IN THE MATTER OF:                 )
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MINE SAFETY HEALTH ADMINISTRATION )
PUBLIC HEARING                    )
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Pages:    1 through 131
Place:    Washington, D.C.
Date:     December 14, 2000
IN  THE  MINE SAFETY HEALTH ADMINISTRATION

MINE SAFETY HEALTH ADMINISTRATION )
                                  )
PUBLIC HEARING                    )
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               Room 400N
               800 K Street, N.W.
               Washington, D.C.

               Thursday,
               December 14, 2000

          The parties met, pursuant to the notice, at 
9:00 a.m.

          BEFORE:  MARVIN W. NICHOLS
                   Chairman

APPEARANCES:

MARVIN W. NICHOLS, Administrator
Coal Mine Safety and Health
EARNEST C. TEASTER, Administrator
Metal and Non-Metal Mine Safety and Health
RICHARD FEEHAN
Office of Education, Policy and Development
CHERIE HUTCHISON
Office of Standards, Regulations and Variances
DEBRAH GREEN
Office to the Solicitor
ROBERT SNASHALL
Office to the Solicitor
BRUCE WATZMAN
STEVE SANDBROOK

SPEAKERS:

ADDE ABRAMS
MARG Diesel
MICHALE SPRINKER
ICWUC Health and Safety Department
JOSEPH MAIN, UMWA
JIM SHARP, NAA-NSA. P R O C E E D I N G S
     (9:00 a.m.)
          MR. NICHOLS:  Good morning.  Can you hear me in the
back?  Can you hear, Bob.  I'm Marvin Nichols, the administrator
for Coal Mine Safety and Health.  Welcome to MSHA's public
hearing on development of its final standard for hazard
communication.  The members of today's panel are Ernie Teaster on
my left.  On my far left is Robert Stone with the Standards
Office.  Ernie is the administrator for metal and nonmetal.  On 
my right is Deborah Green and Bob Snashall.  They're with the
Office of the Solicitor.  And Cherie Hutchinson is with the
Office of Standards.  And Richard Feehan is with the Office of
Education Development and Policy.
          We're here to listen to your comments on the
requirements contained in the hazard communication interim final
rule which MSHA published on October 3, 2000.  The hearing is
being held in accordance with Section 101 of the Federal Mine
Safety and Health Act of 1977.  As is the practice of MSHA,
formal rules of evidence will not apply.  Therefore, today's
proceedings will be conducted in an informal manner.
          Let me briefly give you some background on the rule and
highlight its major provisions.  On November 2, 1987, the United
Mineworkers of America and the United Steelworkers of America
jointly petitioned MSHA to adopt OSHA's hazard communication
standard to both coal and metal and nonmetal mines.  They based
their petition on the need for miners to be better informed about
chemical hazards.  In their petition, the union stated that
miners are frequently exposed to toxic and hazardous chemicals,
both underground and on the surface.
          To support their petition -- to support their position,
the petition cited an incident in northern Michigan in which
miners were hospitalized after being exposed to unknown flotation
reagents.  The petition also specifically noted that work at both
surface and underground coal and metal and nonmetal mine exposed
miners to a variety of hazardous chemicals.
          For example, the petition stated that explosives
contain organic nitrates that produce nitrogen oxides and ammonia
when detonated.  Roof building systems contain plastic resins and
reactants.  Solvents used in equipment and maintenance are both
toxic and flammable.  And mill reagents can realize hydrogen
sulfide, cyanide, or other dangerous chemicals.
          In response to this petition, MSHA published an
advanced notice of proposed rulemaking on hazard communication on
March 30, 1998.  In addition, in the advanced notice of proposed
rulemaking, we indicated that we would use the OSHA hazard
communication standard as the basis for our standard and request
the specific comments on a number of related issues.  We
published a notice of proposed rulemaking on hazard communication
for the mining industry on November 2, 1990.  We also held three
public hearings in October in 1991, one each in Washington, D.C.,
Atlanta, Georgia, and Denver, Colorado.  The record closed on
January 31, 1992.
          We received a wide variety of comments on our advanced
notice of proposed rulemaking and proposed rule.  Commenters
included both small and large mining companies, a variety of
trade associations, including those representing specific
minerals, state mining associations, chemical and equipment
manufacturers, national and local unions, a member of Congress,
and two federal agencies.
          We reopened the rulemaking record on March 30, 1999, to
receive comments on the impact of certain statutes and executive
orders affecting the proposed rule, including ones to evaluate
the impact of a regulatory action on small mines; state, local,
and tribal governments; and the health and safety of children.
          In addition, we 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.
          Most MSHA regulations do not require an evaluation of
their impact on the environment.  However, health standards do. 
This was brought to our attention, and we took the opportunity to
remedy the oversight by also requesting comments on the effect of
the proposed rule on the environment.  We received seven comments
to the limited reopening of the rulemaking record, primarily from
trade associations and labor organizations.  The rulemaking
record closed on June 1, 1999.
          On October 3, 2000, we published in the Federal
Register an interim final rule on hazard communication.  We
provided the mining community with an additional opportunity to
comment on the new plain English format of the rule and their
most recent experience under OSHA's hazard communication
standard.  We received 15 comments on our interim final rule. 
Commenters included both small and large mining companies, trade
associations, labor unions, miners, and a federal agency.
          The comment period on the interim final rule closed on
November 17, 2000.  We published our response to the written
comments, as well as those comments received today -- excuse me. 
We will publish our response to the written comments, as well as
those comments received today at this hearing and during the
posthearing comment period in the preamble to the permanent
HazCom 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 December 19, 2000, in the development of a
permanent final standard.
          Our HazCom interim final rule is based primarily on
comments received in responses to the advanced notice of proposed
rulemaking, the notice of proposed rulemaking, and the 1991
public hearings.  We also considered the comments received in
response to our limited reopening of the record, our experience
in the mining industry, and the related standards of other
federal agencies.
          To the extent practical, the requirements of the HazCom
interim final rule are the same as that in OSHA's hazard
communication standard.  We developed some provisions to be
consistent with other MSHA standards, such as the retention
period for training records.  Two areas where our standard
differs from OSHA's are in the inclusion of hazardous waste among
the chemicals of concern and the omission of a requirement to
label products going off mine property.  OSHA's hazard
communication standard exempts certain hazardous wastes and
hazardous waste operations because they have employee protections
to address these situations in other OSHA rules.  Because we do
not have standards that address these situations, we needed to
ensure that miners working with hazardous waste understand the
associated hazards and know to take precautions.
          The HazCom interim final rule is an information and
training standard.  It 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 methods
implemented at the mine to control exposures, and safety
measures.  The HazCom interim final rule does not restrict
chemical use, require controls, or set exposure limits.  Also,
the standard does not require operators to label products that go
to downstream users off mine property.
          Finally, the HazCom interim final rule does not require
mine operators to have an independent training program separate
from Parts 46 and 48 training.  Under the HazCom interim final
rule, mine operators have the flexibility of combining the
training requirements with existing Part 46 and Part 48 training,
as well as OSHA's hazard communication standard.
          In the near future, MSHA will be publishing a
compliance guide to help operators and miners understand the
application of the permanent HazCom final regulation.  MSHA is
also planning to develop a variety of compliance aids, including
a HazCom toolbox, with several examples of a written HazCom
program.  Mine operators can adapt the program developed to meet
OSHA's hazard communication standard because the two standards
have very similar requirements.  Mine operators may also obtain
assistance from organizations that have developed generic guides
to meet OSHA's hazard communication standard.  MSHA will also
make available the names, mailing addresses, and web site
addresses of several organizations which have developed a variety
of generic HazCom materials.
          Now let me briefly highlight the six major provisions
of the rule.
          1.  Hazard determination.  The HazCom 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.  Mine operators must review scientific evidence to
determine if the chemical is hazardous.
          2.  The HazCom program.  The HazCom interim final rule
requires mine operators to develop, implement, and maintain a
written comprehensive plan to formalize a HazCom program.  The
program must include provisions for container labeling,
collection, and availability of MSDSs, and training of miners. 
It also must contain a list of the hazardous chemicals known to
be present at the mine and how mine operators will inform miners
of the hazards of nonroutine tasks and of chemicals in unlabeled
pipes and containers.  If the mine has more than one operator, or
has an independent contractor onsite, the HazCom program must
also 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 HazCom
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.  The standard does not require mine operators to label
mine products that go off mine property.  However, operators must
provide the information if a customer asks for it.
          4.  Material safety data sheet.  A chemical's MSDS
provides comprehensive technical and emergency information.  It
serves as a reference document for operators, exposed miners,
health professionals providing services to those miners, and
firefighters or other public safety workers.  The HazCom interim
final rule requires mine operators to have an MSDS for each
hazardous chemical at 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.  Mine
operators should already have MSDS sheets that were provided by
the supplier of those chemicals brought onto mine property.
          5.  HazCom training.  The HazCom 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.  Mine operators may
already cover some of the above information in their current
training program.  If so, they do not have to retrain miners in
topics they have already been trained in.  Consequently, the mine
operator should have no problem incorporating any additional
training.
          6.  Making HazCom information available.  The HazCom
interim final rule requires mine operators to provide miners,
their designated representatives, MSHA, and NIOSH with access to
materials that are part of the HazCom program.  These include the
HazCom program, the list of hazardous chemicals, labeling
information, MSDSs, training materials, and any other material
associated with the HazCom program.  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.
          In closing, two commenters requested a public hearing
on the interim final rule.  The purpose of this hearing, as the
public hearing notice stated, is to receive additional comments
on the recently published HazCom interim final rule.  The hearing
is scheduled to end at 5 o'clock today.  But if need be, we could
go longer.  It all depends on how long Adele will speak.
          (Laughter)
          MR. NICHOLS:  During the proceeding, panel members may
ask questions of the presenter.  And a verbatim transcript of the
hearing is being taken, and it will be made part of the official
rulemaking record.  The hearing transcript, along with all of the
comments and data that MSHA has received to date, will be
available for review by the public.  And, of course, the entire
rulemaking record 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.
          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.  Written comments may be submitted to me during the
hearing or sent to the address listed in the hearing notice.  All
written 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 December 19, 2000, for the
submission of posthearing comments.  And we also have an
attendance sheet that is available here today for presenters to
sign in.
          Again, to allow for the submission of posthearing
comments, the record will remain open until December 19, 2000.
          We will begin with the folks that have signed up to do
presentations.  But at the end of that, anyone in the audience
that wants to come up and make a statement will be able to do
that.
          So the first person on the signup sheet is Adele Abrams
with MARG Diesel.  So, Adele, come on up.
          MS. ABRAMS:  Good morning.  I'm pleased to be here this
morning on behalf of the MARG Diesel Coalition to submit
additional comments and testimony concerning MSHA's interim final
rule establishing a hazard communications standard for coal and
metal/nonmetal mining.  And as noted by our moderator, this rule
was published on October 3, 2000.
          MARG previously submitted written comments in response
on November 17, 2000.  And those comments, MARG requested a
public hearing.  However, we were deeply disappointed that MSHA
chose to provide less than one week of official notice for this
hearing, which prevented the members of the MARG coalition, who
live largely in the western states, from participating at this
hearing.  And it also prevented a meaningful time to prepare for
the hearing.  Moreover, we're stunned to learn that MSHA is
providing only three working days for preparation of written
posthearing comments, with the comment period closing just days
before Christmas.
          It is unfortunate that MSHA is not truly interested in
providing the opportunity for a full and fair hearing on this
critical rulemaking initiative, but it appears motivated by a
desire to rush this to final publication before the change in
agency administration.  It is also curious why the agency feels
compelled to shortchange the rulemaking comment process when it
waited a full decade between publication of the proposed rule and
publication of the so-called interim final rule in October 2000. 
If the need for the standard is so urgent as to require this
unprecedented short notice, then why did the agency wait ten
years to bring it to a culmination?
          As we noted in our written comments, MARG is a
coalition of mining companies involved with metal and nonmetal
mining, and its operations are under MSHA's jurisdiction.  MARG
is particularly interested in this rule because of its
requirements concerning diesel equipment and its incorporation by
reference of standards established by the American Conference of
Governmental Industrial Hygienists, ACGIH, and the findings of
the International Agency for Research on Cancer, or IARC.
          Several members of MARG and other organizations have
recently filed suit challenging the interim final rule because of
its procedural deficiencies, in appropriate and unjustified
content, and its improper delegation of rulemaking authority. 
And MARG does agree with those positions, as I'll be explaining
further.
          MARG members do support the reduction of accidents,
injuries, and illnesses at mines through proactive safety and
health programs and compliance with standards that are supported
by sound science.  However, after careful review, we have
concluded that MSHA's interim final rule establishing a HazCom
standard for the mining industry is procedurally and
substantively flawed, and it must be withdrawn.
          MSHA's interim final rule is characterized by the
agency as both a safety standard and a health standard,
promulgated under the authority of Section 101 of the Mine Act. 
But MSHA has clearly failed to demonstrate the need for a HazCom
standard.  By purposeful omission of relevant statistical trends,
which actually show decreasing injuries and illnesses due to
chemical hazards in mining, MSHA has sidestepped the benefit
question and simply provides misleading total chemical hazard
related illnesses and injuries for two periods of time: 
1983-1999 and 1990-1999.  MSHA has also failed to distinguish
those illnesses and injuries which would have been prevented if
existing MSHA regulations, such as Part 46 or Part 48 training,
labeling, or the use of appropriate personal protective
equipment, had not been violated.  Both of the MSHA examples used
in the interim final rule do, in fact, relate to violations of
existing standards.
          Ironically, MSHA emphasizes the agency's frequent
presence on mine properties and admits that all operations comply
at present with some of the proposed HazCom rule's requirements. 
Yet MSHA appears unable to provide accurate data on how many
mines already have an effective HazCom program in place, nor how
many injuries or illnesses have actually been prevented by such
programs alone, as distinguished from the benefits provided by
Part 46 and Part 48 training.  Significantly, MSHA's projections
of future accidents and illnesses cannot be evaluated or verified
because MSHA has not provided the necessary contextual data or
accurate incidence trends.
          MARG believes that a separate HazCom standard is not
needed for the mining industry because current MSHA standards
provide adequately for employee training on hazards, as well as
container labeling and product safety information.  MSHA has
failed to adequately articulate a significant risk that exists in
the absence of a separate HazCom standard, a risk that could not
be reduced or eliminated by full enforcement of their existing
standards.
          The interim final rule will impose unnecessary costs on
the mining industry without any commensurate safety enhancement. 
MSHA has dramatically underestimated the economic impact on
mining from this rule, and its regulatory economic analysis is
fatally flawed, and it is in violation of the Regulatory
Flexibility Act and its SBREFA amendments.  MSHA states that mine
operators will be able to use off-the-shelf materials and
programs developed for the OSHA HazCom programs, but the MSHA
standard differs significantly from the analogous OSHA rule, and
it differs to such an extent that utilization of general industry
HazCom materials will not satisfy the rule's requirements.  Thus
additional costs will be imposed on the mining industry to
develop mining specific programs.  And MSHA has failed to
accurately include such costs in its REA.
          The rule itself is stale.  It was published initially
in 1990, and it has been substantially altered from the proposal. 
Thus it cannot take effect without further comment, in accordance
with the Mine Act and the Administrative Procedure Act.  MSHA has
also improperly relied upon the advice and recommendations of
nongovernmental sources, in violation of the Federal Advisory
Committee Act.  Moreover, it improperly incorporates by reference
exposure limits set by private sector organizations, which
present mine operators with a moving target for compliance and
violate traditional due process principles and constitutional
delegation of power restraints.
          An entirely different version of the HazCom rule was
originally proposed in 1990.  Not only was the format of the rule
altered, but there have also been substantive changes from the
proposed rule.  Moreover, in the intervening decade between the
proposed rule and this interim final rule, MSHA has promulgated
additional regulations, and the mining industry itself has
changed.  Ten years is simply too long for a rule to remain
unpromulgated in such a rapidly changing regulatory and economic
environment.  MSHA must offer this modified rule for additional
comment and review and a de novo discussion of whether a HazCom
rule is even needed.
          MSHA has failed to encourage or entertain true dialogue
on the proposal's substantive requirements.  It rejected
industry's request to reopen the rulemaking last year.  And as
part of its lip service to reg flex, SBREFA, and the Paperwork
Reduction Act, MSHA failed to obtain the necessary information
concerning feasibility and economic impact.  It unreasonably and
impermissibly minimized the economic impacts on the nearly
100,000 mine sites that are deemed small business entities under
the definitions of the U.S. Small Business Administration and its
implementing regulations.
          MSHA has falsely certified that this rule is not an
economically significant regulatory action, and not pursuant to
Executive Order 12866.  And MSHA has falsely certified that it
will not have a significant economic impact on a substantial
number of small mining entities.  It masks the true impact by
ignoring whole categories of expenses and by amortizing the
startup costs to avoid confronting the first year impact on
thousands of small businesses.
          MSHA claims that the use of existing OSHA training and
program materials will reduce compliance costs.  But as noted
earlier, the agency has deviated significantly from OSHA's HazCom
requirements, thereby rendering impossible the use of such
off-the-shelf materials designed for OSHA operations.
