UNITED STATES OF AMERICA
           
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                            DEPARTMENT OF LABOR
           
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                   MINE SAFETY AND HEALTH ADMINISTRATION
           
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                            PUBLIC HEARING RE:
                INTERIM FINAL RULE FOR HAZARD COMMUNICATION
                          IN THE MINING INDUSTRY
           
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                                 TUESDAY,
                              OCTOBER 2, 2001
           
                 The public hearing was held in the Cherokee Room
           of the Wilson World Hotel, 4600 W. Airport Freeway,
           Irving, Texas, at 9:00 a.m., Earnest C. Teaster, Jr.,
           Moderator, presiding.
           
           PANELISTS:
           
                 EARNEST C. TEASTER, JR., MODERATOR,
                       Administrator, Metal and Nonmetal Mine
                       Safety & Health
                 RICHARD FEEHAN, Office of Educational Policy
                       Development
                 CAROL JONES, Metal and Nonmetal Health Division
                 ROBERT STONE, Office of Standards, Regulations,
                       and Variances
                 SANDRA WESDOCK, DOL Office of the Solicitor                                 I-N-D-E-X
           
           Opening Statements . . . . . . . . . . . . . . . . 3
           
           Statement of David Pfile, Hanson Aggregates. . . .21
           
                                      P-R-O-C-E-E-D-I-N-G-S
                                                    (9:00 a.m.)
                       MR. TEASTER:  Good morning.  I'm Ernie
           Teaster.  I want to welcome you to MSHA's public hearing
           on the interim final rule for hazard communication in the
           mining industry.  I will be your moderator for today's
           hearing.
                       On my right is Sandra Wesdock; Sandra
           represents the Solicitor's Office.  On my left is Richard
           Feehan; he's with the Office of Educational Policy
           Development; he's done a lot of work on the rule; Carol
           Jones, from Metal and Nonmetals Health Division; and
           Robert Stone from the Office of Standards, Regulations,
           and Variances.
                       We are here to listen to your comments on
           the hazard communication interim final rule which we
           published on October 3 last year.  We are holding this
           hearing in accordance with Section 101 of the Federal
           Mine Safety and Health Act of 1977.  As is our practice,
           we will conduct the hearing in an informal manner. 
           During the proceeding panel members may ask questions of
           the presenter.
                       Although formal rules of evidence will not
           apply, we will be taking a verbatim transcript of the
           hearing and will make it a part of the official
           rulemaking record.  The hearing transcript will be made
           available for review by the public, along with all of the
           comments and data that MSHA has received to date.  The
           entire rulemaking record, of course, is available at our
           office in Arlington, Virginia.
                       If you wish a personal copy of the hearing
           transcript, please make your own arrangements with the
           court reporter.
                       Now, let me briefly give you some background
           on the interim final rule and highlight its major
           provisions.  Following that I will share with you our
           reaction to some of the comments received thus far.
                       On November 2, 1987, the United Mineworkers
           of America and the United Steelworkers of America jointly
           petitioned MSHA to adapt OSHA's hazard communication
           standard to both coal and metal and nonmetal mines and
           propose it for the mining industry.  They based their
           petition on the need for miners to be better informed
           about chemical hazards, and that miners working at both
           surface and underground coal and metal and nonmetal mines
           are exposed to a variety of hazardous chemicals.
                       On March 30, 1988, in response to this
           petition, MSHA published an advanced notice of proposed
           rulemaking on hazard communication for the mining
           industry.  In this notice we indicated that we would use
           the OSHA hazard communication standard as the basis for
           our standard and requested specific comments on a number
           of related issues.
                       We published a notice of proposed rulemaking
           on the hazard communication on November 2, 1990, and held
           three public hearings in October 1991.  The record closed
           January 31, 1992.
                       In their comments on our advanced notice of
           proposed rulemaking and proposed rule, commentors
           represented:
                         both small and large mining companies,
                         individual miners,
                         a variety of trade associations,
                         state mining associations,
                         chemical and equipment manufacturers,
                         national and local unions,
                         members of Congress, and
                         federal agencies.
                       We re-opened the rulemaking record on March
           30, 1999, requesting comments on the impact of the
           proposed rule on:
                         the environment,
                         small mines,
                         state, local, and tribal governments, and
                         the health and safety of children.
                       The National Environmental Policy Act and
           more recent statutes and executive orders included
           requirements for us to evaluate the impact of a
           regulatory action in these areas.
                       At that time, we also requested comments on
           the information collection and paperwork requirements of
           certain provisions of the proposal now considered as an
           information collection burden under the expanded
           definition of information under the Paperwork Reduction
           Act of 1995.
                       We received seven comments to the limited
           re-opening of the rulemaking record, primarily from trade
           associations and labor organizations.  The rulemaking
           record closed June 1, 1999.
                       On October 3, 2000, we published an interim
           final rule on hazard communication with an effective date
           of October 3, 2001.  We gave commentors until November
           17, 2000, to submit comments.  The interim final rule
           specifically requested comments on:
                         the plain language format and the content
           of the interim final rule,
                         mine operators' experience under the
           Occupational Safety and Health Administration's Hazard
           Communication Standard, and
                         any changes in the mining industry since
           the publication of the proposed rule.
                       On December 7, 2000, we personally spoke
           with or e-mailed all commentors and other interested
           persons telling them of our decision to hold a public
           hearing in Washington, DC on December 14, 2000.  The
           public notice of the hearing appeared in the Federal
           Register on December 11, 2000.  We received 22 written
           comments on the interim final rule and heard testimony
           from six persons at the public hearing on December 14,
           2000.
                       Commentors objected to what they considered
           to be an inadequate comment period and an inadequate
           notice of the hearing.  These commentors stated that they
           did not have sufficient time to fully analyze the impact
           of the interim final rule which affected their ability to
           develop and submit meaningful comments.  They also stated
           that many operators were unable to testify at the hearing
           because they did not have enough time to prepare
           testimony and make plans to attend the hearing.
                       Members of the mining community have also
           stated that because this is the first time MSHA
           promulgated an interim final rule there is some confusion
           about their compliance obligations.  The National Mining
           Association and the National Stone, Sand and Gravel
           Association have asked for a delay in the effective date
           of the interim final rule until we respond to their
           previous comments on it.
                       A number of mine operators and trade
           associations challenged the hazard communication interim
           final rule in the U.S. Court of Appeals, and the United
           Mine Workers of America and the United Steelworkers of
           America have intervened in the litigation.
                       Now I will briefly highlight the six major
           provisions of the rule.
           1.  HAZARD DETERMINATION.
                       The hazard communication interim final rule
           requires mine operators to identify the chemicals at
           their mine and determine if they present a physical or
           health hazard to miners based on the chemical's label and
           material safety data sheet (MSDS) or on a review of the
           scientific evidence.
                       Under the interim final rule, for the
           purposes of hazard communication, MSHA considers a
           chemical hazardous and subject to the hazard
           communication rule if it is listed in any of the
           following four recognized authorities or sources:
                         Title 30 of the Code of Federal
           Regulations (30 CFR) chapter I,
                         American Conference of Governmental
           Industrial Hygienists (ACGIH) Threshold Limit Values
           (TLV s) and Biological Exposure Indices (latest edition),
                         National Toxicology Program (NTP) Annual
           Report On Carcinogens (latest edition),
                         International Agency for Research on
           Cancer (IARC) Monographs or Supplements.
