MAC/20: Mines and Communities

Black Lung and COVID-19: A disaster in slow motion

Published by MAC on 2020-10-10
Source: West Virginia Public Broadcasting

Robert Murray, the former CEO of Murray Energy, has filed an application for black lung benefits

A reporter from West Virginia Public radio interviewed Jerry Coleman, a third generation miner who worked for 37 years mostly underground. Coleman, who has complicated black lung disease, is also the president for the Kanawha County Black Lung Association. Black lung is like a death sentence and, in the middle of a pandemic, it is only getting worst. Former coal miners who suffer from black lung are especially vulnerable to COVID-19. However, according to Coleman, the coal excise tax, which is the primary money for the Black Lung Disability Trust Fund, is set to expire at the end of this year and benefits could dry up quickly.

Meanwhile, Robert Murray, the former CEO of the now-bankrupt Murray Energy, has filed an application with the U.S. Department of Labor for black lung benefits. Murray and his company fought for years against federal mine safety regulations aimed at reducing the debilitating disease. According to sources, Murray’s claim is still in the initial stages and is being evaluated. The coal magnate, who for decades ran the largest privately owned underground coal mining company in the United States, has also been at the forefront of combatting federal regulations attempting to reduce black lung.

See also:

2018-02-13 US coal miners heading for unprecedented black lung future

2016-09-07 USA: Widows and children seeks justice for Farmington mine disaster

2007-08-18 Unnatural deaths: a seemingly endless, bitter, round

 

 
Black Lung and COVID-19
 
Former coal miners who suffer from black lung disease are especially vulnerable to COVID-19. Caitlin Tan of West Virginia Public Broadcasting covers how Appalachian miners experiencing the debilitating, terminal condition struggle to get the care and government support they need amid a pandemic.

https://www.loe.org/shows/segments.html?programID=20-P13-00040&segmentID=5

October 2, 2020
 
(Transcript) CURWOOD: It’s Living on Earth, I’m Steve Curwood.

Climate change is a major threat to planetary health, and the people who work in the extraction of fossil fuels face have even more risks to personal health. Consider the coal miners who get black lung disease over years of working in the mines. It’s incurable and now during this time of the corona virus pandemic, black lung disease patients are especially vulnerable. Caitlin Tan of West Virginia Public radio has this report from the coalfields.

TAN: Jerry Coleman worked for 37 years, mostly underground, near Cabin Creek, West Virginia. A third generation miner. But at 68 years old, he has complicated black lung disease, meaning, his lungs are permanently and irreversibly scarred by coal dust.

COLEMAN: Black lung, it doesn’t get better, it gets worse.

TAN: Black lung is in a way, a death sentence — the lungs gradually deteriorate until the person can no longer breathe. And in the middle of a pandemic, it is only more complicated, Coleman said. He is also the president for the Kanawha County Black Lung Association.

COLEMAN: You gotta wear a mask, and with your breathin’ problems and stuff, it’s hard to walk around and breath through the mask. It’s like sucking in hot air, But I don’t have no choice, with the condition of my lungs and stuff, I can’t take a chance.

TAN: COVID-19 is classified as a respiratory virus. It can affect and even be deadly to the healthiest of people, but the most vulnerable are those with high-risk conditions, such as lung disease and old age — which represent much of West Virginia’s former coal miner population.

WERNTZ: Each different lung disease kind of takes away some of your lung function.

TAN: That’s Carl Werntz an occupational medical specialist who gives black lung exams, a crucial step to apply for federal black lung benefits.

WERNTZ: So that person if they get COVID it bothers their lungs, They’re going to run out of usable lung much faster than somebody who starts out with healthy lungs.

TAN: Since the pandemic began, Werntz said black lung exams were put on hold at the clinic he works at in Cabin Creek. Exams slowly resumed in July, but at half capacity. Typically, he sees six to eight patients a day, but with new COVID protocols, Werntz said he sees three to four — creating a backlog of patients waiting for their black lung exam.

WERNTZ: The longer you wait to do the testing to show that they really have the disease, the longer it is until they can get the benefits, including, you know, potentially medical care if they don’t have some other way to pay for their breathing care.

