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Unsanitary conditions

Mines controlled by the family of West Virginia Gov. Jim Justice were among those cited by federal mine safety regulators for unsanitary conditions that may have contributed to coronavirus during the first nine months of the pandemic last year. Justice family-controlled mine sites were cited for lacking sanitary toilet facilities and other basic hygienic accommodations.

Crawling maggots. Sewage near the shower. The nearest toilet more than a mile away.

These are among unsanitary conditions federal regulators found at mine sites throughout West Virginia from March to December 2020 that could have contributed to the coronavirus. Regulators issued state mines 195 citations for such cases, accounting for a fifth of the total nationwide.

Uncovered through a Gazette-Mail request under the Freedom of Information Act, the citations suggest unhygienic conditions have deepened the perils of miners toiling in tight quarters during the COVID-19 pandemic.

The most frequent unhealthy condition regulators observed at West Virginia mine sites was failure to provide sanitary toilets. The most commonly cited mine operators were the Kentucky-based Lexington Coal Company and companies controlled by Gov. Jim Justice’s family and Liechtenstein-based Sev.en Energy.

The citations indicate conditions were unsanitary enough they could have contributed to the spread of coronavirus, not that COVID-19 was found onsite, according to Amanda McClure, a spokeswoman for the federal Mine Safety and Health Administration.

“We do feel like being clean and sanitary as best as possible and complying with all good industrial hygiene practices, that does help mitigate the spread of coronavirus,” Patricia Silvey, MSHA deputy assistant secretary for operations, said during a Wednesday conference call.

But the agency has faced fierce criticism from mine safety advocates for not issuing an enforceable standard requiring mine operators to comply with coronavirus prevention guidance.

“MSHA should have acted long ago,” said Beckley attorney Sam Brown Petsonk, who has represented miners in black lung cases and safety grievances.

‘Lack of reasonable care’

Regulators deemed six of the citations for unsanitary conditions in West Virginia “significant and substantial,” an MSHA designation for violations signifying a reasonable likelihood the hazard could result in serious injury.

Two such citations were issued to the Lexington Coal Company’s Twilight Mountaineer Surface Mine in Boone County, where regulators in August 2020 found toilets in a parking area and a separate location for five men working on a highwall mining machine were not maintained.

Solid human waste exceeded the chemical used in the holding tank at the parking area site, where flying insects and maggots were present, according to the agency. The Lexington Coal Company provided no records of the last toilet cleaning.

“This condition exposes miners to hazards associated with but not limited to exposure to human waste,” the citation notes.

At the toilet for the men on the highwall mining machine, human waste was found above the fluid and near the lid with fly larvae crawling inside. Nothing was provided miners to sanitize or wash their hands, the agency reported.

“Only a small amount of toilet paper is here and rags have been used,” the citation notes. “The condition shows a serious lack of reasonable care for health and safety by the operator.”

In a November inspection, regulators found a plant portal toilet at the Bull Creek preparation and refuse disposal facility in Boone County, operated by White Forest Resources’ Raven Crest Contracting, was not properly maintained.

The agency notes that solid human waste exceeded the chemical used in the holding tank and flying insects were present. The nearest sanitary facility was more than a mile away.

“This condition exposes miners to various diseases, infections and viruses,” the citation notes.

Coal companies controlled by Gov. Jim Justice’s adult children James C. “Jay” Justice III and Jillean L. Justice received nine citations for sanitary conditions that could have contributed to coronavirus. Those nine citations composed nearly a fourth of all those issued in West Virginia from March through December 2020, tied with Sev.en Energy for most among all controllers of in-state mines.

The Justice-controlled Bluestone Oil Corporation’s Ranger Fuel No. 1 Mine in Wyoming County was cited four times in May, November and December 2020 for lacking a suitable bathing facility, comfortable air temperature in a change room and sanitary toilet facilities.

After taking office in 2017, the governor said, he would put his children in charge of his family’s business operations. Justice’s financial disclosure form filed in January with the state Ethics Commission listed among his businesses three of the mine operators cited for sanitary conditions that could have contributed to coronavirus.

The Justice-controlled Nufac Mining Company’s No. 57 Mine, an underground mine in McDowell County, was cited in November 2020 for lacking sanitary facilities near the mine. Regulators assessed Nufac a $448 fine.

The agency lists the company as delinquent in paying the fine.

Federal regulators assessed $14,657 in fines for 38 citations in West Virginia over the nine-month period for an average of $385 per fine. Seventeen of the fines have been paid, according to agency data.

Sev.en Energy, Lexington Coal Company, White Forest Resources, Inc. and Justice-controlled mine operators could not be reached for comment. The Governor’s Office did not respond to a request for comment.

No emergency standard

Jeannette J. Galanis, MSHA deputy assistant secretary for policy, said Wednesday mine worker protections are sufficient enough that the agency will not mandate COVID-19 vaccinations or weekly testing.

President Joe Biden announced last month the federal Occupational Safety and Health Administration is developing a rule stipulating that all businesses with 100 or more employees require unvaccinated workers to provide weekly proof of negative COVID-19 tests.