          MSHA has estimated the annual economic impact on mines
at an incredibly low $270 per year per mine.  The cost to
maintain MSDSs alone will be significantly higher than that, and
the labeling, training, and recordkeeping requirements will add
more costs, especially if MSHA does not better integrate the
requirements of HazCom with those of Parts 46 and 48.  Compliance
will be a significant challenge for many mines, especially small
mines, and especially mines where contractors perform significant
portions of work.
          The interim final rule is procedurally deficient
because MSHA either failed to give notice of and an opportunity
to comment on the provisions actually adopted or because the
agency failed to take into consideration comments submitted in
response to the proposed rule.  The secretary blatantly failed to
consider these comments, in violation of the APA.  MSHA's
adoption of entirely new proposals, and even old proposals in a
different format, defeats attempts at comparison with the
proposal and it negates the ability of the interim final rule to
be a logical outgrowth of the proposed rule.  Thus, it should
have properly been issued as a proposed rule for a second round
of comments.
          MSHA fails to articulate a significant risk resulting
from current policy, nor a benefit to be derived from the
proposed addition of this standard to the secretary's existing
arsenal of enforcement weapons.  Under the Mine Act, the
secretary has authority to develop, promulgate, and revise as may
be appropriate improved mandatory health or safety standards for
the protection of life and prevention of injuries in coal or
other mines.  However, the data upon which this rule's purported
risk assessment is based spans 16 years ending in June 1999, and
this ignores completely any preventive effect of MSHA's new Part
46 training standard, which covers 10,000 surface nonmetal mines,
and which only took effect on October 2nd, the day before this
interim final rule was published.
          Section 101(a) of the Mine Act requires the secretary
to demonstrate that the old standard or current conditions
present significant risks and that the new standard will produce
substantial benefit and be feasible.  The secretary has simply
failed to satisfy this burden.
          Although MARG will not repeat in its entirety the
specific concerns articulated in our written comments, I do wish
to stress a few fatal flaws in this rule.  First of all, MARG
opposes MSHA's inclusion of hazardous wastes regulated by EPA in
the HazCom rule.  This is a significant departure from the OSHA
HazCom standard that will make it impossible for mine operators
to use off-the-shelf materials.  Moreover, such coverage is
wholly unwarranted because hazardous wastes are already subject
to extensive regulations at mines imposed by the EPA, including
manifesting requirements, handling, labeling, training, and
disposal requirements.  There is simply no justification for
adding a second layer of duplicative regulation enforceable by
MSHA.
          Second, MSHA should reverse its decision not to exempt
basic minerals and dusts from the HazCom rule.  These materials
are not chemicals in the normal sense of the word, but they are
natural ore bodies, and they are fully addressed in MSHA's
mandatory training requirements under Part 46 and Part 48.  It is
absurd to imagine miners consulting in MSDS for the natural
minerals that they are extracting, such as salt, stone, and
trona.  Extension of the MSDS requirements to such basic mining
minerals represents a superfluous, unjustified regulatory
requirement, and it must be eliminated from the final rule.
          Third, MARG strongly objects to MSHA's use of
nongovernmental sources, particularly ACGIH and IARC, to
determine whether particular chemicals are hazardous and what the
level of hazard is.  As MSHA recognizes in its preamble, these
organizations do not use the equivalent of federal notice and
comment rulemaking to make their determinations.  And a number of
their determinations directly applicable to the mining industry
remain highly controversial or have been negated by more recent
scientific findings, such as the IARC finding for crystalline
silica.
          Moreover, since MSHA will require mine operators to
train their employees using MSDSs that list the "latest" ACGIH
findings, MSHA is effectively doing a back door air contaminants
rulemaking.  They are implementing ACGIH threshold limit values
that have never been subject to any MSHA notice and comment
rulemaking.  And these are the very same TLVs that the U.S. Court
of Appeals prohibited OSHA from adopting en masse without
engaging in substance-specific risk analysis, in the AFL-CIO v.
OSHA case, 1992.
          Thus, both the listing and the training requirements
associated with the ACGIH TLVs are an invalid delegation of
rulemaking authority to a nongovernmental agency.  And I might
add that MSHA is also relying upon this in the role of a federal
advisory committee without complying with the backup
requirements.  MSHA cannot legally present mine operators with
such a moving target for compliance, nor can it delegate its
rulemaking authority.  Such incorporation by reference is simply
not permissible under the Mine Act, the APA, and basic
constitutional principles.
          In conclusion, promulgation of this rule as an interim
final is procedurally improper, arbitrary, and capricious, and it
must be withdrawn.  If MSHA is determined to proceed with this
rulemaking, then additional time must be provided for hearings in
other parts of the country and also supplemental comments, more
than a three day posthearing comment period, so that members of
the mining community will have a meaningful opportunity to
testify.  MARG urges MSHA to withdraw this flawed standard and to
consider the Mine Act's mandates over political expediency.
          Thank you.
          MR. NICHOLS:  Thank you, Adele.  You talk about this
short post-comment period.  If you look at the history of the
rule, this has been a topic of discussion and consideration with
MSHA and the mining community for about 12 years.  We had
proposed rules, public hearings, a reopening of the record for
limited purposes, and now this proposed rule, proposed final
interim rule.  Can you imagine any new issues that could be
addressed after this long record of rulemaking and comments we
have already had?
          MS. ABRAMS:  Well, yes, sir, I can.  For starters, the
benefits of the newly enacted Part 46 training.  At the time that
I testified before you all back in 1991, in Atlanta if I recall,
one of the perceived benefits of this rule was to bring training
to the many stone, sand, and gravel operations at which MSHA was
prohibited from enforcing training.  That landscape has changed
today, and all of those miners are already provided with thorough
hazard recognition training, which includes, as I think OSHA
recognizes, many of the elements that would be codified
separately here.
          It seems like this rule is just putting forth an
opportunity to write duel citations for perhaps the same training
violation.  Another thing that has changed -- and this is
critical.  It is not brought up in MARG's testimony, but it is
noted in the testimony of the American Society of Safety
Engineers.  The federal government is now involved in a total
review of its hazardous communication requirements as part of a
global harmonization program.  Jennifer Silk (phonetic) at OSHA
is leading the effort on this, along with Mary Frances Lowe
(phonetic) at the EPA.  And as a result, it is totally
inappropriate for MSHA to be going off in its direction now
promulgating a HazCom which may, if it is in fact going to mirror
OSHA's, may be subject to change within the next two or three
years as OSHA agrees to get into a global harmonization system
along with the rest of the world.
          You know, we live in a global economy.  And MSDSs and
labeling requirements will have to be changed.  Training will
have to be changed.  All of that should have been considered and
could not possibly have been considered during the original
comment period back in 1990 and '91.
          And finally, with respect to the incorporation by
reference of the ACGIH TLVs, at the time this rule was proposed,
and at the time the original hearings were held on this, that
decision of the Eleventh Circuit in the AFL-CIO v. OSHA case had
not yet been rendered.  Personally, I believe that if OSHA had
proposed its HazCom standard after that decision, it itself would
not have been able to incorporate use of the ACGIH references on
MSDSs.  But MSHA now is not starting with a clean slate, and it
must operate within the existing legal environment.
          It is inappropriate to delegate authority to these
nongovernmental bodies.  And the participation of MSHA and OSHA
personnel on those so-called consensus organizations turns that
into something akin to a federal advisory committee.
          These are all things that the agency needs to look at,
should have looked at.  And these are things which warrant
opening this up for a republication as a proposed rule with not a
truncated comment period such as has been offered here.
          MR. NICHOLS:  Well, we have looked at a number of those
issues.  You talk about Part 46 training.  In the preamble, we
talk about, well, the period 1990 through 1999.  There was in
excess of 2,000 chemical burns.  I think about half of those were
lost time injuries.  And in that same data, there was over 400
poisonings.  Now if you set -- and the leading area was
bituminous coal operators.
          Now coal mine safety and health has had Part 48
training since 1978.  And the metal industry has had Part 48
training since 1978.  That training alone is not getting the job
done, as evidenced by those more than 2,500 chemical accidents. 
So the agency believes we need a regulation that focuses on
chemical hazards.
          MS. ABRAMS:  If I might, though, you noted in your
opening remarks that a separate training program would not be
necessary, and that the training under HazCom can be provided as
part of Part 46 and 48.
          MR. NICHOLS:  They can.
          MS. ABRAMS:  I would suggest that if chemical burns are
happening because of inadequate hazard recognition training under
Part 48, that that is a citable condition now under Part 48, and
that an additional rule is not needed.  There are extensive
training requirements, and they are supposed to cover this. 
Personal protective equipment is supposed to be provided to
workers where there is an opportunity for exposure to things like
chemical substances or poisons.
          There are labeling requirements already in effect under
other MSHA standards.  If there are no labels that warn of the
hazards, that is a citable offense.  If the PPE is not provided
or if it is provided and not worn under the strict liability
nature of the Mine Act, that is a citable offense.
          Again, it seems like this is superfluous.  And I know
MSHA's original -- and I don't have the exact reference, but it
was in our earlier comments.  There was a memorandum MSHA put out
around the time that OSHA promulgated its HazCom standard where
the agency itself recited that a HazCom standard for the mining
industry was not needed because of the litany of existing
standards.  And these include the ones I have just enumerated.
          Nothing has changed.  None of those standards have been
rescinded.  All of those are still on the books and can be
implemented.  And you had a new tool added, namely the Part 46
training, to cover the remaining sectors of the mining industry,
including construction workers.  There is not a single person at
a mine site today who is not required to have hazard training.
          MS. GREEN:  Adele, I need to respond to one point that
you made that is incorrect, and that is that the agency did not
go on record as saying that an MSHA hazard communication standard
was not needed.  The agency stated that the OSHA standard did not
apply to the MSHA operations.  It was a 4B1 issue under the OSHA
Act.  The agency went on to say subsequently in its advanced
notice of proposed rulemaking that the MSHA needed a
comprehensive hazard communications standard comparable to that
of MSHA.
          We realize that we have the generic MSHA comparable to
OSHA.  We realize that we have the generic training regulations. 
But those regulations do not require mine operators to
specifically cover areas as the hazard communication standard
does in the training program.  And those are areas we feel are
very significant and will help inform miners and help mine
operators to be aware of some chemical hazards or chemical
hazards that are associated with the products that they use and
could possibly prevent that.
          We realize we have substantive regulations.  But when
it comes to training, this standard offers specific training
requirements that do not currently now exist, or you are not
required to do presently, but you could incorporate those into
those Parts 46 and Part 48 programs.
          MS. ABRAMS:  If that is the case, then I would suggest
once again that the cost estimate for this rule is substantially
flawed.  I know of no person who can come in and train at a mine
on the supplemental issues that Ms. Green just referenced for
$270 a year.  And as a practical matter, the information that
appears MSHA would like covered is so technically complex that
inhouse people at a mine are not going to be capable of providing
that level of instruction.  It is going to require the use of
safety professionals or industrial hygienists who are hired in as
consultants to the mines.
          MR. NICHOLS:  Well, I don't think we agree with that as
a broad brush for the whole mining industry.  But try to help us
understand a bit more of the burden of this rule.  To me, it
requires mine operators to pull together information that they
already have.  They should already have these material safety
data sheets.  So that information is available to them.  Pull
that together in a written program.  Be sure that the labels that
were provided for chemicals brought on mine property are still
maintained, maybe develop a few new ones if that is needed.  But
then train the miners on the potential hazard for chemicals that
are on mine property.  And as we have already said, that can be
incorporated into the training you already do, and with the
delayed implementation that you would probably get it right into
the first cycle.
          So some of the burden escapes me, unless there is
something I'm missing here.
          MS. ABRAMS:  Well, you know, frankly the training in
some ways is the easiest part of this to deal with because most
mines do have some sort of -- or they should have some training
infrastructure in place.  The paperwork burden is going to be the
real bear of this.  As you know, I'm sure, the HazCom standard is
OSHA's most often cited standard because of paperwork.  You say
that this should be stuff that the mines already have on site. 
But that isn't necessarily the case, simply because there has
been no HazCom standard, so there has not been perhaps the MSDS
retention or the focus on it that there would be at OSHA
regulated sites.
          MSHA makes something of an assumption in its proposed
rule that many of the companies are already doing this because
they also have OSHA regulated enterprises.  But that is not the
case for thousands of small mining companies around the country. 
The larger companies certainly have these programs in place, but
the small mine operators, the ones that I deal with on a regular
basis, do not.  Keeping these systems up-to-date is certainly a
burden.
          Again, MSHA notes that a lot of this can be done on
computers.  But if you think about it, you know, I go to mines
where they don't have running water, much less computer systems. 
They don't have fax machines.
          MR. NICHOLS:  Okay.  What kind of mines are those?
          MS. ABRAMS:  I can think of right in Maryland, the
Dimension Stone Mine.  You know, if you get into the outskirts of
some areas, portable plants are another that would not have
computers onsite.  You are asking for some examples of problems. 
If you do maintain this on a computer, you are going to have to
allow all of the contractors at your site to have access to your
computer systems.
          I know that wouldn't fly where I work, and I suspect
that it wouldn't fly at many of these companies.  Just doing the
inventory of chemicals is an extremely burdensome job.
          MR. NICHOLS:  Well, yeah, but let --
          MS. ABRAMS:  If I need to change this every time you
buy a new brand of paint, and going through to examine whether it
differs in any substantive way so that supplemental training
would have to be done -- and finally, MSHA appears to be
requiring that every MSDS not only bear the normal information
that is required under the OSHA HazCom standard, but that it also
reflect the appropriate and currently enforceable MSHA PEL, which
in this case would mean having to go through and by hand for each
chemical substance listed on there write in the 1973 ACGIH TLV
for metal/nonmetal and/or the 1972 ACGIH TLV if it is at a coal
operation because otherwise that MSDS will be incomplete, which
means that you cannot use one of these 800, you know, fax back
MSDS services because those MSDSs will not contain the mandatory
information as stated in your interim final rule.
          This may sound like nitpicking, but it is all
incremental costs that have to be considered.  And, you know, I'm
leaving aside the whole issue of having to maintain bilingual
materials.  There are many mines in this country that have
heavily Hispanic workforces.  If you get up into New England, you
have a lot of French workforces.  In other parts of the country,
you have Cambodians.  You have Chinese.  There simply are not
off-the-shelf training materials in all of these languages.
          So that is going to require bringing in translators, or
at a minimum consultants who could train in the native languages
of these workers.  And they do see this happening on the OSHA
side of things as well.  It is very cost expensive.
          MR. NICHOLS:  Okay.  Let's go back to that small rock
quarry you represent.  And the makeup of the mining industry,
especially metal and nonmetal, probably 75 or 80 percent
operations with five employees or less, and then you'll have
another 10 or 15 percent with 30 employees or so, and then you'll
have a few of the bigger operations.  And you said that the
burden, you know, is quite a bit less for the large operators.
          Now let's look at that quarry.  You have got, what, a
shop?  And probably all of them do not have labs.  So you start
with a pretty basic list of chemicals at the mine site.  You have
got cleaning solvents, fuel, lubrication, and maybe a few others. 
But that doesn't seem to me like a burdensome, complicated thing
to look at now.  Am I missing something form this rock quarry?
          MS. ABRAMS:  I haven't gone in and done an inventory. 
But not only are they responsible for the products that they have
on site.  They would also be responsible for knowing what
contractors, blasters and the like, might be bringing on site and
ensuring that those contractors have programs in place.  You
know, the interaction between the mine operators and contractors
is another dimension here that I think MSHA has largely ignored
in terms of its time cost and its actual costs.  It is going to
be something of a coordination nightmare.
          Especially at the smaller mines, you do tend to have
contractors coming in more for specific functions who could well
be bringing substances onsite.  And all of their workers are
going to have to have HazCom training, which is going to raise
the cost of contracting because you are going to have to require
anyone coming on your site to be in full compliance, not with
OSHA's HazCom standard, but with MSHA's HazCom standard, which
does differ in substance.
          MR. NICHOLS:  Well, I mean, they are required to be in
compliance with other MSHA regulations now.  I mean, I fail to
see the extra added burden here for, you know, the blasting
contractors you are talking about.  They are going to be handling
explosives.  There is MSDS sheets for explosives.  What else are
they going to be --
          MS. ABRAMS:  Well, they are going to have to carry an
MSHA plan around with them.  That's burdensome.  I mean, I'm not
here representing the contractors, but I do represent some
contractors in my other practice.  You know, it is burdensome for
them now carrying MSHA training plans around with them.  And this
is another layer of things that they have to keep in their truck,
you know, and try to keep things up-to-date.
          You are going to have to be training contractors. 
Right now, under Part 46 or 48, if a contractor is coming in and
they are doing a minimal amount of work there, they get site
specific hazard training.
          MR. NICHOLS:  And why could you not incorporate HazCom
training in with that?
