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Black-Lung Rule Loopholes Leave Miners Vulnerable

Jul 10, 2012
Originally published on July 10, 2012 10:41 pm

Part two of a two-part series.

Thousands of coal miners continued to suffer and die from black lung during the 40 years that tough new limits on exposure to coal dust were supposed to provide protection.

Control of the mine dust was plagued by weak enforcement by regulators and loopholes exploited by mining companies, according to a joint investigation by NPR and the Center for Public Integrity (CPI). The protections were "set up for failure," says Dennis O'Dell, the safety and health administrator at the United Mine Workers of America (UMWA).

As NPR and CPI reported Monday, a 1969 law slashed the legal limit for exposure to coal dust to as little as 1/4 of the amount many coal miners were breathing at the time. Although diagnoses soon plunged 90 percent, the decline didn't last.

In the mid-1990s, medical experts began noticing an increase in diagnoses, along with disease in younger miners and rapid progression to severe stages of sickness.

The trend is most acute in a triangular region of Appalachia that includes eastern Kentucky, southern West Virginia and southwestern Virginia.

"Since [federal regulators] started protecting us ... 70,000 of us have died," says Mark McCowan, a 47-year-old former coal miner from Pounding Mill, Va., who worked 21 years underground.

McCowan suffers from progressive massive fibrosis, the worst stage of the disease. "I don't feel very protected," he says.

Federal data confirms the death toll cited by McCowan. In the same 40-year span, federal and industry compensation for black lung victims and their families topped $45 billion.

'An Addiction To Cheat'

From the very beginning, miners reported "irregularities" in controlling coal mine dust, says Donald Rasmussen, 84, a pulmonologist in Beckley, W.Va. Rasmussen says he's tested 40,000 coal miners for black lung in the last 50 years.

"So many miners will say, 'If you think the dust is controlled you're crazy,' " he says.

Measuring coal mine dust is key to preventing overexposure. Excess dust can trigger citations, fines and even slowdowns in coal production. Mining companies enforce their own compliance by taking and reporting mine dust samples. Federal mine inspectors also test for excessive dust.

But NPR and CPI have found widespread and persistent gaming of the system designed to measure and control exposure.

Richard Allen, a federal mine inspector underground when the 1969 law first took effect, says he remembers a strange question from a Mine Safety and Health Administration (MSHA) investigator about a carpet's color in a coal mine manager's office.

"It was blue and [MSHA was finding] little blue fibers in each [mine dust] sample," Allen says. "[Investigators] cross-referenced the fibers in these samples to that carpet and found that he was sampling in his office" and not deep inside the mine.

The mine manager was later convicted of defrauding the mine safety agency and served time in prison.

Federal records obtained by CPI and NPR describe 103 cases resulting in criminal convictions for fraudulent dust sampling from 1980 through 2002. Fines totaled $2.2 million, and some mining company officials went to jail.

In 1991, the Labor Department levied civil fines of more than $6.5 million against about 500 coal mines for tampering with mine dust samples.

There was "an addiction to cheat," said Lynn Martin, who was secretary of labor at the time.

Mine Operators' Miscalculations

Coal companies continued to routinely deceive federal regulators with sampling that minimized dust exposure, according to coal miners, former mine inspectors, federal records and testimony in lawsuits.

David Neil, who worked underground in West Virginia through most of the 1980s, said he was told by a company foreman to hang a measuring device called a dust pump out in mine shafts with clean air and away from coal dust.

"Maybe if we didn't do it this way, they'd come in and shut down the mines," Neil remembers thinking. "Then we'd be out of work."

Neil now suffers from advanced black lung, as does Randall Wriston, whose last job underground was in a West Virginia coal mine four years ago.

"If I would have [worn] a dust pump 50 percent of the time, they would have shut down," Wriston says, because the mine would be out of compliance for having too much dust. "If they would get a bad sample they'd turn them upside down and shake them, and that would give a false reading. So, they'd come back and do it some other time."

Miners, former miners and current and former federal regulators told NPR and CPI about dust pumps tucked into lunch boxes or under clothing or out in mine shafts with fresh air — anywhere away from coal dust.

