Impact: Labor Department assembling expert team on mine dust enforcement after CPI-NPR investigation

Federal regulators are assembling a team of lawyers and other experts to consider how to bolster coal mine dust enforcement given systemic weaknesses revealed by an investigation into the resurgence of black lung by the Center for Public Integrity and NPR, according to an internal Labor Department communication.

The effort, involving officials from the Mine Safety and Health Administration (MSHA) and other offices within the Labor Department, includes discussion of how regulators might be more aggressive in filing civil and criminal cases against mining companies that violate dust standards, the communication says.

The investigation by the Center and NPR documented a recent increase in cases of deadly coal workers’ pneumoconiosis, commonly known as black lung. It highlighted rampant cheating on dust sampling by coal companies, rules riddled with loopholes and weak enforcement.

Black lung was supposed to have been eradicated after a 1969 law forced coal companies to control the amount of dust miners breathe. After declining from the 1970s through the mid-1990s, the disease has reappeared, in part because of flaws in MSHA regulations. The agency proposed a rule in 2010 that would close some loopholes but leave much of the dust sampling in the hands of coal companies, preserving a self-policing system critics and government panels have recommended eliminating for years.

MSHA spokeswoman Amy Louviere wouldn’t discuss specific plans by the agency but said: “[I]t is obvious more needs to be done. 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.”

In interviews, many retired miners, some of whom worked as recently as 2008, described placing dust-sampling pumps in relatively clean air rather than on miners working near the coal face, where the pumps were supposed to be.  Similar practices have been described by miners testifying in recent court cases.

Even when federal inspectors conduct sampling, companies are allowed to mine at half of their normal production pace, generating far less dust. Many miners described receiving advance warning that an inspector was coming, giving them time to improve ventilation and clean up work sites.

From 2000 to 2011, more than 53,000 valid samples indicated that miners were exposed to excessive levels of dust, but MSHA issued just under 2,400 violations during that time, a Center analysis found. The disparity is likely attributable in part to rules that allow five samples to be averaged, negating some miners’ high exposures.

Between 1980 and 2002, there were 185 criminal convictions or guilty pleas of companies or mine officials for dust sampling fraud, according to MSHA data.  But the agency said it had no records of criminal convictions or guilty pleas since 2002 and wouldn't say whether any criminal cases had been pursued. Since 2009, the agency noted, it has decertified 14 mine officials, removing their authority to conduct dust samples.

Several members of Congress have issued statements in response to the Center-NPR investigation.

“These groundbreaking reports should be a call to action for everyone connected to the mining industry,” said Sen. Tom Harkin, an Iowa Democrat. “I think the Department of Labor … is taking important steps to help break this deadly cycle, and I believe that it is the moral obligation of everyone in the industry and every political leader that represents hardworking miners to help make these reforms a reality.”

Rep. George Miller, a California Democrat, said: “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.”

House Republicans inserted language in a recent budget bill that would bar MSHA from implementing its proposed coal mine dust rule until the Government Accountability Office has evaluated the need for it – an assessment that may be finished in August.

A coal miner performs a lung function test in a mobile clinic run by the National Institute for Occupational Safety and Health (NIOSH) in Norton, Va. David Deal/NPR