          MS. ABRAMS:  Well, because the contractor is supposed
to do the HazCom training for their workers.  The mine operators
should not be training other people's workers, other than the
minimal site specific hazard training that is required.  The
contractor has the primary responsibility for training his or her
own employees, which means those contractors have to come to that
mine site already in compliance with the MSHA HazCom training
requirements because that is a responsibility distinct from the
site specific hazard training under Part 48 or Part 46.
          MR. TEASTER:  But if a contractor was coming onto the
mine property and was going to be exposed to hazards, hazardous
chemicals, that was produced or used by the mine operator, I
believe the mine operator would be responsible for providing that
site specific training related to any hazard, be it chemical or
other.
          MS. ABRAMS:  Absolutely.  I agree with you.  And, you
know, that goes back to my point that this is already covered
under existing rules, so no further rule is necessary.  But what
the mine operator is not going to be covering are the hazards of
the chemicals that the contractor himself is bringing on.  You
know, if you have a plumber coming on site, he may be -- or she
may be bringing, you know, super Drano type of products that are
being used not in a way that they are used by the consumer, you
know, or Harry Homeowner.  So therefore, they require training.
          That contractor is going to have to do MSHA approved
HazCom training.  That means his MSDSs that he brings onsite have
to bear the legend of what the MSHA TLVs are for the various
substances or chemicals that are emitted by the super strength
Drano.
          MR. FEEHAN:  Let me correct something, Adele.  The only
time that they are required to put the MSHA PEL, or the MSHA
permissible exposure limit, on an MSDS is when they are producing
a chemical.  That is what the requirement is.  Any chemicals that
are brought onto the property, however that MSDS comes, that is
what it is.  It doesn't have to be corrected.
          MS. ABRAMS:  Well, that needs to be clarified in the
final rule because I know there seems to be a lot of confusion in
the mining industry.  And I might add, you are then creating
another issue, which is you are supposed to make your miners
aware of the air contaminant requirements that are in the 1973
PELs under 5001, 56-5001, and the analogous coal standard.  And
yet you are also supposed to train them on the information
contained on the MSDS, correct?  Which means that you are going
to be training your workers on two conflicting sets of PELs
because, as you know, current PELs for most substances differ
significantly from those that are currently codified in 30 CFR by
the incorporation of the 1973 ACGIH TLVs.
          MR. FEEHAN:  Well, but again --
          MS. ABRAMS:  These are just some of the issues.  And I
can't sit here and resolve them for you today.  But what I am
trying to do is point out some of the inherent problems in this
rule and where clarification is necessary, and why additional
reopening for comment is probably warranted.  If there is
confusion among the lawyers as to what is required on these
MSDSs, I can guarantee you that some small mine operator, you
know, in Nebraska or Wyoming is going to have a lot of trouble
figuring out what they need to do under the standard.
          MR. NICHOLS:  Well, I think we got it here.  And the
panel can correct me if I'm wrong.  But anything that is brought
on is going to have an MSDS sheet.
          MS. ABRAMS:  Yes.
          MR. NICHOLS:  The only thing that people are going to
have to go to the incorporations you are talking about, the ACGIH
and the other document, is if they produce a new chemical at the
mine site.  Now I have tried to think of how the majority of our
operators would produce a new chemical, and I can't come up with
much.  I can't come up with much for a stone operator or a sand
and gravel operator, large and small service and underground coal
operators.  There may be some really sophisticated mining
operation out there somewhere that they do produce new chemicals. 
But I just can't bring it up in my memory.
          So I would say it is almost nonexistent, that they are
going to have to go to these new documents to determine an MSDS
sheet for this new chemical that is being produced because 99.99
percent of the time, the product being brought on is going to be
accompanied with an MSDS sheet.
          MS. ABRAMS:  Well, I think your assumption is
incorrect, that 99.9 percent of the time the products will have
those.  At mines many times, at least in my experience, people
are running down to the Kmart to buy primer or, you know, they
are going to some auto repair shop or, you know, auto parts, Trak
Auto type of place, buying the solvents, and the various
lubricants that are used on the equipment.  But these are not
being used in the same manner again as Harry Homeowner would, so
they would fall within the HazCom requirements.  And most of
those stores -- I have never been given an MSDS at Kmart when I
have been buying paint for my house.  And I suspect that most of
the guys who are sent at the mines down to pick up something
because they have run out are not going to be given an MSDS
either.
          This is how a lot of the OSHA HazCom citations end up
being written, are products being brought in piecemeal to the
property and not the stuff that is ordered through some kind of
purchasing office.  That's where you end up losing some of the
controls, and that's where you end up with the paperwork
deficiencies.
          MR. FEEHAN:  Let me ask a question about consumer
products, Adele.  Don't the labels that come on even the paint
cans at Kmart -- don't those labels come with a telephone number
that you can call to get an MSDS, an 800 number typically?
          MS. ABRAMS:  Some do, some don't.  I have done a little
bit of work on product labeling, but not that much.  But I can
tell you the standard would prohibit you from using that product
until you obtain the MSDS.  And, you know, where the rubber meets
the road, if you have gone down to get an extra can of primer
because you have run out, it is because you need to finish the
paint job, and you can't necessarily stop everything and wait for
three days to obtain that.
          MS. HUTCHISON:  So what you are saying is they already
have some cans there, and they are going to get another one.
          MS. ABRAMS:  And maybe a different brand, you know. 
And that's where you run into the problems.  Obviously, if you
have got an MSDS already, you don't need to have one every time
your purchase the product.  But there are, just because of the
chemical makeup of substances, differences -- I mean, to use
something I'm more familiar with, even between different brands
of shampoo you can't compare the labels and say that they have
the same hazards.  They don't have the same chemicals.  I might
be sensitive to a substance that is one but not in another.  And
this is the level of scrutiny that I think you are going to be
requiring of mine operators that is going to impose a great
burden.  And if it is going to impose a burden and it is
necessary, fine, but at least be upfront about what the burden is
in terms of the economic impact.
          MR. NICHOLS:  Okay, Adele.  Thanks.
          The next presenter will be Michael Sprinker, ICWUC
Health and Safety Department.  Is Sprinker here?
          (No audible response)
          MR. NICHOLS:  Okay.  Joe Main is next on the list, but
I would imagine Jim Weeks (phonetic) is going to fill in for Joe.
          MR. WEEKS:  Good morning.  My name is Jim Weeks.  I'm
an industrial hygienist consultant to the United Mineworkers and
I'm speaking on the mineworkers' behalf this morning.
          It was October 20, 1987, that the mineworkers sent a
letter to -- along with the steelworkers -- a letter signed by
Rich Trunka (phonetic), the president of the mineworkers, and
Lynn Williams (phonetic), the president of the steelworkers, that
wrote a letter to Bill Brockton (phonetic), the secretary of
Labor, and asked for this standard to -- asked to write this
standard.  That was some 13 years ago.
          Ms. Abrams raised the question, given the past ten
years, why the rush?  The question I raise, why the ten years? 
At the time, it seemed to us a very straightforward problem. 
OSHA had adopted a rule.  It had gone through a lengthy
rulemaking process.  People had had experience with it at that
time.  Employers were familiar with the rule.  People were
getting familiar with the material safety data sheets.  Many of
those employers also had mine operations.  And to us, it seemed
very straightforward to just take that rule and put it in MSHA,
make a few adjustments here and there that would be appropriate. 
And so it is a mystery why it is has taken 13 years to get here.
          We're not so concerned with the rush.  We would like
you to get on with it.  We think this is a very important rule. 
In many respects -- I mean, there an extraordinary number of
details involving this rule that are important and which we
respect, but they should not be used to obscure some very basic
fundamental rights, human rights, in a way, common sense rites. 
And that is that workers need to know what it is that they work
with.  If they are going to work in a safe and responsible
manner, they need to know what those materials are, what their
hazards are, what appropriate controls to put into place.  They
need to know what operators are doing to control exposure to
those chemicals.  And if workers are going to be partners in
making mines safe, they need to have this information.
          It is a very fundamental issue.  And as we looked at
the OSHA rule, we thought here is the rule.  There are many
aspects of that, the OSHA rule, that we didn't particularly like. 
But we felt that it had gone through all of that debate.  We
could live with it.  Let's do it.
          So one comment that I want to make clear about it is
that we want you to get on with this rule.  We support the basic
concept of this rule, the need for education for material safety
data sheets, and so on.  I think that there are things that can
be done to streamline it to make it less burdensome on everyone
involved.  But we support the basic concept.
          I particularly the idea that contractors are also
covered by this rule because a lot of the problems that occur
with handling chemicals come on miscommunication between
different employers and different workers with different
expectations and orientations.  So I think it is important that
contractors be covered.
          Now having said that, there are a number of our
comments that I would like to highlight here.  First of all, the
threshold issue is what is a hazardous chemical.  The way the
rule is written, it is frankly not clear.  At one point, it seems
to put this responsibility on the mine operator to identify what
a hazardous chemical is.  I think this is unsatisfactory.  I
don't think mine operators are appropriately trained.  I think if
I were an operator, I would experience this as a burden for them
to make that particular determination.
          What we would suggest is something along the lines of
what you put in there, a very simple and unambiguous rule.  If
this is a chemical that is regulated by MSHA, it is on the list,
it is a hazardous chemical, it counts.  I would go a little bit
beyond that.  I think the reference to the ACGIH TLV list is
appropriate because those TLVs were incorporated by reference in
1970 -- whenever it was, three or two.  I think they are obsolete
in many respects.  And they were adopted as interim exposure
limits so that they fall within the realm of MSHA regulated
substances.
          I think the inclusion of IARC and the National
Toxicology Program list is also appropriate.  What I would add,
however, is NIOSH.  NIOSH puts out a rather odd book.  It is
called a pocketbook.  I have never seen anyone carry it in their
pocket.  It is much too big.  But it lists all chemicals for
which NIOSH has proposed or recommended exposure limit.  And the
RELs come from a governmental body.  They have gone through
review and rulemaking, more so than the TLVs.
          Again, if you look throughout the Mine Act, everywhere
where there is a recommendation that MSHA should turn for advice
on toxic chemicals, it names NIOSH.  And so I think that the
NIOSH RELs and that pocketbook should be included.  If it is on
that list, it should be covered under this rule.
          Now ignoring the REL list is such a consistent MSHA
policy, it does not appear in MSHA databases.  It does if you
dig, but you have to dig.  It does not appear in other MSHA
rules.  I think it is no accident that it is not on this list.  I
think that is mistake.  I think that the RELs should be included,
and the REL list should be included.
          I'm not necessarily endorsing the RELs.  I am simply
saying that if it is on that list, it should be covered.  And
that, I think, is a fairly simple and straightforward way of
saying what are the chemicals that are subject to this rule.
          The second issue is that there ar several places in the
rule where operator responsibility appears to be contingent upon
operator knowledge of what is going on.  If a chemical is not
known to be in the mine, he is not allowed to have -- then he is
not responsible for material safety data sheets.  There are
several places in the rule where this is the case, where operator
responsibility is contingent on operator knowledge.
          This is a problem in several respects.  First of all,
it is a loophole that a less than responsible operator could
exploit and say, well, I simply didn't know that that was there. 
I'm not responsible for it.  And it is a loophole that is
created.
          Now there are circumstances where it is reasonable
where operators in good faith saying I don't know, I didn't know
that that was there, et cetera.  And if that is the case, then
the operators should be expected to raise that issue.  It
shouldn't be handed to them in this rule, saying that whether you
know about it or not determines what you do.
          The second problem with this condition is that it sends
a message to mine operators, and in fact to miners as well, that
ignorance is an acceptable mining practice.  Ignorance of the
chemicals that are in your mine is an acceptable mining practice. 
It is not.  In fact, this rule is -- the purpose of this rule is
to counteract that ignorance.  And so to put it in the rule in
the way in which it is put in -- it is in our comments -- I think
is a bad idea, and it would be fairly simple to take it out.  And
the issues could be handled -- issues of people in good faith not
knowing -- and it could be handled later on a case by case basis
on their merits.
          Another comment.  And this pervades the whole hazardous
communication problem for OSHA and for MSHA, and it comes up with
MSHA.  The assumption is that miners have a right to know and
need to know information about hazardous chemicals.  To go -- the
next step is that the assumption is that the people that are
going to provide that information are the mine operators.  This
assumption -- and then behind that is the assumption that mine
operators in fact know what chemicals are in their mines, that
they know what the hazards are of those chemicals, and they know
what to do about them.
          I think this is a false assumption.  The question that
we raise is, who is going to train the trainers?  I think mine
operators need to have some training program as well because, I
mean, miners have no corner on lack of knowledge or of ignorance. 
I think there is plenty of it to go around.  And I think that
there needs to be some explicit attempt or effort in this rule so
that mine operators can get the training and the information that
is appropriate to manage chemicals in their mines in a
responsible manner.
          Now there are certain imbalances in this rule that go
to the issue of trade secrets.  One of them is that there are no
criteria for identifying what in fact is a trade secret.  There
is no, in fact, any test or determination or evaluation of a
claim of trade secrecy.  I'm not saying a test would be easy. 
But there is no attempt to acknowledge that problem.  In fact, a
mine operator could say it is a trade secret; I'm not going to
tell you, and that's that.  I mean, who is going to question
that?
          So I think there should be some attempt made to
identify and evaluate claims of trade secrecy, more than what is
in the rule already.  There are provisions in the rule for
operators and recipients of trade secret information to reach
some sort of an agreement over how to handle that information.  I
think that is appropriate.  I don't think there is any real
problem with that.
          But then there is a portion of the rule that I find
very curious.  And it is 47-77, paragraph C.  And I'll just read
it to you.  "If MSHA determines that the confidentiality
agreement would not sufficiently protect against unauthorized
disclosure of the trade secret, MSHA may impose additional
conditions to ensure that he Occupational health services are
provided without undue risk of harm to the operator."
          This is a very curious paragraph in a couple of
respects.  First of all, a confidentiality agreement, even though
it is overseen by this rule, and this rule provides for that sort
of agreement, that is an agreement reached by the recipient of
the information and the mine operator.  In many respects, this is
a private agreement.  And one would think that in order to reach
agreement, the parties would adequately protect their own
interests so that they are capable of reaching an agreement that
would be satisfactory to them.
          So I don't see why the government should intervene at
all in that.  I think you can oversee it.  You can provide for it
and so on.  But I think to intervene, if you think it is
inadequate, it seems curious.
          Even more curious, however, is that you intervene on
behalf of the operator.  As it says, "MSHA may impose additional
conditions to ensure that occupational health services are
provided without an undue risk of harm to the operator."  The
purpose of this rule, indeed the purpose of the agency, is to
protect miners, not to -- you know, you shouldn't run roughshod
over operators.  But the purpose of the rule and the agency is to
protect miners so that I don't see why this particular provision
is in there, why you would intervene in the first place, and why
you would intervene on behalf of mine operators.
          Okay.  Let me go on.  Another -- one of the problems in
the OSHA HazCom rule, and it is a persistent problem, is that
there is very little quality control over information that is on
material safety data sheets.  I have seen valid material safety
data sheets that would say what are the ingredients, and they all
say petroleum distillates.  Well, that narrows it down to only a
couple thousand compounds.  You know, it is better than saying it
was water.  But, you know, I have seen data sheets like that.  I
have seen data sheets that say there is a halogenated organic
compound, period.  There are a couple thousand of those as well.
          Now those data sheets are not inaccurate, but they are
simply lacking in fundamental specificity.  And there needs to be
some way of ensuring that the information on a material safety
data sheet is accurate and that it is genuinely informative and
not simply this kind of a cynical display of whatever, or display
of cynicism, I guess, is what it is.  And it is a little tedious,
but there are sections within the rule, and they are in our
written comments, in which it ends up that nobody ends up being
responsible for the quality of information on material safety
data sheets.
          I think as a practical matter, the people that ought to
be held responsible are the people that produce them, obviously,
the suppliers that supply the solvents, the paint, the whatever. 
Those are the ones that write the sheets data, the ones that
ought to be responsible for them.  And I don't know whether MSHA
or MSHA and OSHA or some -- I don't know whether your regulatory
reach could extend to suppliers, whether you could do that.
          But what you could do is put some sort of
responsibility on mine operators to ensure that they get accurate
data sheets.  And then if the mine operator -- the mine operator
could reach to their suppliers and say as part of our condition
of purchasing this stuff, we want accurate data sheets.  I think
that would be a reasonable thing to expect mine operators to do
to get that.
          Now while we are on data sheets, the provision in the
rule -- and I may not understand it accurately -- that relieves
operators of producing material safety data sheets for their
products I think is a problem in certain respects.  For example,
lead is a toxic substance.  Nickel is a toxic substance. 
Chromium is a toxic substance.  Those are all products of the
mining industry.  And --
          MS. HUTCHISON:  The mining industry under the interim
final rule is not exempt from producing MSDSs for their products.
          MR. WEEKS:  I thought I misunderstood it.  I guess I
did.  Okay.  I'll forget that.  Well, I think it is appropriate
because, you know, there are toxic materials that are produced by
the mining industry.
          Okay.  One final comment, and that is that there has
been -- there are many comments on the burden on small mine
operators.  I think these are realistic problems.  But I think
the way that they are talked about is incomplete.  They are
realistic in the sense that you have got probably one guy who
runs the mine.  He is the owner, he is the foreman, he is the
accountant, he is the payroll chief, he is the safety officer, he
is the purchasing agent, he is the salesman.  He is all of that. 
