NO BILL YET ON DRUG TESTS FOR MINERS

Disputes May Stall Kentucky Action

David Napier was bolting the roof in a Harlan County coal mine this
year when a fellow crew member fell asleep while working on a nearby
ladder.

Napier notified the superintendent, and the sleeping miner was ordered
by the mine operator to take a drug test.

The miner refused and was fired, Napier said.

For Napier, a miner for three decades, the incident demonstrates the
advantages of working for a company that conducts drug testing -- and
the risk at mines where such testing is not done.

"The mines that test keep things under control," said Napier, 52. "If
there's a place a guy knows he can go and work and not be drug-tested,
you have a big problem."

State mining regulators say they share Napier's concerns.

Prompted by two fatalities in mines where drugs were found, the
Kentucky Mining Board endorsed the need for what would be a
first-in-the-nation law requiring drug tests for miners.

That was in April 2004.

Nineteen months later, there is no law, and the General Assembly
likely won't get a bill in time for its 2006 session, which convenes
Jan. 3, union and industry officials said.

But LaJuana Wilcher, secretary of the Kentucky Environmental and
Public Protection Cabinet, said she believes a bill will be introduced
shortly.

"Oh sure, oh sure," Wilcher said when asked last week whether a bill
could be drafted for the session.

Labor and industry generally support pre-employment and random drug
tests, tests of some miners after accidents and tests when "reasonable
suspicion" exists of drug use.

But they say state mining regulators have offered no details about who
would pay for the tests, whether everyone working in a mine would be
tested after a serious accident, and what sanctions would be imposed
on miners who fail a screening.

Sticking points include whether companies could seek to withhold death
benefits from impaired miners who die in accidents. The miners' union
is against the idea.

Wilcher created a 15-member task force in October 2004, inviting
labor, industry and government representatives from Kentucky,
Virginia, and West Virginia. It met for the ninth and final time last
month and expects to release a draft report in the next couple of days.

Some recommendations could be incorporated into a bill, Wilcher
said.

Wilcher said state regulators would also look at what could be done
within existing law. Lawmaker involvement

Bill Caylor, president of the Kentucky Coal Association of mine
owners, said it may be too late to get drug testing legislation into
the 2006 session because of the complexity of the disputed issues.

Steve Earle, political director for the United Mine Workers union in
Kentucky, warned against rushing to pass something that doesn't
address the concerns of labor and industry.

"It's time to stop substance abuse in coal mines, but we should take
the time and do it the right way," Earle said.

Earle said the task force's work was hampered by reluctance to reach
out to possible sponsors of legislation. He said the task force didn't
invite lawmakers to any of its meetings.

But Susan Bush, commissioner of the Kentucky Department for Natural
Resources and the head of the task force, said legislators weren't
invited because the tri-state task force didn't want to focus on one
state.

"The time to sit down and talk with legislators is when we have
legislation to consider," Bush said.

One former underground coal miner, Rep. Robin Webb, D-Grayson, said
she is concerned that a bill will not be ready for the session.

"A bill with substantial things like penalties should have been
prefiled," said Webb, who also is a lawyer.

And she said mining regulators have failed to keep her updated on
discussions about the drug-testing issue, despite her requests. "All
the information I have is on my own initiative," she said. The problem

At least 10 companies in Kentucky have their own drug-testing
policies.

Of the 490 licensed mines in the state, 127 reported they have some
sort of testing programs, Bush said.

The operators that test at their mines include some of the biggest:
TECO Energy, Consol Energy and Massey Energy.

But dozens of small companies don't test, according to the coal
industry.

Those companies include the now defunct Cody Mining Co. in Floyd
County, where 21-year-old Paul Blair Jr. was killed and a co-worker
was seriously injured in an explosion in June 2003.

Marijuana was found at the scene, and an employee told investigators
that he saw two miners snorting crushed painkillers. But the surviving
miners were not tested for drugs because state and federal mining
regulators have no authority to perform such tests, even after a fatal
accident.

Dave Lauriski, head of the U.S. Mine Safety and Health Administration
at the time of the Cody Mining explosion, called conditions in the
mine "appalling and egregiously unsafe."

The MSHA report on the accident did not conclude that drug impairment
caused it.

Darrell Cohelia, safety director for Black Mountain Resources, a
company that conducts drug tests, said about 70 percent of miners fail
the company's pre-employment drug screening.

Cohelia said he supports state-mandated drug testing as a way to
prevent miners from seeking out mines that don't test for drugs.

"We want a level playing field," Cohelia said. "We're shorthanded
right now, because we can't find enough miners who can pass the test."

Napier, who was working for Darby Coal Co. at the time of the incident
with his co-worker, said he hopes the industry and its regulators will
attack the threat.

"Drugs weren't a big problem when I first started in the mines,"
Napier said. "But with these pills out there now, it's real dangerous."

Officials for Darby Coal couldn't be reached for comment. Sanctions or
treatment?

Earlier this year, a drug-testing bill proposed by the state mining
board failed to get a sponsor before the General Assembly adjourned.
Labor and industry officials said the bill gave state mining
regulators too much authority to implement a drug-testing plan through
regulations.

Caylor said the state needs to decide, among other issues, whether and
how long to suspend certification from miners who test positive for
drugs, or whether to pay to rehabilitate them. Caylor said he supports
treatment.

The issues are more complex than they look, Caylor
said.

"There are so many iffy situations about who gets tested and what
happens to them if they don't pass the test," Caylor said.

Earle, a member of the task force, said he's also concerned about
penalties for miners who fail drug tests.

"There needs to be treatment options in there somewhere," Earle said.
"Simply throwing people aside without addressing their dependency will
not solve the problem." State and federal regulators have no tally of
coal mine accidents caused by drugs or alcohol.

MSHA tracks the use of alcohol and narcotics at metal and non-metal
mines, but not at coal mines. Since 2000, MSHA has issued 78 drug- and
alcohol-related violations at metal and non-metal mines, said Ed
Sexauer, head of the regulations and development division for the agency.

A 2000 U.S. Department of Health and Human Services study of alcohol
and drugs in the workplace showed that nearly one in seven workers in
the construction and mining industries reported having either a
serious drug or alcohol problem.

The study did not break down the findings for the two industries
separately.

Gary Lewis, a 34-year-old miner from Harlan County who once worked for
Cohelia's company, said all miners are aware of the problem.

"No one wants to put their life in danger because someone working with
them might be on drugs," Lewis said. "That's why drug tests are a good
idea. It won't catch everyone, but it's better than nothing."

Lewis said he wouldn't work for a company that doesn't
test.

"It's too much of a risk," he said. "I know some of these fellas who
run around from mine to mine, and I don't want to work anywhere near
them."

Stanley Ditty, who operates coal mines in Harlan and Bell counties,
said any testing program should suspend the certification of violators.

"If they flunk the test, pull that miner's card for a year," Ditty
said at an MSHA public hearing in Lexington in October where
regulators heard testimony about drug use at mines. "Then we'll get
some results from this."