           2.  THE HAZARD COMMUNICATION PROGRAM.
                       The hazard communication interim final rule
           requires mine operators to develop, implement, and
           maintain a written plan to establish a hazard
           communication program.  The program must include:
                         procedures for implementing hazard
           communication through labeling, MSDSs, and training of
           miners,
                         a list of the hazardous chemicals known to
           be present at the mine, and
                         a description of how mine operators will
           inform miners of the chemical hazards present in non-
           routine tasks and of chemicals in unlabeled pipes and
           containers.
                       If the mine has more than one operator or
           has an independent contractor on-site the hazard
           communication program also would have to describe how the
           mine operator will inform the other operators about the
           chemical hazards and protective measures needed.
           3.  CONTAINER LABELING.
                       A label is an immediate warning about a
           chemical's most serious hazards.  The hazard
           communication interim final rule requires mine operators
           to ensure that containers of hazardous chemicals are
           marked, tagged, or labeled with the identity of the
           hazardous chemical and appropriate hazard warnings.  The
           label must be in English and prominently displayed.
                       I would like to clarify one point about the
           labeling requirements.  Practically speaking, very little
           labeling is required.  You only have to label stationary
           process containers and temporary portable containers and
           then only under some circumstances.
                       Chemicals coming onto mine property are
           almost always labeled.  You would not have to re-label
           them unless the existing label becomes unreadable.
                       You would not have to label containers of
           raw material being mined or milled while they are on mine
           property.  You would not have to label mine products that
           go off mine property.  You would have to provide the
           labeling information to downstream users upon request.
           4.  MATERIAL SAFETY DATA SHEET.
                       A chemical's material safety data sheet 
           provides comprehensive technical and emergency
           information.  It is a reference document for mine
           operators, exposed miners, health professionals, and
           firefighters or other public safety workers.  The hazard
           communication interim final rule requires mine operators
           to have an MSDS for each hazardous chemical at the mine.
                       Mine operators should already have MSDSs
           provided by the supplier for those chemicals brought to
           the mine.  The MSDS must be accessible in the work area
           where the chemical is present or in a central location
           immediately accessible to miners in an emergency.
           5.  HAZCOM TRAINING.
                       The hazard communication interim final rule
           requires mine operators to establish a training program
           to ensure that miners understand the hazards of each
           chemical in their work area, the information on the MSDSs
           and labels, how to access this information when needed,
           and what measures they can take to protect themselves
           from harmful exposure.
                       Under the interim final rule, mine operators
           have the flexibility of combining the training
           requirements for hazard communication with existing Part
           46 and Part 48 training.  The interim final rule does not
           require mine operators to have an independent training
           program separate from Part 46 and Part 48 training.
                       Many operators already cover some of the
           above information in their current training program.  If
           so, they do not have to retrain miners about the same
           information.  We designed the hazard communication
           training requirements to be integrated into existing
           training programs for miners.
           6.  MAKING HAZCOM INFORMATION AVAILABLE.
                       The hazard communication interim final rule
           requires mine operators to provide miners, their
           designated representatives, MSHA, and NIOSH with access
           to materials that are part of the hazard communication
           program.  These include the program itself, the list of
           hazardous chemicals, labeling information, MSDSs,
           training materials, and any other material associated
           with the program.  Mine operators do not have to provide
           copies of training materials purchased for use in these
           training sessions such as videos.
                       Also, mine operators do not have to disclose
           the identity of a trade secret chemical except when there
           is a compelling medical or occupational health need.
                       I will now share with you our thoughts on
           some of the comments received on the interim final rule.
                       Commentors representing the aggregate
           industry argued strenuously that the hazard communication
           rule is unnecessary and that the aggregate industry
           should be exempt from the rule.
                       The hazardous chemical rule does not
           duplicate other MSHA standards.  It augments,
           supplements, and complements these existing standards. 
           The rule specifically deals with chemicals and chemical
           exposures.  Chemicals may be used in any mine, including
           those in the aggregate industry.
                       There have been hundreds of chemical burns
           in the aggregate industry.  Chemical burns can occur on
           any part of the body.  Skin burns may require multiple
           skin grafts and require repeated hospitalization.  Eye
           burns can be serious and result in permanent loss of
           eyesight.
                       We believe the burden on small mines is less
           than some commentors stated.  First, small mines
           typically use far fewer chemicals than large mines, and
           in many cases, no new chemicals.
                       Second, small mines typically use chemicals
           in small quantities and for shorter periods of time,
           similar to household use.  Third, many of the chemicals
           used at small mines are not covered by the rule.  For
           example, soaps used for washing hands are cosmetics and
           are exempt.  A can of spray paint is a consumer product
           and is exempt when used in small quantities
           intermittently.
                       The length of exposure, as well as the
           amount, is really the determining factor.  A can of paint
           only lasts a short time.  Glue or adhesives, when used
           intermittently in small quantities, are exempt.  Again,
           the length of exposure, as well as the amount, is the
           determining factor in whether or not a consumer product
           is exempt.
                       We recognize, however, that not all mines
           are likely to use a wide range of chemicals.  Although we
           cannot exempt the aggregates industry from hazard
           communication, as we said, there are steps we can take to
           minimize the burden of the rule.  For example, we intend
           to make extensive compliance assistance visits and
           conduct extensive outreach.
                       We also will be finalizing a compliance
           guide to help operators and miners understand the
           application of the HAZCOM final rule.  We are developing
           a variety of compliance aids, such as model HAZCOM
           programs, a training video for mine operators about
           determining chemical hazards, and a training video for
           miners about chemical hazards and reading of MSDSs.
                       A draft of the MSHA compliance guide has
           been on the MSHA web site for months.  If you refer to
           the compliance guide, many of these issues are explained. 
           If you have any questions in these areas, send them by e-
           mail to comments@MSHA.gov or to the Office of Standards
           at the address listed in the hearing notice.  We will use
           these questions to clarify your responsibilities and
           include additional or better examples in the compliance
           guide.  As a rule of thumb, however, if you are in
           compliance with OSHA's rule, you will be in compliance
           with MSHA's.
                       In the same vein, mine operators may obtain
           help from organizations that have developed generic
           guides to meet OSHA's hazard communication standard
           because HAZCOM contains the same basic requirements.  We
           will provide links on our website to some organizations
           which have developed a variety of generic HAZCOM
           materials.
                       While it will remain the responsibility of
           each mine operator to develop and implement a HAZCOM
           program and to have MSDSs, to the extent possible we will
           help you establish the hazard communication program if
           requested.  We have already taken other steps in revising
           our interim final rule to make it easier for mine
           operators to comply without reducing the protections
           offered by the rule.
                       We are considering the following substantive
           changes to the interim final rule in response to
           commentors' concerns.  We also are considering several
           non-substantive changes to clarify our intent and correct
           errors based on commentors perspectives and questions.
                       Under "Hazard Determination," we may revise
           the reference to ACGIH, NTP, and IARC in determining if
           a chemical is a hazard and if the chemical is
           carcinogenic.  One option we are considering in
           determining whether a chemical is a hazard is to refer to
           the 2001 editions of the ACGIH TLV booklet, IARC, and
           NTP.  In determining whether a chemical is a carcinogen,
           we are considering referring only to the 2001 editions of
           NTP and IARC.
                       We had expected the use of the ACGIH, NTP,
           and IARC lists to reduce the burden on mine operators
           because mines use relatively few hazardous chemicals for
           which they would have to develop an MSDS and label. 