Galanis indicated neither the MSHA, a separate agency within the federal Labor Department, nor the mines it oversees would be covered by that pending emergency standard.

She argued the Federal Mine Safety and Health Act of 1977 is strong enough, allowing regulators to shut down mines where COVID-19 is being transmitted and cite mines for unhygienic conditions.

Galanis also noted the agency issued COVID-19 prevention guidance in March — a year into the pandemic.

That guidance suggested mine operators conduct hazard assessments, identify measures limiting virus transmission, ensure infected or potentially infected miners are sent home and those who raise COVID-19-related concerns are protected from retaliation.

But those are only recommendations, not standards or regulations.

Petsonk said he’s received calls from miners concerned about COVID-19 in their workplace.

He noted that on “super sections,” where two mining machines are operating in one working section of a mine, there can be twice as much dust, putting miners at risk of breathing dangerous amounts of coal dust and other airborne hazards.

Underground ventilation systems frequently push dirty air toward miners instead of away from them, Petsonk said.

Miner advocate groups such as the United Mine Workers of America labor union and the nonprofit Appalachian Citizens’ Law Center, a Kentucky-based law firm that represents miners in safety cases, have criticized the MSHA for merely issuing COVID-19 guidance rather than enforceable standards.

In a National Press Club virtual joint appearance with Sen. Joe Manchin, D-W.Va., in April, UMWA President Cecil Roberts blasted the agency for not establishing an enforceable COVID-19 standard.

“We’re not supposed to be in close proximity with one another, and that’s impossible in a coal mine,” Roberts said. “You’ve got to change clothes in a bath house, you’ve got to get on an elevator and ride sometimes as far as, in Alabama, 2,000 feet straight down to get in a man trip ... you’re passing each other all day long, and the government says, ‘We’re not getting involved in that. You guys figure it out.’”

UMWA spokesman Phil Smith did not respond to a request for comment for this story.

Lungs left vulnerable

Miners already at risk are now more so, advocates said.

“Even before COVID, coal mines frequently violated the most basic fundamentals of healthful ventilation practices,” Petsonk said.

Failure to develop and follow an MSHA-approved ventilation plan was among the most common citations in 2020, according to agency data.

Appalachian Citizens’ Law Center Executive Director Wes Addington has said he worries many miners suffering from black lung disease may have been unnecessarily exposed to the coronavirus because mining companies and federal regulators failed to do more to protect them.

The agency does not require mine operators to report COVID-19 cases among employees.

Central Appalachia’s frequency and severity of black lung cases have escalated sharply in recent years, impacting more younger miners and their families. The high regional prevalence of black lung leaves afflicted miners susceptible to greater harm from COVID-19, a respiratory disease.

Severe black lung disease in central Appalachia has reached its highest level since record-keeping began in the 1970s, according to a National Institute for Occupational Safety and Health-approved study .

Published in the American Journal of Public Health, the report found one in 20 long-tenured underground miners in central Appalachia had black lung disease that had advanced to progressive massive fibrosis, a condition the authors noted is “totally disabling.”

“We can think of no other industry or workplace in the United States in which this would be considered acceptable,” the authors wrote.

A Department of Labor Office of Inspector General report released in November found the MSHA has not sufficiently protected coal miners from silMica dust, the catalyst for the sharp rise in the most severe black lung cases.

Silica dust is composed of small particles that become airborne during drilling, chipping, cutting, grinding and other work. Recent years have found workers mining smaller coal seams and larger amounts of rock, heightening their exposure to silica dust.

The MSHA’s coal mine silica exposure limit of 100 micrograms per cubic meter of air remains double the limit of 50 the National Institute for Occupational Safety and Health recommended in 1974. The MSHA plans to issue a proposed rule to address miners’ exposure to respirable crystalline silica.

But the Office of Inspector General noted the MSHA has spent more than two decades in rulemaking without changing its silica exposure limit.

Mine safety advocates say the MSHA’s failure to adopt an emergency temporary standard requiring mine operators to strengthen protections against COVID-19 is part of a greater agency and mine operator failure to take care of miners.

“[M]iners have good reason to be concerned,” Petsonk said.

The UMWA-backed COVID-19 Mine Worker Protection Act, pushed by Manchin and Sen. Shelley Moore Capito, R-W.Va., would direct the Department of Labor to develop and implement a comprehensive infectious disease exposure control plan, provide personal protective equipment to miners and track and investigate mine-related infections data.

That bill and a House version of the measure have languished in their respective chambers, just as previously introduced versions did in the previous congressional session last year.

For the first nine months of the pandemic, West Virginia mine sites averaged a citation a week for conditions unsanitary enough to have contributed to coronavirus. All miners have to rely on is basic guidance – even if they don’t have basic sanitation.

“We agree that all mine operators need to take precautions with COVID,” Galanis said, “and have their employees masked up and keep away from each other as [much as] possible.”

Mike Tony covers energy and the environment. He can be reached at 304-348-1236 or Follow @Mike__Tony on Twitter.

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