LABOR THE GREAT COAL DUST SCAM
By Robert Weissman SAYING THAT MANY COAL operators had demonstrated a virtual "addiction to cheating" on coal dust sampling tests, U.S. Secretary of Labor Lynn Martin announced on April 4, 1991 that more than one third of the underground mines in the United States had tampered with coal dust samples submitted to the Department's Mine Safety and Health Adminstration (MSHA). On June 20, the Department of Labor imposed civil fines of more than $6.5 million against approximately 500 operators of 785 coal mines for tampering with coal dust submissions. The fines were the largest aggregate sum assessed in the history of the MSHA. The April announcement and June fines followed a 20-month Department of Labor investigation into coal dust sampling fraud. The investigation was sparked by an MSHA technician's discovery that a sampling cassette had been tampered with. MSHA discovered that many of the cassettes submitted to it by mine operators-- required to demonstrate compliance with federal regulations which prohibit miners from being exposed to coal dust levels greater than 2 milligrams per cubic meter of air per shift-- exhibited what are known as "all white centers" or "abnormal white centers" (AWCs). The AWCs resulted from vacuuming or blowing into filters which are enclosed in the small sampling cassettes. MSHA weighs the cassettes to determine how much dust they have collected, but it does not normally disassemble them, so operators could hope that the AWCs would not be detected. MSHA's investigation led to an initial finding of tampering and other abuses of the sampling system by the largest U.S. coal operator, Peabody Coal. In January 1991, Peabody pled guilty to three criminal counts of tampering with dust samples and agreed to pay a $500,000 fine. MSHA's examination of filters showed that Peabody's practices were widespread in the industry. The civil fines it lodged in June ranged between $1,000 and $2,000 per violation, except for 12 fines of $10,000. The $10,000 fines were assessed in instances where mine operators had tampered with samples measuring coal dust exposures of miners who have experienced the onset of black lung (a deadly disease caused by breathing coal dust) and are entitled by law to work in areas with low dust levels to prevent their condition from worsening. The largest total fines proposed by MSHA were against mines controlled by Du Pont's Consolidated Coal Corp ($777,200), Rochester and Pittsburgh Coal Co. ($740,400), AMAX Inc. ($225,500), Occidental Petroleum ($186,800), Ziegler Coal Holding Co. ($175,000), Walter Industries Inc. ($151,600), Pennsylvania Power and Light Co ($141,100), MAPCO Inc. ($123,200), Arch Mineral ($123,200), British Petroleum ($120,800), Sun Co. ($100,800) and Bethlehem Steel ($91,600). The Department of Labor's declaration that coal mine operators have been breaking the law on a massive scale has led some national attention to be focused on an industry whose activities normally remain below the surface of the nation's consciousness. Three congressional committees have held hearings on the matter, and at least two U.S. attorney's offices are investigating coal mine operators for possible criminal wrongdoing. Meanwhile, the coal companies and the coal miners' union and advocates are struggling to shape the debate about what miners are calling the "Great Coal Dust Scam." The companies are contesting the Labor Department's charges, claiming they are based on unsound evidence. The United Mine Workers of America (UMWA) has denounced both the coal operators' disregard for miners' health and structural flaws in MSHA's coal monitoring system which it says invites tampering and other fraud. Deadly air Breathing coal mine dust is deadly. It impairs the functioning of the lungs, creating a shortage of breath which causes even the simplest of tasks, such as climbing stairs, to become difficult and painful. Continuous exposure to coal dust can cause a number of fatal lung diseases, including Coal Worker's Pneumoconiosis (CWP), known as black lung, bronchitis and emphysema. The longer miners are exposed to dust and the more dust they inhale, the more likely they are to develop black lung. "The prevalence of CWP increases with increasing dust exposure," according to Dr. J. Donald Millar, director of the National Institute for Occupational Safety and Health (NIOSH). Thus the tampering, if it enabled mine operators to operate mines with higher levels of dust present, threatened the miners' future health. The Labor Department, despite its strong condemnation of the tampering, has resisted acknowledging the potential harm done to miners' health. At her April 4 press conference, Maffin asserted that MSHA discovered the tampering at its beginning stages and that the agency acted before any health effects would have been caused. "We hope and believe that there will be no specific, long-term problems because we did what we're supposed to be doing. And there is no evidence thus far that there is any," she said. But J. Davitt McAteer, executive director of the Occupational Safety and Health Law Center, calls such claims "bullshit" He says that there is no reason to believe the tampering began in February 1989, the time when MSHA discovered it, especially since the agency has used robots to read the vast majority of samples. He argues that widespread "tampering effectively undermines the credibility of the entire dust sampling" process, making it impossible for analysts to know how much dust miners were exposed to and for how long--and consequently how dangerous the exposure was. The operator's response: we will be vindicated Accused of widespread law-breaking and threatening the lives of miners, the coal industry has tried to respond as aggressively as possible to the Department of Labor's tampering charges. The National Coal Association (NCA), the coal industry trade association, said in a statement that it was "shocked