It's unclear what happened with vigorous criminal prosecution after 2002. MSHA tells CPI and NPR that there were no "closed cases" of dust sampling fraud in the last decade, which indicates no criminal convictions. The agency refuses to disclose how many violations, if any, were sent to the Justice Department for possible prosecution, citing a policy forbidding disclosure of the "existence or potential existence of open criminal cases."

In the last three years, a new MSHA enforcement effort called "dust busters" targeted mines with coal dust problems. In 96 different inspections, the agency found 531 mine dust violations.

Many of the mines with violations are owned by some of the nation's largest mining companies. In some cases, sampling was considered so egregiously deficient that MSHA withdrew dust-testing certification for 14 mining company managers and contractors. Eleven others were formally warned about deficient sampling.

Deficiencies included inadequate water pressure and insufficient airflow, which help disperse mine dust; failure to maintain dust-collecting equipment; failure to follow dust-sampling procedures; and failure to examine sampling devices for dust.

"At times, the ventilation controls are not in place. The water sprays are not in place," says Joe Main, assistant secretary of labor for mine safety and health. "We find that the sampling process that is used is not as required by the standards."

That's what investigators discovered after the deadly 2010 explosion at Massey Energy's Upper Big Branch mine in Raleigh County, W.Va. Several workers at the mine told investigators they were ordered to manipulate dust sampling, according to a story in The Charleston Gazette that supplements the NPR/CPI investigation.

Federal Sampling Yields Higher Exposures

Federal inspectors also collect mine dust samples. In 24 of the last 30 years, dust samples taken by federal mine inspectors found higher concentrations of coal mine dust than samples provided by mining companies, according to federal data.

In one year, inspectors reported 40 percent more exposure than did the industry.

Despite those differences and the record of fraudulent industry samples, mining companies continue to check their own compliance with the law.

"Government is in a situation where they have to utilize the data that is presented to them," Main says. "And, at times, yes, we have found that the sampling program was not implemented as required."

More recently, industry and government samples have been more consistent, but even the main industry group admits that inaccurate sampling is a serious problem.

"It might be that MSHA should take over the entire program and should be given resources to do that," says Bob Glenn, a former NIOSH official now working as a black lung consultant for the National Mining Association (NMA). "They certainly would be more impartial, you would think, than having the operator take all the samples."

That's what mine safety advocates have argued for years, but Main says the agency isn't equipped for the job.

"It's [an] enormous task for the government to take on," he says. "I think having the government assume that role would be a big one."

O'Dell of the mine workers union believes MSHA has no choice.

"The operators can't be trusted to do compliance sampling," he says. "History has proven that."

Loopholes Keep Mine Companies Within The Law

History also shows that mining companies don't need to break the law to keep dust measurements artificially low. There are loopholes:

* The law permits sampling at only 50 percent of average production, when miners have as little as half the exposure.

* Sampling is required only eight hours a day even though miners work at least 10 hours a day on average. That amounts to about 600 hours of exposure a year that is not measured in the sampling.

* If federal mine inspectors' findings show too much coal dust, mining companies get a do-over. They take five of their own samples and average them. The sample with the greatest exposure is often discounted. If the average then meets the exposure standard, the violation disappears.

The do-overs may also explain something else CPI and NPR found in federal mine safety records. Between 2000 and 2011, MSHA issued a relatively small number of coal mine dust violations despite thousands of samples with excessive dust. MSHA data show that 53,000 valid samples contained more dust than standards permit but the agency issued less than 2,400 violations.

"The current rules have been in effect for decades, do not adequately protect miners from disease and are in need of reform," says mine safety chief Joe Main. "That is why MSHA has proposed several changes to overhaul the current standards and reduce miners' exposure to unhealthy dust."

MSHA proposes some significant reforms. Coal mine dust limits would be cut in half. Sampling would more accurately reflect actual exposure. And mining companies would no longer be able to demonstrate compliance by averaging five dust samples. But, self-policing would continue with mining companies still collecting their own samples.

"We encourage our members to fulfill their obligations under the law," says Bruce Watzman, who directs regulatory affairs for NMA, the coal industry trade group.