TAN: Federal black lung benefits include monthly payments and medical coverage for lung treatment – treatment that is expensive, said Jerry Coleman, the former coal miner with black lung. The fight for benefits can be long even without a pandemic. Coleman said he fought for seven years to receive his benefits.

COLEMAN: Until you get awarded it, anything that pertains to you breathing, you have to pay for everything, and you’re not going to, you know, spend exactly what you have to spend, because you don’t have the money to waste. You know? It’s a shame to say but that’s the way it is.

TAN: With COVID severely limiting the number of patients who can come in for their black lung exams, the wait to get benefits keeps growing for some miners. Mickey Pettry, is 63 years old, and he worked in the coal mines much of his life. And although he has been diagnosed with black lung, he’s been fighting for his federal benefits for three years, and now with a pandemic that has politicians scrambling, Pettry says everything is on hold.

PETTRY: The entire focus is on the battle going on up in DC. So, there’s very little attention being paid to anything else.

TAN: In fact, the coal excise tax, which is the primary money for the Black Lung Disability Trust Fund, is set to expire at the end of this year. This means funds for black lung benefits could dry up quickly. This issue is a priority for black lung advocacy associations, said Coleman. He and other members from local associations went to D.C. last year and helped secure the funding through 2020. But with COVID, Coleman said it is harder for the associations to hold meetings and to advocate for the renewal of the legislation.

COLEMAN: Because our voice is what’s gotta be heard, you know, If we don’t speak out, it’s gonna be forgotten.

TAN: In the meantime, things are a lot less social for those with black lung disease. Coleman said he has spent most of his spring and summer at home, trying to social distance. Pettry added that not being able to go to the monthly black lung association meetings takes a mental toll. Many of the members are his neighbors, friends or former coworkers. There is a therapeutic aspect. But now, even going to the store is a risk Pettry said.

PETTRY: I don’t have a lot of tolerance for people now. There’s so many people that think wearing a mask is a joke. It’s highly, highly stressful, People have a right to their opinion, but we can’t afford to say that it’s not real. When they infringe upon our protection, you know I get really upset.

TAN: Pettry does not know what the future holds for him as someone with black lung disease during a pandemic, but he said he is making do with what he has — mowing the lawn, grilling meat on his back porch and occasionally putting on a mask and getting a hot chicken sandwich from Chick-fil-A.
 

 
Bob Murray, Who Fought Black Lung Regulations As A Coal Operator, Has Filed For Black Lung Benefits

Dave Mistich

West Virginia Public Broadcasting - https://wfpl.org/bob-murray-who-fought-black-lung-regulations-as-a-coal-operator-has-filed-for-black-lung-benefits/

September 30, 2020

Robert E. Murray, the former CEO and president of the now-bankrupt Murray Energy, has filed an application with the U.S. Department of Labor for black lung benefits. For years, Murray and his company fought against federal mine safety regulations aimed at reducing the debilitating disease.

“I founded the company and created 8,000 jobs there until the move to end coal use. I am still chairman of the board,” he wrote on a Labor Department form that initiated his claim obtained by the Ohio Valley ReSource. “We’re in bankruptcy, and due to my health could not handle the president and CEO job any longer.”

According to sources, Murray’s claim is still in the initial stages and is being evaluated to determine the party potentially responsible for paying out the associated benefits. The Labor Department is required to determine a liable party before an initial ruling can be made on entitlement to benefits. If Murray’s claim were to go before an administrative law judge, some aspects of the claim would become a matter of public record

The Ohio Valley ReSource confirmed the authenticity of Murray’s claim documents by inputting associated information — including his last name, birthdate and a case ID number — into an online portal maintained by the Labor Department. 

In his claim, Murray, who is now 80 years old, writes that he is heavily dependent on the oxygen tank he is frequently seen using, and is “near death.”

Corporation is named as one potentially liable party in Murray’s claim for the benefits. According to documents associated with his claim, he states that he was employed by the company from May 1957 to October 1987 — where he ascended through its ranks, first as a miner before taking on the role of president. 