           Commentors objected to the use of these lists stating
           that the organizations which compile them offer no
           opportunity for public comment, they impose unknown
           future requirements by citing the "latest edition," and
           they violate regulations governing incorporation by
           reference.
                       We are open to considering alternatives
           where the impact of the alternative would not reduce
           protections afforded miners by the interim final rule.
                       Concerning labels and MSDSs, commentors
           requested additional language to clarify that the
           designated "responsible person" mentioned on the labels
           and MSDSs can be the operator.  Accordingly, we are
           considering changing these provisions to read "... the
           name, address, and telephone number of the operator or a
           responsible person who can provide this information...".
                       Concerning the availability of MSDSs,
           commentors asked that we increase compliance flexibility
           and recognize that MSDSs may be stored in a computer.  In
           response, we are considering modifying the requirement to
           have an MSDS available "for each hazardous chemical
           before using it" or one requiring the operator to have an
           MSDS available "for each hazardous chemical which they
           use."
                       MSHA is also considering accepting a list of
           the OSHA PEL on an MSDS as an alternative to a listing of
           the MSHA PEL.  This would facilitate the use of
           widespread existing MSDSs and reduce costs by eliminating
           the need to develop additional MSDSs.
                       In response to comments concerning hazard
           communication training, we are considering changing the
           language from requiring the operator to train the miner
           whenever introducing "... a new hazardous chemical into
           the miner's work area ..." to requiring training when the
           operator "... introduces a new chemical hazard into the
           miner's work area ...".
                       This change would clarify MSHA's intent that
           when a new chemical is introduced additional training is
           required only if the hazard changes.  This is the intent
           as discussed in the preamble to the interim final rule.
                       Also, in response to commentors, we are
           considering revising the definition of health hazard. 
           The interim final rule defines health hazard to include
           chemicals that "damage the nervous system including
           psychological and behavioral problems."  We are
           considering deleting the phrase "psychological and
           behavioral problems."  We are also considering adding the
           criteria "toxic or highly toxic" to more closely conform
           the language to that in OSHA's Hazard Communication
           Standard.
                       The hazard communication interim final rule
           is an information and training standard that requires
           mine operators to know about the chemicals at their mines
           and to inform miners about:
                         the risks associated with exposure to
           hazardous chemicals,
                         the safety measures implemented at the
           mine to control exposures, and
                         safe work practices.
                       The hazard communication interim final rule
           does not restrict chemical use, require controls, or set
           exposure limits.
                       We will publish our response to the written
           comments, including those comments received today at this
           hearing, in the preamble to the hazard communication
           final rule.  We will consider all comments contained in
           the rulemaking record, from the publication of the
           advanced notice of proposed rulemaking on March 30, 1988,
           through the close of the record on October 17, 2001, in
           the development of the final rule.
                       You may submit written comments to me during
           the hearing or send them to the address listed in the
           hearing notice.  We will also accept additional written
           comments and other appropriate data on this final
           rulemaking from any interested party, including those who
           do not present oral statements.  All comments and data
           submitted to MSHA, including that submitted to me today,
           will be included in the rulemaking record.  The record
           will remain open until October 17, 2001, for the
           submission of post-hearing comments.
                       We ask that you please sign the attendance
           sheet at the back of the room, and if you wish to speak,
           there is a separate sign-in sheet for presenters.
                       We will begin with the folks that have
           signed up in advance to speak.  If there's time, which I
           can assure you there will be, at the end of that, anyone
           in the audience who wants to come up and make a statement
           will be able to do so.  We will continue the hearing
           until all speakers have had an opportunity to address the
           panel, and we'll stay as long as necessary to address all
           comments.
                       We only have one speaker that has previously
           signed up to speak, and that is David Pfile from the
           Hanson Aggregates Association.  We'll start with David.
                       MR. PFILE:  Ernie, first of all, before I
           start, I appreciate the comments you just made.  I had
           not heard all those before, some of your responses to
           commentors, and I appreciate that.  I just want to let
           you know that I didn't know that when I prepared my
           comments.  Okay?
                       Anyway, good morning, and thanks for the
           opportunity to speak.  My name is Dave Pfile.  I'm the
           safety director for Hanson Aggregates South Central
           Region.  I have been in the mining and construction
           industries for over 30 years now.
                       I'm a member of the American Society of
           Safety Engineers and the International Society of Mining
           Safety Professionals, and I'm a certified mine safety
           professional.  I also serve on National Stone, Sand, and
           Gravel Safety Committee, and several task forces and
           subcommittees concerning safety.  I'm a certified OSHA
           and MSHA instructor, as well as a certified supervisor
           under Part 77.  I have responsibility for 40 operations
           in six states and nearly 1,000 employees.
                       Today I just want to offer my comments on
           the HAZCOM standard -- on the MSHA HAZCOM standard, but
           before I get that I want to tell you little bit about my
           company, the group I work with.
                       The philosophy of my company is that the
           safe way to do something is the right way to do
           something, and it is the productive way.  Compliance with
           the law is not an option.  It's not optional in our
           organization.  It is a requirement and a floor or minimum
           for operations, not a ceiling.
                       We pride ourselves on our overall safety
           record and on our concern for our employees' safety and
           health.  We strive for constant improvement through
           training, education, coaching, reevaluating, and
           adjusting.
                       I ask that you would stay this regulation. 
           It's going to be confusing and burdensome to many, with
           little effect on injuries, accidents, or worse.  Rather
           than continue to report this standard I would ask that
           you revisit a cooperative effort with all affected
           parties, use the exiting regulations to provide the
           protections for employees that this new standard
           allegedly addresses.
                       The success that was achieved in Part 46
           should be a model for the future.  I researched the
           access to my operations back ten years to find incidents
           that could have been prevented by having HAZCOM in place. 
           There aren't any.
                       The nearest I can find are two accidents
           where batteries exploded.  There was no permanent damage. 
           Employees were wearing PPE, and they were flushed with
           water immediately.  There are no others I can find. 
           HAZCOM would not have prevented an employee from hooking
           up booster cables wrong.
                       I've also checked with my two safety
           managers, and in the last seven years between them there
           has been one request for an MSDS.  In my career --
           because I have OSHA operations as well -- I have had two
           requests for MSDSs I don't know how many years:  one for
           Orange Citrus Cleaner and one for argon gas used in
           welding.
                       The training had been done.  The MSDSs were
           available.  No one ever asked for them.
                       I remember when the OSHA HAZCOM standard
           began to affect the construction industry.  After a
           flurry of MSDSs and confusion we finally got it right, we
           think.  We now have MSDSs for all our products. 
           Subsequently, commercial product providers came on board
           with HAZCOM programs, states go on board with right to
           know, and MSDSs were available online.
                       Now the agency wants to reinvent this with
           just enough differences to make much of our previous work
           obsolete:  the TLBs and some of that ACGIH stuff and the
           IARC things, just enough to make -- rewrite all the
           MSDSs.
                       First, we already have regulations in place
           that address the issues that the HCS alleges to address. 
           We have the labeling standards, warning standard for
           hazards not immediately obvious, training standards,
           toxic material standards.  We have all those.
                       Secondly, we already have MSDSs to meet the
           requirements of OSHA.  The vast majority of our customers
           are regulated by OSHA, and we provide them with MSDSs. 
           We would have to modify these MSDSs to meet the MSHA
           standard and provide them to all of our customers.
