[Congressional Record Volume 144, Number 100 (Thursday, July 23, 1998)]
[Senate]
[Pages S8891-S8893]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              OCCUPATIONAL AIR QUALITY TESTS IN COAL MINES

  Mr. WELLSTONE. Mr. President, I rise today to call to the attention 
of colleagues a disturbing set of circumstances and facts which I 
believe merit investigation and probably legislative action on the part 
of the Senate. I also believe that the facts I am about to discuss 
warrant more attention than they have received so far from the Justice 
Department.
  There is evidence of significant violation of Federal law leading to 
great harm. I hope that in addition to the Congress responding 
appropriately, the Justice Department might look further into this 
matter.
  I am referring to what appears to be a record of widespread 
systematic cheating on occupational air quality tests by operators of 
many of our Nation's coal mines. This alleged cheating, of which there 
appears to be nearly incontrovertible evidence, apparently has led to 
much unnecessary suffering in thousands of American families. It likely 
also has led to the unnecessary death from black lung disease of 
thousands of American coal miners.

  Unfortunately, I am not referring to conditions that existed early in 
this century, or even conditions of the 1950s or 1960s. I'm talking 
about circumstances of the 1970s, 1980s and 1990s. I'm talking about 
allegations related to existing conditions and practices in American 
coal mines today.
  I ask unanimous consent, Mr. President, to have printed in the Record 
a series of articles that appeared in April of this year in the 
Louisville Courier-Journal.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

                            From the Editor

       For years, a quiet but deadly tragedy has been played out 
     in the nation's underground coal mines.
       Coal mine operators have known about it.
       The federal government has known about it.
       And coal miners themselves have known about it.
       The tragedy is that in 1998 black-lung disease still exists 
     and hundreds of miners nationwide die of the disease each 
     year because of cheating on air-quality tests.
       Doctors have known for a century that coal dust causes 
     black lung, which can be prevented through underground dust-
     control measures.
       But 30 years after Congress placed strict limits on 
     airborne dust and ordered mine operators to take periodic 
     tests inside their mines, almost 1,500 miners die of black 
     lung every year.
       The Courier-Journal set out to find out why.
       The answers were shocking.
       In a year-long investigation that involved interviews with 
     255 working and retired miners and computer analysis of more 
     than 7 million government records, The Courier-Journal found 
     that, among other things:
       Miners continue to breathe dangerous levels of coal dust 
     because cheating on dust tests is rampant.
       Most coal mines send the government air samples with so 
     little dust that experts say they must be fraudulent.
       Many mine operators--non-union mine operators in 
     particular--don't comply because strict adherence to safety 
     regulations is time-consuming, costly and cuts into profits.
       The federal agency responsible for protecting miners 
     ignored overwhelming evidence of cheating.
       Nearly every miner interviewed said that cheating on dust 
     tests is common and that many miners help operators falsify 
     tests to protect their jobs.
       And almost no coal miners qualify for black-lung benefits 
     under Kentucky's new workers' compensation law.
       Since publication of the series, Kentucky's attorney 
     general has asked U.S. Attorney General Janet Reno to 
     investigate why mine-safety officials have ignored evidence 
     of cheating. And state lawmakers have called for a special 
     session to adopt new legislation on workers' compensation.
       This reprint includes the entire five-day series, 
     supporting editorials, followups and a guest column by the 
     top mine-safety official.
       We think this piece of work represents outstanding public 
     service journalism in the finest tradition of The Courier-
     Journal.

