Who'll pay coal's dues? Supreme Court restores miners' ability to win black lung claims

It hasn't been that long since the coal industry's high rate of sick and injured workers became an unbearable cost, not just for the coal industry, but for employers all across Kentucky.

The governor then was a former coal operator, Paul Patton. He responded by pushing through changes that have made it nearly impossible for coal miners to receive workers compensation for pneumoconiosis, more commonly known as black lung.

That was 15 years ago.

Last month, the state Supreme Court struck down a linchpin of those changes. The court found that the law subjects coal workers to a different set of tests and more stringent requirements than workers in other industries seeking compensation for the same work-related ailment. In a 5-2 ruling, the justices said that violated constitutional guarantees of equal protection.

Pneumoconiosis is hardening of the lungs caused by inhaling minute dust particles. In addition to coal, aluminum, sandstone (silica), cotton and feathers are occupational sources of dust that can cause pneumoconiosis.

The Supreme Court ruling has yet to receive much attention but seems to present lawmakers and Gov. Steve Beshear with several alternatives. They include:

A. Once again shift the costs of the coal industry's health and safety practices onto other industries by resurrecting the special fund into which all employers had to pay, while the lion's share of the fund's benefits went to sick or injured coal miners.

B. Figure out how to make workers keep paying for coal industry practices through physical suffering and premature death.

C. Require the coal industry to better control dust, thereby preventing cases of black lung, and compensate workers who do become sick while working in mines.

Option C will sound good to most readers. But politicians, in awe of Big Coal's campaign war chest, can't stand to let the industry pick up its own tab. They would rather shift the costs onto someone (white-knuckled motorists sharing the road with overweight coal trucks, for example) or something else (water and air quality).

And that's not just in Kentucky. Around the time of the state Supreme Court ruling, Congress moved to protect the coal industry from stronger dust control requirements.

A rider on an appropriations law delays a new dust-control rule that was to be published in early 2012. The rule has been in the works — off and on, depending on the party in power — since 1996. It would halve allowable dust levels in mines in response to an increase in black lung. But Congress required another study before the rule can move.

Controlling dust is mostly housekeeping. But time is money, and some mine operators won't spend any time moving ventilation curtains to funnel fresh air to workers or slow production to unclog water sprayers that keep down dust. Companies trying to run clean mines are put at a competitive disadvantage when others are allowed to take such shortcuts.

A lot of people are trying to convince Kentucky it can't survive without cheap coal. But coal really isn't that cheap when all the costs are counted.