Fighting for Miners’ Health and Safety in Appalachia: Appalachian Citizens’ Law Center

Original publication date: April 2024

For this month’s issue, we are proud to be in conversation with Appalachian Citizens’ Law Center (ACLC), an Rx Foundation grant recipient in the Building Capacity for Health Advocacy program from 2019 – 2021. We recently reconnected with Wes Addington, Executive Director of ACLC, to learn more about the unique position ACLC holds as a law firm engaged in advocacy and organizing, their current efforts to address silica dust, and what it takes to “win” for miners and their families. We hope you enjoy it as much as we did.

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Background

If you’ve installed a new countertop in your kitchen or bathroom, there’s a good chance you considered an engineered stone such as quartz. Available in a variety of colors and patterns, quartz is durable and often reasonably priced—in some cases cheaper than granite.

But as the Los Angeles Times and CBS News reported recently, quartz slabs are creating devastating health outcomes for workers who cut and shape countertops. During fabrication, workers can inhale dangerous levels of crystalline silica, a small dust released from the quartz. Repeated inhalation of this kind can lead to silicosis, a type of pulmonary fibrosis, a lung disease caused by breathing in tiny bits of silica, a common mineral found in sand, quartz and many other types of rock.

Construction is not the only industry affected by silica dust. For years, miners in Appalachia have been overexposed to silica when drilling through progressively thicker and thicker layers of rock in pursuit of coal.

YouTube video
CBS Sunday Morning’s piece by Ted Koppel on “The increasing hazard of black lung disease facing coal miners”

Last December (2023), CBS Sunday Morning featured a piece by Ted Koppel on “The increasing hazard of black lung disease facing coal miners”. In his piece, Koppel followed Kevin Weikle, 34, a miner in West Virginia, who had been working in the field since he was 18. At a healthcare facility, Weikle is shown taking a pulmonary function test, breathing into a device to measure how impaired his lung function has become. In short, Weikle is told his lungs “are turning into rock.” He has complicated, irreversible, Black Lung disease (also known as complicated pneumoconiosis or progressive massive fibrosis). 

Kevin Weikle is just one of many miners and other workers who are facing fatal occupational-acquired health conditions. Healthcare providers and researchers have observed that men in their thirties are becoming disabled or dying due to preventable silicosis.

Workers in both industries are fighting back, advocating for policy changes and further regulations. On Dec. 14th, 2023, California regulators adopted an emergency temporary standard on silica dust. Similarly, in June 2023, the Mine Safety and Health Administration (MSHA) recently proposed a rule, “Lowering Miners’ Exposure to Respirable Crystalline Silica and Improving Respiratory Protection,” to lower the permissible exposure limit of respirable crystalline silica for miners on an eight hour shift. The move came after years-long advocacy by miners and their families. In Central Appalachia, 1 in 5 tenured miners has Black Lung disease; and 1 in 20 has complicated Black Lung.

YouTube video
Appalachian Voices’ “Miners Deserve Protection from Black Lung Disease” overview video

Appalachian Citizens’ Law Center (ACLC) is a nonprofit law firm representing coal miners and their families on Black Lung and mine safety issues. In 2019, we first connected with ACLC to support their ongoing efforts to strengthen organizing capacity among local Black Lung Associations, to build power in communities affected by Black Lung disease, and to advocate for policies that protect and care for miners and their families. 

Earlier this year, before MSHA finalized its silica dust rule, we reconnected with ACLC to learn more about their current advocacy efforts around silica dust regulations for miners, as many of their miners submitted public comments on MSHA’s (now final) rule. Below we share part of our conversation with Executive Director Wes Addington. Addington discusses more about the unique position ACLC holds as a law firm engaged in advocacy and organizing, their current efforts to address silica dust, and what it takes to “win” for miners and their families.