                       Third, I believe you underestimate the
           amount of chemicals on a mine site that could potentially
           be required to have MSDS on it.  There are multiples of
           MSDS for various lubricants, different types of oil,
           different greases;  Lubriplate, Mobil, high-temp grease,
           Castrol, drydene [phonetic], various fuels:  propane,
           atacees [phonetic], Lok-tite products.  Lok-tite alone
           probably has 50 or 60 MSDSs, depending on the product. 
           Oxygen, acetylene, et cetera.
                       My operations currently have MSDS books
           ranging from about 125 chemicals in a book to a book at
           one location that is three inches thick.  Nearly every
           substance produced in the US has an MSDS sheet.  More
           importantly, every time there's a change on an MSDS a new
           sheet is issued by the manufacturer, whether it's its
           phone number, zip code, area code; something changes and
           they issue a new sheet.
                       Many manufacturers routinely ship MSDSs with
           their product.  Someone has to compare the sheets to
           ensure that the proper sheet is being used.  The changes
           are not highlighted.  One must compare the sheets side by
           side.
                       It's my belief that the primary effect of
           this rule will be an increase in citations. 
           Overzealous -- and I emphasize overzealous -- ARs will
           comb through MSDSs with the sole purpose of finding a
           citable offense.  They will print an MSDS from Exxon when
           the operator has just switched to using Mobil.  They may
           look for an MSDS book in the shop, only to find it in the
           mine office and claim that it is not immediately
           available.  This behavior will in turn tie up MSHA
           supervisors and conference litigation representatives as
           operators like myself, conference citations that they
           considered unjust and are technical violations that have
           no effect on safety and health of miners.
                       As an example of how confusing this whole
           issue can be of these MSDSs I offer the following.  It is
           interesting that different manufacturers of the same
           product often have strikingly different MSDSs.  I have
           with me three MSDSs from three manufacturers for the same
           product.  One MSDS is three pages long, one MSDS is four
           pages long, and one is five pages long.  The health
           hazards listed are different.  The first aid procedures
           are different.  The firefighting procedures are
           different, and the chemical composition is different, and
           there are other differences on these sheets as well.
                       You can look over them.  I'll give them to
           anybody that wants them.  And I'm sure you want to know
           what the product is, and what it is is air.  Pure air. 
           Calibrated gas or breathing air for calibrating
           instruments or for breathing air, and when you read these
           you won't believe it.
                       The hazard is that the air is stored
           compressed in a cylinder.  That's the only hazard I can
           think of.  I can't think of any other.  So this rule was
           pushed out at the end of the last administration, and I'm
           not going to say anything else about that.
                       The new administration is asking for a new
           way of doing business.  The secretary has asked the
           stakeholders to trust him.  I take him at his word.  I
           have spoken with many in the agency about this and about
           cooperating and sharing information and working together. 
           The opportunities for trust, cooperation, and good
           relations among all of the interested parties is here. 
           It is up to all of us to take this positive spirit and
           have it take hold at all levels with the singular goal of
           improving conditions in our respective operations.
                       Allowing this rulemaking to go forward now
           will probably damage some of the cooperative efforts that
           have already begun to take root.  As I have asked my
           operations to put away our swords and extend the hand of
           trust and cooperation, I'm asking the agency to do the
           same.  Come to the table.  Let's use the existing
           standards to allow us all to protect our employees and
           improve things for all of us.
                       Thanks.
                       MR. TEASTER:  Thank you, David.  We're glad
           that your folks put away the sword.
                       Dave, the training that you have provided
           for your miners under Part 46, do you feel that they
           would satisfy the intent of this interim final rule as to
           what information would have to be shared with the miners
           in the training program?
                       MR. PFILE:  Yes.  I think we could do it
           under Part 46 without any problem.  We already do it at
           many of our operations.  We went through an acquisition
           here in the last year, so I can't say -- I'm going to say
           90 percent sure we do it at all of them, but I can't say
           for sure that we do HAZCOM training at all of them
           because I still have some new operations I'm trying to
           integrate into our program.
                       The majority of them, yes, we do.  We
           already talk about HAZCOM.  We have MSDS books.  We have
           the sheets there.  It's all OSHA stuff, and the ARs have
           never looked at them because it's OSHA stuff, but we have
           it;  we've talked about it.  We talk about it with our
           employees.
                       They have it available.  We might use it as
           recommendation on the PE they're supposed to use:  Hey,
           look on the MSDS sheet.  And we provide MSDSs for all of
           our customers.  We have a huge bank of them because of
           the different products that we provide; we've got crushed
           stone, sand and gravel, all of the different geological
           compositions of some of my different operations.
                       MR. TEASTER:  You mentioned that you have
           volumes of very voluminous MSDSs.  Are these -- represent
           the current MSDSs?
                       MR. PFILE:  We keep all the OSHA papers for
           30 years, and occasionally -- we can't do it ever day,
           but occasionally we go through, cross-reference things,
           take some out and put them in a box.  We keep them at the
           plant.  We keep them for 30 years.  That's the --
                       MR. TEASTER:  But the book that you have
           that's available for review would reflect the chemicals
           that you currently use and the latest MSDSs?
                       MR. PFILE:  As near as I can guess.  It's
           not something that I have somebody update every week.  We
           might do it on a manual basis as stuff comes in, and so
           it keeps -- put in the book, put in the book.  It gets
           pretty big.
                       MR. TEASTER:  Is someone at the mine
           designated to oversee these MSDSs as part of their --
                       MR. PFILE:  I'm not consistent on that.  One
           of things I've talked to some of your people about is
           consistency, and at some mines there's more consistency
           than others, just like with some ARs there's more
           consistency with others.  I think we all have that
           challenge.
                       MR. TEASTER:  I'm glad that MSHA is not the
           only one that has a problem with consistency.
                       But the --
                       MR. PFILE:  No.  In some places we do, some
           places we don't.  It's very, very confusing.  The example
           of air -- I have MSDSs on Tide detergent, because it was
           used -- we bought huge volumes in Tide at one time at one
           of our paving operations.  It was used to clean up any
           hydraulic oil spills on the blacktop.  It's the most
           effective product we could find to prevent deterioration
           in asphalt.  But since we buy it at a non-consumer,
           whatever that means, fashion and sprinkle it all over the
           highway, you have to have an MSDS for it, and I have some
           remarkable MSDSs on everything.
                       And the problem is when you get an MSDS,
           somebody at the plant -- you know, we're safety people. 
           Everybody practically here is a safety person.  We
           understand the language; we understand the abbreviations,
           all the different things that we use.  We understand
           that.  I can talk about CLRs to you and you'll know what
           I'm talking about, but I can talk to other people and,
           What are you talking about?  They have no idea.
                       What happens is in the fearfulness of --
           we've got this MSDS.  We'd better put it in the books,
           because somebody thinks it's hazardous.  Something thinks
           it's hazardous.  You go on and on and keep adding to the
           book of so-called hazardous chemicals.
                       And it might be hazardous because EPA says
           it's hazardous, or it might be hazardous because DOT says
           it's hazardous, or it might have to be placarded when
           it's transported, so an MSDS is produced, and I don't
           expect our people to reach the level of sophistication to
           understand the variety of regulatory schemes that they
           potentially come under and how to sort these things out.
                       Well, we don't have to have that one,
           because that's just a DOT requirement, but we have to
           have this one because it's an OSHA requirement.  Now we
           have to have this one because it's an MSHA requirement. 
