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«What We Owe Our Coal Miners Anne Marie Lofaso* INTRODUCTION Workplace hazards, such as those existing in coal mines, present an acceptable-risk ...»

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What We Owe Our Coal Miners

Anne Marie Lofaso*


Workplace hazards, such as those existing in coal mines, present an

acceptable-risk problem: “they require a choice among alternative courses

of action... [where] at least one alternative option includes a threat to life

or health among its consequences.”1 Recognizing that acceptable-risk

problems require choices that are “dependent on values, beliefs, and other factors,” it becomes useful to separate the facts from those values.2 This essay is committed to both—presenting an accurate picture of factual hazards inherent in coal mining and clarifying the values underlying potential policy choices.

One value that often remains implicit but that forms the basis of the deregulatory position is efficiency. While there are several measures of efficiency, law and economics scholars typically use Kaldor-Hicks efficiency, a measure of economic efficiency that requires “not that no one be made worse off by the move [Pareto efficiency], but only that the increase in [economic] value be sufficiently large that the losers could be fully compensated.”3 The losers here are the coal miners who have lost their lives or health. Coal mine operators, the winners, are legally forced to compensate miners or their families for the miners’ loss, but for less than the cost of making the workplace safer.

It is difficult to assess workplace health and safety policies abstractly in a system that values efficiency. Implicit in any such calculation is the belief that the free market is the best gauge for determining efficiency and, therefore, acceptable risk. The question then becomes, what does the free market value? Some say profit maximization. Others say the social good. At worst, social good equates with profit or wealth maximization as its proxy.

At best, the social good is conterminous with human life but more often * Associate Professor, West Virginia University College of Law. Many thanks to those who have commented on early drafts of this Essay and/or who have conversed with me about this essay, especially Robert Bastress, Clifford Hawley, Jim Heiko, Joyce McConnell, Patrick McGinley, Michael Risch, Daolu Tang, Jena Martin Amerson, and to the West Virginia University College of Law Faculty and library staff. Thanks to Daniel J. Burns, Jenny Flanigan, Travis Sayre, Nicholas Stump, Christopher J. Williamson, Matthew T. Yanni, and the editors of the Harvard Law & Policy Review for their research assistance. And thanks to all the coal miners, especially Donnie Hayhurst, who have spoken to me about coal mine safety. This essay is dedicated to the 29 coal miners who tragically lost their lives in the Upper Big Branch explosion. All errors are the author’s.


Id. at xii.

Richard A. Posner, The Ethical and Political Basis of the Efficiency Norm in Common

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consists of a combination of goods, which might include some value on human life or worker dignity.

For those of us who more directly value human life, the acceptable risk level does not necessarily coincide with the efficient result of the free market. This leads back to our initial question: What is an acceptable risk in hazardous workplaces, such as coal mines? From my perspective, we need to look at this question in another way: What does society owe workers, such as coal miners, who voluntarily enter hazardous workplaces for the greater good? Inspired by Harvard philosopher Thomas M. Scanlon’s contractualism, I further recast the question as follows: How do we justify dangerous jobs? To justify such jobs, we must present reasons that “no one could reasonably reject as a basis for informed, unforced, general agreement.”4 This essay attempts to present such a justification. In particular, I argue that, while targeted regulation could conceivably improve current industry safety and health records, those records would benefit more directly by imposing the union model on the mining industry. The purpose of this Essay is not so much to argue in favor of greater safety regulations, but to demonstrate that collective bargaining above the regulatory floor is likely to result in safer, healthier mines, and that the safety records of such mines will be better justified when based on informed, unforced, general agreement.

I commence this argument in Part I with background information about the coal mining industry, focusing on the underground mining that occurs in Appalachia. This section demonstrates the power disparity between coal mine operators and their miners, making coal miners an ideal class of workers who would benefit from collective bargaining and other forms of concerted activity.

In Part II, I describe the law’s role in ensuring coal mine safety. There, I briefly describe the federal regulatory floor above which states and private actors, through contracts, may rise. I show that increased safety has correlated with more comprehensive regulation. I also discuss current incentives to circumvent mining regulations.

In Part III, I identify several market failures—inequality of bargaining power, irrationality in assessing risk, asymmetrical information, and monopsony—all of which union mines are particularly well suited to remedy. I use this section to describe union safety committees and bargaining obligations and miners’ rights under the National Labor Relations Act (NLRA) to explain the role that private actors play in creating safer and healthier workplaces.

In Part IV, I argue that extending the union model to nonunion mines should resolve many mine safety issues. I conclude that mine safety would improve even more if policy makers were to empower miners through any THOMAS SCANLON, WHAT WE OWE TO EACH OTHER 153 (1998). I wish to thank the late

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one of several forms of industrial participatory democracy, ranging from mandatory notice posting of workers’ rights in nonunion and union mines to extending mandatory bargaining over safety issues to nonunion mines.

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Since the Sago disaster of January 2006, the United States has witnessed three more major underground coal mining disasters—all in nonunion mines—which, together with the Sago disaster, have taken the lives of fifty-two miners.5 In addition to these disasters, which tend to catch the public’s attention, hundreds of miners have died one by one, in accidents such as collapsed roofs that do not make headline news.6 Between 1996 and 2005, nearly 10,000 miners died of black lung disease.7 The most recent coal mine disaster at the nonunion mine at Upper Big Branch (UBB) poignantly illustrates this human cost. At 3:02 in the afternoon on Monday, April 5, 2010,8 “a massive explosion on a scale that is nearly incomprehensible ripped through the [UBB] Mine” in a small West Virginia town.9 That explosion, which instantly took the lives of twenty



DISASTERS IN THE UNITED STATES, http://www.msha.gov/MSHAINFO/FactSheets/ MSHAFCT8.HTM [hereinafter “MSHA Historical Data”] (on file with the Harvard Law School Library). A “disaster” is defined as an accident that takes five or more lives. Id.