(Rx): ACLC is a nonprofit law firm that fights for justice in the coal fields, but does so through litigation, advocacy and organizing. I really want to focus on those latter two components because they feel pretty unique for a traditional nonprofit law firm. I’m wondering if you can share more about the decision to be involved in advocacy and organizing, and your journey from two attorneys to a staff that includes a Black Lung Organizer and several policy folks?

(Addington, ACLC): At the very beginning, we were two attorneys working on various types of legal cases related to injustices caused by a coal industry that had run amok in eastern Kentucky for a century. That  included environmental abuses, workers’ rights, safety issues for working miners, and health issues for miners that have been injured due to their work in the industry, particularly from contracting and developing Black Lung disease. 

We did a lot of legal work, but what we found out time and time again is there was so much work necessary outside of these cases that the community needed, and there really weren’t entities organizing around these issues. There wasn’t an infrastructure or apparatus in place for that. While you would have various levels of organized Black Lung associations, created decades prior, depending on leadership challenges some of them were better organized than others. When we attended those meetings as attorneys, we kept finding that the miners and their families had lots of questions and requests. So we saw the need to bring on a Black Lung Organizer.

The Black Lung Organizer brings people together and acts as a liaison for ACLC. It gives us the pulse of the community. We wanted the position to constantly be in contact with the community, supporting not only the miners suffering from Black Lung, but their families too. The importance of those meetings is twofold – since other people are going through the same thing you’re going through, it’s a support group in some ways; and it’s also an advocacy group too.

A picture of Wes Addington, center, in the center of a U-shaped table setup, talking with miners.

Wes Addington with miners
PC: ACLC

We try to move at their speed, otherwise they become suspicious of your motivation. It’s critical to build trust. A lot of the times they’re experiencing very difficult things – a change in the amount of the benefit check they are receiving, or something went wrong in the process and they are trying to figure it out. But if you develop that trust, you can let these groups know there’s other issues within this realm that are important. For example, while most of the miners who attend the meetings are now retired, and they are no longer exposed to dangerous working conditions, younger miners are being exposed to silica dust at alarmingly high rates and developing Black Lung disease at even younger ages than older generations of miners. The meetings are a way for them to get involved. Among the retired miners, there’s a sense that they don’t want people to have the same experience that they did, they want something better for the community. And that allows opportunities for them to have a voice.

(Rx): Can you tell me more about the proposed silica dust rule, and your current advocacy around that issue?

(Addington, ACLC): After several mining disasters in the 1960s and 70s, including one here in Letcher County, Kentucky, the Federal Mine Safety and Health Act of 1977 was enacted “for the protection of the health and safety of persons working in the coal mining industry”. The principle was that a miner should be able to work their entire career and never develop Black Lung disease. That wasn’t just an aspirational goal, but a mandate. The idea that we shouldn’t be giving people occupational disease for just working is pretty rational. The Act set a standard for respirable coal mine dust at 2.0 milligrams of respirable dust per cubic meter of air (mg/m3).

After the act was passed in ‘77, we started more closely monitoring how much dust miners breathe and punishing operators that overexposed their workforce. There was a system in place. In fact, the rate of Black Lung went down significantly. We had almost completely eradicated it in the mid to late nineties, including the very worst forms of the disease called complicated Black Lung, that can rapidly progress and be fatal. But since the late 1990s, we’ve seen rates increase significantly again.

In the mining process, you’re trying to dig as much coal as possible. Unfortunately, in that process and depending on the mining conditions, you may also have to mine some layers of rock above the coal seam or below the coal seam. Now that we’ve mined in Appalachia for a hundred years, the large eight to ten foot seams of coal are long gone. You have very small seams left. Today, you have to mine as much rock as you do coal to get to the coal because the very small coal seam is buried underneath rock. When you mine the rock, the fine particles released are super fine silica dust, which is 20 times more toxic than coal dust.