And to put on top of him -- maybe her in some cases -- to make
that person a toxicologist is just -- you know, it is another
burden.
          Nevertheless, all of those are important tasks.  If one
is going to operate a mine in this country, especially a small
mine, I think that mine has to be operated in a safe manner.  And
when we look at small mines, we look at small mines in the coal
industry, they continue to have the highest fatality rate of any
other mines.  They have a poor record when it comes to monitoring
exposure to dust, so that there is a burden here.  And I think
there is a burden on miners who work in small mines.  And I think
one needs to look at lessening the burden on miners who work in
small mines, at the same time that one could -- that you could
provide some more technical assistance to small mine operators.
          You know, I'm just looking for some balance here.  I'm
trying to remind you what -- and to emphasize that the mission of
the agency is to protect miners.  And to do that, I think one
needs to do that in a way that doesn't impose undue burdens.  But
one needs to look at protecting the miner.  That is the mission,
and that is what I think this rule is about, and I think that is
what the agency is about.
          So that concludes my comments.
          MR. NICHOLS:  Okay.  Thanks, Jim.  I don't think you
can make the case that this rule is an undue burden on small
operators, given the fact that, as we said before, you pull
information together that is readily available.  And the fact
that MSHA is to do outreach with developing generic HazCom
programs -- we'll even help write MSDS sheets -- and try to
incorporate that into training that is already required by the
small operators.
          In fact, metal and nonmetal, with the new Part 48 regs,
are right now in the process of doing compliance assistance
visits for the first inspection under Part 46.  Now MSHA has got
a history of doing a lot of outreach with regulations like from
diesel to noise to training, and we're going to do the same thing
with the final HazCom rules.
          So it is really hard to make that case that it is a
burden for small operators.
          MR. WEEKS:  Believe me, I'm not trying to make that
case.  I'm trying to --
          MR. NICHOLS:  I'm speaking more to Jim Sharp and Adele
Abrams.
          (Laughter)
          MR. NICHOLS:  As I look past you.
          MR. WEEKS:  No.  I'm not trying -- I mean, I think
people make -- you know, I mean, I know some small mine operators
and so on.  They have complained to me about these things.  I
simply want to focus -- when we talk about burden, let's talk
about the burden on the miner.  Those are the people we need to
pay attention to.  I want to acknowledge the small mine operators
have a challenge that they have to deal with, and I think a lot
can be done to help them out, but I don't want to let them off
the hook.
          MR. NICHOLS:  Okay.  I wouldn't disagree that it's
probably not a burden to operate a mine, but this one other piece
is not going to add to that burden.
          MR. MAIN:  I'm going to object to that.
          MR. NICHOLS:  Anybody got any comments or questions for
Jim?
          MR. TEASTER:  I just wanted to just reinforce some of
the things you just said in regard to that.  The agency recently
has gone to great lengths in outreach with seminars, with going
to the mines to try to make this as least burdensome as we
possibly can and still obtain the objective, which is to provide
the health and safety that we need for our miners, and we'll
continue to do that with this rule.  I see no difference.
          MR. NICHOLS:  Why don't we take a ten minute break and
be back -- oh, let's be back at 20 until 11:00.
          (Whereupon, a short recess was taken.)
          MR. NICHOLS:  Okay.  Why don't we get started back.
          Is Michael Sprinker here?
          Okay.  Jim, are you ready to come up?  Jim Sharp?
          MR. SHARP:  The paperwork burden of this rule is
beginning to mount.
          MR. NICHOLS:  Don't start that stuff.
          MR. SHARP:  Good morning, ladies and gentlemen.  My
name is Jim Sharp with the National Aggregates Association -
National Stone Association.  I am director of health and safety
services for that organization, and with me today is Steve
Sandbrook, a safety and health professional with Eastern
Industries in --
          MR. SANDBROOK:  Center Valley, Pennsylvania.
          MR. SHARP:  -- Center Valley, Pennsylvania.  I would
like to make a short opening statement and then turn over the
podium to Steve for his remarks.
          I'd like to read to the panel a letter written by Joy
Wilson, who is president and chief executive officer of the
National Aggregates Association - National Stone Association
dated December 13 written to Assistant Secretary Davitt McAteer. 
We'll put this in.  I'll give it to the stenographer in a moment.
          "Dear Davitt:  NAA-NSA is disappointed that MSHA has
allowed so little time for interested persons to prepare remarks
for the public hearing on the HazCom rule, which is set for
tomorrow."  Again, this is dated December 13.
          "This regulation deserves the most serious
deliberations since it will have a significant impact on our
industry, particularly the small business sector.  Since the
notice was officially announced December 11, interested parties
have just three days to prepare.  This limited time period will
prevent many commenters from participating at all, and for those
who do it minimizes the possibility the agency will receive the
benefit of the well prepared views of affected parties that will
assist the agency in crafting an effective final rule responsive
to stakeholder concerns.
          "We have previously expressed concern that MSHA has not
reproposed the rule after a ten year hiatus.  MSHA's decision to
call HazCom an "interim final" rule was unfortunate because it
discouraged any comment at all from some operators who took the
designation to mean MSHA had made up its mind on the regulations.
          "In addition, two NAA-NSA requests to extend the 45 day
period for comments on the interim final rule were denied by the
agency.  The result was a rush to meet your November 17 comment
deadline, followed by yet another dash to respond to a December 4
deadline for comment to the Office of Management and Budget on
the paperwork burden of HazCom, which, as you know, is
substantial.  These requests were made in part because we have
still not received important information from MSHA that we need
in order to make fully informed comments.
          "Other affected parties share our view that the agency
has failed to provide adequate notice of and an opportunity for
comment on this rule making, as evidenced by the numerous
protests form others on the fast track HazCom rule process.  This
situation is as regrettable as it is unnecessary.  We hope that
MSHA will reconsider.  Sincerely, Jennifer Joy Wilson."
          MR. SANDBROOK:  Good morning, ladies and gentlemen.  My
name is Steve Sandbrook.  I'm a certified mine safety
professional and the safety manager for Eastern Industries, Inc.,
located in Center Valley.  That's just about an hour north of
Philadelphia in Pennsylvania.
          I'm here today representing NAA and NSA.  I'm not a
lawyer.  I'm not an owner or an operator.  I'm not a union
leader.  I am just but one of hundreds of mine safety and health
professionals that will be adversely impacted by the current pace
and nature of the interim HazCom rule put forth by your agency. 
Please understand my commitment and the commitment of my fellow
safety professionals in providing a safe and healthful work
environment for the employees of our respective companies is
paramount.
          Compliance of the law is not a casual convenience.  It
is our guide from which we must analyze, create, train,
implement, monitor, measure and adjust as needed not on a one
time basis, but rather daily, to assure successes in our efforts. 
To this end, please listen and understand what I have to say.
          The fundamental problems as I see it are as follows. 
First, this aggressive rule making procedure has cast a shadow
over MSHA's intent on why the rule must be enacted so rapidly. 
The past history of this rule goes back to April 7, 1986, when
MSHA itself opposed promulgating a standard of this nature, and I
quote from the program information bulletin 86-2M:
          "...MSHA has promulgated standards requiring miners to
be trained in hazard recognition and avoidance, including the
hazards of handling chemical products.  Moreover, warning and
labeling requirements for metal and non-metal mines specifically
require that hazardous areas be posted in order to warn miners
that toxic substances be labeled both in a manner which
identifies the hazards involved."
          Additionally, an attachment to the PIB cited several
MSHA regulations which would cover the intent of HazCom that
would eliminate the need for additional regulation that is
duplicative by nature as follows:
          30 CFR 56 and 57.16004, Containers for Hazardous
Materials.  "Hazardous materials shall be stored in containers of
a type approved for such use by recognized agencies.  Such
containers shall be labeled appropriately."
          30 CFR 56/57.20011, Barricades and Warning Signs. 
"Areas where health and safety hazards exist that are not
immediately obviously to employees shall be barricaded, or
warning signs shall be posted at all approaches.  Warning signs
shall be readily visible, legible and display the nature of the
hazard and any protective action that is required."
          The third is 30 CFR 56 and 57.20012, Labeling of Toxic
Materials.  "Toxic materials used in conjunction with or
discarded from mining or milling of a product shall be clearly
marked or labeled so as to positively identify the nature of the
hazard and the protective action required."
          I understand that times change, along with people. 
However, change of this magnitude that affects my or our ability
to effectively manage safety programs will hinder and seriously
compromise my effectiveness for real time safety.  Currently I
use an 80/10/10 split for my efforts.  That's 80 percent of my
time is doing the walk and talk.  I'm out there walking.  I'm out
there talking to my people.  I'm listening to what they have to
say.  Ten percent of my time is spent pushing paper.  The
remaining ten percent of the time is spent on training.
          If this HazCom rule goes into effect, I'm afraid not
only for myself, but for my fellow mine safety professionals,
that split will now turn into a 10/80/10 with ten percent walk
and talk, 80 percent pushing paper and ten percent training.
          While MSHA molded their program after OSHA's, the image
I see in the mirror in one of enforcement.  I have no doubt that
this rule will be the number one cited violation and continue to
be, as OSHA has proven since their rule was enacted.  I believe
there's a lesson here that we should investigate together. 
Together.
          Together we, MSHA and industry, worked towards a common
goal in creating Part 46.  Congress praised us.  The non-mining
sector envied us.  Mr. McAteer shared in the accolades and vowed
to continue to work with the industry in the future in creating a
safer work atmosphere.  We are doing this currently with programs
with the high wall safety program, with surface haulage, with the
noise and dust workshop, and that's all great.  That's where the
rubber meets the road when we're out there creating these
programs.
          What happened?  This was a perfect opportunity to once
again join together in the spirit of not only the Act, but also
in the spirit of common sense.  Where else can you get better
input from those than who are to be regulated when in the end we
can all agree on sound safety management practices for the good
of the industry and the thousands of men and women who are its
foundation?
          Yes, we have this period to comment and become part of
the record.  However, I again must question MSHA's motive.  I
believe any comments at this time are moot and that MSHA has
already made up their mind and that this is a shame.
          The integrity of the agency, which was on the upswing
after Part 46, I feel will all be but eliminated. 
Micromanagement breeds contempt.  Contempt breeds poor attitudes. 
Poor attitudes breeds unsafe behaviors, and unsafe behaviors get
people hurt.  We need to work together for a safer future, and
that includes developing the regulation.
          I'm not an accountant.  I'm definitely not an
accountant.  However, in reviewing the cost analysis for the
metal and non-metal annual compliance costs, I believe the
figures presented are grossly inaccurate.  $230 to $270 estimated
annual cost for compliance.  This equates into approximately
eight to ten hours of a safety professional's salary if they make
$60,000 per year.
          Now, what about the other costs, such as labeling of
material, administrative costs to manage the MSDSs, training,
internal enforcement, inventory control, research?  I know my
costs are a couple of thousand dollars annually  currently to
comply with my state right to know laws.  I have little
confidence in the figures, and I believe they need further review
and cross check back to real life applications.
          Finally, the aggressive nature of the rule making that
has occurred in the agency is puzzling.  I understand that I can
expect five proposed new regulations within the first six months
of 2001.  I cannot for the life of me figure out why such a
comprehensive agenda that will reduce the effectiveness of the
safety and health professionals in their industry is going at
supersonic speed.
          I'm not a cynical person.  However, this action is
viewed as political in nature due to potential changes within the
Department of Labor.  I hope I'm wrong, but that is the
prevailing word in the pits.
          I hope you didn't just hear me today.  I hope you were
listening.  Thank you very much.
          MR. NICHOLS:  I don't think you would agree, Steve,
that working on a rule for 12 years is going at exactly the speed
of light.  I think this addresses the rule making procedure you
laid out here.
          MR. SHARP:  If I could interject there?
          MR. NICHOLS:  Go ahead, Jim.
          MR. SHARP:  We actually think you were considering a
rule for 14 years.  Otherwise -- because the PIB was dated in
1986, which, incidentally, is not mentioned at all anywhere in
your preamble as part of the history of this rule making, which
we consider to be a very real part of the history of the rule
making.
          We also wonder why it took you ten years.  Obviously
when you write rules it's a matter of resource application. 
Somebody in the agency decided that there wasn't obviously enough
interest in this rule to push it through in the early 1990s or it
would have been pushed through in the early 1990s.  I mean,
obviously there was not an emphasis on this from top management. 
I mean, it's evident.
          Now, is that because of the indifference?  Was that
because of a difference of opinion within the agency?  I'm asking
you that question.  I'd like to have an answer to it.
          MR. NICHOLS:  Well, let me answer that.
          MR. SHARP:  Then I want to finish with my statement.
          MR. NICHOLS:  Okay.  The Assistant Secretary had at
least a half a dozen priority issues he wanted to deal with. 
Part 46 was one.  Diesel safety rules was another.  Noise was
another.  Coal mine respirable deaths was another, and HazCom was
included in that list of priorities.  Okay.  And diesel
particulates.
          You can see we've had an aggressive agenda, and some of
these rule makings have come to completion, and so this is one
that's coming to completion out of his mix of a half a dozen
priorities.
          MR. SHARP:  You're talking about Mr. McAteer?
          MR. NICHOLS:  Yes.
          MR. SHARP:  Well, Mr. McAteer took office in 1994. 
This rule was proposed in 1990.  What happened before 1990 and
1994.
          MS. HUTCHISON:  1992.
          MR. SHARP:  What Cherie?
          MS. HUTCHISON:  1992.
          MR. SHARP:  No, ma'am.  I don't think so.  The rule was
proposed in 1990.
          MS. HUTCHISON:  Yes, but Davitt came in 1992?
          MR. SHARP:  1992?  I don't think so.
          MR. NICHOLS:  1993.
          MR. SHARP:  1994.
          MR. NICHOLS:  I guess it really doesn't matter.  I
mean, did you ever change bosses and get different priorities,
Jim?
          MR. SHARP:  Do you not agree that ten years is a long
time for a rule making?
          MR. NICHOLS:  Not by MSHA standards, I mean.
          MR. SHARP:  If you think ten years is a long time, how
do you assess the rule making speed with regard to Part 46 then?
          MR. NICHOLS:  Well, you're looking at a one year
snapshot.  We worked on the idea of promulgating Part 46 from the
day the training rider went on, so that discussion was in process
for 20 years before that rule was ever completed.
          MR. SHARP:  Okay.
          MR. NICHOLS:  We were petitioned in the mid 1980s to
revise the noise regs, and here it is -- you know, we got it out
last year, 1999.
          We had a Secretary's Advisory Committee on diesels
sometime in the 1980s.  Finally, you know, we got the diesel
safety rule out.  We have done a lot of work on the diesel
particulate rule.
          But for the reasons, you know, that we're here today,
you know, you have strong opinions on all sides of it.  It takes
some number of years to produce a rule.
          MR. SHARP:  All right.  Well, I guess what I'm talking
about is let's talk about the different period of time between
the proposed rule --
          MR. FEEHAN:  I'd like to add --
          MR. SHARP:  The proposed rule and the final rule.  Ten
years for HazCom.  The proposed rule on 46 was 199, and it was
promulgated a year later.  The proposed rule on noise was 1996. 
It was promulgated in 1999.
          You know, I kind of disagree with you a little bit on
the priorities here.  I do think the agency put HazCom on a back
burner, and there was a reason for it.  You've told me what one
reason is, but I'm saying I'm not sure that that is the entire
reason.
          MR. FEEHAN:  There is some more to the history of this,
Jim.
          MR. SHARP:  There's some what?
          MR. FEEHAN:  There is more to the history of this, too. 
Some of the comments that we received to the 1990 proposal asked
us to hold off and to use OSHA's experience in our rule making.
          Now, OSHA didn't promulgate -- you know, they were
going through a rule making process until what, 1995 when they
came out with their HazCom for general industry?  1994?
          MR. SHARP:  Well, they proposed HazCom in 1983 for SIC
codes 20 to 39.
          MR. FEEHAN:  Right.
          MR. SHARP:  That went into effect that year.  Then in
1987 there was a Court decision which reconciled a lot of issues
that were floating around, one of which was discontinuity on
labeling with regard to OSHA, states that were not under the OSHA
state plan.  They needed to have some sort of preemption, so
there was a deal struck to make sure that OSHA's rule would be
predominant with regard to labeling, and it would be extended to
3,500,000 employers and 35,000,000 workers.  That was in 1987, so
that rule really went into effect in 1987.
          I can tell you for a fact that whenever I took my job
in an OSHA regulated industry in 1990, one of my first
undertakings was to get them to comply with the OSHA HazCom
rules.
          MR. FEEHAN:  Wasn't there a change in OSHA, though? 
Didn't they promulgate for general industry in 1994?
          MR. SHARP:  They issued a rule in 1994, which I happen
to have here actually, that basically clarified some minor issues
that had arisen since the rule was promulgated, but it was
essentially the same rule, and employers -- all of general
industry had to be in compliance with that as of 1987.