           It gets very confusing.  I think -- I could show you
           stuff out of books.  You'll see it's confusing.
                       And when I made that comment about the Ars,
           again -- and it's been my experience with Part 46 the
           majority of them -- we have one program that we basically
           adapted to all of our operations.  I'm not going to
           write -- start from scratch at every operation for a Part
           46 training plan.  That's crazy.  We wrote a good one. 
           We used the National Stone as a base, and we put it out
           at all our plants, and some ARs come in and say, Man,
           that's the best thing since white sliced bread, and other
           ones come in and say, No.  It's all wrong.  You've got to
           change this and that and the other thing.
                       It's the same plan.  The only difference is
           that person reviewing it, and I think we're headed down
           that same road with HAZCOM, where for a good while it
           will just tie up a bunch of resources and cause hard
           feelings between the agency and the regulated people.
                       MR. TEASTER:  Getting back to the MSDSs, is
           there any -- are these things catalogued where you could
           reference a particular chemical if you wanted to go to
           it?
                       MR. PFILE:  Ernie, that's one of the
           challenges that I've never adequately come up with the
           best way of doing it.  At some locations we're doing it
           electronically.  You just log on and do it
           electronically, because you can cross-reference a variety
           of ways.  We've done it -- we've tried to do it by
           lubricants, solvents, fuels.  We tried to sort it out
           that way and put it in alphabetically, and we tried to
           put it alphabetical by product.  We've tried putting it
           alphabetically by manufacturer.
                       I have not come up with the perfect way to
           put paper in a book that it can be cross-referenced
           rapidly, depending -- and then there's generic names. 
           People make up names for stuff.  I haven't found a real
           good way to catalogue this stuff.  The best way I've
           found is going online, because then you can cross-
           reference through chemical name, CS number, manufacturer,
           and you can find it a whole lot of better ways online
           probably a lot faster I think.
                       MR. TEASTER:  You said the miners have very
           infrequently requested to review MSDSs.
                       MR. PFILE:  Yes.
                       MR. TEASTER:  Are they fully aware and have
           been trained in these MSDSs, their locations and
           availability?
                       MR. PFILE:  Again, I can't say for all of
           the plants.  A lot of them have.  In the OSHA operations
           that I have I had OSHA -- I have had specific HAZCOM
           training that I personally performed with a group, and
           subsequently during an OSHA inspection, as infrequent as
           they are, the compliance officer asked one of my
           employees what he knew about MSDSs, and his reply was
           that he had watched the Jerry Lewis telethon the previous
           weekend, and I know that he was there.
                       I know he was in a class.  I had his
           signature. I went over the material safety data sheet and
           MSDS and all the language, and he still thought it was
           the Jerry Lewis telethon for Muscular Dystrophy, or MDA,
           when the inspector said MSDS.
                       So are they getting it?  I guess not, but I
           don't know what else to do other than train and retrain. 
           And when I reminded him, you know, about the hazardous
           chemicals and things -- oh.  Yes.  I know about that
           stuff.  Yes.  That's in that book.  That's those sheets.
                       But again, it might have been intimidation. 
           It might have been -- I don't know -- fear, but that was
           his response.  I'll never forget it.  I turned about --
           sure, we do all this.  I turned about six colors of red.
                       MR. TEASTER:  How often do you in the
           performance of your job responsibilities go to the MSDSs
           for information?
                       MR. PFILE:  Rarely.  We don't have the
           incidents.  In my career -- let me get it right.  I think
           it was 1986 I had an incident, and in 1988 I had an
           incident, and they were both involving construction
           operations, not mining.  I had mining and construction. 
           It was with my current employer, probably under a
           different name at that time.
                       One of them -- an employee came to the shop
           and we had just bought this -- at that time Orange Citrus
           solve was a pretty new technology 15 years ago.  That's
           when it was -- first became popular, and had tracked
           asphalt topcoat into his wife's house on her carpet, and
           she was not happy.  So he went to the shop foreman and
           asked -- told his dilemma, and -- I've got this stuff. 
           We've just got it in to help you out.  It's Orange Citrus
           Cleaner.
                       And he had a 55-gallon drum of it, so he
           took a milk jug, a common milk jug, filled it up with
           this stuff and gave it to the foreman to let him -- and
           he took off for home.
                       And where the MSDS comes into play in this
           is that the foreman did his work and cleaned up his
           carpet.  He thought he'd be a hero with his wife.  And he
           left the milk jug sitting on his kitchen counter, and his
           nephew came in and took a drink of it, thinking it was
           orange juice, because it smells like it and it looks like
           it, and if you're a kid you're not immediately going to
           get that -- an unlabeled container -- and there was a
           flurry of activity, and very -- almost on-fire phone
           lines, that ultimately we got the MSDS to the hospital
           because the critical information on it is what do you do?
                       What's the treatment?  Do you cause them to
           throw up or do you give them activated charcoal, or
           what's the treatment?  And the hospital refused to treat
           until they had the MSDS to know what they needed.  And
           there were some breakdowns in the system on labeling and
           getting employees stuff to take home, and a variety of
           things that went wrong in there, but ultimately the
           little boy was okay, and the hospital treated him, and
           everything was fine, and it heightened the awareness.
                       And the other one was an employee that --
           and again, it's more of a work practice than it was the
           ability to understand the MSDS.  One minute the Orange
           Citrus was a work practice issue and a training issue
           rather than a HAZCOM issue.  That HAZCOM came in when we
           had to do the first aid or the medical treatment for the
           young boy.
                       The other one was an employee -- and I
           believe this was in 1987, 14 years ago -- climbed up in
           an aluminum truck bed of an over the road truck to weld,
           and this was a truck that hauled asphalt.  Of course,
           some of it sticks to the bed, and he had to weld on the
           bed, and he wanted to paint it, and he took a product --
           I can't remember the name of it.  It was Two Plus Two
           Brake Cleaner or some kind of brake cleaner solvent that
           everybody thought this was the best stuff in the world to
           dissolve asphalt.
                       And he sprayed it on there and he realized
           he was in a truck bed -- I use this for confined space
           training as well -- with the tailgate closed, and he's
           welding aluminum, so he's using an argon shielding gas. 
           He's got a continuous-feed weld gun, and he's using argon
           as the shield gas for welding.
                       So he sprays this brake cleaner on there and
           starts to weld, and pretty soon he gets overcome and weak
           and yells for help, and they get him out of the bed and
           they take him to the hospital and put him on oxygen.  And
           subsequently what was discovered, two things happened --
           and we're not sure which affected him the most.  You
           shouldn't go into confined spaces unless you have some
           ventilation, so he propped the tailgate open so that
           anything in there -- so you could get some airflow
           through there.
                       What happened is we -- we don't know for
           sure whether he was overcome by the argon gas as it
           filled the truck bed and displaced the oxygen, or if the
           ultraviolet rays and heat from the welding took the
           1-1-1-trichloroethane that was in the brake cleaner and
           had it decomposed to the phosgene gas.  We don't know
           whether he was getting poison gassed or whether it was
           oxygen-deficient atmosphere, because we opened up the
           tailgate and got him out of there -- this was on the
           night shift.
                       I got a call in the middle of the night, got
           over there, and we couldn't figure out what had happened
           at first, and then subsequently the MSDSs gave us at
           least some clue of what was going on, argon being heavier
           than air, and the trichloroethane in the brake cleaner
           when it's exposed to the ultraviolet rays of welding and
           heat it decomposes into phosgene gas and some other nasty
           stuff.
