Judge sets May 7 hearing for NIOSH case

U.S. District Judge Irene Berger has scheduled a hearing for next month in a case against Health and Human Services Secretary Robert F. Kennedy Jr. over federal cuts affecting the NIOSH facility in Morgantown. 

Kanawha County coal miner Harry Wiley filed the lawsuit April 7 in United States District Court for the Southern District of West Virginia. 

More than 200 employees of the National Institute for Occupational Safety and Health facility in Morgantown were part of a reduction in force earlier this month as a part of a restructuring of the Department of Health and Human Services. The changes, meant to save $1.8 billion a year, will reduce HHS staffing from 82,000 to 62,000 full-time employees. 

The Morgantown facility plays a crucial role in detecting black lung among the nation’s coal miners through its Coal Workers Health Surveillance Program. 

According to Wiley’s complaint, the NIOSH office typically interprets miners’ lung X-rays and informs them of any rights they have under the federal Part 90, a provision of the Federal Mine Safety and Health Act that allows miners developing black lung to move to a lower dust area of the mine. 

Wiley learned last year that he was developing black lung disease, his attorney, Sam Petsonk said. He mailed an X-ray of his lungs to the Morgantown NIOSH office in November 2024, but has not heard back from the program.

“He did exactly the right thing,” Petsonk said. “He said, ‘Well, shoot, I want to get out of the dust before I become totally disabled by this disease.’ And he filed back in November, which is over six months ago, to transfer, and they were processing his application. 

“And at this point, due to the closure of the program, it appears he’s unable to exercise his job transfer rights. So he is still working every day, facing hazardous dust, knowing that he’s already got coal mine dust scarring in his lungs, and that the further exposure is definitely compounding the severity of his disease,” he said. 

The job cuts included most of NIOSH’s critical employees, including the chief medical officer who oversees the black lung screening, the lawsuit states. 

The complaint was filed on Wiley’s behalf and other miners in his situation. Petsonk said he’s not sure how many there are. About 20% of central Appalachian coal miners have black lung disease, he said. The disease rate has increased in recent years and the illness has been identified more in younger miners due to a lack of easily accessible coal and an increase in the amount of silica-rich sandstone they have to dig through to reach what remains.

Many miners use the Part 90 program to transfer to lower dust areas of mines until their families can figure out a new plan to retrain or get another job, he said. 

Between 70 and 100 West Virginia miners participate in the Part 90 program now, and participation has increased tenfold over the last few years because of education and advocacy, he said. 

Sen. Shelley Moore Capito on Tuesday sent a letter to Kennedy, asking him to reinstate the NIOSH workers.

In an emailed statement Tuesday, a spokesperson for Health and Human Services said that “The National Institute for Occupational Safety and Health (NIOSH), along with its critical programs, will join the Administration for a Healthy America (AHA) alongside multiple agencies to improve coordination of health resources for Americans.”

Cathy Tinney-Zara, president of the American Federation of Government Employees Local 3430, said in a news release this week the affected employees appreciate Capito’s support. 

“We are encouraged and grateful to see Sen. Capito taking a strong stand in support of the  critical work carried out by NIOSH,” Tinney-Zara said. “The research and services provided by NIOSH are not only essential to protecting the health and safety of workers across the nation, they are truly unique, with no equivalent elsewhere in the federal government.” 

The hearing is scheduled for 10 a.m. May 7 at the federal courthouse in Charleston.