  Mr. WELLSTONE. That is the newspaper of Louisville, KY.
  This remarkable series of five articles, principally by a reporter 
named Gardiner Harris, is titled ``Dust, Deception and Death.'' The 
series documents an apparent pattern of falsification of coal dust 
sampling tests by coal mine operators and it details the consequences 
of that dishonesty: unnecessary suffering and early death for American 
coal miners.
  It is an extraordinary report. I do not believe it has received 
enough attention, although hearings have been taking place at the state 
level in Kentucky to look into the charges.
  The paper conducted a year-long investigation. Hundreds of current 
and former miners were interviewed. More than 7 million government 
records were examined. Based on that research, the Courier-Journal's 
reporters concluded that cheating on air-quality tests in coal mines 
has contributed to great suffering and to a large number of deaths from 
black lung disease among American coal miners. Their reporting reveals 
that the Federal Government, at least until very recently, largely 
ignored readily observable indications of that cheating.
  I do not draw absolute conclusions at this time from what is reported 
in the Courier-Journal. But I can say that what is reported in this 
series is consistent with what I saw and heard when I visited with 
miners in Eastern Kentucky a year ago. I was told then that cheating 
goes on in the dust sampling program in American coal mines. And I 
heard from sick and dying miners and their families about the 
connection between coal-mine conditions and black lung disease--
especially in non-union mines.
  We in the Federal Government have a responsibility to these workers 
and their families. At the end of my statement, I will make some 
suggestions regarding actions I believe we should take in the Senate. 
And I hope that colleagues, as they become more aware of this 
situation, might add to those suggestions and help determine the most 
appropriate response to what I believe is a national shame.
  The initial shame is that the suffering and death of thousands of 
Americans appears to be the direct result of systematic cheating on a 
government-monitored health-protection program. The deeper shame is 
that we in the Federal Government have had the opportunity to know it, 
yet so far we haven't done very much about it. Dedicated people in the 
appropriate Federal agency, the Mine Safety and Health Administration 
(MSHA), are beginning to address this problem. J. Davitt McAteer, who 
is the Assistant Secretary for MSHA, has begun during recent years to 
take a number of steps, and he has called for further steps beyond 
those he has taken. But we still are not doing enough.
  Before I cite some details from the series, I would like to read a 
portion of the newspaper's editorial on this subject into the Record. 
This Louisville Courier-Journal editorial, printed on Sunday, April 19, 
is headlined, ``Death and Denial.'' It begins as follows:

       Coal is an outlaw industry. It is now, and it always has 
     been. Coal is the closest thing to brute, unrepentant late 
     19th Century capitalism that we have left in American life. 
     If you don't believe that, just consider the fact that ranks 
     of miners choke to death every year because coal operators 
     routinely cheat. They cheat on air-quality tests which could 
     save lives. When they do that, they cheat workers of the 
     years they would be able to spend with families and friends 
     but for an early death from black lung. And this grotesque 
     disease continues as the principal killer of coal miners, 
     just as it has been for a half-century.

  That is not the conclusion of some outside group of hostile critics 
of the coal industry. It is the editorial position of a major newspaper 
in the state of Kentucky, where that industry remains important to the 
economy. Let me recite the conclusion of that same editorial: ``One-
third of all the nation's underground mines get cited for excessive 
dust. And those are just the operations that are caught in the flawed, 
sporadic dust tests. Miners are more than exhausted with this 
continuing outrage. They're dying.''
  Mr. President, every article in this series warrants reading in its 
entirety. There are some sad and shocking quotes from former foremen in 
the

[[Page S8892]]