                       So that's two incidents in 30 years, and
           that's it.  In neither case there was no permanent
           damage.  It was scary.  We learned something from it.  We
           use it for subsequent training.  But again, I don't think
           a welder is going to go look at an MSDS before he goes
           and welds, and I don't think he's going to look at the
           label of the brake cleaner to see if it has something --
           it's such an obscure connection.  They're not going to do
           it.
                       They don't even see the hazard, and I didn't
           know the hazard.  I do now.  I talk about it, but I'm
           sure there's other ones out there that I don't know
           about, and there's stories of depressed housewives
           killing themselves by mixing Drano and Clorox together in
           a toilet and creating chlorine gas, and there's all sorts
           of -- you can take household chemicals and whip up some
           terrible stuff.
                       I don't know how we -- that MSDSs actually
           can address all those eventualities.  I don't know.
                       MR. TEASTER:  In your training program do
           you have a -- or your training programs because you cover
           multiple operations -- how much time is allotted -- and
           let's say your eight-hour refresher training -- is
           allotted toward training?
                       MR. PFILE:  There's some employees that are
           more sophisticated than others, and they pick up on it a
           little quicker.  There's others that we could talk about
           it for hours and I'm not sure what effect it has.
                       MR. TEASTER:  This --
                       MR. PFILE:  I don't know how much we
           actually spend on it.  We probably only spend a half hour
           to an hour, depending on the group.  If it's a bunch of
           fellows in the pit group hauling out of the quarry, they
           might not have a lot of talk about it.  Welders and
           mechanics that are more exposed to those kind of hazards
           we'd probably talk about it a little bit more.
                       I'll tell the story about the confined space
           and the brake cleaner and the argon, and that at least
           gets people thinking about what they're doing because
           it's a real story, but again, they might think about and
           they might think about argon, and they might think about
           brake cleaner, and they might think about some of the
           other things, but they might not think about something
           else that when you put it together reacts in some way.
                       MR. TEASTER:  Do you think under this
           training program -- was this accident prior to Part 46?
                       MR. PFILE:  Oh, yes.  Way before Part 46.
                       MR. TEASTER:  Would you --
                       MR. PFILE:  And it was in a -- both of those
           were construction operations that were -- they were on my
           property, but they were at an asphalt plant in a shop
           separated -- when we put up an asphalt plant on our
           property we put up signs and go by the memorandum of
           understanding.
                       MR. TEASTER:  Would you think --
                       MR. PFILE:  I won't try to sandbag you.  We
           do that.  We put up signs.  OSHA starts here, MSHA starts
           here, because what they do under OSHA is different than
           what we do under MSHA.
                       MR. TEASTER:  Would that type of incident
           that resulted in that accident you just described, do you
           think that's something that would be covered under your
           training program?
                       MR. PFILE:  Prior to that incident, no.  I
           would have never even -- it would have not occurred to me
           to even train on that combination.  It wouldn't have
           occurred.  And now what we do, we basically use it as a
           confined space topic when we talk about entering confined
           spaces, because we talk about confined spaces and
           hazardous atmospheres, and we do that with our miners as
           well, even though there's no standard on it.
                       MR. FEEHAN:  I have a question if I can?
                       MR. TEASTER:  Sure.
                       MR. FEEHAN:  To clarify something for me. 
           This is in the back of a 14 wheel truck or something like
           that, that size truck?
                       MR. PFILE:  Yes.  An over-the-road rock-
           truck kind of thing --
                       MR. FEEHAN:  And it's open on top?
                       MR. PFILE:  It's open on top.
                       MR. FEEHAN:  So --
                       MR. PFILE:  It was in a shop.
                       MR. FEEHAN:  It was in a shop, but that's
           not what I consider a classic confined space.
                       MR. PFILE:  Not, it isn't, but if you study
           confined space, it certainly can become a confined space
           quite readily.  The bed is -- keep the tailgates tight,
           because you're hauling sand as well --
                       MR. FEEHAN:  Yes.
                       MR. PFILE:  -- and you can't have any
           leakage, and with still air in the middle of the night in
           a shop that's closed up, that argon just will displace
           the oxygen right out of the top.
                       MR. FEEHAN:  Yes, I can see that happening.
                       MR. PFILE:  And that's what happened.  It's
           amazing.  Since we've done that, I collect confined space
           stories.  There's open nortanks [phonetic] that have
           turned into confined spaces.  People have been killed on
           farms, silos, things -- containment dikes around tanks,
           which aren't typically very hot.  When somebody breaks
           the plane and gets down in there, there have been
           confined-space incidents in those.
                       And again, I don't know how you would
           train -- how you would make a connection between HAZCOM
           and inside of a containment dike.  I can't seem to put it
           together.
                       MR. TEASTER:  David, have your supervisors
           been given the same type of training as the miners are
           given as far as hazard --
                       MR. PFILE:  They get the same --
                       MR. TEASTER:  Communication.
                       MR. PFILE:  -- they get the same kind of
           training, but they get even more with them.  We do more
           of the supervisors.  Every supervisor gets a week off
           training program, not every year.  But then we have
           refreshers that are about anywhere from four to six hours
           at least on an annual basis, separate from the Part 46.
                       MR. TEASTER:  Assuming that this interim
           final rule would become a final rule, how do you think
           the agency could best assist mine operators, and
           particularly small operators, in coming into compliance
           with this rule?
                       MR. PFILE:  Well, to make it easy, there are
           a multitude of canned OSHA programs available.  Every
           safety magazine -- there's just an absolute multitude of
           these things.  And again, I think if the intent is there
           the intention be recognized and not be looking for
           technical violations.
                       A small operator can go out for a small
           amount of money, buy a canned OSHA program, put it
           together for his operation.  The intent is there.  The
           information will get there.  If he doesn't have an MSHA
           T crossed or an MSHA I dotted, I think that the agency
           would look kindly on him and say, You're making a good
           effort.  Now just give him some CAV help and modify this
           a little bit, and go that way.
                       I think that will get -- it's a common
           saying that you get more with sugar than you do with
           vinegar, so getting with the small operators -- the big
           operators, there's not going to be a terrible problem. 
           It's just the concern of tying up resources over
           technicalities and technical differences.  That's my
           biggest concern.
                       We're still trying to keep people from
           falling off of things and running into things and backing
           over each other.  We're still trying to do that
           effectively in our industry prior to getting to the more
           obscure types of incidents that I described today.  But
           I never would have thought that would have happened.
                       I have a new war story to share with
           everybody about -- but HAZCOM wouldn't have helped it
           unless you were a chemical engineer.
                       MR. STONE:  Let me just ask one question. 
           You had suggested that one of your concerns was that the
           MSHA interim final standard was just sufficiently
           different from the OSHA HCS that that would impose some
           substantial costs on you.  I don't know if you said it in
           those terms.
                       MR. PFILE:  I didn't say it in those terms,
           but yes, it would cause me some -- a bit of work.
                       MR. STONE:  Yes.  Suppose it were the case
           that compliance with OSHA's HAZCOM standard, HCS, would
           allow you -- would put you in compliance with MSHA
           standards.
                       MR. PFILE:  That would be a whole lot less
           of a burden.
                       MR. STONE:  Okay.  I know they're not
           identical, but they could -- I don't know if we could do
           this, install language that would say compliance with one
           would be virtual compliance with the other.