Later, he served as president and operator of Ohio Valley Resources, Inc. and a subsidiary from 1988 to 2001. He founded Murray Energy in 1988. 

He states in his claim for benefits that he worked underground while supervising operations throughout the years. 

“During my 63 years working in underground coal mines, I worked 16 years every day at the mining face underground and went underground every week until I was age 75,” Murray wrote in his claim.

Reached by phone, Murray declined an on-the-record interview for this story. Murray said he has black lung from working in underground mines and is entitled to benefits. Additionally, he disputed that he ever fought against regulations to quell the disease or fought miners from receiving benefits. 

Murray also threatened to file a lawsuit if a story was published that indicated he had fought federal regulations and benefits.

But Murray told NPR in October 2019 that he had a lung disease that was not caused by working underground in mines.

“It’s idiopathic pulmonary fibrosis. IPF, and it is not related to my work in the industry. They’ve checked for that,” Murray told NPR. “And it’s not — has anything to do with working in the coal mines, which I did for 17 years underground every day. And until I was 76, I went underground twice a week.”

History Of Fighting Safety Rules

Like other coal operators, Murray’s companies have disputed the claims made by miners who seek black lung benefits. The coal magnate, who for decades ran the largest privately owned underground coal mining company in the United States, has also been at the forefront of combatting federal regulations that attempt to reduce black lung, an incurable and ultimately fatal lung disease caused by exposure to coal and rock dust. 

In 2014, Murray Energy spearheaded a lawsuit against the Obama administration over a federal rule that strengthened control of coal dust in mines.

The Obama-era standard reduced the acceptable amount of coal dust exposure for miners, increased the frequency of dust sampling, and required coal operators to take immediate action when dust levels are high. 

The reforms were the first in more than four decades to tighten exposure standards to coal dust and came at a time that evidence was mounting that Appalachia was seeing a deadly resurgence in the most severe form of black lung, after reaching historic lows in the 1990s. 

“It’s ironic that Murray’s company fought hard to block the 2014 resbirable coal dust rule we put in place to prevent the black lung disease,” said Joe Main, who served as assistant secretary of the Mine Safety and Health Administration under President Barack Obama. 

MSHA, as it is known, is the agency within the Labor Department tasked with implementing and enforcing mine safety rules, including those aimed at reducing black lung.

Murray Energy’s lawsuit claimed that adhering to the new rule would have been virtually unachievable with available technology and would cost the industry billions. Murray’s suit failed, but Bob Murray tried again to block implementation of the dust rule, this time by influencing the incoming administration of President Donald Trump. 

Murray, a staunch Trump supporter, has been a major player in shaping the current administration’s energy policy agenda and has funded groups that deny the existence of climate change. Early in Trump’s term, the coal magnate delivered a detailed action plan aimed at helping the declining industry. Among the requests: overhaul the “bloated” MSHA and “revise the arbitrary coal mine dust regulation” which Murray claimed would cost the industry “thousands of jobs.” 

The coal industry’s biggest players and lobbyists, including the National Mining Association, have fought tighter regulations. Wes Addington, executive director of the Appalachian Citizens’ Law Center, a nonprofit law firm that has for years represented miners in black lung benefits cases, said Murray was at the forefront of that fight. 

“Today, in 2020, we’re seeing more miners with more advanced black lung than the country has ever seen. And yet, the industry over the past 10 to 20 years, has consistently fought against any regulation that would try to limit the amount of dust that miners breathe,” Addington said. “Murray Energy has been part of that fight, along with a number of the largest coal companies in the country.”

Black Lung Claims Process

To qualify for black lung benefits, miners must prove both that they have the debilitating disease and that they are totally disabled due at least in part to a breathing impairment caused by black lung. 

The diagnosis is usually done through X-rays and other tests and certified by a medical professional. To get federal benefits, a miner will first assemble and submit a claim to the Labor Department. The agency will review the claim and make a determination as to whether there is substantial evidence to prove both the presence of the disease and that it has disabled the miner. If the claim is approved, the federal government will begin paying out medical benefits, also called interim benefits, from the Black Lung Disability Trust Fund, a federal pot of money that pays for some benefits and is funded by a tax on each ton of coal mined. 

