A coal yard in Norton, Va. (Sarah Vogelsong/Virginia Mercury)
Proposed federal rules to bring the amount of silica to which coal and mineral miners can be exposed on the job in line with standards for other occupations are poised to provide protections for workers after years of urging by medical and black lung organizations.
But while those groups have hailed the change as a long-overdue step that could help curb Central Appalachia’s sharpest rise in cases of the most severe type of black lung in decades, many of their members say the proposal lacks meaningful enforcement measures and relies too heavily on mining companies to conduct testing.
“The current proposal states that you are relying on mine operators to collect their own baseline samples and to conduct periodic sampling if exposures are above the action threshold,” said Dr. Drew Harris, medical director of the Black Lung Program at Stone Mountain Health Services in Lee County, during a hearing on the proposal held by the Mine Safety and Health Administration (MSHA) in Arlington Aug. 3. “I cannot believe that relying on the current system of depending on mine operator dust sampling and scheduled MSHA inspection is going to end the current black lung epidemic.”
MSHA Deputy Assistant Secretary for Operations Pat Silvey pushed back, saying that “in appropriate cases” the federal agency takes action against mine operators violating federal rules. Furthermore, she said, “Anybody in this room knows this who represents mine operators: All our inspections are unannounced.”
While Harris conceded the agency has prosecuted some operators, he said reports of “dishonest or dangerous practices” from patients at his facility, Virginia’s only federally funded black lung clinic, are “rampant.”
“It is far underappreciated how often this is happening,” he said, adding: “I appreciate that your inspections are unannounced, but it is curious to me how our patients describe to me how ventilation changes the day before the inspections happen. … Somewhere in the process, someone is aware that this is happening.”
Silica dust is a byproduct of both coal and non-coal mining, produced when workers cut or drill through minerals like quartz. When inhaled over time, it causes severe respiratory diseases such as lung cancer, emphysema, silicosis and coal worker’s pneumoconiosis, more commonly known as black lung. Each of these, MSHA notes, is “chronic, irreversible, and potentially disabling or fatal.”
Between roughly 1968 and the turn of the millennium, rates of the most severe and advanced form of black lung, progressive massive fibrosis, fell. But in 2014, researchers detected a sharp uptick in PMF among coal miners in Virginia, West Virginia and Kentucky. Further studies have confirmed soaring rates of black lung among Central Appalachian miners, many of whom reach advanced stages of the disease earlier than doctors recorded in prior decades.
“Coal miners in central Appalachia are disproportionately affected with as many as 1 in 5 having evidence of black lung — the highest level recorded in 25 years,” the National Institute for Occupational Safety and Health (NIOSH), an agency within the U.S. Centers for Disease Control and Prevention, noted in 2018.
The uptick is evident in mining areas, some residents say.
“Now you’re seeing these guys in their 30s,” said Vonda Robinson, vice president of the National Black Lung Association and a resident of Nickelsville in Virginia’s Scott County whose husband was diagnosed with black lung eight years ago. “They still have small children at home.”
One former Virginia miner, who suffers from black lung after 37 years in the industry and asked not to be identified, said he believes many miners have long contracted black lung earlier than reported. He said, many avoid chest X-rays and other forms of detection for fear of losing high-paying work until they are older and ready to transition out of the field.
“Most people wait until they quit work,” he said.
Silica exposure may be higher in Central Appalachia now because many of the easily accessible big seams of coal have been mined out, requiring workers to cut far more rock to access deposits, he hypothesized.
“You can tell after so many years you start to breathe a little heavier and are slowing down,” he said.
Differing exposure limits
For years, the federal government has set different standards for how much silica exposure is allowed for miners and people working in other occupations. In 2016, the Occupational Safety and Health Administration, OSHA, set a permissible exposure limit of 50 micrograms per cubic meter of air for workers in non-mining sectors like construction, maritime and general industry. The 50 microgram limit had previously been recommended by NIOSH.
