE is an unreliable method of controlling dust exposure,” Cohen said. “It makes no sense that we would allow PPE and therefore have less stringent air control requirements That would be a huge disservice, and it would go against our hierarchy of controls and our understanding of industrial hygiene that’s been in place for generations.”

The National Mining Association did not submit a comment, but has previously supported increased use of PPE. 

The Appalachian Citizens Law Center and the United Mine Workers of America both urged MSHA to adopt an emergency temporary standard to reflect the urgent need to address dust exposure for working miners. 

Industry groups in associated fields, such as the Portland Cement Association and the National Stone, Sand and Gravel Association urged MSHA to regulate coal mining separately from other industries that also expose workers to respirable silica.

Roughly 20 percent of experienced Appalachian coal miners have some form of black lung disease. The National Institute for Occupational Safety and Health says that nation-wide, rates of black lung are higher than they’ve been since record-keeping began in the 1970s.

Black Lung Trust Fund Likely Burdened by Murray Bankruptcy Wednesday, Nov 20 2019 

The recent bankruptcy of Murray Energy is likely to significantly increase the debt of a struggling federal trust fund that supports disabled miners’ health care expenses. 

According to court filings, Murray Energy could be responsible for as much as $155 million under the Black Lung Act and general workers’ compensation, but testimony from the Government Accountability Office shows that the company only offered $1.1 million in collateral to the Black Lung Disability Trust Fund. That means the struggling fund will likely have to take on at least some of that liability. 

The federal fund was established in 1978 to provide monthly stipends and health care coverage for miners disabled by black lung, a preventable and progressive workplace disease. The fund, which is supported by a per-ton tax on coal companies, currently covers expenses for some 25,000 miners and their dependents, and is expected to be $15 billion in debt by 2050. Last year, Congress failed to extend a higher per-ton tax rate, increasing the strain on the fund. 

A spokesperson for Senate Majority Leader Mitch McConnell of Kentucky said in an email to the ReSource, “While the temporary, higher tax expired last year, current benefits for our impacted miners and their families have been maintained. Senator McConnell will continue to ensure these important benefits are maintained. Additionally he will continue working on the many ways to help coal miners and the clinics that serve them across Kentucky.”

If the fund becomes insolvent, it may be bailed out by the Treasury’s general fund, effectively transferring the burden of caring for disabled miners from the industry that caused the illnesses to American taxpayers. 

“History shows that miners and their families will be forced to pay the price in the form of reduced eligibility for benefits if Congress allows the Black Lung Disability Trust Fund to sink deeper into debt,” Rep. Bobby Scott, chairman of the House Ed and Labor committee, said in a hearing this summer. Given the recent rise in the most severe form of black lung disease, Congress must take action to secure future benefits and health care for disabled miners.” 

A spokesperson for Murray Energy did not respond to a request for comment for this article, but in court filings, newly appointed Chief Executive Officer of Holdings Robert Moore said, “Although Murray has been able to outlast many of its competitors, mounting debt and legacy liability expenses have become too heavy of a burden to sustain under current industry conditions.”

According to recent testimony from the Government Accountability Office, there were 22 self-insured active coal operators as of June 2019. Only 10 of those had provided estimates for their total unfunded liability to the trust fund — that is, the potential debt that could be transferred to the federal government if the company filed for bankruptcy.

“An estimated black lung liability of over $310 million has been transferred to the trust fund from insolvent coal operators,” said GAO Director of Education, Workforce and Income Security Cindy Brown Barnes. “In addition to those liabilities being transferred, there’s also the beneficiaries that have come along with that. There’s been over 1500 beneficiaries that have been transferred to the trust fund as a result of the companies that we looked at from 2014 to 2016.” 

Brown Barnes could not confirm how much, if any, liability from Murray Energy would be transferred to the fund.  

“Just because a company is bankrupt, it doesn’t necessarily mean that the liabilities are going to be transferred to the trust fund,” Brown Barnes cautioned. “There’s one liability at the time of bankruptcy and then another liability that gets transferred to the fund. It’s not a one-to-one.”

A report further detailing that unfunded liability, and its implications for the solvency of the trust fund, is expected early next year. 

A Larger Pattern

As of October 29, Murray reported approximately $2.7 billion in funded debt and over $8 billion in actual or potential legacy liability obligations under pension and benefit plans, including the black lung trust fund. As Murray’s numerous secured creditors vie to recoup as much of their debts as they can, it is likely that there won’t be money left over to pay back environmental, retiree and health care debts. 

“When you have this pattern of a large company spinning off its least productive assets and loading those assets with obligations that it obviously doesn’t want to pay, it seems to look like it’s a strategy,” said Josh Macey, an assistant visiting professor at Cornell University. 

Macey is a co-author of a recent article in the Stanford Law Review titled, “Bankruptcy as Bailout: Coal Company Insolvency and the Erosion of Federal Law.” In that paper, Macey and his co-author found that since 2012, four of the nation’s largest coal producers used bankruptcy to discharge roughly $3.2 billion in retiree benefits and $1.9 billion in environmental debts, as well as $5.2 billion in other regulatory obligations. Those numbers were current as of April 2019, before the high-profile bankruptcies of Blackjewel, Blackhawk, and Murray Energy. 

Macey said Murray took a slightly different tack than other companies in similar positions. Rather than spinning off unprofitable assets into new companies that were designed to fail, Macey said, “Murray went about snatching [assets] up at a pretty frenzied pace, because it was able to in that way pledge more assets as collateral and give its own creditors tons and tons of collateral that ensured they, too, would be paid before miners and the environment.”