          MR. FEEHAN:  Well, what I understand about the history
of the regulation is that we had comments that asked us to take
into consideration OSHA's experience with its HCS.  There was a
change in the regulation for general industry back, you know,
three or four years after we did our proposed rule.  Then there
was also at that time a request of OSHA that they have their
advisory committee on occupational safety and health standards
look into whether the HCS was effective or not.
          The measure of that effectiveness didn't become known
until I think it was 1996, so really I think, you know, that was
some part of the history of the regulation and what was going on
in extending it, extending the time that it took.
          MR. SHARP:  All right.  So you're really acknowledging
that there were developments between 1990 and 2000 that took
place that really should have resulted in, and this is industry's
argument, a reproposal of this rule.  You've just stated some of
them.
          Adele mentioned the global harmonization initiative. 
Let me ask you this question, and I have not finished the
statement I was going to make earlier, but I'll get to that.  Let
me ask you this.  Has any federal agency officially or
unofficially asked you to repropose this rule?
          MR. FEEHAN:  I don't know that.  Does anybody know
that?
          MR. NICHOLS:  I'm not aware of any.
          MR. FEEHAN:  I don't think we --
          MR. SHARP:  You don't have that knowledge?
          MR. FEEHAN:  I don't.
          MR. TEASTER:  Do you remember his comment on the
earlier statement you said about Part 46?  Part 46 was a rule
that there was a lot of work up front before the rule making
process officially began.  There was a consensus by most of the
concerned parties that there was a need for this rule.
          The rule, when it went out, didn't have a lot of
opposition to it, plus through the negotiating process of getting
this rule making there was a deadline that was set that we tried
to meet, so I don't think when you're talking about numbers just
for a certain portion of the industry, and most of the people in
that industry recognized that there was a strong need for
training of the miners, so we got that one through with very
little opposition.  Not that we didn't have some differences, but
for the most part.
          I don't think that would necessarily be related to this
type of rule making where you have varying opinion of what the
rule should look like.
          MR. SHARP:  But you will not deny my timing, if you
look at opposed versus final, that HazCom took ten, Part 46 took
one, the noise rule took three.  You proposed the diesel
particulate rule in when, 1997-1998?  It's about to be finalized
in 2000.  That's three.  If you look at it from that perspective,
we're talking about an extended period of time.
          You've also acknowledged from the panel here just a few
minutes ago that there have been changes that have taken place in
the last ten years that bear on this rule making.  Why then
didn't you -- and you cannot answer the question whether or not
another federal agency has asked you to repropose, yet you did
not repropose the rule.  With all of this going on, you did not
repropose the rule.
          MR. NICHOLS:  You know, we may have to agree to
disagree on the need to.  I mean, it's our position that we have
had a long history of back and forth in public hearings and
proposals on this issue and that we have developed a good, common
sense, straightforward rule.
          If you have additional comments, that's what this
hearing is for.  I mean, you know, give them to us today.
          MR. SHARP:  Well, I'm commenting.
          MR. NICHOLS:  All right.
          MR. SHARP:  You're hearing it.
          MR. NICHOLS:  But to say this rule has not been -- you
mentioned noise.  I mean, we worked on that rule for 12 or 15
years.  It probably tracks the same time frame as HazCom does.
          If my memory serves me, the diesel advisory committee
probably tracks the same time period.  It was during a previous
-- I'm not sure if it was during the previous Administration, but
it's got some age on it.  All our stuff has got some age on it.
          MR. SHARP:  But this rule has some real age on it when
it comes to proposing it and finalizing it.  That is not the case
with the other rules that I have cited.  It's just not.
          Look at it from my perspective.  That raises a
question.  That raises a question of what the agency's real
intent was and were they unified on this and what was your
emphasis.  If you had wanted that rule to come out in 1992, it
would have come out in 1992.  If you had wanted that rule to come
out in 1994, it would have come out in 1994.
          Now, let me just go on with the rest of my comment
about the timing of this.  Now the rule is out.  You issued an
interim final rule form, which is a strange duck in terms of MSHA
rule making.  I mean, that's not a common practice of the agency
-- I think you'll agree with that -- to issue it in the interim
final as opposed to final.
          Then you give us a mere 45 days to respond to a rule, a
month and a half to respond to a rule that took you 119 months to
issue in final form.  Do you really think that we could in 45
days get all the information, for example, that we needed on the
economic analysis impact of this, study what you have done,
prepare our own analysis and then distill that analysis in such a
way as to put that into a proper context for comment in 45 days? 
Do you think that we could have done exactly the same thing with
regard to significant risk?
          You yourself have admitted you've got a database of
50,000 of which 410 are for poisonings.  We asked under a FOIA to
get that database on September 29.  We got an impressive and
fairly rapid response to it, but we still did not have all the
information that we needed even to analyze that database by
November 17.  We did not have that.  We don't think we still have
that.
          You asked for comment from the industry.  We can't give
you comment when you rush us, and we don't understand why you
rush us when it takes you 119 months and you only want to give us
45 days.  Now you keep this pace going with this hearing.
          If you really want to know the impact of this on small
businesses, if you really want to know that, you should do what
you did with Part 46.  You should have hearings all over the
country, and you should allow enough time for associations like
NAA-NSA to explain the rule to small business because I assure
you the small business operator is not going to get this thing
and read through it.  He won't read through the whole thing, and
he won't even read through the last seven pages, which is the
rule itself.  He won't do that.  It has to be explained to him.
          You did that with 46.  You had outreach all over the
country.  It has to be explained to him, and then he has to see
the impact of it on his business, and then he has to put that in
terms that can be presented to you.  That takes time.  You can't
do that in three days.
          MR. NICHOLS:  We're going to do that.
          Now, what part of this rule is so complicated that you
don't understand?
          MR. SHARP:  Marvin, it's not that I don't understand
this rule.  I'm not the one that has to implement it.  I work for
a trade association that falls under OSHA.
          MR. NICHOLS:  Okay.  Let's follow this line of
thinking.
          We're going to eliminate the mystery of this rule. 
First of all, the rule requires that you pull together
information you probably already have.  If you don't have it, you
should have it.  That's the MSDS sheet for chemicals that are
being brought on the mine property.
          You're going to have to write up a HazCom program. 
Now, if you can't do that, we're going to assist in doing that. 
We're going to put together some generic ones, and then we're
going to have -- we'll have a tool box.  We'll have a compliance
guide.  Then, as with every other regulation we promulgate, we'll
have a series of seminars out in the mining community.
          You're already required to do the training for Part 46. 
There's no reason why this can't be incorporated right into Part
46.  You talk about you're already doing some things with right
to know.  That's got to include having these MSDS sheets already,
so I just don't see the complication and the burden.
          You may not agree with it.  I don't see how you can
make a rule that this is a mystery and it's burdensome.
          MR. SANDBROOK:  That's under my OSHA HCS where I have
my hot mix asphalt plants and block plants and shops, associated
shops.  Now I have to come up with another plan, okay, to meet my
mining facilities.
          Some of those you are talking about, the small
facilities.  I've got two facilities right now with no running
water.
          MR. NICHOLS:  All right.  What kind of mining
operations are these?
          MR. SANDBROOK:  Sand and gravel those were.
          MR. NICHOLS:  Okay.
          MR. SANDBROOK:  They're the smaller ones I'm talking
about.
          MR. NICHOLS:  All right.  Now, what kind of chemicals
are we likely to have on the property?  We're going to have
probably some gasoline and diesel fuel and motor oil.  Tell me
what else beyond that.
          MR. SANDBROOK:  To give you a comprehensive list right
now --
          MR. SHARP:  Solvents, battery acid, paints, varnishes.
          MR. NICHOLS:  Okay.  We're probably up to a dozen.
          MR. STONE:  Okay.
          MR. SHARP:  Marvin, let me ask you something.  When was
the last time you did an inventory of the chemicals in your home? 
I would urge you to do that.  You're going to get a rude
awakening of just how much you have there.
          MR. NICHOLS:  For them that pose a hazard, I've done
all of them.  You know, NIOSH done a survey back a long time ago
and identified many, many chemicals on my property.
          That's not what this rule is dealing with.  This rule
is dealing with those that may pose a problem to a miner.
          MR. SHARP:  It's dealing with hazardous chemicals,
those that are a physical and a health hazard.  Hazardous
chemicals.  OSHA says there are oh, let's see, 650,000 of those.
          MR. NICHOLS:  Okay.
          MR. SHARP:  Six hundred and fifty thousand hazardous
chemicals in the inventory that they know about.
          MS. HUTCHISON:  Not a small sand and gravel operation.
          MR. NICHOLS:  Yes.  Let's talk about --
          MR. SHARP:  No.  In the universe, in this country,
there are 650,000 hazardous chemicals.
          You're making a point, Marvin, that it's just those
chemicals that pose a risk.  I'm saying no, it's not.  It's
hazardous chemicals.  What is that universe?  Six hundred and
fifty-thousand potential chemicals we're talking about.
          MR. NICHOLS:  Okay.  How many of these 650,000 are you
going to have at this sand and gravel operation?
          MR. SHARP:  Marvin, that's what I'd like them to come
tell you if you'll just give them an opportunity through public
hearings to do that.
          MR. NICHOLS:  But common sense will tell us right here
at this table.  We've mentioned a dozen.
          MS. HUTCHISON:  Our experience.
          MR. SHARP:  Now, wait a minute.  Wait a minute.  We
need to be talking to the people who are going to be regulated. 
Let's hear what they think common sense is.
          MR. NICHOLS:  We've been --
          MR. SHARP:  Let me just say this, too.  You have said
that this is not a burden to small operators, yet on page 59052
of your preamble you admit under the Paperwork Reduction Act that
there are 24 provisions of this rule, which there probably are
only 30 to 35, that have paperwork requirements and
responsibilities.  Twenty-four of them.  You've just heard Steve
say he's 8/1/1.  He's going to have to reverse his ten percent on
paperwork to make it 80 percent of paperwork.
          If you looked at the NACOSH working group, if you heard
the American Dental Association, for example, begging for an
exemption to this rule because of the paperwork burden, if you
read books called common sense where this is nothing but a
paperwork blizzard where books of MSDSs are out in the operators'
areas and are gathering dust because nobody looks at them.
          The only time MSDSs are looked at, and this isn't in
our testimony, is when somebody has a beef against the company
and wants to raise holy heck or after there is an incident, but
they never ask for them or rarely ask for them in advance.
          Tell me this is not a -- I'm not a safety and health
person in the mining industry.  I'm not at a mine.  I'm not Mr.
Sandbrook.  I want you to hear those people tell you what this
rule is going to do, and you cut off the opportunity to have that
occur.
          MR. NICHOLS:  I don't think we have.
          MR. SHARP:  That I think is shameful.
          MR. NICHOLS:  We haven't done that.
          MR. SHARP:  How can you say that, Marvin, when you give
45 days for a rule that took you 119 months to promulgate?  You
give three days for a public hearing.  Three days' notice for a
public hearing.  Three days.
          MR. NICHOLS:  I dare to say that in the ten year
history of public hearings and rule making proposals that many of
the comments you have made today have been in those previous
exercises.
          MR. SHARP:  Wait a minute.  Wait a minute.  This rule
is new.  This is a brand new rule.  Yes, there are similarities
to the proposed rule, but this is a rule that requires careful
deliberation because it has provisions and changes in it that the
proposed rule does not have.
          MS. HUTCHISON:  Like what?
          MR. SHARP:  And there is certainly a new environment
now than what there was ten years ago, and that needs to be
factored into it, the most obvious of which, perhaps the most
profound of which, is this paperwork requirement --
          MS. HUTCHISON:  That --
          MR. SHARP:  -- and all the requirements that you have
here for that.
          You've heard Adele talk about global harmonization. 
You've heard Richard himself talking about the NACOSH working
group.  You've heard him also talking about OSHA wanting to take
a look at this rule and having to do something about it in
1994-1995 to clarify minor issues that were a carry over from the
1980s.  This is just some of the issues, yet you turn around, and
you don't repropose it.  You don't give us an opportunity for
meaningful comment.  It just exasperates us.
          We just came through a rule making on Part 46 where we
all sat around the table with labor, and I would strongly urge
that we have the same kind of dialogue again on HazCom.  We sat
around a table and crafted in 18 months a final rule on Part 46
that you couldn't get done in 20 years.
          Cherie, you laugh, but it's true.  It's true.
          MS. HUTCHISON:  You father it for 20 years.
          Have you sat down and done a comparison between the
proposal, OSHA and the interim final?
          MR. SHARP:  No, because I haven't had -- for the OSHA
rule and the interim final?  The OSHA rule and the interim final?
          MS. HUTCHISON:  Well, between the states.
          MR. SHARP:  Pardon?
          MS. HUTCHISON:  Between the states.
          MR. SHARP:  No, because I haven't had enough time to do
that.  You haven't given me the opportunity.
          MR. NICHOLS:  He needs more time.
          MS. HUTCHISON:  What?
          MR. NICHOLS:  He needs more time.
          MS. HUTCHISON:  Exactly.
          MR. SHARP:  I haven't had enough time.  I haven't had
enough time.  No, I haven't, but I certainly know a lot about the
OSHA HazCom rule because that had to be implemented in my
previous job.  I know a heck of a lot about it.
          MS. HUTCHISON:  Well, what is new and different about
the interim final rule that you think is significant in terms of
the proposal and the OSHA rule?
          MR. SHARP:  Small mining business have not had to
comply with the OSHA HCS, so that part of your comment is
irrelevant.
          My interest is in trying to determine how they're going
to be able to comply with this easily and not do so in a manner
that detracts from other vital health and safety issues that they
have to address that are more vital than this.
          I can tell you what my experience has been under OSHA
HCS as a health and safety professional in charge of a company
that had to put this into 135 sites.  We developed a program
which we purloined, very frankly, from an existing boilerplate,
tailored it to our operations the best we could, sent that to all
135 sites along with a sample inventory form.
          Told those sites they had to do the chemical inventory. 
They had to keep that chemical inventory on file.  They had to
keep it up to date.  Told them that they had to gather MSDSs. 
They did that.  Told them that they had to do training.  They did
that.
          We had a policy statement written right from the top of
our organization which said this is important, and you need to do
it.  I can tell you that I got nothing but resentment out there
from the get go, and the resentment was you have imposed a
massive paperwork burden on us, and we simply cannot see the
benefit of it.  You are taking away precious time and resources
that we need to address other safety and health issues.
          The position of the National Aggregates Association -
National Stone Association on this rule is that that is what this
does; that you have in place sufficient resources to account for
most -- most -- of what you're covering under this rule.  Now, I
will grant you there are probably some things that we need to
talk about, but we do not need a rule of this extent in order to
make that happen.  We simply do not.
          We are asking you to please remand this rule, convene a
special group, if you will, a working group such as OSHA, did
that consists of labor, industry and you folks, and let's sit
down and work this thing through.  I can guarantee you you'll
have it, what you want, probably not in 2001, but you'll probably
have it in 2002, and everybody will be happy, and you won't have
this screaming that's going on now.
          MS. HUTCHISON:  Jim?
          MR. NICHOLS:  Here's how we would plan to implement the
rule, and this would be totally for small operators, intermediate
operators, anybody that wants to help.
          The rule has a delayed implementation date of October,
2001.  That gives us a period to go in and work with small
operators to try to help them develop or help them develop a
HazCom program and incorporate that into the training that you're
going to be doing.  Now, that doesn't seem to me to need a lot of
-- there's not a lot of mystery there, I don't think.
          MR. SHARP:  Marvin, if the agency will please allow the
small operator to give you its opinion on that, we can arrange
for that to happen, but you have got to allow the mechanism for
that to happen, which you have not done here.
          I can tell you that it is not nearly as simple as you
think.  Of course, the question that keeps popping up into my
mind is that there are so few chemicals out there at these small
businesses.  Why don't you just exempt them?  If this is such a
small deal for small businesses as you claim, there are so few
chemicals there, why are they not exempt?
          Why does a small business, one operation, have to have
a written plan at all?  They may not even have any chemicals. 
They still have to have a written plan.  What sense does that
make if I were a small operator and I had no chemicals?
          The other thing is you deincentivize them from getting
rid of their hazardous chemicals so they don't fall under this
rule.  If you have an incentive there that says well, I have to
have this rule so I'll get rid of all my hazardous chemicals and
I'll be exempt.  You don't have that mechanism.  You don't even
have that there.  There's no incentive for anybody here.  That's
just one of the problems.
          I want the small business community to come and talk to
you.  You allowed that to happen with Part 46.  You were very,
very good about it.  You had six hearings all over the country
two or three times removed, and they came, and they talked to
you.  I read every one of those transcripts.  I know they talked
to you, and you listened.  You put together a very good rule.
          I'm here to tell you this is not a good rule for the
small business community.  I just know it by instinct, but I want
them to come and tell you the horror stories that are going to be
created.  I've already told you one of them, MSDSs stacked up
gathering dust.  Nobody makes reference one to an MSDS.  They
just won't even look at them.
          MR. SANDBROOK:  Personally, I have two three-ring
binders that are four and a half inches, and --
          MS. HUTCHISON:  You have that many chemicals at your
site?
