Handout 2:
Black Lung
Black lung is a legal term describing man-made, occupational lung diseases that are contracted by prolonged breathing of coal mine dust. Call it miner's asthma, silicosis, pneumonoultramicroscopicsilicovolcanoconiosis, coal workers' pneumoconiosis, or black lung—they are all dust diseases with the same symptoms.
Miners' asthma was first used in 1822 to describe the lung disease occurring among coal miners. The cause of the spitting, coughing, and breathlessness in coal miners was unknown, so doctors used the well-known word asthma to identify the condition. Later, silicosis became known as the disease producing breathlessness in miners who had worked where silica was thought to be in the coal mine dust.
Coal workers' pneumoconiosis was the term British investigators used for the first time in 1942 to identify a type of dust disease observed in coal miners. The following year this disease, as distinct from, and in addition to, classical silicosis, became compensable in the United Kingdom. Like all occupational diseases, black lung is man-made and can be prevented.
In fact, the U.S. Congress ordered black lung to be eradicated from the coal industry in 1969. Today, over three decades later, it is estimated that 1,500 former coal miners die of black lung each year. That is the equivalent of a Titanic going down in the nation's coal fields each year. However, unlike the sensational news coverage of disasters such as the Titanic, black lung victims die an agonizing death in isolated rural communities, away from the spotlight of publicity.
While black "spittle" and black pigmentation of lungs were observed in European coal miners during the seventeenth and eighteenth centuries, it was not until 1831 that the term black lung was used for the first time to describe the lungs of a Scottish coal miner. From then until the end of the nineteenth century, coal mine dust was generally acknowledged in Europe to be the cause of the black lungs and the shortness of breath occurring among coal miners. In 1880 Émile Zola, in his famous novel about French coal miners, Germinal, wrote eloquently about the devastating effect of black lung.
In the early years of the twentieth century efforts to suppress coal mine dust subsided. It was claimed by industry that improved mine ventilation had virtually eliminated black lung. Some medical "experts" claimed that coal dust was possibly beneficial, inducing coughing that would dislodge silica from the lungs. The attitude of many coal industry medical "experts" is shown in this exchange between Clarence Darrow, representing the UMWA before the 1902 Anthracite Coal Commission and a Dr. Kellar, representing the anthracite coal operators.
Darrow: You have dissected miners, have you?
Kellar: Yes, sir.
Darrow: Did you ever find them where their lungs were black?
Kellar: Yes, sir.
Darrow: Is that any indication of unhealthfulness?
Kellar: No, sir.
British investigators, unlike their American cousins, continued their concern for diseases associated with coal mine dust. The British Medical Research Council, a counterpart of the U.S. Public Health Service, initiated in 1937 a comprehensive study of chronic pulmonary disease in south Wales coal miners. The first report in 1942 identified a "new" dust disease which the British investigators called coal workers' pneumoconiosis. The following year this "new" disease became compensable. Countless reports on coal workers' pneumoconiosis were made in British medical journals but relatively few appeared in the United States before 1969. Despite five major medical conferences beginning in 1952 in Elkins, West Virginia, the disease was not widely recognized in the United States.
Efforts of the United Mine Workers of America to secure corrective legislation were nearly always fruitless. A glimmer of hope appeared in 1952 when Alabama became the first state to provide compensation for coal workers' pneumoconiosis. A few years later Virginia recognized the disease as compensable, but pressures were exerted the following year and the amendment was repealed. Pennsylvania enacted legislation effective on December 1, 1965, and Virginia again amended its compensation law in 1968.
In the almost universal absence of compensation coverage for medical benefits, payment by the UMWA Welfare and Retirement Fund for the diagnosis, treatment, and rehabilitation of miners afflicted with this preventable disease amounted to millions of dollars. These disabled miners had more respiratory infections than other miners, and their infections lasted longer. Some of these men became so ill with upper respiratory infections that they required hospitalization for two or three weeks several times ever year. Confronted with a mounting toll of pulmonary cripples, the UMWA Fund embarked in 1952 on a twelve-point program designed to develop professional understanding of pulmonary diseases among coal miners.
On November 20, 1968, the nation was numbed by the sight and fury of a devastating coal mine explosion at Farmington, West Virginia. This was the first time that a major coal mine disaster was televised on the nightly news, and the public reaction to the slaughter of 78 miners was immediate outrage. While earlier legislative achievements were also preceded by major mine disasters with great loss of life, the reaction to the 1968 disaster grew to a fervent intensity never witnessed before. Overnight there was an outraged clamor for a strong federal health and safety law, wiping out long-standing barriers which the pleas of the miners and their union had previously been unable to tear down. The public and Congressional campaign to try to eliminate the daily toll of coal mine accidents soon included the equally destructive losses due to dust diseases.
