A career coal miner, Howard was headed to the posh hotel to testify at a public hearing held by the federal Mine Safety and Health Administration (MSHA), a regulatory arm of the U.S. Department of Labor. Howard bore a reputation throughout much of Kentucky coal country as a stubborn and fearless whistleblower, and just about any miner in the area who hadn’t already heard his name would hear it by the following morning. [...]

Over the course of his journeyman’s career, Howard has worked in more than forty mines, most of them south of Harlan and Letcher counties, and he and Oppegard have filed around 10 MSHA complaints with the help of Oppegard’s colleagues, Stephen Sanders and Wes Addington of the Appalachian Citizens’ Law Center, a public-interest law group in Whitesburg. Howard’s career has coincided with the decline of unions in mining and other American industries, so he generally has no one but his lawyers behind him when he takes on his employer.

“Scott is extremely rare,” says Celeste Monforton, a former MSHA official who’s investigated the mining disasters at Sago and Upper Big Branch. “It takes a certain level of social consciousness to recognize the power struggle between a worker and an employer.”

The mining community in Letcher County certainly recognizes the power struggle, as well as the risks Howard takes in entering it. Howard’s wife, Susie, said she occasionally gets stopped at the supermarket by other miners’ wives who quietly thank them for his latest spat.

From the Courier Journal, State tries to explain deal on fines in coal pollution trial:

Kentucky environmental regulators on Wednesday were forced to explain in Franklin Circuit Court how they came up with fines of $670,000 for two coal companies instead of $720 million as calculated by environmental groups.

From the Ashland Daily Independent, Clean Water Act hearing begins:

It took threats by environmentalists to sue coal companies operating in Kentucky for state regulators to realize the industry was polluting Kentucky waterways.

That’s what Bruce Scott, Kentucky’s commissioner of Environmental Protection, said Wednesday during testimony at a hearing in Franklin Circuit Court challenging an agreement between the state and Frasure Creek Mining and ICG over violations of the Clean Water Act.

“There’s no question there were a lot of issues centered around the water,” Scott said in response to questions by Mary Cromer, the attorney for a coalition of environmental groups who claim the proposed settlement is inadequate to discourage future violations.

BY:  Bill Estep, Lexington Herald Leader

The Sierra Club has sued a coal company, alleging environmental violations at a large surface mine in Leslie County.

The lawsuit charges that ICG Hazard LLC has discharged selenium and other pollutants into creeks near the Thunder Ridge mine in violation of federal law, state standards and its own permit conditions.

The complaint seeks several remedies, including orders for the mine to stop discharges that violate clean-water standards, and install adequate treatment facilities. It also seeks penalties of up to $37,500 per day per violation against the company.

Mary Varson Cromer, an attorney with the Appalachian Citizens’ Law Center in Whitesburg, filed the suit for the Sierra Club Tuesday in U.S. District Court in London.

Read more: http://www.kentucky.com/2011/05/24/1751774/sierra-club-accuses-coal-company.html#ixzz1NT1AmWRf

For a copy of the Complaint: 2011-05-24 Complaint

The Act was response to the tragic disability and early deaths of miners who had developed crippling lung disease.  Miners could not protect themselves from the insidious harm caused by the minute particles of respirable dust they were exposed to as they worked, and history had shown that the coal mining industry would not adopt a sufficiently protective dust standard on its own.

Coal Workers Pneumoconiosis [CWP] is caused by the inhalation of minute dust particles and the subsequent formation of macules and nodules, with  scarring and destruction of the lung tissue. In some individuals CWP results in large areas of destroyed lung tissue which is called progressive massive fibrosis. CWP is an irreversible and progressive lung disease.

Miners may also develop chronic obstructive pulmonary disease [COPD] due to coal mine dust exposure.  COPD causes irritation and damage to the airways and it may cause emphysema, even where there is no x-ray evidence of nodule formation indicative of CWP. Both coal workers’ pneumoconiosis and COPD due to coal mine dust exposure are commonly called black lung.  Black lung causes severe shortness of breath and sensations of smothering.

