Last month, the Mine Safety and Health Administration (MSHA) proposed a rule that would require all U.S. mine operators to adopt the Dept of Transportation’s 100-page regulation on drug- and alcohol-testing.Â Setting aside the fact that MSHA’s proposal is a poorly designed, substantiated and written, the following is a news account, reported by Mine Safety and Health NewsÂ and used with permission, about MSHA’s public hearing on the proposed rule.Â The public hearing was held on Tuesday, October 14.
“MSHA may continue yesterdayâs public hearingÂ on its proposed rule to require alcohol and drug testing for miners, after itsÂ experiment in conducting the hearing by webcast resulted in a crowd being turnedÂ away in one location with dozens of other participants herded into overflowÂ rooms.Â ‘We will see if there can be someÂ kind of accommodation made’ for miners who were not allowed to participate orÂ hear the proceedings, said Patricia W. Silvey, director of the MSHA Office ofÂ Standards, Regulations andÂ Variances.Â Â Silvey discussed theÂ possibility of holding an additional e-hearing later this week or just before the comment period ends at midnight on October 29, saying that she would beÂ unable to chair any hearing next week personally, and appeared to rule out anyÂ chance of any in-person hearings outside the Washington, D.C., area.
‘I donâtÂ know what my boss is going to say,’ SilveyÂ said.”Â [Referring to MSHA Chief Richard Stickler.]
“MSHA received notice in advanceÂ that 100 miners would attend the hearing session at the agencyâs district officeÂ in Birmingham, Ala., officials of the United Mine Workers of America said, butÂ the agency made no change in the location and permitted only about 50 into theÂ office at one time.Â UMWA international representative Darryl Dewberry told theÂ hearing panel that some 300Â Birmingham- area miners actually arrived for theÂ hearing there and most were restricted to a parking lot without any way toÂ participate and without even access restroom facilities, heÂ said.Â ‘I am deeply saddened that you decidedÂ …to eliminate the elemental coal miners,’ Dewberry said. ‘There was noÂ consideration for their participation.’âÂ
UMWAÂ safety director OâDell at the outset called for MSHA to shut down the e-hearing.Â ‘Whoever came up with this asinine idea should have to answer to those miners,’Â OâDell said.Â From Beckley, W.Va., UMWAÂ international representative Max Kennedy told the panel, ‘The miners that cameÂ here to testify have walked out in protest of MSHAâs conduct in the state ofÂ Alabama and have yielded their time to those miners.'”
Participants inÂ Beckley also found themselves divided between twoÂ rooms because aÂ conference room designated for the audio-only connection to the hearing provedÂ to be too small, OâDellÂ said.Â Dozens of other interestedÂ persons had to wait in overflow rooms in Washington, D.C. and Pittsburgh, Pa.,Â because video e-conference rooms there would hold only about 25.Â In Washington,Â 10 of the 25 slots were taken up by MSHA employees. People shuttled into and outÂ of the hearing room to testify.Â InÂ Washington, where Silvey and seven other panel members heard the testimony,Â Silvey at one point suggested she might ask the Mine Safety and HealthÂ News reporter, the sole credentialed member of the press then inÂ attendance, to leave the hearing room due to theÂ over-crowding.
Starting at 9:00 a.m.Â EST, the panel started slowly with only about 14 speakers by 2:00 p.m.,Â but managed to hear about 33 speakers from seven hearing locations before theÂ dayâs end.Â Crowds thinned as the day progressed.Â Most of the miners inÂ Birmingham were gone before Silvey began calling on speakers in that locations,Â at 3:19 p.m. EST.Â Several other would-be speakers apparently had leftÂ various locations when she reached their names.Â Â Silvey had originally saidÂ she planned to call on speakers in order of sign-up.Â Some alterations inÂ the queue were negotiated in the course of theÂ hearing.Â
Mike Wright, safety chief of theÂ United Steelworkers of America, speaking from Pittsburgh, Pa., was one of theÂ few to have any good words for the e-hearing concept, commenting on theÂ convenience to minimize the travel.Â Wright, however, strongly objected to theÂ proposed rule, which he calledÂ ‘unconstitutional.’â
“Few favored the proposal,Â which incorporates extensive Department of Transportation standards, althoughÂ all commenters at the hearings stated that they strongly opposed drug abuse andÂ alcohol use on the job.Â National MiningÂ Association and other industry representatives in general found the proposal tooÂ intrusive and prescriptive, stating that it would weaken many effectiveÂ anti-drug and alcohol programs in the industry, and called for aÂ performance-based approach that would merely set minimum standards. They saidÂ that drug testing technology has moved on since issue of the DOT
standards andÂ that mine operators should be free to tailor their programs to the needs of eachÂ site.”
“Mine operators also objected that theÂ proposal would give drug or alcohol abusing workers a ‘get out of jail freeÂ card,’ would conflict with state laws, and would contradict the principle ofÂ at-will employment. Many mine operator programs require a miner, to qualify forÂ amnesty and rehabilitation, to self-identify as having a substance abuse problem before being tagged for a drug test. The proposal would prohibit firing a minerÂ the first time the miner testsÂ positive.”
“Labor representatives andÂ working miners testified that widespread mine operator programs now in existenceÂ are working well and questioned the need for any new MSHA regulation. TheyÂ stated that MSHA has presented no hard evidence that drug or alcohol abuseÂ currently leads to any significant number of mining accidents.Â Several mentionedÂ excessive fatigue as a more significant danger and a reason behind some drugÂ abuse, as well as pointing to respirable dust as a hazard currently moreÂ deserving of regulatory attention.”
“MSHAÂ held the hearing by video at three facilities operated by Cisco, Inc., inÂ Washington, D.C., Pittsburgh, Pa., and Denver, Colo. In the video locations, aÂ C-shaped conference table was arranged facing an array of video screens,Â creating a setup as if those sitting at the table were facing a group at
anotherÂ half-table in the remote city. The view would switch between cities asÂ needed.Â Small audiences in these rooms were placed behind those who sat atÂ the conference table. The four other locations were connected by audioÂ only:Â Beckley, W.Va., Birmingham, Ala., Lexington, Ky., and Price, Utah.”
This article was reprinted with permission from MSH News, with stellar reporting by Kathy Snyder.