The U.S. Attorney for Kentucky’s Western District unsealed eight fraud indictments Wednesday against employees of the bankrupt Armstrong Energy coal company for falsifying dust monitoring samples in two Kentucky mines.
“What the grand jury is charging and what the United States will prosecute is lying and cheating by a coal company to prevent the appropriate testing of this dust to protect miners,” Russell Coleman, United States Attorney for the Western District of Kentucky, said at a press conference in Ownesboro.
Coleman sad those charged conspired to commit dust fraud “by knowingly and willfully altering the company’s required dust-sampling procedures,” either by circumventing the dust-sampling regulations, submitting false samples, or by making false statements on dust certification cards.
Controlling coal dust is important both to prevent the potential for explosions in mines and to limit miners’ exposure to dust, which causes lung disease. The region is experiencing an epidemic in cases of black lung disease.
Those charged include a superintendent, safety director and section foreman at Armstrong’s Parkway Mine and a safety director at the company’s Kronos mine. The indictments refer to Armstrong Coal Company as “an unindicted co-conspirator.” Coleman did not rule out the chance of further indictments.
By circumventing the dust-sampling procedures, the indictment alleges, “Armstrong Coal and its co-conspirators avoided implementing ventilation and production controls that might cost money or lower production, and thus were able to save money.”
Those savings, the prosecutors allege, came “at the expense of exposing the miners employed at the Parkway and Kronos mines to the risks of breathing air with elevated levels of respirable coal dust, increasing their risks of contracting black lung.”
Miners Spoke Out
Coleman said whistle blowers who worked in the mines were critical to bringing the charges.
“At the end of the day, those that want to cheat in a complex industry like that will always attempt to cheat,” he said. “So the best witnesses, the best sources of information, are the miners themselves.”
Acting on a tip from miners, federal inspectors found violations at Armstrong Energy’s Parkway and Kronos mines.
The federal Mine Safety and Health Administration, or MSHA, carried out several “impact” inspections at Armstrong Energy coal mines in Kentucky between 2014 and 2017. The special inspection program started under the Obama administration and focused on mines that MSHA said “merit increased agency attention and enforcement due to their poor compliance history or particular compliance concerns.”
MSHA records show the two Armstrong mines were cited for ventilation system problems and had a rate of violations higher than the national average for similar mines.
Mike Wilson, a former miner at Armstrong mines, was among those who alerted inspectors. Wilson said cheating on dust samples was common at many mines and that miners had little choice in the matter.
“I done it at all of them,” Wilson said. “Tampered with the dust pump at all of them. You had to do it their way or you didn’t stay.”
Lexington, Kentucky, attorney and mine safety expert Tony Oppegard said Wilson and two other Armstrong Energy miners contacted him in early 2014 to ask about their rights and report about cheating underway at Parkway mine, including placement of the dust monitoring pumps that some miners wear.
“The company was taking them off the miners and hanging them where it was less dusty,” Oppegard said.
“Miners have a tough choice,” he explained. “Work in excessive dust knowing they are harming themselves, but knowing if they complain they are subject to being harassed or fired.”
Oppegard said one of the miners who contacted him was fired but won a discrimination suit that allowed him to return to work. But constant harassment took a toll and he found other employment.
“These guys did the right thing,” he said.
None of the men still work in mines.
Wilson said he now has black lung disease.
Black Lung Surging
A 2016 investigation by NPR and Ohio Valley ReSource revealed a cluster of cases of the advanced form of black lung disease among Appalachian miners that was ten times the number reported by federal regulators at the time.
A study released early this year confirmed the surge in black lung. Scott Laney, an epidemiologist with the National Institute for Occupational Safety and Health was involved in the study which focused on cases of complicated black lung, also called progressive massive fibrosis or PMF.
“We’ve gone from having nearly eradicated PMF in the mid-1990s to the highest concentration of cases that anyone has ever seen,” he said.
Fraud in the coal dust sampling programs has long been a problem in the coal industry. A major scandal erupted in the early 1990s and miners in the black lung clinics of Central Appalachia frequently say they have witnessed improper or fraudulent dust monitoring over the course of their careers.
Despite improvements such as an Obama-era rule to strengthen monitoring and control of dust in mines, a recent report from the National Academy of Sciences says the coal mining industry needs a “fundamental shift” in the way it controls exposure to coal and rock dust in order to prevent lung disease among miners.
Former MSHA director Joe Main implemented the dust control measures. In an emailed statement he expressed support for the indictments. “Tens of thousands of miners have died as a result of exposure to unhealthy coal mine dust,” Main wrote. “Mine operators that cheat the system, exposing miners to excessive levels of the harmful dust should be prosecuted.
Oppegard said cheating on dust monitoring is widespread in the industry.
“I think it happens all the time,” he said, adding that fraud undermines the new dust control rule. “Anyone who thinks that that is going to eliminate black lung is just fooling themselves, as long as cheating goes on.”
Armstrong Energy’s mines in Kentucky’s Ohio and Muhlenberg Counties supplied coal to power plants including the Tennessee Valley Authority’s Paradise station.
As more utilities switched from coal to cleaner and cheaper natural gas demand for coal dropped. The TVA’s Paradise facility closed much of its coal capacity and opened a new gas-fired generator last year. Armstrong Energy declared bankruptcy later the same year.
NPR’s Howard Berkes contributed to this story, which has been updated.