The Mine Safety and Health Administration, however, stuck with its decades-old standard of 100 micrograms per cubic meter. The administration’s lack of action came despite a January 2010 letter from Deputy Assistant Secretary for Policy Gregory Wagner stating that MSHA intended to publish a proposed silica standard for miners by April 2011.
In 2020, an audit by the U.S. Department of Labor Office of Inspector General found MSHA’s silica exposure limit was “out of date,” its sampling “may be too infrequent” and it is unable to cite and fine operators solely on the basis of exposures.
“A significant body of evidence shows that lowering the silica limit would be a major factor in preventing coal workers’ deaths and illnesses caused by silica exposure,” the audit found. “Even though MSHA has known its silica limit did not align with current scientific recommended limits, it continued to maintain essentially the same limit established in the 1960s.”
This June, the administration released a proposed rule that would not only lower the silica exposure limit to the 50 micrograms in place for other sectors but also set that limit separate from rules imposed for coal dust and require far more frequent three-month sampling.
The National Mining Association doesn’t oppose the 50 microgram exposure limit, said Paul Krivokuca, the group’s vice president of health and safety, at the Arlington hearing this August. But like other industry representatives, Krivokuca said mine operators need more time than a 45-day public comment period to analyze the new rules.
“The issues raised in this proposed rule are very complex,” he told MSHA officials. “The current comment period is simply insufficient to provide meaningful comment.”
Industry members also raised concerns about whether the testing infrastructure exists to support the administration’s more demanding sampling schedule.
“Based on MSHA’s assessment of how many samples will need to be analyzed, the labs will not be able to handle the increase in sampling demand,” said attorney and mining engineer Michael Peelish. Hunter Prillaman of the National Lime Association questioned “whether there is sufficient laboratory and testing consultant availability to perform so much baseline testing shortly after the effective date of the final rule.”
One particularly thorny point for several industry groups was MSHA’s decision to only allow operators to rely on respirators to meet exposure limits on a temporary rather than permanent basis.
“OSHA provides for the use of respirators for compliance purposes,” said Peelish. “If it’s good for OSHA, then why not for MSHA?”
Miners’ groups like the United Mine Workers of America have argued respirators are ill suited for long-term use in the harsh and demanding environment of mines and can seriously hamper communication in dangerous underground settings where workers must be aware of risks like roof falls.
“Even appropriate use of personal protective equipment poses many challenges for miners, who often work in extreme conditions,” said Gary Ewart, a spokesman for the American Thoracic Society, a medical group that focuses on lung and respiratory health. Engineering controls, he said, “are the best and preferred method of controlling miner exposure to silica dust.”
Harris, of the Stone Mountain clinic, also pushed back against the idea of using respirators on a more permanent basis, saying that in his view, the equipment “should not even be a temporary solution.” Because MSHA’s rule does not define how long “temporary” use of respirators can last, he said, operators could potentially sidestep needed controls for months.
The sharpest criticisms of the new standards, however, have focused on their reliance on mine operators to conduct the sampling that will serve as the basis for assessments of worker safety.
“Why come out with such a good rule and not have the enforcement?” Robinson asked. Allowing companies rather than inspectors to spearhead testing, she added, “is really a slap in the face.”
At the Arlington hearing, Matt Stewart, a certified industrial hygienist who also works for a mine operator and serves on NIOSH’s Mine Safety Health and Research Advisory Committee, said operators he knows “do not cheat.”
“I’m sure there are examples of mine operators who do, so for the record, the mine operators I know, the mine I work for would find that offensive,” he said.
But Ewart during his comments said numerous doctors who treat miners with lung diseases besides Harris have reported stories “describing how mine operators intentionally take and report dust samples that explicitly mask actual exposure levels, including placing monitors in front of air vents, collecting dust samples on non-typical days like when dust producing machinery is not in operation and conducting dust monitoring samples for outdoor mine operations on days with heavy rain.”
“The [American Thoracic Society] cannot independently verify these claims of dust sampling manipulation, nor do we know how widespread these practices might be,” he said, “but they do demonstrate how vulnerable the system of dust sampling and reporting is to manipulation.”
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