During a Tuesday hearing on its proposed drug testing rule covering more than 116,000 coal miners, the federal Mine Safety and Health Administration (MHSA) got it from both sides, with mine workers criticizing the proposed rule as unnecessary and mine owners criticizing it for not being tough enough.

Out of a US ministry industry (including oil and gas extraction) of more than 300,000 workers, nearly two-thirds are already subject to drug testing, mostly out of agreements negotiated between employers and unions. Federal law currently mandates drug testing for public safety (truck drivers, train engineers) and national security reasons. It does not mandate it for "risky" occupations.

The MHSA proposed rule would bar the use or possession of drugs or alcohol at coal and other mineral mines, would require pre-employment drug testing, and would mandate random suspicionless drug testing of workers. Workers who test positive would have to complete drug treatment before being allowed back on the job. Companies that don't already have drug testing programs in place would have one year to comply with the new rule. MHSA estimates the rule would cost the industry $16 billion the first year and $13 billion a year after that.

According to MHSA, drug and alcohol use in the mines is "a risk to miner safety" and "because mining is inherently dangerous, MHSA is proposing a standard to address this risk." But the proposed rule admittedly contains little more than anecdotal evidence, newspaper stories, and recitations of national substance abuse estimates to make its case that drug and alcohol abuse is a serious problem in the mines or that drug testing is the best way to address it."

The mines are currently governed by an MHSA regulation that already prohibits the use or possession of alcohol or drugs at the work site and says succinctly that intoxicated workers are not permitted on the job. During the 30 years they have been in place, some 270 miners have been cited for violating that regulation -- not a high number in an industry of 300,000 workers -- or fewer than 10 a year. And only 10% of those came from subsurface mines.

The lack of strong evidence showing that drug testing is required in the coal mines was a point United Steelworkers official Mike Wright hit on as he told MHSA reps at Tuesday's hearing why his union opposed the proposed new rule. "MSHA has not shown that the proposed rule is necessary," he said. "In this rule, MSHA is relying on limited anecdotal and sometimes irrelevant information."

Wright also told the MHSA reps their proposed rules were unconstitutional. With federally-mandated drug testing limited to public safety and national security-related occupations, he said, MHSA had demonstrated no such link. "This proposal is unconstitutional and unnecessary. It's a distraction from real worker safety and it should be withdrawn," Wright said.

The United Mine Workers also called on MHSA to drop the proposed rule, and so did the National Mining Association, the National Stone, Sand & Gravel Association, the West Virginia Coal Association and major coal producers Arch Coal and Consol Energy. But unlike the unions, the industry wanted not less but more drug testing and fewer restrictions on its ability to fire workers who test positive. The industry called for rules that allow them to test hair, saliva, and blood for drugs, rather than limiting testing to urine samples, as the MHSA proposed rule does.

Now, after reviewing public comments on the new rule and listening to the sole public hearing it held on the proposed rules, MHSA will take several months to publish its final rule. Coal miners who like to smoke a joint while watching the Mountaineers on Saturday afternoons better be on the alert.