This often amounts to proving that the company manipulated its dust samples. In depositions, miners have described hanging dust pumps in cleaner air or getting advance warnings of inspections. Over the past eight years, he's handled about 40 such cases. In each case, he said, the coal company eventually settled.
"These are criminal acts," Bailey said. "What's different about these black-lung cases is that the cheating is such a part of everyday practices."
Black lung leaves miners' lungs scarred, shriveled, and black (right) NIOSH
Then there are the numbers themselves. For decades, the average sample submitted by a coal company has been far below the limit. NIOSH researchers used a formula to estimate the prevalence of black lung that would be expected based on the dust samples and compared this with the disease rates actually occurring.
What the researchers found was surprising: The two didn't match up at all. In some areas of the country, there was actually less black lung than they'd predicted. But in central Appalachia, the disease rates were much higher—more than three times the predicted levels in eastern Kentucky, for example. It was possible, researchers concluded, that the nature of the dust had become more potent. The other possibility: The dust samples reflected the results of rampant cheating.
Many of the games described by miners today remain unchanged from those outlined by miners who testified at a 1978 MSHA hearing. The early 1990s saw the "abnormal white center" scandal, in which MSHA figured out that many coal companies had blown dust off the sampling filters, leaving a white center, before submitting them. This led to a spate of criminal convictions of companies and some employees and contractors. These composed the bulk of the 185 guilty pleas or convictions for dust sampling fraud between 1980 and 2002, according to data provided by MSHA to CPI and NPR.
The agency refused to provide more recent data and wouldn't say whether any criminal cases had been pursued since then. MSHA did provide data indicating that it had decertified 14 mine officials since 2009, pulling their authority to conduct dust samples.
"I don't know if any [cheating] is going on today," said Bruce Watzman, the National Mining Association's senior vice president for regulatory affairs. "I hope not. We encourage our members to fulfill their obligations under the law."
Cheating aside, the system for monitoring dust levels is almost designed not to detect problems. Nor has MSHA always been swift to act when violations do surface.
"It is like a screw being slowly tightened across your throat. Day and night towards the end, the miner struggles to get enough oxygen. It is really almost a diabolical torture."
From 2000 to 2011, MSHA received more than 53,000 valid samples—both from companies and its own inspectors—that showed an underground miner had been exposed to more dust than was allowed, yet the agency issued just under 2,400 violations, a Center analysis of MSHA data showed.
This may be attributable, in part, to the way the rules are written. When companies submit five samples to MSHA, some are allowed to be above the limit. Only the average of these five has to be low enough, allowing companies to negate high samples taken from miners enshrouded in dust. What's more, the pump runs for only 8 hours, even if the miner works 10 or 12.
While an inspector is sampling, a company is allowed to mine as little as half the amount of coal it normally does. Companies that typically cared little about hanging curtains to keep air flowing through the mine or making sure water sprays used to suppress dust were working suddenly did when it came time to sample, several miners said.
Even when a company gets caught with samples that are too high, all it has to do to make the citation go away is take five of its own samples that indicate compliance. "The analogy I use is, if I pull you over for speeding, going 80 in a 50," Bailey said, "and I tell you…here's a journal, and I want you to record your speed on this same piece of road for the next five days. And, if at the end of those five days, your speed is below the speed limit, then I am going to tear your ticket up."
Sometimes MSHA has allowed dust citations to go uncorrected for weeks or even months, potentially leaving miners overexposed, a CPI analysis of agency data shows. MSHA sets a date by which a violation must be fixed, but, from 2000 to 2011, the agency granted extensions for 57 percent of the violations.
Long extensions have been particularly common in southern West Virginia, one of the key "hot spots" of disease resurgence identified by NIOSH. In this area, which accounted for about 30 percent of the nation's dust sampling violations, MSHA gave companies an extension about two-thirds of the time and allowed, on average, about 58 extra days to prove compliance.
Asked about these numbers, the agency said in a statement, "The majority of these extensions…are for good reasons such as getting approved dust controls implemented or allowing the operator time to collect additional samples to submit to MSHA."
A roadmap for reform
Even before the reappearance of black lung, the need for change was apparent. A proposed MSHA rule led to hearings in 1978, during which miners testified to widespread manipulation of dust samples. That proposal stalled and was withdrawn by the Reagan administration.
In 1995, NIOSH reviewed the scientific evidence and concluded that the limits for both coal dust and silica should be cut in half and periodic medical exams for miners should be enhanced. The same year, the secretary of labor appointed a committee to determine how to eliminate black lung.
In 1969, President Nixon signed the first law designed to prevent black lung. Social Security Administration
The committee's report offered a roadmap for reform. It recommended that MSHA consider lowering the coal mine dust standard. It suggested the agency reduce miners' silica exposure and establish a separate limit for this more potent type of dust. Samples should be taken while the mine was producing at least 90 percent of what it normally did, the panel said, and samples should be adjusted to reflect longer work shifts.
Perhaps its strongest recommendation: "The committee believes that the credibility of the current system of mine operator sampling to monitor compliance with exposure limits has been severely compromised…One of MSHA's highest priorities should be to take full responsibility for all compliance sampling."
In July 2000, MSHA proposed a rule that would have adopted some of these recommendations. Before the rule became final, though, George W. Bush took office, and the rule died.
