A West Virginia Coal Miner Just Saved NIOSH’s Black Lung Program

The sudden cessation of NIOSH’s work in Morgantown was not just a disruption for the employees themselves; losing access to those crucial services was a lethal threat for the coal miners who depend on them. For West Virginia miners like Harry Wiley, who served as lead plaintiff on the class action lawsuit against Kennedy and the HHS and sued on the grounds that their closure of NIOSH’s CWHSP has caused him ​“irreparable harm,” those layoffs were a matter of life or death. 

He decided he had to fight back. 

And on Tuesday, May 13, Wiley won. Berger ordered Kennedy and the Department of Health and Human Services to restore jobs in the NIOSH Respiratory Health Division as well as the Coal Workers Health Surveillance Program. 

When questioned about it in a May 14 hearing, Kennedy confirmed that 328 workers at NIOSH facilities in Morgantown (about a third of them) and Cincinnati and at the World Trade Center Health Program have been reinstated out of the approximately 900 mass firings he initially ordered. Wiley’s lawyer, Sam Petsonk, a West Virginia labor attorney with a long history of fighting for miners with black lung, explained to In These Times that more reinstatements may be on the way. 

He decided he had to fight back. 

And on Tuesday, May 13, Wiley won. Berger ordered Kennedy and the Department of Health and Human Services to restore jobs in the NIOSH Respiratory Health Division as well as the Coal Workers Health Surveillance Program. 

When questioned about it in a May 14 hearing, Kennedy confirmed that 328 workers at NIOSH facilities in Morgantown (about a third of them) and Cincinnati and at the World Trade Center Health Program have been reinstated out of the approximately 900 mass firings he initially ordered. Wiley’s lawyer, Sam Petsonk, a West Virginia labor attorney with a long history of fighting for miners with black lung, explained to In These Times that more reinstatements may be on the way. 

“The court also ordered that there be no pause, stoppage or gap in the protections and services mandated by Congress in the Mine Act and the attendant regulations for the health and safety of miners,” he said. ​“MSHA has paused the silica rule, without any appropriate notice to the public, so arguably, this order tells the government that they have to restore the silica rule. And certainly it could be construed to order the restoration of the Pittsburgh and Spokane labs within NIOSH.” 

Wiley, who works as an underground electrician in a mine in Raleigh County, was diagnosed with black lung disease in November. Under Part 90 of the Federal Mine Safety and Health Act, a miner who has developed black lung (formally known as coal workers’ pneumoconiosis) is entitled to be transferred to a safer work area with less potential dust exposure without any reduction in pay or threat of retaliation. 

Black lung cannot be cured, but its progress can be slowed by reducing exposure to the deadly silica dust that’s fueling the current epidemic. But, to take advantage of the program, a miner must first have their test results evaluated by NIOSH and certified by the CWHSP’s B readers, specially trained radiologists with expertise in interpreting chest radiographs. Without NIOSH, there is no way for a miner to take advantage of that transfer program — and for those like Wiley, who are already battling the disease, any delay brings them closer to an early death. 

As the judge herself noted in her decision, ​“Remaining in a dusty job may reduce the years in which Mr. Wiley can walk and breathe unassisted, in addition to hastening his death. It is difficult to imagine a clearer case of irreparable harm.”

It is also hard to overstate the importance of NIOSH, particularly to workers who risk exposure to dangerous substances as a regular part of their job. Annually, the CWHSP can process as many as 5,000 X-rays from current and former miners, and the agency’s occupational disease research and surveillance programs continue to have a global impact.

“This program not only protects American coal miners, but it has established the diagnostic standards for occupational lung disease the world over,” Petsonk explained to In These Times. ​“Emerald miners in Africa, stone masons in Italy, rare earth miners in the Congo — all of that lung disease is diagnosed using the framework developed by NIOSH, developed because West Virginia coal miners walked out and picketed and debated it back in the ​’60s. West Virginia miners fought for not just themselves, but workers all over the world.”

Wiley is not the only coal miner still waiting on a Part 90 transfer, but thanks to his courage, the Trump administration has been forced to reverse one of its cruelest anti-worker cuts. Even the most stalwart MAGA politician will be hard-pressed to justify going after NIOSH’s black lung programs again. 

“All big business has ever done is try denying and delaying and destroying workers’ efforts to demonstrate occupational illness, but at least for now, I think the Republicans seem to see the writing is on the wall,” Petsonk said. 

“They have lost this battle, and they have to preserve these programs. And the judge’s order says that’s required by law. So, God willing, they will never attack these programs again — but eternal vigilance is the price of freedom, so we’ll see.”