Under the Mine Act the Secretary of Labor, through the Mine Safety and Health Administration (MSHA), must promulgate standards to assure that miners won’t suffer a material impairment of health even if exposed to a hazard their whole working life. The purpose of the law is “to provide, to the greatest extent possible, that working conditions in each underground mine are sufficiently free of respirable coal mine dust concentrations in the mine atmosphere to permit a miner to work underground during his entire working life without incurring any disability from pneumoconiosis or other occupation-related disease.” 30 USC 841(b).    In the 1969 Coal Mine Act and in the 1977 Federal Mine Safety Act Congress stated that the first priority of the coal industry must be the health and safety of the coal miner.  Congress created MSHA to protect miners’ health and safety.

To protect miners from Black Lung, the Mine Act created a scheme requiring MSHA to reduce the level of respirable dust so that miners did not develop pneumoconiosis.  The Mine Act requires the Secretary to “set standards which most adequately assure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standard for the period of his working life.” 30 U.S.C. § 811(a)(6).

For many years the dust standard was 2.0 mg/m3.  Extensive medical research has shown that this standard is not adequate to protect the respiratory system and the health of coal miners.  The National Institute of Occupational Safety and Health  [NIOSH], issued a Criteria Document in 1995, established this level should be 1.0 mg/m3, average concentration for up to 10 hours per day during a 40-hour workweek.  Moreover, NIOSH recommended that MSHA use single, full-shift samples to determine compliance with the exposure limit and that no upward adjustment in the limit be made to account for measurement uncertainties.

In 1999 MSHA stated in the Federal Register: “Respirable coal mine dust is one of the most serious occupational hazards in the mining industry. Long-term exposure to excessive levels of respirable coal mine dust can cause black lung and silicosis, which are both potentially disabling and can cause death.”  (64 FR 21519-01, 1999 WL 543989 (F.R.) UNIFIED AGENDA, April 26, 1999, OCCUPATIONAL EXPOSURE TO COAL MINE DUST (LOWERING EXPOSURE LIMIT)).  While MSHA recognized the hazard, it did not act to reduce the level of respirable dust.

The uncontroverted evidence establishes that there is an unacceptable risk of black lung posed by the current respirable dust standards. NIOSH regularly reviews x-rays to determine whether miners have CWP.  In the past 5 years, NIOSH reports show that miners have developed CWP at a greater rate than was previously believed true.  NIOSH reported that a study in 2006 of 85 working coal miners in Letcher County, Kentucky found 12% had x-ray evidence of CWP; 1% had PMF; 7% had chronic bronchitis and 5% had emphysema.  A study of 68 miners in neighboring Knott County, Kentucky found 15% had x-ray evidence of CWP; 1% had PMF; 9% had chronic bronchitis and 7% had emphysema. In September 2007, Dr. Lee Petsonk, who worked on the NIOSH study, reported that the rate of CWP had more than doubled among miners who worked 25 years or more underground, from about 4 percent in 1997 to 9 percent in 2006. The rate among miners with 20 to 24 years’ experience jumped even more, from 2.5 percent to 6 percent.  This data shows that MSHA needs to reduce the level of exposure to respirable dust to protect miners from lung disease.

Using claims data through the end of 2009, a review of claims for black lung benefits filed with the Division of Coal Mine Workers’ Compensation (DCMWC) since its revised regulations went into effect in January 2001 confirms that the number of cases of Progressive Massive Fibrosis among miners too young to have been in the mines prior to passage of the Federal coal mine health and safety legislation in late December 1969 has continued to increase.  Of the 610 claims in which the most recent decision reflects the presence of PMF nearly one-third or 199 of those claims involve miners born in 1952 or later.

The traditional view that PMF was primarily a disease of anthracite miners in northeast Pennsylvania and rarely seen in bituminous miners elsewhere in the United States is not supported by the DCMWC data.  The table below reflects that the PMF cases are now overwhelmingly concentrated in southern Appalachia (southern West Virginia, southwestern Virginia, eastern Kentucky and Tennessee).  As one would expect, most of the younger miner PMF cases (129 of the 199) involve miners born in the five years 1952 through 1956 who entered the workforce when the newly enacted Federal dust control standards were being phased in during the first half of the l970s.  Despite the implementation of that legislation which was intended to make it possible to work a lifetime in the coal mines without contracting a disabling respiratory disease, another 70 miners born between 1957 and 1966 have also been found to have contracted PMF.

The chart below lists the five states where miners with PMF last worked in the coal mining industry.  The first number is the total number of PMF cases which arose in that state.  The second number in parentheses is the number of PMF cases involving miners born in 1952 or later.  The percentage figure reflects the percentage of PMF cases which involved those younger miners.

