UMWA, Steelworkers unions seek federal court order for MSHA to issue COVID-19 protection standards

Source: The Dominion Post

June 16, 2020

MORGANTOWN — The United Mine Workers of America and the United Steelworkers are jointly seeking a federal court order to require the Mine Safety and Health Administration to issue emergency temporary standards to protect underground miners from COVID-19.

“We have been asking MSHA to step up and do its job to protect America’s miners from the beginning of this pandemic,” UMWA International President Cecil E. Roberts said in a release announcing the action. “But so far, the agency has refused. You would think that those who are charged with keeping miners safe would want to actually do so. It is very disappointing that they have turned their backs on these critical workers.

“Working in a mine is very different from working in any other workplace,” Roberts said. “The air is circulated throughout the mine, meaning an airborne disease like COVID-19 can spread among workers who are far removed from one another. A six-foot social distance is meaningless in an underground environment.”

UMWA spokesman Phil Smith said in an email exchange, “Things are a hash in the mines with respect to what operators are doing. There is no consistency from company to company or mine to mine. Some of the more responsible operators, and all of those where the UMWA represents the workers, are issuing masks, working to schedule shifts in such a way to reduce the number of miners who are in the changing areas of the mine portals at the same time, and taking other steps to encourage social distancing in the elevators and mantrips underground.

“But many others are not,” he continued. “All MSHA has done is issue voluntary guidelines for mines to follow, but until there is something that requires all mine operators to do the same things at every mine far too many operators will continue to ignore the guidelines. There needs to be something with teeth that is enforceable.”

The case was filed Tuesday in U.S. Court of Appeals for the District of Columbia Circuit. They want MSHA to issue and Emergency Temporary Standard protecting miners from infectious diseases. They request an expedited hearing process with a ruling to be issued within 30 days of the Court granting the order.

The action notes that miners are considered essential workers and have stayed on the job during the pandemic; and more will return to work as the demand for coal increases.

This court action follows failed attempts by UMWA to get MSHA to issue and ETS on its own. UMWA first tried on March 24, Tuesday’s court petition says, On April 14, MSHA declined, saying “the risks miners face from exposure to coronavirus are quite similar to the risks encountered by other Americans,” and recommended a variety of voluntary actions that miners could take to mitigate the risk of COVID-19.

UMWA petitioned MSHA again on May 20 and this court action followed.

The unions argue that the Mine Act requires MSHA to issue an ETS if “miners are exposed to a grave danger” and that an “emergency standard is necessary to protect miners from that danger.”

UMWA and USW allege, “In the face of a health emergency causing more deaths in less time than any workplace catastrophe since the passage of the Mine Act, MSHA’s refusal to issue an ETS constitutes an abuse of agency discretion so blatant and of ‘such magnitude’ as to amount to a clear ‘abdication of statutory responsibility.’”

Existing MSHA standards, they say, do not require operators to conduct a worksite hazard assessment to identify sources of potential exposure to or contact with the virus. The standards don’t require operators to adopt any specific COVID-19 mitigating measures as recommended by CDC.

Existing standards regarding sanitary facilities, ventilation, and appropriate PPE don’t address the unique risks to miners posed by COVID-19, they argue. There are no specific regulatory requirements for disinfecting surfaces or providing ready access to hand washing facilities or hand sanitizers. Mine ventilation is designed to provide fresh air for miners to breathe and to limit the accumulation of combustible gases and dust. “Those standards are not designed to prevent the spread of a communicable disease, especially a disease that is transmitted through droplets rather than airborne contamination.”

Respirators are not adequate, either, they argue. The primary route of exposure to the coronavirus is droplet transmission, not airborne contamination, and the CDC has recommended surgical masks and face cloths – which are not PPE under the Mine Act – instead of respirators.

Miners don’t even have the option of filing a complaint, they argue, because there are no MSHA COVID-19 standards to base a complaint on.

West Virginia’s two U.S. senators are attempting to address the problem legislatively, They are among the seven sponsors of the COVID-19 Mine Worker Protection Act, which would require MSHA to issue an ETS within seven days of the bill’s enactment. They introduced the bill May 13, noting that they previously wrote to President Trump about the problem on April 14 but saw no action taken.

The bill would also require mine operators to issue PPE to miners; require MSHA to issue a permanent infectious disease standard within two years; protect miners from retaliation for reporting infection-control problems; and require MSHA to work with other agencies to track COVID-19 infection data in order to protect miners.

The bill is sitting in the Committee on Health, Education, Labor, and Pensions.

The Dominion Post has solicited comment from MSHA and is awaiting a reply.

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Written by: David Beard, The Dominion Post