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NPR and the Center for Public Integrity (CPI) have learned that the Mine Safety and Health Administration (MSHA) and the Labor Department are putting together a team of agency experts and lawyers to specifically consider how to bolster coal mine dust enforcement given the statutory and regulatory weaknesses detailed by NPR and CPI this week in stories about the resurgence of black lung.
The effort includes discussion of how the agency might be more aggressive in filing civil and criminal actions against mining companies that violate coal mine dust standards, according to an internal Labor Department communication obtained by NPR.
Black lung is the disease that steals the breath of coal miners and is both incurable and irreversible in later stages. It is caused by inhalation of excessive coal mine dust.
An NPR and CPI investigation found that the disease has spiked in the last decade, especially in portions of Kentucky, West Virginia and Virginia. NPR and CPI documented weak enforcement by federal regulators and cheating by mining companies involving the system that is supposed to limit exposure to coal mine dust.
From 1980 through 2002, the Justice Department successfully prosecuted close to 200 mining company managers and contractors for falsifying mine dust compliance samples, according to federal records obtained by CPI and NPR.
But MSHA says there have been no convictions since then. The agency declines to say whether there have been any attempted prosecutions since 2002.
Between 2000 and 2011, MSHA issued a relatively small number of coal mine dust violations despite thousands of samples with excessive dust. MSHA data obtained by CPI and NPR show that 53,000 valid samples contained more dust than standards permit but the agency issued less than 2,400 violations.
MSHA also says that since 2009, 14 mining company officials and contractors were "decertified" by the agency in response to problems with mine dust sampling.
"We have to get these people with consequences so high they won't do it," says Larry Grayson, a mine safety and health expert at Penn State University who has studied mine dust enforcement.
Grayson says the new MSHA initiative might help "if the consequences for those who are caught are serious enough to send a clarion call to others with a penchant to disregard good mining practices and regulations."
MSHA did not respond specifically to questions about the mine dust enforcement discussions.
"It is obvious more needs to be done," says MSHA spokeswoman Amy Louviere. "We're carefully reviewing the issues that were raised by NPR and CPI, and are committed to taking whatever actions are necessary to end black lung disease."
MSHA has proposed significant changes in coal mine dust enforcement, but the proposal does not do away with the kind of self-policing that some mining companies have abused.
The MSHA proposal has been stalled by House Republicans, who requested a review of the research documenting the resurgence of black lung. The Government Accountability Office expects to issue a report sometime next month.
"We can't get the level of scrutiny and the mindset of Congress to do something that will really work," Grayson says, noting that cheating by mining companies was first exposed by the Louisville Courier Journal in a series of stories in 1998.
"There was outrage for a while, but, as always happens, it subsided and again nothing was done to solve the problem of cheating on samples," Grayson recalls.
Rep. George Miller, D-Calif., the senior minority member of the House Education and the Workforce Committee, says "inaction should not be an option."
"Republicans should be working with Democrats to clear the bureaucratic hurdles so that long overdue protections can be finalized," Miller added.
Workforce Committee Chairman John Kline, R-Minn., has not responded to the NPR/CPI investigation.
Other congressional response has not included any specific calls for action, including congressional hearings.
Sen. Jay Rockefeller, D-W.Va., chairs the Senate Committee on Commerce, Science and Transportation and could presumably call for hearings. In a statement, Rockefeller says, "I have talked with MSHA about its proposed rule to reduce miner exposure and I intend to push hard to make sure that reforms are made and implemented."
The Senate Labor Committee has clear jurisdiction over workplace safety issues. In a statement, committee chairman Tom Harkin, D-Iowa, says nothing about hearings or new action.
"These groundbreaking reports should be a call to action for everyone connected to the mining industry," Harkin says, endorsing the "important steps" taken to date by MSHA and the Labor Department.
"We need to strengthen our safety and health laws, no doubt, but we also need a change in the culture of this industry, so that shirking the law is no longer tolerated, and no operator is permitted to put profits over miners' lives," Harkin adds.
In a statement in the Charleston Gazette, Rep. Nick Rahall, D-W.Va., recounted his efforts to address black lung issues in the past, including a 2010 bill with reforms "I fought to include ... that requires the secretary of labor to promulgate regulations to ensure that coal operators provide miners with 'the maximum feasible protection from respirable dust, including coal and silica dust, that is achievable through environmental controls.' "
That legislation failed to get through Congress in 2010, when Democrats were in the majority in both the House and the Senate. Congressional Republicans were blamed for blocking action on the measure, as reporter Ken Ward noted at the time in the Charleston Gazette's Coal Tattoo blog.
Ward reports today that Booth Goodwin, the U.S. Attorney in West Virginia investigating the 2010 Upper Big Branch coal mine explosion, is examining potential criminal violations involving fraudulent dust sampling.
Goodwin told Ward, "Without going into detail, I can say we've been aware for some time of alleged improprieties in respirable dust sampling, and that's an area that would be of interest in our investigation."
Grayson is not hopeful that meaningful change will result, despite 70,000 deaths blamed on black lung since 1970 and $45 billion in compensation paid by industry and government.
"Unfortunately, the root cause ... is not something that new regulations will likely solve, considering the historical and political way we do them," Grayson says. "I wish I am wrong, but history shows I am not."
Update at 7:35 p.m. ET. Common Ground To Improve Health:
Late Friday, Congressman John Kline (R-MN), chairman of the House Committee on Education and the Workforce, issued a statement. Kline's committee has direct jurisdiction over coal mine issues. The full text is here. Kline said, in part:
"I urge [assistant secretary of labor Joe] Main to bring together all interested parties in a renewed effort to find common ground that will improve the health of miners and reduce the risk of this deadly disease."