Then the Labor Department turns to the coal company deemed to be responsible for the miner’s disease to pay for the benefits. Advocates that work on black lung benefits say, more often than not, the coal company or its insurance carrier will fight the claim, which often pits miners against their former employers in court. 

“You often see doctors who testify for coal companies raise an argument about, perhaps the miner was overweight. Perhaps the miner has been exposed to animal manure if he grew up on a farm, and perhaps that is causing his breathing trouble today — after working for 15 or 20 or 30 years in the mines,” said Sam Petsonk, a West Virginia-based attorney who has represented former Murray miners seeking black lung claims. 

Petsonk, who is also the Democratic candidate for West Virginia Attorney General, said litigation involving claims for black lung benefits can drag out often for many years and in some cases for decades. In some documented cases, miners have died before their claims were settled. 

Davitt McAteer, former MSHA assistant secretary, said the tactic of attorneys representing mining companies named in black lung claims is to slow down or stall the process.

“If you’ve black lung, you’re dying. There’s no two ways about it. And you may live for a while, but you’re going to die soon,” he said. “And all I have to do is —  if I’m the lawyer on the other side —  wait around, wait him out and they’ll die. And they did. And then, the claimant goes to the widow and you wait her out, too.”

According to Murray’s claim for benefits, his wife Brenda is listed as a dependent. If Murray’s claim for benefits is approved, his wife would receive the benefits for the rest of her life, regardless of whether the claim is approved before or after his death. 

If a coal company goes bankrupt or if no responsible party is determined, benefits may be paid from the Black Lung Disability Trust Fund, which currently covers expenses for some 25,000 miners and their dependents. A recent report from the Government Accountability Office found the trust fund is expected to be $15 billion in debt by 2050. 

Murray Bankruptcy

Murray Energy’s bankruptcy last year added to the burdened fund. In October 2019, the coal operator filed for Chapter 11 bankruptcy protection. The company cited billions of dollars in liabilities and a weak and struggling market for coal. 

“Although a bankruptcy filing is not an easy decision, it became necessary to access liquidity and best position Murray Energy and its affiliates for the future of our employees and customers and our long-term success,” then-CEO Murray said in a release issued at the time.

The proceedings, which concluded in September, provided a rare glimpse into the private company. Creditors argued Murray and his nephew and now CEO of the company, Robert Moore, viewed the mining company as a “family piggy bank” and cited a “disturbing pattern of self dealing and abuse of corporate resources.” 

They documented multi-million dollar cash bonuses for both Murray and Moore, as well as the use of the company’s aircraft for personal purposes among other allegations. Murray Energy denied those claims.

According to court filings, Murray Energy could be responsible for as much as $155 million under the Black Lung Act and general workers’ compensation, but testimony from the Government Accountability Office shows that the company only offered $1.1 million in collateral. 

As is common in coal bankruptcies, Murray and its successor company were relieved of any obligation to pay existing black lung benefits by the bankruptcy court. Those benefits are now being paid by the federal Black Lung Disability Trust Fund. 

Under the final bankruptcy agreement, Murray has been removed from company leadership, although he remains on the board. 

Other Violations 

Murray mining operations have also had a number of high-profile mine safety incidents over the years, including the disastrous collapse of a mine in 2007.

In August 2007, nine miners and rescuers died after the Murray-owned Crandall Canyon mine in Utah collapsed. The Labor Department fined the company $1.85 million for violating federal mine safety law. In 2012, the agency settled with Murray for a reduced amount. The settlement included acknowledgement by Murray Energy for its “responsibility for the failures that led to the tragedy.”

Murray later told NPR “this settlement is not an admission of any contribution to the August 2007 accidents.”

Murray was also sued by the Labor Department after miners complained the CEO personally told workers in a meeting in late 2013 to stop making complaints to federal regulators. Under federal law, miners have the right to speak anonymously to government inspectors about mine safety concerns. In 2019, Murray lost an appeal in the case. The court upheld a decision that Murray must personally apologize.

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