Advocates urge Congress, MSHA to do more for miners with black lung and guard against the disease

Vonda Johnson of Nickelsville, Virginia, watched her husband give up the mining career he loved when he was diagnosed with black lung at 47 years old in 2013.

Now Hairston and Johnson are president and vice president of the National Black Lung Association and have noticed a disturbing escalation in the disease’s prevalence among younger mine workers, leaving miners in their 30s and 40s with scarring in their lungs caused by coal dust exposure that will impair their ability to breathe the rest of their lives.

“For the last at least 10 to 15 years, I mean, we’re in an epidemic with this,” Johnson says. “And they’re getting younger.”

What’s gotten old, Hairston, Johnson and other mine worker advocates say, is federal regulators and lawmakers not doing enough to protect miners on the job and take care of them after their lungs have been scarred.

A webinar presented Wednesday evening by a panel of miners and advocates from West Virginia, Kentucky and Virginia urged Congress to extend and raise a tax on coal production that provides health care benefits to miners and federal mine regulators to strengthen regulations to protect miners from getting black lung disease in the first place.

“We’ve got to do something,” Johnson said.

Members of the National Black Lung Association, the environmental group Appalachian Voices and the Appalachian Citizens’ Law Center, a Kentucky-based nonprofit law firm that represents coal miners on black lung and mine safety issues, urged Congress to permanently extend and raise by 25% an excise tax that coal producers must pay when coal they produce is first sold or used.

The excise tax is the main source of revenue for the Federal Black Lung Program and the Black Lung Disability Trust Fund, which pays benefits to miners disabled by the disease as well as their eligible survivors and dependents when no responsible coal operator is identified or when the liable operator does not pay.

The excise tax rate for surface mining is $0.55 per ton or 4.4% of the sales price, whichever is lower. The excise tax rate for coal mined underground is $1.10 per ton or 4.4% of the sales price, whichever is lower.

But the same rising number of coal company bankruptcies that threatens the solvency of mine reclamation bonding programs in West Virginia and throughout the country has also strained the Black Lung Disability Trust Fund.

A 2020 report by the U.S. Government Accountability Office, a nonpartisan agency that investigates federal spending, found that just three coal mine operator bankruptcies from 2014 to 2016 had added $865 million in estimated benefit responsibility to the fund, with more bankruptcies expected.

A 2018 Government Accountability Office report found that trust fund borrowing may exceed $15 billion by 2050.

That report found that increasing the excise tax rates by 25% was the only coal tax rate adjustment option that eliminated simulated trust fund debt by fiscal year 2050.

But miner advocates have had to fight just to ensure the extension of the excise taxes from year to year.

The taxes, which dipped for one year only in 2019 to their original rates of $0.50 and $0.25 per ton of underground-mined and surface-mined coal, respectively, are slated to revert to those rates again at the end of the year unless Congress acts.

“It kind of feels like begging for these one-year extensions to this tax that funds just absolutely critical resources that people depend on to live,” said Willie Dodson, central Appalachian field coordinator for the environmental group Appalachian Voices, said.

In April, U.S. Sen. Bernie Sanders, I-Vt., proposed a bill cosponsored by six Senate Democrats that would permanently increase the tax 25% in line with the Government Accountability Office finding that such a hike could eliminate the trust fund debt by 2050.

“There is a solution,” Dodson said. “Congress needs to raise the black lung excise tax by 25% … We’re in a crisis and it’s not letting up. Miners are getting sicker than in previous generations.”

A 2018 National Institute for Occupational Safety and Health report, based on X-ray data collected by NIOSH’s Coal Workers Health Surveillance Program from working underground miners from 1970 to 2017, found that prevalence of severe black lung in Central Appalachia was as high (5%) as it’s been since record-keeping began in the early 1970s.

Rebecca Shelton, director of policy and organizing at the Appalachian Citizens’ Law Center, noted that more than 100 miners with progressive massive fibrosis — an advanced state of lung scarring — have come through the law firm’s doors since 2014 and are skewing increasingly younger, after the firm represented very few such miners before then.

But Sanders’ proposal has not drawn support from West Virginia’s congressional delegation.

Sen. Joe Manchin, D-W.Va., was among six Senate Democrats to introduce a bill in the last session of Congress that would have extended the excise tax through 2030. But his office declined comment on the proposal to permanently increase the tax.

Sen. Shelley Moore Capito, R-W.Va., supports extending but not increasing the tax.

Rep. Alex Mooney, R-W.Va., touted the trust fund’s importance in a statement but balked at raising the tax that supports it.

“There needs to be a more efficient solution to continuing this program without raising taxes on a struggling industry,” Mooney said.

A spokeswoman for Rep. Carol Miller, R-W.Va., condemned the proposed excise tax increase as a “resurgence of the War on Coal, meant to destroy our communities and usher in a radical socialist agenda,” saying the focus should be on reducing cases and growing mining operations to support the trust fund at the same or lower rates instead.

In a statement, Rep. David McKinley, R-W.Va., said he supports ensuring coal miners and their families get the benefits that they are entitled to but argued against raising the excise tax.

“[R]aising taxes on coal companies that are already struggling to survive is not the answer,” McKinley said. “Doing so will just cause more bankruptcies for the coal industry — and more lost jobs in the coal fields.”

United Mine Workers of America spokesman Phil Smith said the union supports fully extending the Black Lung Disability Trust Fund tax well into the future instead of continuing year-by-year extensions but did not support raising the excise tax.

“We have far too much experience with what happens in bankruptcy court, which is that companies are relieved of their obligations to pay this tax and many other legacy obligations,” Smith said. “That only increases the burden on taxpayers.”

Neither Smith nor West Virginia’s congressional delegates identified any alternative proposals to extend the tax.

“We are working with several stakeholders and members of Congress on it,” Smith said.

The advocates also called on the federal Mine Safety and Health Administration to reduce the permissible exposure limit for crystalline silica, a potentially life-threatening carcinogen and contributing cause of black lung disease.

The U.S. Department of Labor’s Office of the Inspector General released a report in November that found the Mine Safety and Health Administration has not sufficiently protected coal miners from the disease.

The office found that MSHA’s silica exposure limit is out of date as the agency has maintained essentially the same limit established in the 1960s.

“[MSHA] is not doing enough to protect our miners, or we wouldn’t have the kind of [advanced black lung] cases we’ve got at the ages that miners are coming in with,” said Debbie Wills, who has been a black lung benefits counselor in Southern West Virginia for 32 years. “They clearly aren’t doing enough.”

Editor's Note: This story has been updated to include Capito's stance on the coal excise tax, which a spokeswoman provided after press time.