          MR. SANDBROOK:  No.  I have to do that.  The way our
program is set up is through our entire corporation.  It's easier
for me to go ahead and boilerplate all the chemicals rather than
customize for each location.  I have 46 different operations, 17
quarries, I think it's 15 HMA plants, block plants, trucking.
          MS. HUTCHISON:  Do you consider yourself a small
business?
          MR. SANDBROOK:  From the quarry aspect, I don't know
what the definition is honestly.  Under 20?
          MR. SHARP:  Under 20 or under 500?  Which definition
are we taking?  The Small Business Administration?
          MR. NICHOLS:  Historically we've said less than 20. 
The Small Business --
          MR. SANDBROOK:  Less than 20?  That would be --
          MR. SHARP:  At a site or at a company?
          MS. HUTCHISON:  That's why we go with less than 20
because we --
          MR. SHARP:  Per site?
          MR. SANDBROOK:  Per site?  Then I'd be a small
operator.
          MR. SHARP:  Is it a site or a company?
          MR. NICHOLS:  I mean, what difference does it make? 
We're talking about --
          MR. SHARP:  We're trying to answer her question.  We're
just trying to answer her question.
          MR. STONE:  We use the establishment, which would be
fewer than 500.  We also use 20, under 20.  We use both.  We
evaluate both when we do our analysis
          MR. SHARP:  And that is at a site?
          MR. STONE:  At a site.
          MR. SHARP:  So, now what's your answer?
          MR. SANDBROOK:  My answer is at a site I have 75
percent of my operations, fewer than 20 people.
          Overall in my entire corporation where I'm regulated by
OSHA, MSHA, DOT, okay, and creating -- and the Pennsylvania right
to know laws, putting all of that program together, that's how
many MSDSs I have because I don't have the time to customize for
each location.
          That would be a waste of resources, so I make one
program that covers everything to the best of my ability that's
above and beyond.  For example, you say a two year retention on
MSDSs, whereas you're looking at what, 30 years for OSHA.
          MR. FEEHAN:  So you have to maintain MSDSs for the
longest group that you're --
          MR. SANDBROOK:  Absolutely.
          MR. FEEHAN:  So your asphalt operations --
          MR. SANDBROOK:  Right.
          MR. FEEHAN:  -- you're having to keep MSDSs for 30
years?
          MR. SANDBROOK:  Right.  Right.  The thing is, from a
management standpoint with my time and effectively using my time,
okay, I'm going to apply that same standard to my mining
facilities, so I'm not -- you know, I'd rather have to just hold
that paper rather than waste time, go over there, cull this out
after two years, you know, and do this if we don't have it and do
the notice, so I do it the strictest possible, which is --
          MR. NICHOLS:  So you've already got a program?  I man,
you've already got a HazCom program?
          MR. SANDBROOK:  I'm one person, one company, that has a
program.
          Do you know how that program came into effect?  When I
first started there five years ago, okay, our incident rate was
horrible.  It was well above the national average, and I mean
well above the national average.  Now we are well below.  Five
years.
          Because I came in there, and I'm going to say I came in
there, okay, and I opened the doors.  I stopped the micro
management.  I formed work teams.  I don't make a decision. 
That's not my job.  My job is to bring people together, because
who better knows the materials out there than the people who have
to work with them and what they do with them, so I bring them in
together.
          There are no bad ideas.  Everybody has great ideas. 
There are just some ideas that are better than others, and by
getting these people to buy into this, those people and myself,
we work together.  We develop our policy and procedure.  I don't
do that.  We do that as a team.
          MR. NICHOLS:  Okay.  You've already got a HazCom
program.  Now, how is MSHA's HazCom rule going to add an
additional burden to you?
          MR. SHARP:  Well, I can answer that.
          MR. SANDBROOK:  I just had done that.  I just said
that.  I'm now going above and beyond.  Do I really have to do
that?
          What I'm saying is if in fact you are mirroring the
OSHA HazCom, I see the differences.  With the global
harmonization system coming on, I'm going to have to change
again.
          MR. NICHOLS:  Wait a minute.  I mean, if you have an
OSHA HazCom program, I mean, I can't imagine what small tweaking
you're going to have to do to make that fit MSHA. You're already
required to do Part 46 or Part 48 training.  I can't imagine what
burden it's going to add to include
the --
          MR. SHARP:  Well, let's see.
          MR. NICHOLS:  Let me talk to him, Jim.
          MR. SHARP:  Okay, Marvin.
          MR. NICHOLS:  That you're going to add in the training
you already have to do.  Now, tell me where this additional
burden is going to come.
          MR. SANDBROOK:  Because I now have a program designed
for MSHA, okay, I now have to stop and take a look.  Okay. 
Here's a regulation that has come down the pike.
          MR. NICHOLS:  Right.
          MR. SANDBROOK:  Now I've got to take a look at it. 
I've got to pull out my OSHA, okay?  I've got to pull it over
here to the side, and now I have to start comparing the two,
okay?  I now have to reconvene those people again because a
change has occurred.  I can't ignore it, and I have to open it up
to the people again to say look, here's a new rule from MSHA.
          Maybe my case is different than another company that's
located just several, you know, miles down the road, but this is
how it affects me and my operations and the way I manage my
people, and it might be different from other --
          MR. NICHOLS:  Why do you have to open it up again? I
can't imagine if you --
          MR. SANDBROOK:  Because if I don't that would be
micromanaging my people, and I don't do that.
          MR. NICHOLS:  If you have it covered in your OSHA
HazCom program, I can't imagine some substance being out here in
one of these rock quarries that you haven't already covered and
that your own experience and understanding of your operation
should not require you to change.
          I mean, you adjust your training as you go.  I mean,
you don't need to teach these mining people about something
they're not exposed to.  I mean, that sounds like part of your
confusion on this.
          MR. SANDBROOK:  No.  They're taught what their
exposures are.  They're also taught how to read material safety
data sheets.  You're right.  There's not much difference, what
you're saying, going through here.
          As far as the burden, again I now have -- there's one
more vehicle for an inspector to come in and take a look and say
okay and start asking and talking to my people, double checking
the training records with Part 46, was this covered in the Part
46, double checking the inventory of the hazardous materials to
the number of material safety data sheets and do the material
safety data sheets meet up with the hazardous -- it's going to be
a nightmare.  It's going to be a nightmare.
          MR. FEEHAN:  Steve, I can almost guarantee that if
you're in compliance with OSHA, you're in compliance with our
standards.
          MR. SHARP:  Except for hazardous waste, which is not
covered in OSHA's HazCom?
          MR. FEEHAN:  You have hazardous waste?
          MR. SHARP:  Except for MSHA PELs on MSDSs, which are
not required by OSHA, for example.  Except for the fact that you
may have to change the training plan under Part 46.
          MR. FEEHAN:  Let me correct something.  First of all,
you're only required to put MSHA's PEL on MSDSs that are your
product.
          MR. SHARP:  We understand that.
          MR. FEEHAN:  Okay.
          MR. SHARP:  We understand that.
          MS. HUTCHISON:  And we already got a comment you said
--
          MR. FEEHAN:  Yes.
          MS. HUTCHISON:  -- that explained that you needed to
have the OSHA PEL for OSHA downstream users.
          MR. SHARP:  Right.  Right, but I'm telling you that if
we have to develop material safety data sheets, and it sounds
like we're going to have to if we have crystalline silica in our
product.  We've got to put an MSHA PEL on it, and if we already
have an MSDS instead of the OSHA PEL we've got to make a change.
          MR. FEEHAN:  We're going to develop a generic MSDS for
silica.  We'll give you that one, Jim.
          MR. NICHOLS:  No, we're not.
          MS. HUTCHISON:  No, we're not.
          MR. FEEHAN:  We're not?
          MR. NICHOLS:  No, we're not.
          MR. FEEHAN:  Let me ask.  Doesn't NSA already have a
generic MSDS for crushed stone?
          MR. SHARP:  Yes, we do that we need to update now based
upon this standard --
          MS. HUTCHISON:  Why?
          MR. SHARP:  -- for paperwork purposes.
          MS. HUTCHISON:  What about it has to change?
          MR. SHARP:  I'm sorry?
          MS. HUTCHISON:  What about it has to change?
          MR. SHARP:  Well, you're saying that we have to take
the most recent IARC ruling, the most recent NTP.  NTP, as you
not, just declared this a most likely carcinogen this May 15. 
NTP.  So there's a change.
          MS. HUTCHISON:  Well, what --
          MR. SHARP:  I'm answering your question, Cherie.
          MS. HUTCHISON:  Okay.
          MR. SHARP:  ACGIH has just lowered the PEL to .05 and
called it a suspect carcinogen.  We've got to make that change. 
We've got to put your PEL on it.
          MR. FEEHAN:  Wouldn't you have to do that for OSHA
anyway?
          MR. SHARP:  Yes, but we've got to put your PEL on it. 
That's a change.  That's one of the reasons that this standard is
not the same as OSHA.
          MS. HUTCHISON:  But if you didn't have to put the MSHA
limit on the MSDS, you wouldn't have to change it?
          MR. SHARP:  No.  That's not so.  That's not so because
you're saying that we have to keep the reference levels for
ACGIH, NTP and IARC.  Every time they make a change, we've got to
change our MSDS.
          MS. HUTCHISON:  No.  That's not what we say.
          MR. SHARP:  That is what you say.
          MS. HUTCHISON:  No, that's not what we say.
          MR. FEEHAN:  What do we say?
          MR. SHARP:  Yes.  What do you say?  This is
enlightening.
          MS. HUTCHISON:  Okay.  We say that if ACGIH, NTP
or IARC list it as a hazardous chemical, you have to consider it
to be hazardous.  We also say that if they classify it as
suspected, probable or whatever terms they use human carcinogen,
you have to identify it as such.
          MR. SHARP:  Right, and as Table --
          MS. HUTCHISON:  That's it.
          MR. SHARP:  Table 4711, page 59097.  It says ACGIH, NTP
and IARC latest edition.
          MR. FEEHAN:  Right.
          MS. HUTCHISON:  That's what you have to check, to find
out if it says it.
          MR. SHARP:  A small line operator has got to buy the
ACGIH TLV book for $30, read it and understand it?
          MS. HUTCHISON:  Well, what chemicals --
          MR. SHARP:  He's got to buy the IARC, and he's got to
buy the NTP?
          MS. HUTCHISON:  What chemicals is he producing that he
would have to look up?
          MR. SHARP:  Crystalline silica.
          MS. HUTCHISON:  He already knows that that's hazardous.
          MR. SHARP:  But he's got to check the book to see if it
changes because I just got done telling you that ACGIH recently
made a change, and so did NTP.  He's got to keep monitoring that.
          Let me change the discussion to this.  Let me put
something on the table.
          MR. FEEHAN:  Yes, but let me bring up --
          MR. SHARP:  Let me put something on the table for you.
          MR. FEEHAN:  Wait a minute.  Let's give you all that. 
You're only talking about one MSDS sheet here.
          MR. SHARP:  Well, there could be more.  I need the
small operators to come tell you that.  There could be more.  I
told you.  I'm not a safety and health professional who ha to
implement this program.  Let the small operators come and tell
you.  I asked 11 to come.  Only one could make it.  The other
ten, on such short notice, were unable to do so.
          Let me make a suggestion to you where we could have a
basis for discussion of this rule.  Number one, exempt office
employees from this rule.  If you can show through your
significant risk table and charts that office employees -- that
there's a significant risk other than a de minimis risk to office
employees, then we will consider having them included in a HazCom
rule.  Right now we just don't believe there is that risk.  I
doubt anybody has suffocated, choked, strangled on toner from an
office copier machine or white out.  I just doubt it.  That's
number one.
          Number two, operators with some sort of reference
benchmark, either number of chemicals, not needing to produce an
MSDS or whatever, should be exempt from this rule.  If they have
a small number of chemicals, for example, as you have. Marvin, in
your example, if they have a small number of chemicals or
something, some kind of a reference, you need to think about
exempting small businesses from this rule if they show that they
don't have enough hazardous chemicals to really constitute a
problem.  That's the second thing I think you need to consider. 
Those two things.
          Third, you need to think about no written program for
some.  If there is no need for HazCom at a site, there should be
nothing required at all.  No written program.  Nothing at all.
          MS. HUTCHISON:  Do you have any sites that do not have
any hazardous chemicals?
          MR. SHARP:  I want my small operators -- I haven't had
a chance to poll them, Cherie.  You haven't given me the time.
          MR. FEEHAN:  What was the third --
          MS. HUTCHISON:  Suggestion?
          MR. FEEHAN:  What was the third comment?
          MS. HUTCHISON:  No written program if there are no
hazardous chemicals.
          MR. SHARP:  The third thing is that I'm bothered by the
fact that you require something even from a site that may have no
hazardous chemicals.  You're still requiring them to have a
written program.  I can tell you that that's a useless exercise. 
That's just useful.  That's of no benefit at all.  It just makes
people angry with you.
          Those are the three things, and the fourth thing I
would ask you is if you're going to have this, have it totally in
compliance with OSHA.  Have it mirror OSHA.  As the record shows,
your own research, and as Steve had pointed out, there are a lot
of organizations now that have already got an OSHA HCS.
          Now, OSHA -- I will tell you that OSHA's HCS did not go
through notice and comment, not for the entire general industry. 
It did not go through notice and comment.  It only went through
notice and comment for CIP codes 20 to 39, but I would say that
would be a basis for discussion in this
labor/management/government work group that I think you should
convene to hash through all this.
          MR. SANDBROOK:  Like Jim said, you already have
facilities that may be in compliance with an OSHA HCS like
myself.  Now I have to go take and look at my liabilities, if
there are any.  I have to look.  It takes time and effort.
          I think the industry -- I would be more receptive to a
mirror, a true mirror image OSHA HCS.
          MR. SHARP:  And then the last thing I'd like to add is
we need to burrow into this harmonization, this system
harmonization initiative here, because if go through to put out a
rule that two years from now has got to be changed, you're just
irritating people, especially when the record clearly shows that
that initiative is going on now.
          They are going to harmonize the material safety data
sheets probably according to ANSI, I mean, and the labeling is
going to be harmonized.  I think you're shooting yourself in the
foot if you put out a rule and two years later have to readopt
it.  I think we need to get from OSHA, which is the lead agency
on that internationally or representing the United States.  We
need to find out where this stands and try to bring all this
together.
          MS. HUTCHISON:  We've already done that.
          MR. SANDBROOK:  You have talked to them?
          MS. HUTCHISON:  Yes, we have.
          MR. SANDBROOK:  And may I ask their response if you
were to become part of the globalization?
          MS. HUTCHISON:  A long time in the coming.
          MR. SANDBROOK:  I'm sorry.  I don't understand.
          MR. SHARP:  A long time coming.  How long?  Did they
give you -- five years?  Ten years?
          MS. HUTCHISON:  No.  I don't remember.
          MR. SHARP:  They can't give you that estimate?
          MS. HUTCHISON:  I don't remember.
          MR. SANDBROOK:  To allow you to work with them on this
project?
          MR. SHARP:  Well, no.  OSHA is doing that now.
          MR. SANDBROOK:  Right.
          MR. SHARP:  It's just that it takes time to work out. 
You've got the United Nations, basically 200 countries that
you've got to work with.  It's just like the global warming
thing.  I mean, it's going to take a lot of hashing through to
get something worked out.
          MS. HUTCHISON:  They are --
          MR. FEEHAN:  I wouldn't mind --
          MS. HUTCHISON:  They are arguing about the like
terminology --
          MR. SHARP:  Right.
          MS. HUTCHISON:  -- for hazardous chemicals, toxic,
highly toxic, most highly toxic, even more highly toxic --
          MR. SHARP:  Right.
          MS. HUTCHISON:  -- and probable or possible or
potential.
          MR. SHARP:  Well, you know, I think we ought to at
least get a status report on where they are.
          MR. NICHOLS:  I think what we ought to deal with is --
          MS. HUTCHISON:  We addressed this in the preamble to
the interim final rule.
          MR. NICHOLS:  What we need to deal with is what we've
got in front of us.  MSHA has a rule here that can still be
adjusted.  We think it's a good rule.  We think it's simple,
straightforward.  We don't think it's overly burdensome to the
industry just for the simple fact that miners do have the right
to know about a chemical hazard that they may be exposed to.
          MR. SHARP:  We don't dispute that.
          MR. NICHOLS:  It's not that you have to go out and
reinvent the wheel either.
          MR. SHARP:  We don't dispute that principle either.
          MR. NICHOLS:  What?
          MR. SHARP:  We don't dispute that principle either.
          MR. NICHOLS:  Okay.  Maybe we're going to get somewhere
here.
          MR. SHARP:  That's right.  That's why we've got to get
this work group sitting around a table and talking.  There's a
lot of common basis for consensus now.
          MR. NICHOLS:  Jim, I don't disagree with any of that,
but what you're saying to us is that our 25 years of inspecting
these small sand and gravel quarries leave us with no idea what's
out there.
          I don't think that there's any mystery as to what's on
these mine properties that some group of small mine operators are
going to come in and tell us about.  I mean, we've named a dozen,
and I'll bet you the list don't go much farther than that.