and appalled at the 'addiction to cheat' allegation." It attacked the Department of Labor for announcing that it was issuing citations without first discussing the citations or the issue of tampering with the industry. Richard Lawson, president of the NCA, told the House Subcommittee on Health and Safety on April 15 that "our industry was tried and found guilty without any disclosure of the crime and evidence," adding, "we firmly believe that our industry will be vindicated." Many individual firms denied the charges and said they intended to challenge the MSHA's findings. A statement from Consolidation Coal, for example, said, "We reject the allegation by the government that Consol tampered with respirable dust samples and we intend to challenge the citations." The NCA has consistently offered two responses to the tampering charges. First, it argues that MSHA's investigations are not conclusive. "Our position is that we don't know" if tampering took place, says John Grasser, assistant vice president and director of media relations at the NCA. "There may be tampering, or there may not be tampering." The association explains its uncertainty by pointing out that AWCs can be caused by dropping or rough handling of the cassettes which contain the filters. Second, the trade group has called for an independent study of the AWC phenomenon and the entire dust-sampling system. "We think there needs to be a third-party analysis and investigation" says Grasser, echoing a call the NCA has made for a year and which it reiterated on April 4. The NCA says that it proposed such a study as soon as it heard rumors that MSHA had identified "irregularities" in dust samples and expresses anger that its willingness to work with the government has been ignored. The evidence, however, does not strongly support the NCA's claims that the large-scale incidence of AWCs could have been caused by anything other than tampering. Martin defended the department's findings at an August 1 hearing of the Senate Subcommittee on Labor, Health and Human Services, Education and Related Agencies. "We have not undertaken any enforcement actions hastily or without full awareness of the impact of our actions. The evidence is there," she said. "We took care to be as certain as we could possibly be that what we call abnormal white centers resulted from tampering and nothing else." The fact that the charges were levelled by the habitually pro- business Bush administration makes them even more credible. The cassettes have been subjected to an internal MSHA study and an independent investigation by the University of West Virginia. The university study confirmed that the AWCs which MSHA said indicated tampering could only be caused by tampering. The AWCs created by dropping the cassettes had a noticeably different appearance. Also supporting the government's claims are changes over time in the number of cassettes submitted with AWCs. Once MSHA determined that the AWCs were caused by tampering, it stopped accepting cassettes with them as valid dust samples, and it required mine operators who submitted cassettes with AWCs to submit new samples. According to Martin, the number of tampered cassettes submitted dropped after this policy was put into place. Another drop in the submission of tampered cassettes occurred after the January 1991 announcement that Peabody Coal had pled guilty to tampering with its dust samples. The miners' response: structural flaws While the miners' union and advocates have applauded MSHA's enforcement actions in the tampering case, they condemn the dust sampling system as beyond redemption. UMWA President Richard Trumka says, "This is a program that is so structurally flawed that no amount of enforcement can correct it." Similarly, McAteer asserts, "The whole system has to be scrapped." The tampering discovered by MSHA is just one of many ways mine operators disguise the actual levels of dust in mines, according to the UMWA. Joseph Main, administrator of the UMWA's Department of Occupational Health and Safety, says that "blowing dust out is just one of dozens upon dozens of ways" to conceal dust levels. Other methods include: reassigning miners who are carrying the sampling units to less dusty areas; reducing the level of production when dust levels are being monitored; and measuring dust levels for only part of a shift. When Peabody Coal pled guilty in January, it acknowledged not only tampering with the dust samples but also taking some measurements outside of its mines. Miners and their advocates have long complained about the sampling system. In his April testimony before the House Subcommittee on Health and Safety, McAteer cited his own 1978 testimony to MSHA, offered when the agency modified the dust sampling system. He said then, "The area sampling technique as proposed will allow complete company control of the monitoring program and provide no designed-in protection against illegal or fraudulent actions on the part of recalcitrant operators." A 1982 study by NIOSH, according to McAteer, determined that the sampling error in MSHA's coal mine dust monitoring system was too great to meet NIOSH's accuracy standards. The UMWA's Main notes that there have been a number of cases of sampling fraud prior to the current citations, including Peabody in 1982 (convicted of 13 felony counts) and Westmoreland's Winding Gulf Division in 1980 (convicted of one felony and three misdemeanors). "There is no doubt," Trumka said at the August 1 hearing, "that other forms of sampling manipulations have been going on for over a decade." The basic problem with the dust sampling system, according to the miners, is that samples are taken by the mine operators. Since citations are issued on the basis of the samples, the operators have an interest in reporting dust levels as low as possible. Main says this kind of self-monitoring is like having the fox guard the henhouse." The operator's primary concern with citations