A black and white photo of a middle-aged man and miner, holding a black protest sign that reads "Black Lung = Disability & Death"

PC: ACLC

So in 2008, our organization petitioned the Mine Safety and Health Administration (MSHA) in federal court to force action to reduce miners’ exposure to silica, and ultimately the rates of Black Lung. In 2009, we also submitted a petition for rulemaking to request a reduced and separately enforceable Permissible Exposure Limit for respirable crystalline silica. Unfortunately, while they eventually granted our two petitions, there was no rule set for silica dust, only for harmful respirable coal mine dust in 2014. While that was a positive, we also felt as though it didn’t go far enough. A decade of inaction meant that miners had no sufficient protection from silica.

Today’s generation of miners have now been overexposed to deadlier dust than the generation before them. My dad’s generation, the miners that were his peers, aren’t as sick as the younger guys that are a decade or two younger. We believe that it’s because we’ve never really limited how much silica dust that miners are forced to breathe.

Fast forward to last June (2023), there was a new proposed silica dust rule by MSHA. Once again, it has its positives but we’re concerned. The proposed rule limits the silica dust exposure a miner can face to 50 mcg per cubic meter for an eight hour shift. That’s about half the exposure of the current law (100 mcg per cubic meter). But just how strict the rule is will determine how many people will develop Black Lung in the next couple of decades. We hope it’s a much stronger rule. But even if we can move them only somewhat, that literally can translate into lives.

A lung x-ray of a miner with Progressive Massive Fibrosis (PMF), the most severe form of black lung. The lungs are not clear, but instead cloudy.

A lung x-ray of a miner with Progressive Massive Fibrosis (PMF), the most severe form of black lung.
PC: ACLC

It’s just about preventing exposure, taking care enough to protect the atmosphere that miners are working in, so they won’t develop disease. There are really heartbreaking stories. A lot of these guys are young, 30 years old, only doing it for ten years, but they have been so overexposed that they are developing the fatal disease. More than 1,500 miners have been diagnosed in the past five years.

One thing I’m proud of is that we were able to support all these Black Lung Association chapters in submitting a comment on the silica dust rule. In the months leading up to the new proposed rule, MSHA also had quarterly meetings with regional leaders from the chapters. They would share where they were in the process. But that made people feel like MSHA was listening. It also gave people an opportunity to indicate to the agency that we’re closely watching this, “We would love to be able to say what a great job you’re doing when it comes out,” and we told them this multiple times, “if it’s not a good rule, you’re going to hear about that, too.” We helped people put together their comments and get them submitted, we submitted our own lengthy comments, and together, we’re hoping it results in a stronger rule than what MSHA proposed.

(Rx): What have you learned about what it takes to win over the last few years?

The current state of the benefits process for coal miners and their survivors in the United States – although the process is long and cumbersome and frustrating and all those things – have wildly changed since I first started doing this work. And that’s because ordinary people had a voice about the process and were successful enough to advocate for changes, like the Affordable Care Act or little tweaks to rules. It wasn’t some staffer on the Hill who thought that would be a good idea; it was miners. Those legal changes made my job as a lawyer so much more satisfying because the results have completely flipped. For example, in 2023, we had 59 wins and only seven clear losses, four of which we are appealing. That ratio is really favorable. We won the vast majority of our cases. When I first started doing this job, we lost almost all of them. It was like beating your head against the wall. That’s an example of what winning looks like in terms of the court side of our work.

But so much of it lives outside of the courthouse. A lot of the other work that we do is supporting the community. Their voices are what has gotten a lot of things changed. When chapters became really concerned about the Black Lung Disability Trust Fund’s debt and viability, we visited a local senate office in Eastern Kentucky, and then decided to go to Washington DC to see a bunch of people on the Hill. That was successful in getting the issue on the radar in a way that people in power could see that there’s groups here in the mountains that are interested in this. If you don’t do something, they will mobilize. It ultimately led to a permanent extension of the tax. Those are the ones you can pinpoint – you’re working and you’re working and something changes and it’s dramatic and there’s a big celebration.

ACLC Black Lung Organizer, Courtney Rhoades Mullins, leads an overview of finding self-interest in organizing for a Black Lung Association Winter Organizing Training. People are sitting at tables, placed in a u-shape, with Courtney in the middle.