"It's really fairly remarkable that we came up with these recommendations back in 1996 during a Democratic administration, and nothing has happened," said David Wegman, who was chairman of the committee and is now an emeritus professor at the University of Massachusetts Lowell's School of Health and Environment.
History may be repeating itself. MSHA proposed a rule in 2010 that would cut the overall limit for dust in half and require companies to use continuous personal dust monitors, which would provide real-time measurements. The current pumps have to be sent to a lab, where analysis can take weeks.
Under the rule, the samples would be weighted to account for shifts longer than eight hours, and companies could be cited for a single sample over the limit—rather than an average of five—or a weekly accumulation of exposure above a certain limit. The rule would also expand the free X-ray monitoring program to include lung function tests and medical assessments.
Still, the rule leaves much of the sampling in the hands of the coal companies themselves. Asked why, Main said, "It's an enormous task for the government to take on."
In a strange twist, even industry favors MSHA's taking over all compliance sampling. "We need to get to a point where we remove this cloud of controversy and instill in the minds of everyone that the samples are accurate," the National Mining Association's Watzman said.
There isn't much in the rule that the association supports, however. The real-time dust monitors—a centerpiece of the proposal—are still not accurate enough to be the basis of citations, Watzman argued. Dennis O'Dell, safety director for the United Mine Workers of America, said the few problems with the monitors are "little things that can be tweaked." The union favors the proposed rule, though it would like to see portions of it changed.
All of this may be moot. A presidential election is approaching, and many fear a change in administrations could mean what it meant in the early 1980s and the early 2000s: the death of reform.
"I never said nothing"
In coal country, weakness is a sin. Mining is just about the only career choice, and one generation often follows another underground.
Convincing a miner to go to a clinic, get an X-ray or file a claim for benefits can be a challenge. "They're not going to come and complain about how they feel, just because that's part of our culture," said Debbie Wills, sitting in the clinic in tiny Cedar Grove, West Virginia, where she helps miners get evaluated and file for black lung benefits.The Mine Safety and Health Administration has proposed that miners wear continuous personal dust monitors like this one. Centers for Disease Control
At the same time, fear is almost as deeply rooted. Many miners don't want their employers to know they have signs of black lung—or even that they've been X-rayed. Anita Wolfe, who runs NIOSH's surveillance program and is often out with the RV that screens miners, said she has seen men approaching on foot from miles away because they didn't want anyone to see their cars parked nearby.
Thanks to a rule MSHA issued in 1980, a miner whose X-ray shows signs of black lung receives a letter that requires his employer to transfer him to a less dusty job and pay him the same as before. The miner alone sees the letter, and he can use it whenever he wants.
Only about 30 percent of the nearly 3,000 letters issued to miners since 1980 have been used, according to MSHA data provided to the Center and NPR.
Sometimes miners avoid screening because they just don't want to know. A diagnosis of black lung would likely mean having to leave the mines—the best-paying job around and the only way they know to provide for their families. "It's very known throughout the coal community there's no cure for this," Wills said. "They want to pretend like everything's okay until they just can't do it anymore."
All of this has led NIOSH to believe that the resurgence of black lung may actually be worse than its numbers reveal. "We know that there is disease out there that we are not identifying because miners are avoiding participation based upon disease status," NIOSH epidemiologist Laney said.
The system for monitoring dust levels is tailor-made for cheating, and mining companies haven't been shy about doing so. Regulators often have neglected to enforce even these porous rules.
Take James Marcum: He spent his last semester of high school taking a class at the University of Kentucky because he already had enough credits to graduate. His father, having filed for black-lung benefits a few years earlier, encouraged him to go to school and stay out of the mines.
Nonetheless, James took a summer job at a mine to earn money for college. "I started earning them $800-a-week paydays and said, 'Why would I want to go to college when I'm earning this kind of money?'" he recalled, standing in the shadow of Dewey Dam at the family's annual picnic at Jenny Wiley State Park in Prestonsburg, Kentucky.
He spent about 90 percent of his 20-year mining career, he estimated, operating a continuous miner. In 1991, the motor of the machine he was running caught fire, and smoke overcame him.
When doctors examined him and took X-rays, they found what appeared to be black lung. James kept the news to himself and didn't file for benefits, afraid he'd lose his job if he did. "It was good money," he said. "I had my kids to raise, and I just had to work…I never said nothing. I just went on and done my job."
About six years later, James found himself back in the hospital. He'd been caught between two pieces of the continuous miner and injured his back. Alone in that section of the mine when the accident happened, he finished his shift and went to the hospital the next morning.
Doctors again took X-rays, and, this time, his lungs were so bad he had to see a specialist. A biopsy confirmed that he had black lung.
Since then, breathing has become more and more difficult for him, especially during the past year. "I miss hunting bad," he said. "I used to take my boys hunting. But I just ain't able no more…I ain't got the air to do it."
The youngest of the three Marcum brothers, he has shown the worst decline in lung function. At the family's picnic, while Donald socialized and Thomas talked to their father, Ray, over plates of fried chicken, coleslaw, and potato salad, James sat quietly.
He glanced at his oldest son, 26, who now works in a mine. Without realizing it, James paraphrased his father: "I tried to get him out. He won't come out. He loves the job."
The Center for Public Integrity is a nonprofit, independent investigative news outlet. This story is part of its Hard Labor series.
Front page image: Library of Congress