New Kentucky Memorial Honors Miners Who Died Of Black Lung Sunday, Oct 13 2019 

bl memorialCoal miners and family members of miners who have died from black lung disease gathered Sunday in Whitesburg, Kentucky, to dedicate a new memorial to miners who perished from the workplace disease. 

While Appalachian coal country has several memorials to mining disasters, this is believed to be the first memorial to remember the thousands of men and women who have died from black lung.

Sydney Boles | Ohio Valley ReSource

A dedication service for the new black lung memorial in Whitesburg, KY.

The engraved black stone memorial stands at Riverside Park in Whitesburg and will list the names of some 200 Letcher County coal miners who died of the disease.

William McCool was the first person to suggest the memorial after his father died of the disease.  

“You know, let’s give these men the honor they deserve. Let’s not forget them,” he said.

The total number of coal miners who have died from the disease is unknown, but the Department of Labor says more than a thousand coal miners die of black lung each year. Black lung cases are surging in the Ohio Valley, and health officials say about one in five experienced miners in central Appalachian has some form of the disease. 

Sydney Boles | Ohio Valley ReSource

The memorial lists hundreds of local miners who have died from black lung.

Experts say the epidemic is getting worse because miners are working in thinner seams of coal, and are exposed to higher levels of silica, or quartz dust, from the surrounding rock layers, which is more toxic than coal dust alone. 

McCool also suffers from black lung. He expects his name will be on the stone memorial one day, too.

“It would be a blessing to be with them boys,” he said.

Coal Miners To Hit Capitol Hill For Black Lung Funding  Monday, Jul 22 2019 

Dozens of Appalachian coal miners plan to visit Capitol Hill Tuesday to ask lawmakers to bolster funding for the black lung disability trust fund, which miners depend upon when no responsible company can be identified to pay for needed health care. 

The fund is already billions of dollars in debt, and that will likely grow as more miners develop the disease and coal companies pay less into the fund. Coal companies pay a tax to support the trust fund, which pays monthly income and health benefits for miners who were disabled by the preventable and deadly occupational disease. 

The tax rate was increased in 1981 to pay down the fund’s debts and in 2008 that tax rate was extended for another 10 years. But Congress allowed the tax rate to expire last year and companies now pay about half as much per ton of coal. 

Now the trust fund’s debt is expected to rise from $4 billion to $15 billion by 2050. 

Over 25,000 miners and their dependents rely on the fund for monthly income and health benefits. Demand is expected to grow as diagnoses of severe forms of the disease skyrocket, particularly among Appalachian miners. 

Barry Johnson is planning to make the trip to Washington. A fourth-generation coal miner, he  takes great pride in his decades of hard work underground. Johnson has a serious form of black lung disease called progressive massive fibrosis.

Sydney Boles | Ohio Valley ReSource

Disabled miner Barry Johnson wears an oxygen tube to assist breathing.

He carries a portable oxygen tank, though he tries to use it as little as possible so his lungs don’t get used to the help. “I have good days and bad days,” he said, gazing at the collection of hardhats on his mantelpiece. “Today is a bad day.” 

Johnson used to enjoy spending time in the woods hunting for ginseng. Now he struggles with daily tasks. “It doesn’t only take your health. It takes your identity.” 

Travelling isn’t easy for the disabled miner, but he says the long trip to Washington D.C. is worth it. Johnson worries that if Congress doesn’t act, the fund could no longer be able to make its payments, or would need to be bailed out by taxpayers. 

Industry Woes

Despite favorable policies from the Trump administration, the coal industry has continued to struggle amid high-profile bankruptcies and the closure of more coal-fired power plants. 

“This is an industry that is still working hard to stabilize after years of decline – now is clearly not the time to raise taxes on the coal industry,” said National Mining Association spokesperson Ashley Burke. “Doing so would further disadvantage coal against competing energy sources.”

Alexandra Kanik | Ohio Valley ReSource

Black lung activists say Senate Majority Leader Mitch McConnell of Kentucky could have preserved the trust fund tax rate before it expired last year. Indeed, he suggested to the Ohio Valley ReSource in October that he would do so. 

McConnell’s staff members say the issue is a concern for him.

“Even though the temporary tax increase expired last year, current benefits for our impacted miners and their families have remained at prior levels,” said McConnell spokesperson Stephanie Penn. “Senator McConnell and his staff have been working closely with interested parties regarding future funding for the program, and will continue to ensure these important benefits are maintained.”

McConnell’s office says he’s agreed to speak with the visiting miners. Miner Barry Johnson knows exactly what he wants to say.

“You have a duty and an obligation,” he said. “Do what’s right.” 

Potential Action

Brandon Crum, a Kentucky-based radiologist who first sounded the alarm about the epidemic, said last month that the past six months have been the worst of his career, as cases of severe black lung disease pile up. 

brandon-mackie-2Howard Berkes, NPR

Mackie Branham views a lung X-ray with Dr. James Brandon Crum, who was among the first physicians to note an uptick in black lung diagnoses.

An NPR and PBS Frontline investigation found that the surge in disease, which is significantly focused on central Appalachia, is largely the result of a failure by the federal Mine Safety and Health Administration to regulate silica dust, which is prevalent in the rock surrounding Appalachian coal seams. 

Congress is paying attention. A House Education and Labor subcommittee in June considered whether MSHA had taken silica exposure risk seriously enough.