West Virginia   232  (60)  25.9%

Kentucky         178  (85)  47.8%

Virginia            107  (42)  39.3%

Pennsylvania     40    (4)  10.0%

Tennessee        17    (5)   29.4%

Subtotal          574  (196)  34.1%

National Total  610  (199)  32.6%

According to a recent NIOSH study published by the American Thoracic Society’s American Journal of Respiratory and Critical Care Medicine, emphysema severity was significantly elevated in coal miners compared to non-miners,.  Lead author and senior NIOSH scientist Eileen Kuempel said:  Based on our findings, exposure to respirable coal mine dust for a full working lifetime at the current 2 mg/m3 standard would increase the emphysema severity index by 99 points on average. This provides additional evidence of the need to reduce dust exposures to 1 mg/m3 or less as NIOSH has recommended.

The method of measuring dust has long been a source of concern.  Do the measurements accurately reflect the working environment where the miner works, or are the measurements made only when the level of production is low and the environmental controls are in full compliance?  Using the Continuous Personal Dust Monitor will enable the miner to be sure that he is not exposed to excessive amounts of harmful dust; and the data can be reviewed by safety officials to ensure that dust levels throughout the whole shift are maintained at or below the legal limits.

More must be done to protect miners from black lung disease.  MSHA’s proposed rule is needed badly.  Too many miners are still working in too much dust and getting black lung.  The proposed integrated regulatory approach is a strategy with the potential to end black lung disease.

We recommend that MSHA also make individual miners part of the solution by empowering them to fight black lung.  MSHA should mandate that all miners be fully educated on the harm caused by exposure to respirable dust.  This education should be a part of the initial miner training and a part of annual retraining.  Miners should be strongly encouraged to use the information provided by the CPDM to protect themselves and other miners.  They should be encouraged to have x-rays made regularly and to transfer to a job in a less dusty place if the x-ray shows that they are developing CWP. The training should emphasize that miners have rights under Section 105(c) to be free from discrimination or harassment for insisting on their a work place that controls dust as required by law

MSHA should act as speedily as possible.  MSHA needs to prevent young miners from getting black lung.  These young miners think that black lung will not be a problem for them. They do not realize the danger working in coal mine dust.  The harm from the dust is invisible and the disease progresses slowly.  It gradually causes harm to the lungs and respiratory system.  After the miner stops work and exposure to coal mine dust ends, black lung continues to cause injury and eventually it causes the miner to experience constant shortness of breath and not be able to climb a flight of stairs or walk a short distance on level ground.  The cost to the individual miner and his family is heartbreaking agony.

The cost to society for medical care for the sick miner and compensation benefits for the miner and his family is staggering.  In Fiscal Year 2010 the cost of the benefits paid to miners and widows through the Federal Black Lung Benefits Program exceeded $280 million.

We encourage MSHA to proceed as quickly as possible to finalize the proposed regulations.

Under the new rules MSHA will post searchable compliance information on its website, along with its pattern of violations criteria.  This access to information is intended to promote transparency and encourage mine operators to better monitor their own compliance history and discover and address recurring safety issues. 

In addition, MSHA will run pattern of violations reports twice per year to indentify mines with recurring safety violations.  Based on these reports, MSHA will determine whether a pattern exists.  Absent a finding of mitigating circumstances, a pattern demonstrated by the report would automatically trigger MSHA enforcement procedures requiring a withdrawal order until the violation is abated.

MSHA stated that it would consider mitigating circumstances in determining whether to institute the pattern of violations process because it recognizes that in some circumstances repeated violations might be beyond the operator’s control.  Examples of such repeat violations include those that result from a change in a mine’s ownership or control.  In such circumstances, MSHA said that it would consider whether the mine is showing a trend of significant improvement.  In addition, MSHA said it would consider proactive measure mine operators are taking to bring the mine into compliance.  In this way, the new process will encourage mine operators to work with the agency to ensure compliance and avoid the full pattern of violations process. 

The new rule is a change from the previous rule in a number of ways.  In particular, in the past MSHA could only determine whether a pattern of violations had occurred based on final orders.  Final orders are often not issued until years after the violation occurred because the violations are often the subject of lengthy appeals.  The appeals process has allowed dangerous patterns to continue for years before the proper enforcement procedures could be triggered.

