MSHA's E-Hearing: A Logistical Nightmare

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.  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 News and used with permission, about MSHA's public hearing on the proposed rule.  The public hearing was held on Tuesday, October 14.

"MSHA may continue yesterdayâs public hearing  on its proposed rule to require alcohol and drug testing for miners, after its experiment in conducting the hearing by webcast resulted in a crowd being turned away in one location with dozens of other participants herded into overflow  rooms.  'We will see if there can be some  kind of accommodation made' for miners who were not allowed to participate or  hear the proceedings, said Patricia W. Silvey, director of the MSHA Office of  Standards, Regulations and  Variances.  Silvey discussed the  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 be  unable to chair any hearing next week personally, and appeared to rule out any  chance of any in-person hearings outside the Washington, D.C., area.

'I donât  know what my boss is going to say,' Silvey  said."  [Referring to MSHA Chief Richard Stickler.]

"MSHA received notice in advance  that 100 miners would attend the hearing session at the agencyâs district office in Birmingham, Ala., officials of the United Mine Workers of America said, but the agency made no change in the location and permitted only about 50 into the  office at one time.  UMWA international representative Darryl Dewberry told the  hearing panel that some 300  Birmingham- area miners actually arrived for the hearing there and most were restricted to a parking lot without any way to  participate and without even access restroom facilities, he  said.  'I am deeply saddened that you decided  ...to eliminate the elemental coal miners,' Dewberry said. 'There was no  consideration for their participation.'â 

UMWA  safety director OâDell at the outset called for MSHA to shut down the e-hearing.  'Whoever came up with this asinine idea should have to answer to those miners,'  OâDell said.  From Beckley, W.Va., UMWA  international representative Max Kennedy told the panel, 'The miners that came  here to testify have walked out in protest of MSHAâs conduct in the state of  Alabama and have yielded their time to those miners.'"

Participants in Beckley also found themselves divided between two rooms because a  conference room designated for the audio-only connection to the hearing proved  to be too small, OâDell  said.  Dozens of other interested  persons had to wait in overflow rooms in Washington, D.C. and Pittsburgh, Pa.,  because video e-conference rooms there would hold only about 25.  In Washington, 10 of the 25 slots were taken up by MSHA employees. People shuttled into and out of the hearing room to testify.  In  Washington, where Silvey and seven other panel members heard the testimony,  Silvey at one point suggested she might ask the Mine Safety and Health News reporter, the sole credentialed member of the press then in attendance, to leave the hearing room due to the  over-crowding.

Starting at 9:00 a.m. EST, the panel started slowly with only about 14 speakers by 2:00 p.m., but managed to hear about 33 speakers from seven hearing locations before the  dayâs end.  Crowds thinned as the day progressed.  Most of the miners in Birmingham were gone before Silvey began calling on speakers in that locations, at 3:19 p.m. EST.  Several other would-be speakers apparently had left  various locations when she reached their names.  Silvey had originally said she planned to call on speakers in order of sign-up.  Some alterations in the queue were negotiated in the course of the hearing. 

Mike Wright, safety chief of the  United Steelworkers of America, speaking from Pittsburgh, Pa., was one of the  few to have any good words for the e-hearing concept, commenting on the  convenience to minimize the travel.  Wright, however, strongly objected to the  proposed rule, which he called  'unconstitutional.'â

"Few favored the proposal,  which incorporates extensive Department of Transportation standards, although  all commenters at the hearings stated that they strongly opposed drug abuse and  alcohol use on the job.  National Mining  Association and other industry representatives in general found the proposal too intrusive and prescriptive, stating that it would weaken many effective  anti-drug and alcohol programs in the industry, and called for a  performance-based approach that would merely set minimum standards. They said  that drug testing technology has moved on since issue of the DOT
standards and  that mine operators should be free to tailor their programs to the needs of each site."

"Mine operators also objected that the  proposal would give drug or alcohol abusing workers a 'get out of jail free  card,' would conflict with state laws, and would contradict the principle of  at-will employment. Many mine operator programs require a miner, to qualify for  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 miner  the first time the miner tests  positive."

"Labor representatives and working miners testified that widespread mine operator programs now in existence  are working well and questioned the need for any new MSHA regulation. They stated that MSHA has presented no hard evidence that drug or alcohol abuse  currently leads to any significant number of mining accidents.  Several mentioned  excessive fatigue as a more significant danger and a reason behind some drug  abuse, as well as pointing to respirable dust as a hazard currently more  deserving of regulatory attention."

"MSHA  held the hearing by video at three facilities operated by Cisco, Inc., in  Washington, D.C., Pittsburgh, Pa., and Denver, Colo. In the video locations, a  C-shaped conference table was arranged facing an array of video screens, creating a setup as if those sitting at the table were facing a group at
another  half-table in the remote city. The view would switch between cities as needed.  Small audiences in these rooms were placed behind those who sat at the conference table. The four other locations were connected by audio  only:  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.