ACLC Black Lung Organizer, Courtney Rhoades Mullins, leads an overview of finding self-interest in organizing for a Black Lung Association Winter Organizing Training. 
PC: ACLC

But I always talk to the staff – those big wins don’t always come and that doesn’t mean you haven’t done things that I would consider a “win” for the people we’re trying to support. There’s lots of instances for “wins” in the chapters and at an individual level. They will never be reflected in a news story. We won’t be in the paper for that sort of thing. But they create a sense of belonging, community, and all those good things. It sets the stage for people to continue; and then when the opportunity is right, you can get big things done like the tax extension.

Just this month, on April 18th, 2024, the Mine Safety and Health Administration (MSHA) released a final silica dust rule

The public comments on the proposed silica dust rule closed in September 2023, after numerous advocacy groups and individuals wrote to the agency expressing concerns about lenient guidelines regarding sampling frequency, specificity, and the criteria for enforcement. In other words, there were many “loopholes in the law that would reduce the impact of the rule in blunting the black lung epidemic”, according to ACLC and advocates. For instance, experts with ACLC note that, “the final rule relies heavily on coal operators’ ‘good-faith’ engagement with this rule, especially when it comes to the rigor of periodic evaluations and post-evaluation sampling.”

In a public statement addressing the final rule, Rebecca Shelton, Director of Policy at ACLC shared, “We cannot rely on the coal mining companies that created the silica dust crisis to solve it. We need strong safeguards with no loopholes and enforced accountability, but this rule does not meet that standard. In the comments we submitted to MSHA on the proposed rule, there was extensive testimony from many miners illustrating that coal operators will look for every opportunity to cheat when it comes to dust sampling. These coal mine operators have every incentive to continue cheating and hiding dangers when the rules don’t hold them accountable, and we have real concerns that this rule doesn’t shut that loophole.”

Unfortunately, the final rule was not sufficiently responsive to the public comments, and contains contains weaknesses with implications for workers’ health:

  • Requiring quarterly frequency of sampling, which is too infrequent given the rapidly changing conditions in mines;
  • The rule does not mandate the withdrawal of miners and cessation of production when silica samples are over the permissible exposure levels, meaning miners will still be at work in dangerous conditions.
  • The rule fails to create any requirements or incentives for the development of improved technology for real-time silica sampling and results.

The final silica dust rule, though imperfect, represents progress, and ACLC continues to champion the voices of miners and their families in fighting for safe working conditions and empowering Black Lung Association chapters to build members’ leadership and power for advocacy and change.

To stay updated on the silica dust rule, and how it will impact miners and their families, you can connect with ACLC on its social media channels, linked below. You can also check www.blacklungkills.org, where they regularly share action alerts.

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HIP is seeking a fantastic Director of Capacity Building to join their team! This is an exciting opportunity to vision, design, and implement systems change processes to advance health equity and racial justice in governmental public health and allied public health organizations.

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Events

Holding Institutions Accountable for Access and Equity | 5/21 at 1pm Eastern via Zoom

Next month, on Tuesday, May 21st at 1pm Eastern, we’ll gather to hear from a few nonprofit leaders on the forefront of holding healthcare systems and insurers accountable for how their practices impact patients and communities. The Center for Health Progress (Colorado), El Centro (Kansas City, KS), and People’s Action Institute (nationwide) are each leading boots-on-the-ground efforts and campaigns to address healthcare access, equity, and justice in their communities. 

Our conversation will explore how non-profit groups at the local, state, and national levels are organizing people impacted by the practices of these institutions to advocate for change, and will illustrate the discussion with case studies and examples of corporate accountability strategies and campaigns around the US.

Together, we will dig into questions that include:

  • What does corporate accountability mean in the context of health care and the systems for insurance and payment?
  • Why does this lane of action include and go beyond expanding insurance coverage options?
  • How could health care systems and insurers benefit from responding positively to calls for greater accountability?
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