MSHA is accepting comments on the new rule until April 1, 2011.  The new rule and instructions for submitting comments are found here: MSHA POV Proposed Rule

The U.S. Department of Labor’s Mine Safety and Health Administration (MSHA) has proposed regulations to lower miner’s exposure to coal mine dust by reducing the legal dust limit and by requiring the use of Continuous Personal Dust Monitors to measure airborne dust.

According to MSHA, the proposed rule would significantly improve health protections for coal miners by reducing their exposure to respirable coal mine dust and lowering the risk that they will suffer from Black Lung Disease. Under the proposal, the legal limit on coal dust in underground mines — currently 2.0 milligrams per cubic meter of air — would be reduced to 1.7 milligrams six months after the rule is finalized. The limit would be tightened to 1.5 milligrams in a year and then to 1.0 milligrams a year after that.  The Continuous Personal Dust Monitor records all of the data and the data can be retrieved later by MSHA to determine whether the mine is complying with the dust limits.  The device is worn by the individual miner and it is capable of continually measuring the airborne dust in the area where the miner is working.

As part of the process of changing the regulation MSHA will hold a public hearing at the Jenny Wiley State Resort Park near Prestonsburg, KY on February 10, 2011, beginning at 9:00 a.m. The hearing is open to the public: anyone who is interested in Black Lung disease and coal mine health and safety is encouraged to attend and to comment on the proposed regulation.  The deadline for submitting written comments to MSHA is February 28, 2011.  Written comments must be clearly

identified with ‘‘RIN 1219–AB64’’ and may be sent by any of the following methods:

Email: zzMSHAcomments@dol.gov. Include ‘‘RIN 1219–AB64’’ in the subject line of the message.

Facsimile: 202–693–9441. Include ‘‘RIN 1219–AB64’’ in the subject line of the message.

Regular Mail: MSHA, Office of Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209–3939.

The proposed rule is available at http://www.msha.gov/REGS/FEDREG/PROPOSED/2010Prop/2010-25249.pdf

If you would like more information about the proposed rule or the public hearing, please contact Steve or Wes at the Law Center.

The number of violations by the state’s own reports is staggering.  By its own count, the Cabinet found 1245 violations at 64 of ICG’s mines and 1520 violations at 39 Frasure Creek mines.  The complete failure of the Cabinet to even notice that for two and a half years, many of these mines were not even bothering to turn in Clean Water Act monitoring reports is particularly shocking. 

The Cabinet is attempting to quickly settle with the coal companies under two proposed Consent Judgments filed with the Franklin Circuit Court.  Franklin Circuit Court Judge Phillip Shepherd has ordered that the Cabinet allow the public 30 days to comment on the judgments. 

Directions for commenting on the proposed judgments are found at the Cabinet’s website:  http://eec.ky.gov/Pages/default.aspx.

The Cabinet posted the two proposed consent judments, but did not post the Complaints or Notices of Violation on which they are based.  Those are found here:

Frasure_Creek_complaint_and_Consent_Judgment

Frasure_Creek_Mining_Exhibits

ICG_Complaint_and_Consent_Judgment

ICG_Exhibits

The coal company sued KFTC and the state, arguing that the state did not have the authority to restrict mining in that way and arguing that, even if the state had the authority, there was insufficient evidence to support the conditions placed on future mining. 

Judge Wingate disagreed, pointing out that many of the conditions the state is now requiring on Wilson Creek are already required by the law.  With regard to the potential for flooding, Judge Wingate notes that “common sense alone should put one on notice that serious flooding problems could ensue in an area which was previously 81% forested and was not reforested post-mining.” 

Judge Wingate’s decision is an important affirmation of the Lands Unsuitable for Mining process, which itself is an important part of the Surface Mining Control and Reclamation Act of 1977 (“SMCRA”).  As Congress stated in 1977:

“The process for designation of lands as unsuitable for surface coal mining is …premised on the notion that successful management of surface mining depends, in large part, on the application of rational planning principles.  While coal surface mining may be an important and productive use of land, it also involves certain hazards and is but one of may alternative land uses.  In some circumstances, therefore, coal surface mining should give way to competing uses of higher benefit.”

 Judge Wingate’s decision can be found here:  2010-09-10 Franklin Circuit Court Opinion and Order