mines, as well as from miners themselves about their own roles in test 
falsification. There are heartbreaking profiles that illustrate the 
human consequences of this reality. Men who are suffocating to death, 
whose lungs are destroyed, who cannot even crawl up two steps at their 
home without stopping and gasping for breath. I hope Senators will read 
the story of Leslie Blevins, 45-year old former coal miner who is dying 
of silicosis, a form of black lung. I hope Senators will read the story 
of Terry Howard and his family. Terry died in 1995 of black lung 
disease. He was 45.
  Let me try to summarize some of the series' important findings.
  The first and most important conclusion of the series is that coal 
miners today continue to breathe hazardous amounts of coal dust because 
falsification of dust sampling is still widespread. In 1972, strict 
dust limits in coal mines went into effect. That was a result of the 
1969 Federal Coal Mine Health and Safety Act. Today, under that Act, 
every two months, operators of underground coal mines have to test the 
air in the mines for dust. They use air pump machines attached to 
certain of the miners' belts to collect air samples. Then government 
laboratories weigh the amount of dust collected in those machines' 
plastic cassettes. Also, in addition to weighing the dust cassettes 
once they have been turned in, Federal government supervisors actually 
oversee the company-conducted testing on one occasion per year.
  How is the Federal dust-sampling program working? Not very well. In 
fact, the dust-sampling program, crucial as it is, today is a big part 
of the problem. Numerous miners, former mine owners and managers told 
the Courier-Journal that the sampling is routinely falsified. ``Most of 
the time, we just turn them off,'' one miner said of the machines. Many 
miners described how the pumps often were hung where the air was clear 
of dust, or placed in lunch buckets. Some are run outside the mines or 
not at all.
  According to the newspaper's reporting, in 1997, at about half the 
nation's underground coal mines, at least 15 percent of the air samples 
taken were almost completely dust-free. It is virtually impossible for 
those tests to have been accurate, according to experts. Assistant 
Secretary McAteer, who I believe is an honorable man and is moving in 
the right direction in addressing the problem, told the paper that 
these samples are ``inaccurate,'' ``unfathomable,'' and ``statistically 
impossible.'' In other words, Assistant Secretary McAteer was saying 
that those results were not accurate. They could not have been 
accurate. They indicated cheating. That was in 1997.
  Cheating is reprehensible, of course. But what matters even more is 
the reason for the cheating. The paper's reporting provides compelling 
evidence that this widespread cheating is for the purpose of covering 
up the existence of severely hazardous conditions--dusty conditions 
which exceed federally allowable levels and which are still causing 
black lung disease today. How can that be, one might ask? We put the 
law in place. We have an agency devoted to enforcing it. Surely the 
mine operating companies are not interested in endangering their 
workers. And yet they do.
  It appears from the evidence that mine operators don't comply with 
the Federal dust-sampling program mainly because it would cost them 
time and money to do so. It is a sad and maddening observation, but it 
appears to be true. Furthermore, it apparently also is the case that 
the coal mine operating companies do not comply with the Federal dust 
sampling program today because up to this point they have had little to 
fear from the Federal Government when they cheat. Even when convictions 
have been obtained in cases of falsification of dust tests, penalties 
seem to have been light.

  So far, the Federal Government has not been up to the job of 
protecting miners' health. MSHA appears over a period of years to have 
largely ignored readily available evidence that cheating was occurring. 
They are not ignoring it now, although I believe we need to make sure 
they are doing everything that is possible to do. Penalties for 
violations, as well as investigations and prosecutions, have been a 
largely ineffective deterrent. One-third of the mines are cited for 
dust-level violations, but the fines are generally small. For years 
average fines were about $100, and even now the average fine is just a 
few hundred dollars. Those are for the violations which are caught--
instances where the measurable dust exceeded allowable levels. The kind 
of cheating which is documented in the Louisville series, which is a 
separate issue, has gone largely unpunished because it has gone largely 
uncaught. Furthermore, even after miners have contracted one or more of 
the diseases which are known collectively as black lung disease, few 
are able to qualify for government benefits intended to relieve their 
plight.
  The most important information in this series of articles is not only 
that American miners continue to suffer and die from black lung disease 
today. Many Senators are aware that, whereas we pledged as a nation to 
eliminate black lung disease 28 years ago, we still have not 
accomplished that goal. The Federal Government pays approximately $1 
billion annually for programs directly related to black lung diseases. 
States pay worker's compensation health benefits to miners with black 
lung disease. So we know that thousands of Americans suffer from black 
lung disease. The important information in this series, however, which 
would have been new and surprising to me had I not visited with coal 
miners in Eastern Kentucky last year, is information which I think 
should shock Members of the Senate. That information is that it appears 
that the cheating on air-quality testing by coal mine operators, the 
falsification of coal dust sampling tests, continues to go on today on 
a widespread scale. That--if true, and it appears to be--is what we 
must acknowledge is a national disgrace.
  What does this mean? It means that the cause of future suffering and 
dying is going on, unabated, in today's coal mines. Right now, today. 
We can talk about responsibility and accountability for dishonesty in 
the past, which has led to today's suffering. We should. We should 
investigate it thoroughly, and if federal laws have been broken, then 
we should prosecute. But if false sampling continues today, and if we 
allow it to go on, then we in the Senate are failing in our 
responsibility to protect thousands of American coal miners from 
serious health hazards while they are on the job. We literally would be 
encouraging through our inaction the continued exposure of miners to 
conditions and practices that we have every indication will condemn 
thousands of them to suffering and early death. We are responsible. We 
cannot allow coal operators to cause avoidable suffering and death. I 
say avoidable because suffering and death from black lung disease is 
avoidable. Coal can be mined profitably without subjecting miners to 
dirty conditions that will give them black lung disease.
  Mr. President, we may not solve this problem during the remainder of 
this Congress. It will probably not be a simple matter, and we have 
only a few remaining legislative weeks. It cannot be solved overnight, 
even though every day that cheating occurs American miners are exposed 
to deadly levels of black-lung-causing coal dust. Nonetheless, we can 
do some things immediately. We should.
  We should hold at least an initial hearing on the subject of the 
effectiveness, or the lack of effectiveness, of current Federal 
measures to eliminate black lung disease. Such a hearing should include 
testimony regarding the voluminous evidence presented in the Louisville 
Courier-Journal series indicating widespread cheating on dust sampling 
tests. It might take more than one hearing to get to the bottom of the 
problem, not to mention the best solutions to it. But there should be a 
hearing, and I have directed a request for such a hearing to the 
Chairman of the Labor Subcommittee on Public Health and Safety, Senator 
Frist, as well as to that Subcommittee's Ranking Member, Senator 
Kennedy. We need to call attention to the issue, and we need to send a 
signal to American miners and their families that we will meet our 
responsibility to learn the truth and protect their health and safety.
  Second, we need to ensure that MSHA has sufficient resources to carry 
out more of their own dust sampling, as well as more monitoring of 
tests conducted by the coal mine operators. I hope when we consider the 
Labor-