          MR. SHARP:  Well, you know, I guess if I were doing
this rule I would have found that out for myself.
          MR. NICHOLS:  I think we have.  I think we --
          MR. SHARP:  Well, where is that evidence, and why
hasn't it been put into the record then and shared with us?
          MR. NICHOLS:  I think our evidence is just what I said;
that we've been inspecting these places twice a year for 25
years, and --
          MR. SHARP:  And you did an inventory of their hazardous
chemicals?
          MR. NICHOLS:  Well, you do a mental inventory of the
whole place.  You've got a few dump trucks.  You've got a few
crushers.  You've got a shop.  You've got a few labs here strung
around here.
          MR. SANDBROOK:  Would you know the citation rates on
the issuance of 56 or 57.16004, 20011 or 20012?  The citation
rates?
          MR. NICHOLS:  Can you say that again?  I was --
          MR. SANDBROOK:  The citation rates, okay, issued across
the country for say just the past even five to six years or
longer to 12 years of the Part 56 --
          MS. HUTCHISON:  The labeling requirements?
          MR. SANDBROOK:  The labeling of the containers of
hazardous materials, barricades and warning signs and labeling of
toxic materials relevant to this.  Do we have those citation
rates to see is there a problem out there?
          MR. NICHOLS:  It's pretty easy to retrieve it.  I don't
know if it's in the record or not.
          MR. SHARP:  Marvin, I hear what you're saying.  You
have a point of view, and obviously we spent 18 pages giving you
our point of view.  That was a point of view that was a rush that
we never really had a chance to poll our small people, and that's
what we would like to have the opportunity to do in order for
this to be the kind of thoughtful rule making we know MSHA wants
to promulgate here and that we want you to promulgate.  It's in
our best interest, too.
          You know, we have a lot more in common here than you
think, but this rule is not -- I'm telling you it's another Part
48 safety training.  It does not work.  I'm convinced of it based
on what I'm reading.  There's too much paper, for instance.  It
does not work.
          Now, please, let's not have another 20 year or 22 year
mess like we had with Part 48.  All we have to do is sit around
and talk and work this thing through.
          MS. HUTCHISON:  If our rule mirrored OSHA, how would
that help?
          MR. SHARP:  It would help.
          MS. HUTCHISON:  How?
          MR. SHARP:  Because these people like Steve wouldn't
have to do anything except extend the OSHA HCS to his mining
operation, which he may have already done.
          MR. NICHOLS:  That's all he has to do with this rule.
          MR. SHARP:  That would help.  That would help, Cherie. 
I'm not telling you that that's the end of it because you're
asking me to speak for people that I haven't had a chance to get
their message from, the small operator, because you haven't given
me the time to do that.
          MR. TEASTER:  Steve, some of regulations you
referenced, 56.20011, for example, which requires posting or
barricading off the area where you have a hazardous material and
you'd have to put a sign up posting that and also notifying them
of any personal protective equipment.  Do you have a lot of those
signs posted on your mine property today that you're familiar
with?
          MR. SANDBROOK:  Not in this industry, but when I was in
the cement industry, yes, and the thing with the asbestos, which
was --
          MR. TEASTER:  You know, we say this takes care of a lot
of stuff.  If we go to a quarry today and apply the rule as we
proposed having an interim final rule, how many of those areas
today would be identified with this warning or be barricaded off?
          I mean, I'm just referring to going to the mine site. 
I have not seen a lot of those posted on the mine sites.  I think
if you go back to this chemical here, there's at least some
areas.  The number we don't know exactly.  There's talk about
six, 12 or whatever, but I've never been on a mine site where
I've seen anything close to that many areas being dangered off as
being hazardous material and specifies what personal protective
equipment.
          MR. SANDBROOK:  Again, in my industry, in the sand and
gravel and crushed and broken stone, you're right.  You're not
going to find much of that.  It's fairly inert.
          If you start going to a lime plant or maybe a cement
plant where they're dealing with CKD, then you may have another
issue because of the high chrome levels.
          MR. TEASTER:  I recognize there are going to be
different, --
          MR. SANDBROOK:  Right.
          MR. TEASTER:  -- you know, chemicals at the mine.  For
example, if you go to a processing plant or to a gold operation
it will be much different than going to --
          MR. SANDBROOK:  That's right.
          MR. TEASTER:  Thank you.
          MR. SANDBROOK:  So it's not just the crushed.  I mean,
we're talking the whole mining community itself.
          MR. NICHOLS:  Jim, I don't get your point about all
this confusion between OSHA's rule and what we're doing here.  If
you have an OSHA HazCom program, you ought to be in compliance
with MSHA with the exception of maybe where they burn this
hazardous waste, and that's only at cement plants so I don't see
that it's going to confuse the whole industry.
          MR. SHARP:  If you want me to do a detailed comparison
of these two rules, you must give me the time to do it.  I had
thought to do that.  I simply had no time.  I mean, I thought to
do it for the hearing, for the submittal of comments on the 17th. 
I had no time to do it.
          MS. HUTCHISON:  If you had one, would it be helpful?
          MR. SHARP:  If what?
          MS. HUTCHISON:  If you had one --
          MR. SHARP:  Yes, because I'm sure you've already done
it.  Yes, it would be helpful, but I can tell you that we would
have objection to the written program requirement under HazCom,
OSHA HazCom, based upon experience.
          It is a three or four page document that ends up in a
file that nobody ever refers to.  Never refers to.  We would have
trouble with that paperwork burden as we would classify it simply
because we do not see that it brings anything to the table in
terms of improving safety and health, and it does give you a
wonderful opportunity to cite us, as OSHA took ready advantage of
in its HCS, as you well know.
          Secondly, OSHA's HCS -- the difference between the
general industry, and there are numerous difference between the
general industry and the mining industry, but one of them is in
the requirement for training we have had that requirement on the
industry from day one, most appropriate, and we agree with it. 
We have it to this day.  We would want to have some kind of a
change from the OSHA training requirement because we already are
under a separate training requirement.
          Now, maybe there needs to be some tweaking there.  You
say you think it's essential to emphasize chemicals in safety
training.  My initial reaction to that is I doubt really whether
you need to do that.  You have it covered under new miner
training.  You have it covered under newly hired experienced
miner training.  You have it covered under refresher training. 
You have it covered under task training.  It's all health and
safety issues, and that includes chemical.  I just don't see that
point.  That's a matter for discussion.  It's truly a matter for
discussion.
          The third issue is the labeling issue.  You've got
labeling requirements now.  We would wonder why you would need to
change the labeling requirements that you have now, but we would
like to hear your point of view, and I'd like you to hear the
point of view of small business, large business and labor, so
there's your areas that I think we can talk about.
          MR. FEEHAN:  So, Jim, you'd like us to mirror OSHA's
HCS exactly except you don't want to have a written program, and
you want to have different training?
          MR. SHARP:  And the labeling.
          MR. FEEHAN:  And the labeling.
          MR. SHARP:  And the labeling.
          MR. FEEHAN:  I'd say we're a lot closer to OSHA with
what we got than what you want to do.
          MR. SHARP:  Richard, you're hearing Jim Sharp talk. 
Jim Sharp has not heard from his small businesses.
          MS. HUTCHISON:  You haven't heard from any?
          MR. NICHOLS:  Did you hear from any of them when we
were back in the early stages working on this?
          MR. SHARP:  I wasn't around in the early stages.  I've
only been here since 1998.
          MR. NICHOLS:  What we tried to do with the rule is
develop a minimum rule that would give miners the opportunity to
know a chemical that they may be exposed to, and we've tried to
structure it in a way that can be fit into already existing
requirements in MSHA, like the training.
          It's going to take a little bit of work for all these
MSDSs to get together, write a program, and I said up front a
couple times that MSHA is going to be ready and willing to assist
in doing this, and it can be -- your training can be in your
training cycle during the year.  I just don't get the burden
argument, Jim.
          MR. SHARP:  Marvin, I don't know how I can state more
than I've spent the last hour stating it.
          MS. HUTCHISON:  Is it the burden --
          MR. SHARP:  What I have said to you is that I hear your
point of view.  You have heard our point of view as we expressed
it in the 18 page response.  You've heard it in the one we
submitted in 1999, but what I'm telling you is I want you to hear
from the little guy.
          I want you to hear from the same little guy you heard
from when you did Part 46.  I want you to have his perspective
because, Marvin, I'm sorry.  I really don't think you have it
because I don't even have it, and I'm closer to them than you
are.
          MR. NICHOLS:  Well, you've been to one of those places.
          MR. SHARP:  Of course I've been to them, but I haven't
been to them to say all right, let's talk about HazCom.  Let's do
an inventory.  Let's talk about a written program.  I haven't
done any of that.  I haven't had time.
          MR. NICHOLS:  Okay.  We've got your comments, and we'll
review --
          MR. SHARP:  One final statement.
          MR. NICHOLS:  Okay.  Please.
          MR. SHARP:  You're not the bad guy.  We're not the bad
guy.  Labor is not the bad guy.  We all have one thing in common
here.  We want to assure a safe and healthful workplace. 
Chemicals, many of them are hazardous.  There needs to be an
information and dissemination requirement out there for miners,
just as there is for general industry.
          We want to work with you and labor to craft such a
regulation, if you will, but I would rather call it an
alternative.  I can tell you that the mining industry cannot at
this juncture stomach your interim final rule in its current
form.
          MR. NICHOLS:  Okay.  Thanks.
          MR. SANDBROOK:  Thank you very much.
          MR. NICHOLS:  Has Michael Sprinker shown up yet?
          MR. SPRINKER:  Yes, I have.
          MR. NICHOLS:  Are you going to be available after
lunch, or do we need to go ahead?
          MR. SPRINKER:  I need to go to another meeting.  I
didn't realize that the Stone Association was going to have an
hour to speak.
          MR. NICHOLS:  We'll give you all the time you want.
          MR. SPRINKER:  I don't need more than about ten
minutes.
          MR. NICHOLS:  Have a seat.  You're just the kind of guy
we're looking for.
          MR. SPRINKER:  Thank you.  My name is Michael Sprinker. 
I'm the health and safety director of the International Chemical
Workers Union Council of the United Food and Commercial Workers
Union.  I'm a certified industrial hygienist.  I've been at my
job just about seven years there.
          Before that time, I had close to ten years as an OSHA
compliance officer in the Oregon state plan as an industrial
hygienist throughout all the years of the HazCom program, in
fact, and also spent a couple of years in the 
former Yugoslavia doing some research and such and talking to
companies and workers and so on on some of these very similar
areas.
          Anyway, we just have a few comments today.  Actually,
I'm very happy to hear that maybe we can expect some help getting
increased funding for MSHA to write new rules it sounds like from
industry since they're concerned you don't have enough staffing
time, so I do expect that in the next Congress, some help that
way.  I'll be sure to be calling on them to come up with their
words.
          One of the issues with Part 46, which I think since
that was the subject of extensive comments here, was that for a
long time miners in those industries were prevented by a rider in
Congress, which certainly didn't have the support of the Chemical
Workers Union, from getting training.  It was always so
interesting to see on some of those fatality reports people were
-- you know, those people had to be trained.
          Truthfully, I'm happy MSHA took time and got through
Part 46 quickly because who knows what the next Congress would
have done.  I expected that rider to go back on at some point.
          We do feel this rule was long overdue, too, for a lot
of reasons.  I mean, you had 12 years there between 
1981, January 20, 1981, and January 19, 1983, when basically you,
OSHA and so on were agencies that were not wanted, not supported
except very minimally when things would blow up by two
Administrations, two Administrations that didn't want to see you
change and so on, so we understand why this has taken a long
time, but we do believe it is overdue.
          I only hope for the sake of my members that this rule
will not be held up by hostile members of Congress, and I realize
this isn't so much an issue for MSHA, but I'd like to have this
on the record, as the OSHA ergonomic standard has been and as so
many other standards have been; for example, training for miners
in those "exempt" industries.
          We believe that any employer who cares in the least
about his or her employees should have no objection to the goals
of this rule and even to much of this rule.  In fact, we feel the
rule doesn't quite go far enough in some cases.
          Those who believe they shouldn't have to train
employees, maintain MSDSs, label containers properly, make MSDSs
available to miners and miners' representatives and health care
providers and not improperly employ trade secrecy don't deserve
the privilege, and you note I said privilege and not right, to
employ anybody for any purpose.  Those that don't want to deal
with health and safety, protect the health and safety of their
work force, truthfully we feel shouldn't be in business.
          Now for some comments about the rule.  Some of these
comments will mirror some of what the mine workers have said
earlier.  Some don't, and I'll make some things in a little bit
further detail by the 19th.  Certainly the requirement for a
HazCom program.
          We do feel that mine operators -- in fact, I doubt
there would be very many mine operators that do not have some
hazardous chemicals on site.  I've seen hazard communication
programs which met the requirements of OSHA which were one page
long, and we're not talking fine print either.  We're talking 14
point with a lot of white spaces there.
          In here a lot you have a lot of the comments about
known to be, when hazardous chemicals are known to be at the
mine, and we think those words are quite redundant and really
give a way for some employers who don't want to provide that to
say I didn't know that was there.  I didn't know that those ten
55 gallon drums of trichlorethylene were there.  I forgot all
about them.  No one told me.  In some cases, for example,
maintain the written program for as long as the hazardous
chemical is at the mine.  It doesn't mean known to be at the
mine.
          With the HazCom program contents, we believe there
should be some statement from the company as to who the heck is
in charge of the program.  That's one of the problems we see in a
number of sites where it appears nobody is in charge of anything
when it comes to health and safety or when it comes to
maintaining MSDSs and so on.  It doesn't necessarily have to have
a title of the position.
          Label containers.  We believe that the three month time
span for an employer to update a label may be a bit too long. 
Sometimes there might be reasons why it might take that long, but
we think that should be the real exception.
          With label contents or label alternatives, I'm not too
happy with the label alternatives.  If you were to have wording
in there which said that that information was as accessible as a
label on the container would be, then that might be more
acceptable to us.  I've just seen too many cases where label
alternatives were used as a way to keep information away from
employees.
          I've seen a lot of places where MSDSs are routinely
looked for.  The places where you find they're not looked through
is when they're in such a rambled order that you can't find
anything in those books, in those lists of MSDSs that employers
have.
          With the issue on temporary portable containers, I'm
very uncomfortable with this.  We certainly in general industry
have seen cases where it's very hard to insure that one person is
using that container all shift and that's it.
          I've seen cases where someone inadvertently pours the
wrong thing into a container.  Think of the situation where
someone has ammonium nitrate in a small container for some
reason.  They're just going to use it for a little while.  The
next day someone comes and says I've got to pour this solvent
into something.  Then what do you have happen?
          I think this could create some hazards, and a lot of
places I know of don't even -- they'd just as soon have if you've
got something you're going to put xylene in and maybe use it for
the shift or some other solvent, it's labeled as that.  For one
thing, you don't often want many things mixed anyway just for
quality purposes.  Again, with the three month requirements for
updating MSDSs, we believe that when the employer receives or the
operator receives a new MSDS it should go into the book.
          Also, even maintaining those MSDSs.  Products change a
lot over time.  Manufacturers are always changing or I shouldn't
say always, but often changing their products.  We've had
products that used to have, for example, silica in it.  Now they
don't have it.  All of a sudden the record that a person maybe
ever was exposed to something that had it, that Compound XYZ once
was 30 percent silica and now it's 30 percent talc, you know, or
some other compound or some much more amorphous compound.  That
information may be totally lost.  We like the OSHA language
better on this rule on maintaining MSDSs.
          We're happy to see the MSDS requirement for hazardous
waste.  We wish OSHA had that.  We think one is a long time
coming, and it's a particular problem in minds where, let's face
it, either things are burned or they're used for other purposes.
          I think, too, to a large degree there's going to be a
protection for the operator, too, because if someone is going to
send some, if you would, hazardous waste over and they've got to
provide an MSDS, are they as likely to be sending, you know, just
some junk that they've got piled up in the back, or are they
actually going to -- it's more likely you're going to end up with
something from a reputable company if they've got to provide an
MSDS.
          With HazCom training, here, too, we see and certainly
under OSHA if someone already has the HazCom training, they're
getting it through other means or whatever, it doesn't add a
great burden on.  If someone already has that training, there's
not a need to repeat it.
          The question I have, and maybe a little clarification
here, in the situation when training is needed you may be wanting
I think some language that says whenever a miner's duties or job
assignment changes.  Here it talks about work area.  That could
be interpreted maybe too many ways.
          One of the things I found dealing with a lot of small
businesses when I was with Oregon OSHA was that people actually
liked rules that explained things to them, that gave them the --
that they didn't have to do a whole lot of interpretation on. 
You'd get times where why doesn't it just say that?  You know,
work assignment?  Work area?  Why didn't you just say when job
assignment changes?
          The other thing, too, is I think training -- you don't
have anything in here which really talks about the need so much
for repeat training, which really comes about when an operator
becomes aware that a miner or other worker appears to be unaware
of the hazards, and that is, I think, an important point in there
unless you go to yearly training and so on.
