The proposed rule would require drug and alcohol testing programs and cost the mining industry about $16 million in year one alone.

Senators, NMA Join Opposition to MSHA's Drug Testing Rule

Opponents cite several concerns, including cost and that the rule would bar firing first-time offenders.

Six Republican senators and the National Mining Association are among the parties opposing MSHA's proposed rule prohibiting use of illegal drugs and alcohol on mine property. With MSHA's public hearings starting Oct. 14 at sites MSHA expanded today; opponents are citing excessive cost; a proposed requirement that first-time drug users be treated rather than fired; and questions about MSHA's inclusion of certain prescribed drugs that it says are widely abused in coal mining reasons.

The agency published the proposed rule Sept. 8 and accepted comments through Oct. 8, but it will accept additional comments from the public hearings until Oct. 29. The rule says mine employees with safety-sensitive jobs and their supervisors will be randomly tested for alcohol, amphetamines, marijuana, and numerous other drugs, except when they are used in accordance with a valid prescription. Mine operators could test for additional drugs beyond the list contained in the rule, which includes barbiturates, benzodiazepines such as Valium and Xanax, cocaine, methadone, opiates, PCP, and synthetic and semi-synthetic opioids such as hydrocodone, hydromorphine, oxymorphone, and oxycodone. Testing would also be required for these substances prior to employment; after an accident if the miner may have contributed to the accident, based on reasonable suspicion that a miner has used a prohibited substance, and when miners who have violated the rule return to duty.

But mine operations filed comments saying they already conduct drug testing prior to hiring and don't hire those who test positive, and they also fire first-time offenders (but send those who self-report to treatment). They fear their existing policies would run afoul of the rule. The United Mine Workers of America filed comments saying MSHA hasn't determined there is a significant problem with improper drug or alcohol use in coal mining, and the rule would be "a grave waste of precious MSHA-employee time, and taxpayer money."

The senators who wrote Oct. 6 urging MSHA to allow dismissal of first-time offender miners were Sens. Michael Enzi of Wyoming, Johnny Isakson of Georgia, Orrin Hatch of Utah, Larry Craig of Idaho, John Barrasso of Wyoming, and Jeff Sessions of Alabama. Enzi, Isakson, and Hatch are members of the Senate Health, Education, Labor and Pensions Committee, and Craig is a member of the Senate Appropriations Subcommittee on Labor, Health and Human Services, Education, and Related Agencies.

NMA's comments warned that the rule "will result in a diminution of safety for miners; conflicts with existing company programs, both voluntary in nature, and where required by state law; and may cause enormous confusion and pose severe implementation problems."

MSHA admits there is not much data on the size of the drug and alcohol problem in U.S. mining but said evidence suggests some fatal incidents have occurred that involved miners who had used alcohol or drugs. The rule also would prohibit possession of alcohol or drugs on mine property and would require mine operators, within a year of the rule's effective date, to implement alcohol- and drug-free mine programs consisting of a written policy, employee education, supervisory training, and referrals to assistance for miners who violate the policy. The proposed rule defines safety-sensitive job duties as "activities where a lapse of critical concentration could result in an accident, serious injury, or death." MSHA estimates it would cost mine operators about $16 million to comply with the rule in year one and about $13 million to comply each year thereafter.

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OH&S Digital Edition

  • OHS Magazine Digital Edition - April 2019

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