[[Page S8893]]

HHS Appropriations bill that we will provide adequate funding to MSHA 
to do more testing. The companies have shown that they will not carry 
out accurate tests. At the same time, I do not believe that we should 
simply increase our own Federal spending and testing, and meanwhile 
take the companies off the hook. The companies should continue to test, 
as well, and they must be held thoroughly accountable for their 
results. A more rigorous testing and monitoring program by MSHA would 
both improve the reliability of the test results, and it would also 
help us identify more of the individuals and companies that are 
cheating on the tests and endangering the health of miners.
  MSHA already has increased its spot-inspections of mines that have 
turned in tests with suspiciously low dust levels. The agency should go 
further, and they should have the resources to ensure they are able to 
go further. I believe Federal enforcement agencies should consider 
whether increased criminal and civil prosecution is warranted for what 
appears to be the systematic circumvention of the Mine Safety Act. By 
enforcement agencies I am referring to MSHA and the Department of 
Justice.
  The number of criminal prosecutions has been low if the claims 
asserted in the Louisville newspaper series are correct. Between 1980 
and early 1997, there were only 96 cases in which criminal charges were 
successfully brought by the Federal government for violations in the 
area of coal mine safety and health. That is 96 cases over a 16 year 
period, or about six a year. It is my understanding that very few, if 
any, even of that small number of successful prosecutions were for the 
kind of cheating documented in the newspaper series. If cheating on 
dust sampling, which endangers people's lives, is as widespread as has 
been alleged, then I believe current Justice Department prosecution has 
been less than it should be. I do not know if the problem has been at 
MSHA, or if the problem has been at the Department of Justice. It may 
be difficult to prove this cheating. It may be difficult to get miners 
to testify. But if what the series portrays is true, then we are simply 
not doing a good job of deterring these illegal practices--practices 
which are causing illness and death.
  Finally, the Secretary of Labor last year proposed new rules 
governing implementation of the Black Lung Benefits Act--rules which to 
my knowledge still have not taken effect. This set of proposed 
revisions to the Black Lung Benefits Act is sound, justified and 
needed. It should be implemented. Only about 7.5 percent of Black Lung 
claims have been granted since the early 1980s, with nearly one-third 
of claims tied up in lengthy hearing and appeals processes. Litigation 
consumes almost half of the Black Lung Trust Fund's administrative 
expenses. The Department of Labor's new rules were published in the 
Federal Register in January of last year, and they should be put into 
effect.
  Mr. President, I will return to the floor to speak further about this 
issue before the year is over. I hope we can conduct a hearing in the 
Labor Committee. I hope we will provide adequate appropriations for the 
Mines Safety and Health Administration. And I hope we will do right for 
the safety and health of American miners. I intend to do all I can as a 
United States Senator to see that we do so. I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LOTT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________