Between 2005 and 2009, the total number of mining fatalities was 285. MINE SAFETY AND HEALTH ADMIN., U.S. DEPT. OF LABOR, MINE SAFETY AND HEALTH AT A GLANCE (2010), http://www.msha.gov/MSHAINFO/FactSheets/MSHAFCT10.HTM (on file with the Harvard Law School Library). The nonunion/union status of the mines involved in those disasters can be found at Press Release, United Mine Workers of America, UMWA Statement on Incident at Upper Big Branch Mine, Apr. 5, 2010, available at http://www.umwa.org/?q=news/umwastatement-incident-upper-big-branch-mine; Press Release, United Mine Workers of America, Crandall Canyon Families, UMWA Tell Congress: Now is the Time to Make Change, Oct. 3, 2007, available at http://www.umwa.org/?q=news/crandall-canyon-familes-umwa-tell-congress-now-time-make-change; Press Release, United Mine Workers of America, UMWA Designated as Representative in Darby Investigation, May 31, 2006, available at http:// www.umwa.org/?q=node/104; Press Release, United Mine Workers of America, Technology, Information, Knowledge Available that Could Have Alleviated Sago Disaster, Jan. 17, 2007 available at http://www.umwa.org/?q=node/132.

Ken Ward Jr., Beyond Sago: One by One, CHARLESTON GAZETTE, Nov. 5, 2006, at 1E, available at http://wvgazette.com/News/BeyondSago/200611050006.


§ 2 tbl.2-1 (2009), available at http://www2a.cdc.gov/drds/WorldReportData/pdf/2008T02pdf.


MASSEY ENERGY’S UPPER BIG BRANCH MINE-SOUTH 2 (2010), available at http://www.msha.


The Upper Big Branch Mine Disaster: Testimony of Family Members: Hearing Before

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nine coal miners and seriously injured two others,10 is the worst United States coal mining disaster in forty years.11 Although the twenty-nine miners died instantly, the relatives of several miners did not immediately learn the fate of their relatives.12 Instead, as is so often the case with mine disasters,13 family members and others gathered together, “watching, hoping and praying for survivors to emerge from the darkness into the arms of their loved ones.”14 By Tuesday, officials had accounted for all but four miners.15 Rescue efforts for the missing miners were delayed because of dangerously high levels of methane, a combustible gas that is often the catalyst in a coal mine explosion.16 It was not until Friday morning—three and a half days after the explosion—that officials could confirm that those missing had perished in the blast.17 In addition to putting themselves at risk of physical danger, coal miners also face enormous health risks.18 Pneumoconiosis (black lung) is a disease caused by coal dust accumulating in the lungs. According to the National Institute for Occupational Safety and Health (NIOSH), approximately one in ten U.S. miners with twenty-five years’ tenure develop the simple form of black lung, “coal workers’ pneumoconiosis.”19 The growing black lung rates among younger, less experienced miners is even more alarming.20 Health and safety officials believe that these rates are attributable to longer shifts and better technology. Longer shifts mean more dust with less time to cough the dust out of the lungs,21 while better technology, especially in Chairman, H. Comm. on Education and Labor). MSHA’s briefing described the explosion as “catastrophic” and “massive.” MINE SAFETY AND HEALTH ADMIN., supra note 8, at 2.

MINE SAFETY AND HEALTH ADMIN., supra note 8, at 2.

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See David A. Fahrenthold, Even After 25 Men Die, ‘We Still Have Hope’, WASH. POST, April 7, 2010, at A-1, available at http://www.washingtonpost.com/wp-dyn/content/story/ 2010/04/05/ST2010040505519.html?sid=ST2010040505519.

See Anne Marie Lofaso, Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective, 111 W. VA. L. REV. 1, 1–2 (2008).

156 CONG. REC. H2538 (daily ed. Apr. 14, 2010) (statement of Rep. Nick Rahall).

See Upper Big Branch Mine Disaster, CHARLESTON GAZETTE, Apr. 10, 2010 at 8-A, available at http://wvgazette.com/News/montcoal/201004100542.

Ken Ward Jr., Gary A. Harki, & Kathryn Gregory, Search for Missing Miners Delayed, CHARLESTON GAZETTE, Apr. 5, 2010, http://www.wvgazette.com/News/201004050545 (on file with the Harvard Law School Library).

Ken Ward Jr. and Andre Clevenger, Missing Miners Found Dead; Death Toll Reaches 29 in Raleigh Explosion, CHARLESTON GAZETTE (Apr. 10, 2010) at 1A, available at http:// wvgazette.com/News/201004090857.

See, e.g., J. David Cummins & Douglas G. Olson, An Analysis of the Black Lung Compensation Program, 41 J. RISK & INS. 633, 644–47 nn.44–48 (1974) (discussing black lung disease as an externality).


NOW! 3, available at http://www.msha.gov/S&HINFO/BlackLung/2009Charts/BlackLung Charts2009.pdf (showing the rates and trends of coal miners with the simple form of black lung known as coal workers’ pneumoconiosis).

Kris Maher, Black Lung on Rise in Mines, Reversing Trend, WALL ST. J., Dec. 15, 2009 at A5, available at http://online.wsj.com/article/SB126083871040391327.html.

Brenda Wilson, The Quiet Deaths Outside the Coal Mines, NAT’L PUB. RADIO (April 16,

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