But he recognizes the system lacks credibility.

"We need to get to a point where we remove this cloud of controversy and instill in the minds of everyone that the samples are accurate," Watzman adds. "The best way to do that is to have MSHA take responsibility for that."

In Pounding Mill, Va., McCowan considers all of this as his disease worsens. He says he wants mining companies and MSHA to take more responsibility.

McCowan suggests production studies that would determine how much coal mines could produce at a rate that would not create excessive dust. He'd also have federal mine inspectors watching every minute when mine companies take dust samples.

"Coal mining is as dirty as the coal operator wants to make it," he says, drawing a deep breath. "I don't think it's turning out too good for the miner."

NPR's Sandra Bartlett and Chris Hamby of the Center for Public Integrity contributed reporting for this story. Research by NPR's Barbara Van Woerkom; editing by NPR's Andrea de Leon and Alicia Cypress.

SURVEY: We want to hear what you think about the Black Lung story. Click here to take a short survey.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

(SOUNDBITE OF MUSIC)

LINDA WERTHEIMER, HOST:

This is MORNING EDITION from NPR News. I'm Linda Wertheimer.

RENEE MONTAGNE, HOST:

And I'm Renee Montagne. Good morning.

We're starting, this morning, with the next installment of the joint investigation by NPR and the Center for Public Integrity, about the disease known as black lung. More and more coal miners are dying from it. Our investigation uncovered failures in the system that's supposed to protect miners from the coal dust that causes black lung. We also found loopholes that mining companies have exploited, plus weak enforcement of protections by regulators.

NPR's Howard Berkes has more.

HOWARD BERKES, BYLINE: In his living room in Pounding Mill, Virginia, 47-year-old Mark McCowan holds up a lung x-ray in the bright light of a window. He points to a large white mass in his right upper lobe - progressive massive fibrosis, the worst stage of black lung.

MARK MCCOWAN: You go from being normal to where all of a sudden, one day, you try to do something you used to do and you can't do it...

(SOUNDBITE OF DEEP BREATH)

MCCOWAN: ...and you're just heaving to catch your breath. And you say this is crazy. It can't be this bad. And then you realize a couple months down the road that it can be.

(SOUNDBITE OF DEEP BREATH)

MCCOWAN: And you realize a year down the road after that that...

(SOUNDBITE OF DEEP BREATH)

MCCOWAN: ...you ain't seen nothing yet.

BERKES: This was not supposed to happen to coal miners in Mark McCowan's generation. A 1969 law set a tough limit on coal mine dust that was as little as one-fourth the exposure at the time. And diagnoses soon plunged more than 90 percent. But the decline didn't last.

DR. DONALD RASMUSSEN: From the very beginning, miners told of irregularities in measuring the dust.

BERKES: Donald Rasmussen is a West Virginia pulmonologist who figures he's tested 40,000 coal miners for black lung in the last 50 years.

RICHARD ALLEN: That's persistent, virtually, over the years. So many different stories. So many miners will say if you think the dust is controlled you're crazy.

BERKES: Richard Allen was a federal mine inspector underground in West Virginia when the new law first took effect. He remembers a strange question about a mine official's office which revealed bogus sampling for coal dust.

ALLEN: What color is the man's carpet? It was blue. And it was showing little blue fibers in each sample. And they cross-referenced the fibers in these samples to that carpet and found that he was sampling in his office.

BERKES: Mining companies and federal inspectors put sampling devices called dust pumps on miners underground. But almost every miner we talked to tells of dust pumps tucked into lunch buckets or under clothing or out in clean air returns away from coal dust.

That's where a company foreman told David Neil to hang his dust pump, when he worked underground in West Virginia in most of the 1980s.

DAVID NEIL: And then we'd come back and they'd say well, you might want to wear that, you know, for about a couple of hours and I'll come and get it. And you wear it for a couple hours and then they come and get it, take it and put it back over in the clean air. You know, maybe, if we didn't do it this way, they'd come in, shut the mines down. Then we'd be out of work.