          You may want to put in some words of explanation here
that look, if this is covered already under Part 46 training or
so, then, you know, as long as you're covering these elements you
don't have to go about and repeat it.  It already counts.
          MR. FEEHAN:  I think that's in there.
          MR. SPRINKER:  Okay.  I may have missed that in there. 
Good.
          47.52, HazCom Training Contents.  One of the things I'd
like to see under (h) where they talk about specific procedures,
work practices and so on that are at the mine something about how
-- some training on how those things are maintained or how the
employer is assuring that those are working properly.  A lot of
times people don't understand if you close a blast gate slightly
you make throw off the entire system, the entire dust collection
system for a number of operations, or certainly for the one
you're at.
          We agree, too, that providing labels and MSDSs for
customers shouldn't be on request.  It should just automatically
go out with things.  Truthfully, I think it's going to be it's
one less piece of paperwork for someone to have to get a request
from someone and then fill it.  You just put it on there and send
it out.  It's done with.
          The OSHA language there which says that, for example,
you only have to provide one every time when you have a change in
that MSDS rather than sending it out each time, although again a
lot of manufacturers, even small ones, have found it so much
easier just to send the darn thing out with each one.
          Let's see.  Under the hazardous chemical trade secrets,
we're somewhat -- Part 4(c) where it says they don't have to
disclose process or percentage of mixture information which is a
trade secret.  That can cause some problems.  For example, if you
look at sulfuric acid, there are different PPE requirements,
personal protective equipment requirements, for different
concentrations.  Some things just don't work well.
          It's also an issue, too, even for people installing
piping and other things.  If you don't know what mixture you've
got, what may last a long time with some concentrations may last
only months with other concentrations, could create a significant
problem.
          Disclosure in a medical emergency.  We hope by written,
and this may need some clarification probably in the rule.  What
about faxes and e-mails?  I mean, emergencies.  You don't have
time to send a letter.  You want to make it clear that, you know,
a valid request from someone shouldn't have to wait until they
get a letter from someone to fulfill it.
          I was somewhat confused on the request, too, for
non-emergency disclosure, and I think this may provide some
confusion to some folks, when they talk about what you need --
what the request needs to describe.  You list a number of
different things.  I wouldn't think that one would have to
address each and every one of the things if all you're wanting is
one particular area, but I think some wording clarification in
there could help.
          Other than that, that is pretty much all of our
comments.  While we in the Chemical Workers don't mind meeting
and such over rules and discussing rules and so on, let's face
it.  Labor is a small business, too, and we don't always have the
time to go to a lot of meetings.
          We don't feel that MSHA needs to remand the standard
back to look over it again.  Some of the things that were brought
up can clearly be dealt with even through interpretation or the
information be provided employers.
          Truthfully, too, there's always a lot of talk about the
burden on management.  At times there are burdens on management. 
That's true, but there's also the burden on miners and their
families who are hurt on the job, who come down with silicosis,
who maybe are dealing with multi national employers who don't see
the need to even monitor and, you know, won't provide information
to workers now when they request it.  You know, who pays the
burden for that?  Often times it's not even workers' comp.  Often
times it's maybe welfare, maybe unemployment, maybe private
charities and so on.
          I think one of the most wonderful things about the Mine
Act is that it does talk about that there is a -- truthfully,
that this country owes it to the people that are mining materials
to help them to survive each day so that they come home in as
good a shape as when they left home that morning to go to work or
before shift.
          Thank you.  If there are any questions, I'd be very
glad to answer any of them.
          MR. NICHOLS:  Are you going to leave anything with us?
          MR. SPRINKER:  I'll have to send that in to you.  I've
been on the road so much.  Too many fatalities to deal with,
unfortunately.
          MR. NICHOLS:  You can do that.  I think we've probably
captured all the comments.
          MR. SPRINKER:  Okay.
          MR. NICHOLS:  Does anybody have a question of Michael?
          Okay.  Thanks.
          MR. SPRINKER:  Great.  Thank you very much.  Again, I
apologize.  The weather in Cleveland was not conducive to air
travel too much this morning.
          MR. NICHOLS:  That's okay.
          MR. SPRINKER:  Thank you.
          MR. NICHOLS:  That's all the people we had signed up. 
Are there other people that would like to --
          Bruce?  Are you going to be here after lunch, or do you
want to do it now?
          MR. WATZMAN:  Well, If Michael said ten minutes, I'll
take five.
          MR. NICHOLS:  We may have some questions for you.
          MR. WATZMAN:  No, you won't have any questions of me.
          MR. NICHOLS:  Come on up.
          MR. SHARP:  I'd like to come back again.
          MR. WATZMAN:  Wait a minute.  If Jim is coming back
again, I want to be after him.  He makes me look moderate.
          Thanks, Marvin.  I'm Bruce Watzman with the National
Mining Association, and I just want to touch on two things very
briefly or three.
          First, we were part of an industry coalition that filed
comments with National Stone - National Aggregates and others. 
The comments on the substance of the rule are on the record, and
we'll let them stand as they do.
          My first comment is that we sit here on
December 14 approximately one month before a new Administration
takes office, and there's a certain irony in this hearing.  It
wasn't long after the current Assistant Secretary took office
that he talked about going out into the field, talking to the
people in the field, talking to the miners and the operators.  He
followed that trend up until this point.
          You held repeated hearings in the coal fields and the
hard rock mining fields.  You heard from the operators, you heard
from the miners, and you chose not to do it in this case.  I
think that's a disservice, and I really question why you've
chosen to conduct this hearing under such short notice, why you
felt it was necessary so you avoid challenges under the
Administrative Procedures Act.  Is this just merely punching a
ticket so that you avoid that issue in litigation?
          The second issue that I need to talk about is the
economic impact of this rule on the industry, and I have to
preface this by putting it in the context of all the rules that
have come out in recent times and those that will come out in the
not too distant future, we think.
          Several years ago you issued a diesel safety rule for
underground coal.  One of the things we did a year after that
rule came into place, because we believe that the agency
underestimates the cost of rules on the industry, is we conducted
a survey among our members to see what their actual experience
was in the costs that they had incurred under that rule as
contrasted to the costs that were reflected in your final
economic analysis documents.
          I will tell you that the costs incurred by six coal
companies exceeded the total cost projected in your rule.  Now,
these were not small companies.  I will tell you that.  They were
some of the largest coal companies operating in this country, but
they by no means reflected 100 percent of the costs incurred by
the industry.  They did not account for all of the diesel
equipment usage in underground coal.  I want to set that as an
example of how we've reviewed this rule.
          We find that in looking at the economic analysis that
there was a lack of factual basis for representations in the
preamble to accompany the rule.  The agency assumed, if my memory
serves me correct, that approximately 50 percent of mining
companies complied with this standard either by virtue of them
coming under state right to know laws where they operated or by
virtue of their parent companies coming under OSHA's hazardous
communication standard, yet we saw no basis for that.  We feel
that that grossly overstates the degree of compliance that exists
currently in the mining industry, but that doesn't mean that more
shouldn't be done by mining companies.  Clearly there should.
          To carry that forward, when you look at the annual
compliance costs that the agency assumes of $5.7 million annually
across the entire mining industry, that works out to $270 per
mining company.  Now, it's difficult to do anything for $270 in
this day and age.  If you look at the salaries that are paid in
the industry, two hours of a supervisor's time exceeds what you
estimate will be the costs incurred by mining companies.  We
think you have grossly underestimated the cost.
          Does this reach some magical number that will trigger
additional analysis?  No, it probably doesn't, but each one of
these regulatory proceedings that have come out, and they're all
important, are imposing more and more costs on the industry.
          Regrettably, we look at each of these with blinders on. 
We looked at noise.  We're looking at HazCom.  We look at diesel
particulate.  We look at respirable coal mine dust.  Are each of
these important?  Yes, but in the total sense they're imposing
dramatic and great costs both in terms of economic costs and time
burdens on those in the industry whose job it is to protect the
safety and health of miners.
          The previous witness was exactly right.  It's becoming
more and more difficult in the industry for the safety and health
professionals to determine where they should put their needs,
where they should commit company resources and time allocation
resources.
          Something is getting cheated, given the current array
of issues that safety and health professionals are facing, you
know, and that's something that we as an association, that our
members and the safety and health professionals struggle with
every day.  We don't adequately account for the total picture,
and that's something that we need to do as we proceed down the
road.
          It's a disservice to everybody.  It's a disservice to
the professionals that work in the safety and health field.  It's
a disservice to the miners, and it's a disservice to those who
spend a lot of time and hard effort in working on the proposals
that you put forward.  It just in our estimation does not fairly
and adequately reflect the costs we incur both in terms of
dollars spent and time requirements to comply with the rules, in
five minutes or less.
          Questions?  Stunned silence?  This is not like you,
Marvin, not to question me.
          MR. NICHOLS:  I don't think we're here to talk about
the totality of the regulatory process.  I still miss seeing the
extra burden for the simple informational standard that can be
incorporated into your current training.
          MR. WATZMAN:  You know, Marvin, I've sat in a lot of
public hearings with you, and, you know, you are a great guy. 
You sit up there, and you present this in a very innocuous way. 
This isn't that big a deal.  On paper it may not be, but for
those who actually implement these programs in the mines, which
you don't do and which I don't do, all I can do, as Jim does, is
convey to you the message that they relate to us.  All we are is
we are spokesmen for them.
          I take it on good faith when they say that this will
impose significant time requirements and economic burdens on the
company.  There are many companies who are going to be starting
from ground zero in putting these programs in place.
          During the limited reopening period, for example, we,
under National Mining -- I think it was National Mining at that
time.  It may have been National Coal.  I forget what the timing
was in relation to our merger.  We filed with the agency
information we had received from a mining company on the actual
cost they are experiencing to comply with a program.
          Now, they have a program by virtue of the fact that
their parent company comes under OSHA, so the parent company
extended it to all of their operating subsidiaries, so they're
operating under a program.  They're one of the ones that won't
incur additional cost, that have a program up and running, but
the costs were so dramatically different from a $270 annual cost,
if that's the average it costs the industry, that it belies
comprehensive.  It really does.  We're talking about ten to 20 to
30 times higher for a program that they have up and running
today.
          You know, this is a company that's a large company with
a lot of resources to commit out of with a real commitment to do
the right thing, yet, you know, they look at $270 and say we
wouldn't even begin to know what to do if we were limited to a
$270 a year expenditure to update our current program.
          MR. NICHOLS:  I'll bet you most of your members already
have a HazCom program that are just going to have to spend some
small amount of time in the training they already do to cover
potential chemical hazards at the mine sites.
          Now, have you ever seen one of these rock quarries that
Jim and the guys are talking about?
          MR. WATZMAN:  There's one of those that's in close
proximity to where I live, so, yes, I've seen one of those.  Yes,
I have.
          MR. NICHOLS:  It's not real complicated, those shops. 
I don't know how many of these quarries will have labs.  I mean,
that's the other place that you'd need to probably deal with in
your HazCom program, but they were going to do the Part 46
training anyway.
          MR. WATZMAN:  Well, you know, I'll let Jim speak to
that because Jim represents that segment of the industry.  I
don't.  We were not participants in the discussion on Part 46
because by and large, and I won't say it's completely exclusive,
but, you know, very few, if any, of our members fall into that
category.
          You know who ours are.  Ours are the larger mining
companies in the country that produce gold and cooper and silver
and lead and coal, and they are large operations both in terms of
the magnitude of the mining operation itself and the support
facilities that are used at the mines, be they smelters or coal
preparation plants.
          I will tell you, Marvin, that you would be surprised
that some of the large companies are starting from square one in
putting a program in place.  They do not have hazard
communication programs in place.  They do not have -- in some
instances do not have operations in states where they are
required to do so currently.
          They do not fall under OSHA, and this is going to be 
-- they are going to be treading on new ground.  For those
companies, the costs are going to be dramatic.  They're going to
be dramatic.
          MR. NICHOLS:  Just to pull together the information and
incorporate it into the training program?  That's going to be
dramatic?
          MS. HUTCHISON:  They already have it.
          MR. WATZMAN:  They don't have it in their training
program in the manner in which this rule lays out.  Yes, they do
hazard training.  Yes, they do task training.  That's an ongoing
activity in every mining operation out there, but does it cover
every aspect of what's proposed and the manner in which this rule
lays it out?  Absolutely not.
          MS. HUTCHISON:  How long do you think it would take to
cover the information that they don't cover already?
          MR. WATZMAN:  I don't know the answer.  Should I give
you Jim Sharp's answer and tell you let's get out into the field
and meet with those companies and not hold a hearing in
Washington, D.C., on three days' notice?  You know, I don't know
the answer to that, and I apologize for being flippant, but I
don't.
          Jim is exactly right.  You know, holding a hearing here
on three days' notice and going out into the field is just wrong. 
It's just a disservice to those who need this information and who
you seek the information from.
          MR. NICHOLS:  Okay.  Once you get this thing developed
and get it implemented it's pretty static, right?  I mean, you
don't have a lot of changes in the process?
          MR. WATZMAN:  You may not have a lot of changes in the
process, but you're always looking around at new solvents.
          MR. NICHOLS:  Yes.
          MR. WATZMAN:  I mean, there's a multitude of those. 
Every vendor -- there are hundreds of vendors, and they always
want you to use their best and their latest and their greatest
and their favorite, and in the competitive nature of this mining
industry today if you can save a buck a gallon, you're going to
save a buck a gallon and make a change.
          MR. NICHOLS:  Okay, but once you do that then coming
with that new product or a different product comes the MSDS
sheet.
          MR. WATZMAN:  Uh-huh.
          MR. NICHOLS:  The fact is that the process doesn't
change to the point that you're going to be producing new
chemicals, that you'd have to go research and develop your own
MSDS sheets.  I mean, this is going to be a service that's
supplied.  You know, the supplier is going to --
          MR. WATZMAN:  Well, I would agree with you in most
instances, but there will be instances where you will have to go
out and do research and be preparing your own MSDS.  You know,
that's reflected in your rule.  That's one of the areas that
we're concerned about, you know, when you're talking about
tailing ponds or waste, just the rock, the waste, you know.
          We're going to have to now produce MSDSs for our
workers who have worked around those materials from day one when
they came into the mine.  They've been trained about it
continually, yet, you know, Jim Weeks talked about the nature and
that mine operators are now going to have to identify what's a
hazardous chemical, so there's going to be a cost that they're
going to have to incur in terms of going out and preparing that
information.
          MR. NICHOLS:  But in the tailing ponds, I mean, it's
just an aggregate of what you've used during the process.
          I mean, for the coal spill down in Kentucky we didn't
take very long to just --
          MR. WATZMAN:  What coal spill?
          MR. NICHOLS:  The sludge.  It took no time to put
together the analysis of that sludge.
          MR. WATZMAN:  I think some are still analyzing that
today.
          MR. NICHOLS:  Okay.
          MR. WATZMAN:  Thanks a lot.
          MR. NICHOLS:  Thank you.
          MR. WATZMAN:  Thank you.
          MR. NICHOLS:  Jim, you're going to have to wait until
after lunch.
          MR. SHARP:  If that's the case -- am I the only one?
          MR. NICHOLS:  How long are you going to be?
          MR. SHARP:  I'll waive my opportunity to speak if the
hearing is going to come to an end.
          MR. NICHOLS:  No, no.  We'll be here until 5:00.
          MR. SHARP:  Oh, okay.
          MR. NICHOLS:  But we need to have lunch sometime.
          MR. SHARP:  Okay.  I'll come back then.
          MR. NICHOLS:  Okay.  You'll be first on after we get
back.
          (Whereupon, the hearing in the above-entitled matter
was recessed, to reconvene this same day, Thursday, December 14,
2000.)
//
//
//.  A F T E R N O O N   S E S S I O N
          MR. NICHOLS:  Let's get started back.
          Now, Jim Sharp has waived his testimony.  Is that
right?
          MR. SHARP:  Right.
          MR. NICHOLS:  Okay.  Is there anyone else that would
like to have any comments or further comments?
          If not, some of us will be here until 5:00.  We'll go
back on the record from time to time.  If anybody comes in we'll
take their testimony and close up at 5:00.
          Any of the MSHA folks that want to or need to go back,
why that will be fine.
          (Whereupon, a recess was taken.)
          MR. NICHOLS:  It's 5:00 on December 14.  We haven't had
anyone testify since before lunch and so we're going to close the
hearing.
          (Whereupon, at 5:00 p.m. the hearing in the
above-entitled matter was concluded.)
//
//
//
//
//
//
//   REPORTER'S CERTIFICATE

DOCKET NO.:    --
CASE TITLE:    Mine Safety Health Administration
          Public Hearing
HEARING DATE:  December 14, 2000
LOCATION: Washington, D.C.

     I hereby certify that the proceedings and evidence are
contained fully and accurately on the tapes and notes reported by
me at the hearing in the above case before the
Mine Safety Health Administration.

               Date:  December 14, 2000

                   Beth Roots             
               Official Reporter
               Heritage Reporting Corporation
               Suite 600
               1220 L Street, N. W.
               Washington, D. C.  20005-4018