'No rational plan': Federal judge hears from miners, workers affected by NIOSH cuts

On Wednesday, Judge Irene Berger, in the Southern District of West Virginia, heard evidence relating to a request from Wiley’s attorneys that she order the program to continue while the case is litigated.

Coal miner testimony

Wiley, who has worked in coal fields for 38 years, was diagnosed with black lung disease in November. A West Virginia panel that makes workers’ compensation decisions concurred a few months later.

In November, Wiley sent an application to the CWHSP that would start the process to allow him to work in a less-dusty section of the mine, called a Part 90 transfer.

NIOSH sends miners letters telling them they are eligible for a Part 90 transfer. The miners must take that documentation to the Mine Safety and Health Administration, which enforces the Part 90 transfer at mines.

Wiley testified that he had called NIOSH multiple times since November with no response. He learned last Thursday, through these legal proceedings, that the CWHSP found no evidence of black lung, said his attorney, Mike Becher.

Fred Westfall, an assistant U.S. Attorney for the Southern District of West Virginia, said NIOSH sent Wiley a letter that he did not receive.

Wiley’s attorneys said the medical information was only examined by one certified B reader — a person certified by NIOSH to classify black lung X-rays — rather than the typical three B readers.

He continues to work in the mine.

Matthew Ward, from Mingo County, also testified. Ward, a coal miner since 1993, received his black lung diagnosis in March. He applied in April to receive a Part 90 letter but received no response or no indication that the letter — sent by certified mail — had been received.

The cuts to NIOSH were announced to workers on April 1.

Health worker testimony

Debbie Johnson, director of the black lung program at Princeton Health Center in Princeton, helps miners request the Part 90 letters. She said the form to apply for these services is no longer available on the CWHSP website.

Two applications from Princeton Health Center are pending and two cannot be sent due to the closure.

A notice on the CWHSP website states “Due to the reduction in force across NIOSH, the NIOSH Coal Workers’ Health Surveillance Program is not providing any new medical screenings to coal miners or accepting any new requests for review of medical information to determine coal miners’ rights for transfer to low-dust jobs.�

NIOSH employee testimony

Four NIOSH employees who worked with the CWHSP testified, with some saying they had been put on administrative leave on April 1.

Last week, those employees were told they would be reinstated, and they returned to the office this past Monday, only to be told at the end of the day that they were back on administrative leave.

All Respiratory Health Division employees have termination dates of June 1 or July 1, Noemi Hall, an epidemiologist with the CWHSP, testified.

Scott Laney, an epidemiologist with the CWHSP, said it was unclear who would take over the medical records at the office. He said he was unaware of a “plan of succession.�

Westfall presented evidence from a March 27 news release that NIOSH and other HHS agencies would be combined into the newly formed federal Administration for a Healthy America.

Laura Reynolds, team leader for the CWHSP, testified she was not aware of a plan to transition CWHSP to the Administration for a Healthy America.

Effects of the CWHSP

The final witness was Anita Wolfe, who worked for the CWHSP for 38 years. She retired in 2020 but worked as a consultant for NIOSH for a few more years.

Wolfe testified that the annual budget of the CWHSP ($466,000 in the fiscal year 24 budget) was $3 per working U.S. coal miner. She said the program has several functions besides Part 90 letters:

• Certify all B readers in the country
• Certify facilities that can provide black lung screenings
• Outreach to miners to make them aware of their services
• Approving mine plans to offer X-rays to miners
• A mobile unit that makes X-rays more easily accessible to rural miners

Wolfe said the program had saved “hundreds if not thousands of lives.� Her father was a coal miner who died from black lung.

“I watched my father die from this,� she said. “It’s not a pretty sight.�

Closing arguments

In closing arguments, Becher pointed out that a continued closure of the CWHSP would result in irreparable harm, because miners with black lung would continue to be exposed to hazards. He said there was “no rational plan� how the CWHSP would carry on its duties.

Westfall argued that the government hadn’t completed a shutdown process, so it couldn’t be appealed. He also said a circuit court ruled over the weekend that these reorganization and reduction in force actions couldn’t be reviewed under this type of lawsuit.

Berger said she would rule on the motion for a preliminary injunction “fairly soon.