                       MR. PFILE:  Like I said, that would be a
           whole lot less of a burden. We've got a laboratory that
           does chemical analysis of our MSDSs so that we have the
           right stuff for our own products, and I don't want that
           batch to out and have to double breast everything and add
           ACGIH limits and IARC limits and a bunch of other stuff
           that makes our stuff obsolete.
                       We have thousands of customers.  That's a
           big financial burden to send those things out.
                       MR. STONE:  Okay.
                       MR. PFILE:  And again, I want to comment on
           the underestimating of the chemicals.  When I read the
           preamble and the other information, the manufacturer,
           just like we do -- our MSDSs are not written by safety
           professionals or chemical engineers.  They're written by
           attorneys, and we all know that, and they cover every
           eventuality that they can think of to avoid litigation on
           the MSDSs, and that's what makes them confusing.
                       The best MSDS that I have ever seen in my
           life was put out by a company called Orkin Steel, and
           they put it out, and it had two lines:  steel is heavy. 
           Do not drop on foot.  That was it.  No attorney got
           involved in the production of that MSDS.  They told about
           the properties of the product and what the hazard was.
                       So if there was a simple way of saying this
           stuff is bad and it can hurt you if you drink it, eat
           it -- but even on our own MSDSs we have warnings, Do not
           eat limestone.  It will cause gastrointestinal distress. 
           Do not eat hot mix asphalt.  It will make you sick.  It
           is beyond comprehension that we have to put that stuff on
           there, but we do.
                       I don't know of -- I've heard of people
           eating clay, but I've never heard of anybody eating
           limestone or things like that, and it's absurd that we
           have to do that, that we have to put that on there.
                       MR. TEASTER:  I'm sorry, David.  I was --
           it's absurd to do what with limestone?
                       MR. PFILE:  Well, we have a warning on our
           MSDSs for our limestone that says, Do not eat limestone. 
           It will cause gastrointestinal distress.
                       Now, I've been the mining industry a long
           time, but I don't eat the asphalt, and I don't eat sand
           and gravel, and I don't eat limestone, you know, that --
                       MR. TEASTER:  So you've identified limestone
           as a chemical hazard?
                       MR. PFILE:  You bet you.  We have an MSDS
           for every one of our products:  sand and gravel, briolite
           [phonetic], granite, limestone, limestone base, asphalt
           that we produce at one of our plants.  We have MSDSs on
           everything we -- and we ship them out regularly.
                       We send them out to people all the time.
                       MR. TEASTER:  Under our standard it
           wouldn't -- silica or some chemical contained in it would
           need to be, but you would only -- not require those raw
           materials to be --
                       MR. PFILE:  OSHA does that.  We're already
           doing it.
                       MR. TEASTER:  So you're doing that so it
           wouldn't impact -- you're doing that anyway?
                       MR. PFILE:  Again, I've got a group now for
           analysis that all of our products -- to find out if
           there's any flexible five to one ratio fibers in any of
           our -- which is entirely not the issue of this hearing,
           but I've got them on point to find out if some of our
           softer limestones that we use for base have some
           potential -- I hate to say it -- asbestos foreign fibers.
                       I don't know if they do or not, and how
           they're going to be identified -- and so, yes.  We have
           to put that stuff out.
                       MR. TEASTER:  Carol?
                       MS. JONES:  I just wanted to ask you one
           question just for information.  You had mentioned earlier
           that you hadn't had an opportunity to see what Mr.
           Teaster was going to discuss today as far as what the
           agency is considering as far as changes.  I would like to
           ask that if you're going to submit written comments that
           perhaps you include comments on those points as well.
                       MR. PFILE:  Those are on the web page now,
           your introduction and everything else?
                       MS. JONES:  Yes.
                       MR. TEASTER:  We did share that with ones
           that had -- most of those that had requested to speak. 
           We certainly sent it to the Stone Association.
                       MR. PFILE:  I might not have had your last
           comments though about what you were considering
           modifying.  It seems to me that I don't remember reading
           that.  I read some of your introduction before, but I
           don't remember reading the proposed changes to the
           interim final rule that you are considering based on
           commentors comments.
                       MR. TEASTER:  That was included in the
           opening statement, and we shared that with a lot of
           folks.  I'm not sure we got it to everyone.
                       MS. JONES:  And also the transcript of today
           and all the past and future hearings will be on our
           website within a couple of days.
                       MR. PFILE:  Again, you've got to realize
           there's a pretty voluminous amount of material to read
           and digest, and this isn't the only thing I did, so --
                       MS. JONES:  I understand.
                       MR. FEEHAN:  At the properties that you've
           had for a while, Dave, and not the ones that you recently
           acquired and have question marks about, but what's that
           training like on chemical hazards?
                       MR. PFILE:  It's basically -- it's probably
           a 20 minute to an hour -- again, depending on how many
           questions come from the group, kind of like this group it
           depends on how long you speak and then you have the
           questions, but it's a thing that I stole from the OSHA
           500 course, the ten hour and 30 hour courses for
           construction workers that OSHA does.  I basically got it
           from Georgia Tech from when I got certified there. 
           That's what it is.
                       This is an MSDS.  These are labels.  You
           want to look for this, about the NFDA diamond if they
           see -- the blue and the yellow and the red and the
           white --
                       MR. FEEHAN:  Yes.
                       MR. PFILE:  -- and it's basic -- it's pretty
           simplistic stuff.  We don't get into exotics.  I used to
           do HAZWOPER work as well, hazardous waste operations, and
           I've tried to distance myself from that environmental as
           much as I possibly can, but I've been on several sites.
                       And HAZWOPER is another animal altogether. 
           We do not go into that kind of detail that the things
           that -- we tell them if you find an unlabeled, old rusty
           drum, leave it alone and stop.  Don't touch it.  Go get
           an adult.  You've got to go get somebody that knows what
           they're doing and don't mess with it.
                       MR. FEEHAN:  What about a fairly common kind
           of maintenance task at the properties, like changing oil?
                       MR. PFILE:  Well --
                       MR. FEEHAN:  Do you warn employees about the
           carcinogen hazard, the people who do that?
                       MR. PFILE:  I haven't.  No.  I've never
           warned anybody about carcinogenic properties of changing
           oil.  I haven't done that, and if one of my safety
           managers has, I'm not aware of it.
                       MR. FEEHAN:  Yes.  Okay.
                       MR. PFILE:  I didn't know changing oil had
           a carcinogenic --
                       MR. FEEHAN:  If you look on the MSDS, it
           will tell you that there are laboratory studies
           indicating that used oil has a potential human
           carcinogen.
                       MR. PFILE:  One comment I'd like to make
           about some of the lab studies, and this is part of my
           objection to some other obscure agencies rather than OSHA
           and MSHA.
                       Several years ago there was a move to
           declare hot-mix asphalt fairly dangerous and a
           carcinogen, and I don't know if you remember this deal. 
           They were going to make hot-mix asphalt as a suspected
           carcinogen and have all the workers on an HMA paving
           train working on the pavers and everything else wear
           protective clothing and respirators; wear Tyvek suits and
           respirators.
                       And I don't know if you're ever been around
           that stuff, but when it comes out of the paver, it comes
           out at somewhere around 300 degrees, 275 to 325,
           somewhere on that order.  If you get much hotter, you
           start getting hydrogen sulfide gas off of it, and it's
           dangerous to get over 400 degrees.
