IN THE WINTER of 1973-74, Paul (Tex) Bobak, a Consolidation Coal Co. environmental technician, was assigned to sample sections of mines near Georgetown, Ohio, for microscopic particles of coal dust. The particles cause black lung, which directly kills more than 4,000 miners a year, by United Mine Workers estimates.
By Bobak's own sworn testimony, however, he and other employes were systematically cheating. Federal safety regulators, he said, were getting "controlled" samples -- fakes intended to deceive them into believing that coal dust levels were being held within legal limits.
Over the years, numerous deceptions affecting health and life have been uncovered in the pharmaceutical, pesticide and other government-regulated industries. The Consolidation Coal charges, coming in an increasingly anti-regulatory climate, raise questions again about whether self-policing by industry can reliably protect workers and consumers.
Bobak's testimony at an April 1977 criminal trial is not very reassuring. He told of several ways to deceive regulators. One, for example, involved an area of the Ohio mine called the dump, where full coal cars roll onto a section of track that is then flipped over, dropping coal into a bin below.
Bobak said he went to a bin with safety engineer Richard L. Schrickel and left, atop a pile of coal, a light, portable, battery-operated pump of a kind miners carry into high-risk areas.
The pump sucks air through a replaceable plastic cassette in which filters trap so-called respirable dust, the dangerous particles which, when inhaled, lodge in the lung. As particle accumulations build, miners run a high risk of developing one of the progressive diseases in the cluster known as black lung: pneumoconiosis, bronchitis and emphysema. Under federal rules, all cassettes in high-risk mine areas must be sent to the coal mine safety agency for analysis.
After installing a pristine cassette in the pump and switching it on, Bobak testified, he and Schrickel, carrying a few dozen extra clean cassettes inside their shirts ("bosoms," in miners' lingo), went up to the dump. There, with a broom, they swept coal dust -- less than would be raised in a high-risk mine area with inadequate ventilation and watering -- through the openings of a grate down into the bin, he said.
"We swept dust and let it [the pump] run 15 minutes. We went down and shut it off. We took the old cassette off. We put the new cassette on. We went upstairs again. Then we did more sweeping. We did that until we used all the cassettes in our bosom. That was maybe 40 or 45."
THAT WAS NOT the only means of deception he described. Other purportedly authentic cassettes from high-risk areas, Bobak said, were made on days when no one was working in those areas. Yet others, he added, come from low-risk areas orwere from new miners who didn't work in highdust areas. "All we had to do was erase a neme on the data card, change a section, or whatever you want."
Eventually, after being discharged, Tex Bobak went to federal mine safety officials. Relying on his descriptions of where evidence could be found (accurate descriptions, it turned out), officials obtained warrants in May 1974 to search five Consolidation Coal offices. After the searches, miners say, the company began and has continued a program of strict enforcement of the 1969 Federal Coal Mine Safety Act.
In September 1975, a federal grand jury in Columbus, Ohio, returned an indictment containing two separate counts alleging conspiracy to violate the safety law, plus 170 substantive counts.
The nine defendants, all of whom pleaded innocent, included Consolidation Coal; the safety director of its control division, Raymond J. Zitko; its chief environmental technician, Francis L. Marks, and environmental technician Robert W. Lasick. They are scheduled to go to trial Monday in Columbus, Ohio, before U.S. District Judge Robert M. Duncan. Bobak is a nondefendant coconspirator in the case.
Until now, no coal company itself has been tried on charges of the kind against Consolidation Coal, which include knowingly filing false reports with the Mining Enforcement and Safety Administration (an Interior Department agency since renamed and moved to the Labor Department) and willfully violating NESA safety standards.
The company refuses to discuss the case, though it is expected to contend that if any of its employes committed violations, they acted on their own. Consolidation, the nation's second-largest coal producer, is owned by Continental Oil Co.
According to the UMW's occupational health chief, though, there's nothing unique about the violations alleged to have been commtted at five Consolidation underground mines. "The miners have been saying for a long, long time" that "many" operators void samples that show impermissible dust levels, Dr. Lorin E. Kerr said in a phone interview.
For those who worked for Consolidation, the case so far has not gone very well. Schrickel, who Bobak said joined him in faking casettes, recently pleaded guilty to two misdemeanor counts of falsifying data cards, is awaiting sentencing and will testify for the Justice Department. Another environmental technician, Samuel L. Kirkland, pleaded guilty to a misdemeanor count, was fined and will also testify for the prosecution.
Two others -- environmental engineer Darrell R. Hazelwood, who was once Bobak's boss, and environmental technician James A. Kull -- were convicted on two conspiracy counts and fined after the separate 1977 trial in which Bobak gave his testimony.
Sending a Message
NONE OF the thousand-page testimony of that trial implicated anyone in Consolidation above the level of Marks and Zitko, and none of it really explained why any of the defendants might have done something so hazardous to the miners.
After all, said defense counsel Joel H. Mirman in his opening statement, "the environmental technicians and the guys who went into the mine were friends. They sent their kids to the same schools. They drank beers together. They were in the Jaycees together. They participated in softball leagues together.... There wasn't any class distinction with these folks."
But to Justice Department prosecutor Richard I. Chaifetz, one thing was certain: to send cassettes heavy with coal dust particles into MESA was to invite citations and production delays to permit remedial actions. "... lost production is lost money, and there is probably a good deal of pressure on operating employes to keep that production up," Chaifetz argued in his closing statement.
"I think we have a situation here where we have some young men who were so interested in advancing themselves that they were willing to do so even at the risk of violating the law," he said. He urged the jury to convict Hazelwood and Kull in order to send "a message" that the type of action in which they engaged won't be tolerated.
"If a company is allowed to determine on its own which samples are representative and which are not, then this whole program [of voluntary selfenforcement by the coal industry] is worthless," he said.