In southern West Virginia, several months before the Farmington disaster, some interested coal miners, young activists and three physicians — I.E. Buff, Donald R. Rasmussen, and Hawey A. Wells, Jr. — toured the coal fields. They met with working and disabled miners and their wives and widows, explaining the death and disability caused by black lung. Late in 1968 a number of miners organized the West Virginia Black Lung Association which successfully led a campaign to introduce a bill in the 1969 session of the West Virginia legislature making coal workers' pneumoconiosis a compensable disease. The compensation bill was quickly made a major issue by the Black Lung Association and militant miners in February when the legislation ran into opposition from the coal-operator-dominated legislature. Most of the 40,000 miners in West Virginia walked out of the mines, and a large number of them marched on the state capitol in Charleston demanding passage of the bill. Three weeks later, after the governor signed the bill, the miners went back to work. This was one of the largest and longest strikes ever on the single issue of occupational health. This strike played a vital role in the ultimate passage of similar legislation in three more states in 1969 and one in 1971, and the enactment of the Federal Coal Mine Health and Safety Act of 1969.
Although coal workers' pneumoconiosis was the only disease mentioned in all the state and federal statutes, Congress legalized the term black lung as a synonym for that disease in Title IV of the Coal Mine Act. The act is historic--the precedent it established played a major role in the enactment of the Occupational Safety and Health Act of 1970.
In the Coal Mine Act, Congress for the first time mandated that an occupational disease occurring in a major industry must be eradicated. To prevent and control the disease the act stipulated the dates on which decreasing levels of respirable dust occurring in the coal mines must become effective. It also directed periodic chest x-ray examinations of working miners.
In addition to ordering the eradication of this man-made disease in 1969, Congress also established the black lung benefits program to compensate its victims. This program, the first and only federal compensation statute to compensate victims of occupational diseases, has been amended by Congress on several occasions. The 1977 Black Lung Amendments established a Black Lung Disability Trust Fund to provide compensation to miners whose employers no longer existed. The Trust Fund is financed by taxes paid by all coal operators. The 1977 law also made coal companies directly responsible for compensation and medical costs for black lung victims that had worked for them. This has resulted in coal companies submitting voluminous medical evidence to slow down the approval process and overwhelm the black lung victim in a bureaucratic tangle of red tape. For the last decade, the UMWA has advocated legislative and administrative reforms to make it easier for black lung victims to establish eligibility for benefits.
Recent Regulatory Actions
In 1997, the U.S. Department of Labor issued proposed regulations that would amend the process by which miners apply for black lung benefits. After a long period of public comment and consideration by the government, the Department of Labor published final rules in the Federal Register on December 20, 2000 with the rules scheduled to go into effect on January 19, 2001. Among other changes, the new rules limit the amount of medical evidence to be submitted by either side and allow greater weight to the medical opinion of treating physicians who are more familiar with the black lung victim's pulmonary condition.
On December 22, 2000, the National Mining Association (NMA) filed a lawsuit challenging the new regulations. The NMA also sought an injunction to delay the implementation of the new rules, arguing that the new regulations were unanticipated and could do "irreparable harm" to the coal industry. The UMWA intervened in the case and argued that the industry had plenty of time to prepare for the new rules and that there was no such irreparable harm to the industry. Indeed, the only irreparable harm is what was already done to the miners who have contracted this deadly disease. There is no justification for further delay in providing a more reasonable standard to establish eligibility for benefits.
Despite the fact that these rules were years in the making, the Bush Administration sided with the coal industry and asked the judge to suspend the new rules so the new Secretary of Labor Elaine Chao could figure out what position she will take in NMA's challenge to the new rules. On February 9, 2001, the judge granted the Administration's request, further delaying justice to miners whose health has been destroyed by breathing coal mine dust. Under that injunction, black lung claims filed after January 19, 2001 (the effective date of the new rules) would be processed up to a point–but no decisions would be made on either the miner's or survivor's claims until the coal industry lawsuit was resolved, delaying processing for many months.
The Department of Labor ended up defending the black lung rules in their entirety when it filed its brief with the District Court. However, the government argued that the case should not even be in court arguing that the NMA's challenges would have to be raised in individual benefit claim's cases. The UMWA contended both that the rules should be upheld in their entirety, and that the court had the power to decide the matter once and for all. Even the NMA agreed with us that the District Court should resolve the dispute now rather than allow the issues to be resolved piece-meal in individual claims' cases.
In a decision dated August 9, 2001, District Court Judge Emmet Sullivan upheld the rules, first finding that the court had power to decide the matter. With this decision the injunction dissolved, and the rules took full effect.
The NMA took an immediate appeal, to the Court of Appeals. The case was expedited, and the parties maintained the positions each had taken in the lower court: NMA argued that the court had power to consider the case but that a large number of the rules were unlawful in their entirety and many also could not be applied to cases that were pending on January 19, 2001 when the rules took effect; the Department of Labor argued that the court should not have considered the issues at all, but if it would review the lawsuit then the black lung rules should be upheld; and the UMWA asserted both that the court had power to resolve the entire case, and that the rules should be upheld in their entirety.
The Court of Appeals issued its decision on June 14, 2002. It found the court did have the power to decide the case, and with one minor exception, upheld the rules as they will apply to all cases filed after January 19, 2001; as for the rules' application to cases that were already pending on January 19, 2001, the court found the rules generally lawful except as to a few minor exceptions that are explained in detail, on a rule-by-rule basis, in the separate summary of the rule, provided elsewhere on this UMWA web page.