BERKES: This is a common fear in coal country and its encouraged by some mining companies, according to miners we spoke with. Neil developed advanced black lung. So did Randall Wriston, whose last job underground was in a West Virginia mine four years ago.

RONALD WRISTON: If I would have wore a dust pump 50 percent of the time they would have shut down.

BERKES: Because?

WRISTON: Too much dust. Out of compliance. And if they would get a bad sample they'd do is turn 'em upside down and shake 'em and that would give a false reading so they'd come back and do it some other time.

BERKES: And after a deadly explosion two years ago, miners from Massey Energy's Upper Big Branch mine told investigators they were ordered to manipulate mine dust sampling. Autopsies of the explosion's 29 victims showed an extraordinarily high rate of black lung - a rate 10 times the average for southern West Virginia.

Joe Main heads the Mine Safety and Health Administration or MSHA.

JOE MAIN: Government is in a situation where they have to utilize the data that is presented to them. And at times, yes, we have found that the sampling program was not implemented as required.

BERKES: That's an understatement. In 24 of the last 30 years, dust samples taken by federal mine inspectors found higher concentrations of coal mine dust than samples provided by mining companies. In one year, inspectors reported 40 percent more exposure than industry. Even the main industry group admits that's a problem.

Bob Glenn is a consultant for the National Mining Association, which supports sampling only by the Mine Safety and Health Administration or MSHA.

BOB GLENN: It might be that MSHA should take over the entire program and should be given resources to do that. They certainly would be more impartial, you would think, than having the operator take all the samples.

BERKES: That's what mine safety advocates have argued for years. But MSHA chief Joe Main says his agency isn't equipped for the job.

MAIN: It's enormous task for the government to take on. I think having the government assume that role would be a big one.

BERKES: You mean, difficult one because it's big?

MAIN: Time and resources to do it. I mean that's something that has been recognized in the past.

BERKES: In the past from 1980 to 2002. Fraudulent dust sampling resulted in more than 100 criminal convictions, according to federal records obtained by the Center for Public Integrity and NPR. The agency says a new enforcement effort called Dust Busters found 400 dust control violations during 80 mine inspections in the last three years.

MAIN: We're finding, during those inspections at times, that the ventilation controls were not in place, the water sprays were not in place. We find that the sampling process that is used is not as required to meet the regulations.

BERKES: The National Mining Association says it encourages its members to obey the law. But they can do that and still keep dust measurements artificially low. They're allowed to sample at only 50 percent of average production. That's as little as half the time miners are exposed. They sample only eight hours a day, even though the average coal miner works at least two hours longer. And mining companies get a do-over when federal inspectors test for coal dust and find violations. The company can then collect five of its own samples, and if the average meets the standard the violation disappears. Tim Bailey is a West Virginia attorney who represents coal miners.

TIM BAILEY: The analogy that I use is if I pull you over for speeding going 80 in a 50 and I'm a police officer, and I tell you, well, here's a journal and I want you to record your speed on this same piece of road for the next five days. And if at the end of those five days, your speed is below the speed limit, then I'm going to tear your ticket up. And that's exactly how this is working right now.

BERKES: In fact, the Federal Mine Safety Agency issued just 2,400 violations for 53,000 excessive dust samples in the last decade, according to records obtained by NPR and the Center for Public Integrity. Federal regulators proposed changing the law by making the coal dust standard twice as tough and by requiring sampling that comes closer to actual exposure. But mining companies would still conduct dust tests that would still be self-policing. That has dying coal miner Mark McCowan looking back at the 1969 promise that the Mine Safety and Health Administration would keep him safe.

MCCOWAN: But, you know, since MSHA started protecting us, there's 70,000 of us have died. I don't feel very protected.

BERKES: That's the black lung death toll since 1970. Compensation for the victims and their families has cost more than $45 billion. Howard Berkes, NPR News.

MONTAGNE: And you can see pictures of the damage coal mine dust does to lungs on our website. If you're wondering why there isn't a technological solution, like respirators, we have a story about that as well. Also, take a look at what working life is like for coal miners as captured by photojournalist Earl Dotter. That's all on NPR.org. Transcript provided by NPR, Copyright NPR.