is not the burden of the accompanying fines, but demands from MSHA that dust problems be corrected. As Martin explained to the House Subcommittee on Health and Safety in April, "Mine operators know that if the dust levels are too high, they will have to make changes to correct the problems, which may cost time and money." The problem is worsening with the introduction of new technology. "Newer, faster continuous and longwall mining machines are producing more coal more quickly. They chew up coal dust and spew it into the mine environment faster than operators are controlling it," Trumka testified. The fundamentally bad dust monitoring system deteriorated even further in the 1980s due to the unwillingness of the Reagan and Bush administrations to enforce safety laws, miners charge. At the August 1 hearing, Trumka stated, "In the early 1980s, [MSHA's] attitude toward enforcement of health and safety laws changed. MSHA personnel were instructed to be more cooperative and less adversarial with mine operators." As one manifestation of its new attitude, MSHA set a new minimum fine of $20.00 for safety violations. "Agency personnel got the message to back off enforcement," Trumka said. "From 1980 to 1983 fines for violations of the law plummeted from $19.5 million to $6.4 million. The number of citations and orders dropped." Prospect for reform The coal dust scandal opened up debate over the sampling system, enabling the miners to inject their structural criticisms which were ignored throughout the 1980s. They have put forward two primary proposals--both opposed by the mine operators--to address what they view as the fundamental flaws with the current procedures. First, the sampling process must be taken out of the operators' hands, with MSHA and the miners themselves assuming control. "To clean up the sampling process, MSHA must take responsibility for obtaining the dust samples. Coal miners themselves should have the right to monitor the sampling at every step," says Trumka. The industry, however, objects to such proposals. In offering "basic principles" for reforming the system, the NCA's Lawson told the Senate hearing in August that "the system should avoid any nonproductive featherbedding--'walk around' pay by the employer for watching dust pumps." Second, the miners call on MSHA to undertake steps to develop a continuous monitoring system. McAteer says there must be a "permanent monitoring system where essentially you have a box that reads dust and reads it now." This would make it possible to halt mining when dust levels exceeded safe levels; in contrast, the current system identifies high dust levels long after miners have been exposed to them. The technology for a permanent system does not yet exist, but researchers say they are close to developing one. As with direct miner participation, however, the NCA's "basic principles" contradict this proposal. "Compliance determinations should not be based on instantaneous readings or single shift samples," Lawson argues. "A series of 8-hour shift samples is essential for accuracy and consistency with industrial hygiene concepts." Operators oppose a permanent and instantaneous system, says McAteer, because they know mines get "spikes" where dust levels may rise as high as 15 milligrams, and that miners would demand production stopped if they had evidence of the dust levels. Adapting to such a system, he acknowledges, would take mines a couple of years and would "disrupt production," but he argues that the industry should be forced to bear the cost to ensure the safety of its workers. As something of a counter-proposal, the NCA asks that MSHA allow the use of airstream helmets that filter the air which miners breathe. This would relieve operators from having to control the atmosphere. McAteer says there are some problems with the helmets--they are not very comfortable and they fog with humidity--but that the fundamental problem is that the operators' call for helmet use would allow them to continue mining in an unhealthy way. Helmet use would shift the burden for health and safety from the operators to individual miners despite the fact that mining's health risks are systemic. "That's not the answer to the dust problem," he says. "The answer is to keep dust down." It is not clear how MSHA will respond to the very different approaches suggested by the miners and the companies. A similar debate over controlling and monitoring dust took place in the late 1970s, and the miners made exactly the same proposals they are making now. MSHA was somewhat responsive, but the issue was shunted aside by the incoming Reagan administration. MSHA has already announced one change. It will require the use of tamper-resistant sampling cassettes that will prevent dust from being flushed or dislodged. Both the UMWA and the NCA have supported this change. Incredibly, tamper-resistant cassettes have been available since the early 1980s, but MSHA did not require operators to use them. Martin has established a task force composed of MSHA professionals to examine the dust monitoring system and study the options advocated by the miners. The stakes are very high for miners awaiting the task force's recommendations. Recent studies indicate that the 2 milligram dust level standard is not sufficiently stringent to eliminate black lung, and more stringent dust regulations will put an even greater strain on the dust monitoring system than now exists. McAteer expresses skepticism about the task force, saying he is "fearful that the committee will fine tune a bankrupt system." The UMWA's Main is more hopeful. He thinks people in government have realized that "the cost [of black lung] at the back end may be much higher than to stop it at the front end," since the federal government provides benefits to miners disabled by black lung. The UMWA, he says, is operating with the "total conviction that [it is] not going to let what happened in 1980 happen this time around."