                       But in any event, they were going to do
           this, and the industry of course and the associations
           were outraged and fought it and successfully pushed it
           back into the box some place for the time being.  And
           when it came about that the health study was done to
           determine that asphalt -- liquid asphalt cement was
           carcinogenic -- had those properties as a carcinogen, we
           discovered what they did.
                       And the way they determined this was they
           took laboratory rats and they shaved their backs and they
           painted them with hot asphalt.  Now, I don't know about
           you, but I think if somebody threw me down on the ground
           and painted my back with hot asphalt, cancer might be a
           blessing considering what else could have happened to me.
                       The study didn't represent anything near
           real life, and I don't know -- I guess they couldn't get
           small pavers for them.  I don't know.
                       MS. JONES:  Could I respond to that
           somewhat?  I'm somewhat familiar with that situation, and
           I don't think the issue was ever resolved whether or not
           it was or was not a carcinogen, but as an outgrowth of
           the discussions between industry, NIOSH, and OSHA there
           was an agreement to put controls on paving machines --
                       MR. PFILE:  Yes.
                       MS. JONES:  -- in the future to decrease the
           exposures to that  potential carcinogen --
                       MR. PFILE:  Absolutely.  And rather than
           having a rule, industry and associations and labor got
           together and said, Okay.  There could be a problem here. 
           Let's put fans and suck the stuff off the screed and off
           the screws on the paver and keep it away from the
           employees, and it's a great idea.
                       Why can't they do the same thing here? 
           That's -- you get the same result if we'd just sit down
           together and do this.
                       We had a -- I want to add one more thing
           about how this works.  The International Society of Mine
           Safety Professionals is in the process of doing role
           delineation about what a mine safety professional should
           do, and I'm on that committee, and last spring a variety
           of people melt in Raleigh, North Carolina, and they were
           representatives of the agency -- Larry Checca was there. 
           Rod Breland was there.
                       There were people from the state mine
           inspector that were there, the different state mine
           inspectors for North Carolina and Arizona.  There was a
           fellow from NIOSH.  Lynn Rathe I think was there from
           NIOSH.  There were people there from every type of
           mining.  There were people from gold and metal mining. 
           There were people there from coal mining.  There were
           people there from phosphate mining.  There were people
           there from copper mining.  There were people there from
           coal mining.  There were people there from aggregates
           mining, and in two days in a room this group agreed from
           divergent directions -- and there was even an attorney
           there, amazingly enough -- we got agreement.
                       So in any event, we put ourselves in a room
           together with a moderator and facilitator, and we walked
           out of there.  We had definitions and had the role
           defined of what a mine safety professional should do. 
           And again, that should be an example of how things in the
           future should go forward.  We can sit down from industry,
           from agency, from labor and all affected parties and put
           a group together, and we're smart enough -- I'm convinced
           that we're smart enough that we can come out of there
           with an agreement of a way to do things that everybody
           can live with.
                       I'm totally convinced of it.  And that's an
           example of how some of these things should go forward. 
           It worked.
                       MR. TEASTER:  Well, I agree with you, Dave,
           and you know that we're -- we've done an extensive
           outreach now trying to get with the stakeholders and
           identify a lot of this.
                       I think that in the past on some of the
           regulatory things that have come forward that we --
           there's very strict rules that govern rulemaking --
                       MR. PFILE:  Sure.
                       MR. TEASTER:  -- and once you get into the
           regulatory arena in an official capacity it's very
           limited the outside involvement that you can have.  If we
           get an advanced notice of proposed rulemaking it gives us
           a lot of leeway to sit down and work with folks, and I
           think we need to try to get in that arena so we can get
           more people involved in the process actively working to
           try to come up with something that's going to do the job.
                       And I met with the health and safety
           committee on a regular basis.  Every six months we meet
           with the National Sand, Stone, and Gravel Association's
           health and safety committee, and we talk about a lot of
           things, and one of them involves rulemaking.  And they
           come in and we had a very successful project in coming
           forward with Part 46:  industry, labor, the agency. 
           There was other folks involved in that process, and I
           think as the result of the commitment to come up with a
           rule -- first it was the recognition that we needed one,
           and we all worked collectively to do that, and we worked
           in that arena primarily before we got into the regulatory
           arena.
                       Once that came into rulemaking -- then we
           can no longer communicate and work with as we had prior
           to.  So I think it's important that when we get these
           advanced notices of proposed rulemaking that we get
           everyone involved, because at that point we have some
           leeway to work more as a community than we do as an
           agency, so I think that's a good point.
                       MR. PFILE:  That's some of the issues
           involved -- because of time and then time constraints and
           things like that and the way it's defined now, and that's
           part of the concern right now.  You can't turn back the
           clock.
                       MR. TEASTER:  We're hopeful that we can get
           comments through this process that we can come up and
           fabricate a rule that's going to accomplish the intent,
           and I think most people are in agreement that miners have
           a right to know what exposures they're being placed in.
                       We have some -- there's some horror stories
           from their side not having the information, not having
           the knowledge about chemicals and working in them and
           getting injured, getting burned.  There's also some
           concerns about long-term exposure, not something that
           will -- the exposures will show up today, but maybe ten
           or 20 years down the road, and they didn't have any
           information or any protections afforded to them.
                       So there's I think some agreement that
           there's a right for these miners to have the knowledge
           and information about the exposures to which they're
           working under, but we need to fabricate a rule that's
           going to afford the protections they need and at least
           minimizes the burden that we have on the industry on
           doing that, and that's -- the purpose of this hearing
           today is to gather information how we can best accomplish
           that, and hopefully we'll come out with a rule that is
           very reflective of that very thing.
                       And no more questions --
                       MR. PFILE:  Any more questions for me?
                       (No response.)
                       MR. TEASTER:  We thank you very much, David.
                       MR. PFILE:  Thank you.  Thanks for the
           opportunity.
                       MR. TEASTER:  We have no other people that
           have signed up to speak.  I will give the opportunity to
           anyone in the audience that would like to come up and
           make a statement.  We'd welcome you to do so.
                       (No response.)
                       MR. TEASTER:  If not, I think we will go off
           the record.  We're not going to adjourn.  We're going to
           go off the record, and we'll give some time to see if
           there's any other people that come up that would like to
           speak.
                       For those of you that may depart, I would
           just encourage you to submit any post-hearing comments
           that you would like to submit to the agency for us to
           consider in drafting this final rule.  I remind you that
           the record will remain open until October 17.  I think
           it's important that we get all segments of the industry
           to be involved in this process so all different scenarios
           that we can are brought forward and considered.
                       Obviously you can't go in a hundred
           different directions, but I think you can consider these
           things, and to the extent you can, you accommodate them
           and provide the protections that's intended to be
           provided by the rule.
                       And with that we'll go off the record.
                       (Whereupon, a short recess was taken.)
                       MR. TEASTER:  It's now approximately eleven
           o'clock a.m.  We have not had any additional speakers to
           sign up.  We will adjourn at this time until 1:00 p.m.,
           at which time we will reconvene to see if there's anyone
           that wishes to speak.  If not, we will terminate the
           hearing at that point.
                       (Whereupon, the hearing was recessed, to
           resume at 1:00 p.m. this same day, Tuesday, October 2,
           2001.)
                       MR. TEASTER:  Okay.  Let's go back on the
           record.
                       It's now approximately 1:00 p.m.  There's no
           one in the audience.  No one has come in to sign up to
           speak, so therefore we will adjourn this public hearing.
                       (Whereupon, at 1:00 p.m., the hearing was
           concluded.)