UNITED STATES OF AMERICA
           
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                            DEPARTMENT OF LABOR
           
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                   MINE SAFETY AND HEALTH ADMINISTRATION
           
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                            PUBLIC HEARING RE:
                INTERIM FINAL RULE FOR HAZARD COMMUNICATION
                          IN THE MINING INDUSTRY 
           
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                         THURSDAY, OCTOBER 4, 2001
           
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                 The Public Hearing was held  at the Radisson
           Hotel, Heritage Room II, 808 20th Street, South
           Birmingham, Alabama, at 9:08 a.m. Marvin Nichols,
           Moderator, presiding.
           
           PANELISTS:
           
                 MARVIN NICHOLS, Administrator for 
                     Coal Mine Safety and Health
                 ROBERT A. THAXTON, Coal Mile Safety and Health 
                       Group
                 RICHARD FEEHAN, Education Policy and Development
                       Group
                 LARRY REYNOLDS, Solicitor's Office
                 ROBERT STONE, Office of Standards, Regulations
                       and Variances
                 
                                            I-N-D-E-X
           
           Mork Klinepeter, Safety Director,. . . . . . . . .21
                 Aggregiates Group of 
                 Florida
                 Rock Industries, Incorporated
           
           Ron Millican, Safety and Training. . . . . . . . .21
                 Coordinator, Aggregiates Group of
                 Florida Rock Industries, Incorporated
           
           Kelly Bailey, Manager of Occupational. . . . . . .64
                 Health for Construction Materials
                 Group Operations,
                 Vulcan Materials Company
           
                                      P-R-O-C-E-E-D-I-N-G-S
                                                    (9:08 a.m.)
                       MODERATOR NICHOLS:  Good morning, I'm
           Marvin Nichols.  I'm the Administrator for Coal Mine
           Safety and Health.  Welcome to MSHA's public hearing
           on our interim final rule for hazard communication.
                       Before we -- before we start the hearing,
           I would like to observe a moment of silence for those
           13 heroic miners that lost their lives last week at
           Jim Walters Number 5 Mine.
                       (A moment of silence observed.)
                       MODERATOR NICHOLS:  Thank you very much.
                       Let me introduce the panel, then I have a
           fairly lengthy opening statement to read into the
           record, so bear with me.  Down at the end is Bob
           Thaxton.  Bob is with the Coal Mine Safety and Health
           Group in Arlington, Virginia.  Richard Feehan, Richard
           is with the Educational Policy and Development Group
           in Arlington headquarters.  Larry Reynolds with the
           Solicitor's Office, to my left here, in headquarters. 
           And Robert Stone with the Office of Standards,
           Regulations and Variances in our headquarters office.
                       Today we're here to listen to your
           comments on the hazard communication interim final
           rule which we published on October the 3rd last year. 
           We're holding this hearing in accordance with Section
           101 of the Federal Mine Safety and Health Act of 1977. 
           As is our practice, we will conduct the hearing in an
           informal manner and during the proceeding panel
           members may ask questions of the presenter.
                       Although formal rules of evidence will not
           apply, we will be taking a verbatim transcript of the
           hearing and will make it part of the official
           rulemaking record.  The hearing transcript will be
           available for review by the public, along with all
           comments and data that MSHA has received to date.  The
           entire rulemaking record, of course, is available at
           our office in Arlington, Virginia.  If you wish a
           personal copy of the hearing transcript, you need to
           make your own arrangements with our court reporter.
                       Now let me briefly give you some
           background on the interim final rule and highlight
           some of its major provisions.  Following that, I will
           share with you our reaction to some of the comments
           we've received thus far.
                       Background.  On November the 2nd, 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 and propose it for
           the mining industry.  They based their petition on the
           need for miners to be better informed about chemical
           hazards and that miners working at both surface and
           underground coal and metal and nonmetal mines are
           exposed to a variety of hazardous chemicals.
                       On March the 30th, 1988, in response to
           this petition, MSHA published an advanced notice of
           proposed rulemaking on hazard communications for the
           mining industry.  In this notice, we indicated that we
           would use the OSHA hazard communication standard as
           the basis for our standard and requested specific
           comments on a number of related issues.
                       We published a notice of proposed
           rulemaking on hazard communication on November the
           2nd, 1990 and held three public hearings in October of
           1991.  The record closed January the 31st, 1992.
                       In their comments on our advanced notice
           of proposed rulemaking and proposed rule, commenters
           represented both small and large mining companies,
           individual miners, a variety of trade associations,
           state mining associations, chemical and equipment
           manufacturers, national and local unions, members of
           Congress and federal agencies. 
                       We re-opened the rulemaking record on
           March 30, 1999, requesting comments on the impact of
           the proposed rule on:
                       1, the environment;
                       2, small mines;
                       3, state, local, and tribal governments,
           and 4, the health and safety of children.
                       The National Environmental Policy Act and
           more recent statutes and executive orders included
           requirements for us to evaluate the impact of a
           regulatory action in these areas.
                       At that time, we also requested comments
           on the information and collection and paperwork
           requirements of certain provisions of the proposal now
           considered as an information collection burden under
           the expanded definition of "information" under the
           Paperwork Reduction Act of 1995.
                       We received seven comments to the limited
           re-opening of the rulemaking record, primarily from
           trade associations and labor organizations.  The
           rulemaking record closed June 1, 1999.
                       On October 3, 2000, we published an
           interim final rule on hazard communication with an
           effective date of October 3, 2001.  We gave commenters
           until November 17, 2000, to submit comments.  The
           interim final rule specifically requested comments on:
                       1, the plain language format and the
           content of the interim final rule.
                       2, mine operators' experience under the
           Occupational Safety and Health Administration's Hazard
           Communication Standard.
                       3, any changes in the mining industry
           since the publication of the proposed rule.
                       On December 7, 2000, we personally spoke
           with or e-mailed all commenters and other interested
           persons telling them of our decision to hold a public
           hearing in Washington, DC on December 14, 2000.  The
           public notice of the hearing appeared in the Federal
           Register on December 11, 2000.
                       We received 22 written comments on the
           interim final rule and heard testimony from six
           persons at the public hearing on December 14, 2000.
                       Commenters objected to what they
           considered to be an inadequate comment period and an
           inadequate notice of the hearing.  These commenters
           stated that they did not have sufficient time to fully
           analyze the impact of the interim final rule which
           affected their ability to develop and submit
           meaningful comments.  They also stated that many
           operators were unable to testify at the hearing
           because they did not have enough time to prepare
           testimony and make plans to attend the hearing.
                       Members of the mining community have also
           stated that, because this is the first time MSHA
           promulgated an interim final rule, there is some
           confusion about their compliance obligations.  The
           National Mining Association and the National Stone,
           Sand and Gravel Association have asked for a delay in
           the effective date of the interim final rule until we
           respond to their previous comments on it.
                       A number of mine operators and trade
           associations challenged the hazard communication
           interim final rule in the U.S. Court of Appeals and
           the United Mine Workers of America and the United
           Steelworkers of America have intervened in the
           litigation. 
                       Now let me briefly highlight the six major
           provisions of the rule.
           1.  HAZARD DETERMINATION.
                       The hazard communication interim final
           rule requires mine operators to identify the chemicals
           at their mine and determine if they present a physical
           or health hazard to miners based on the chemical's
           label and material safety data sheet (MSDS) or on a
           review of the scientific evidence. 
                       Under the interim final rule, for the
           purposes of hazard communication, MSHA considers a
           chemical hazardous and subject to the hazard
           communication rule if it is listed in any one of the
           following four recognized authorities or sources:
                       1, Title 30 Code of Federal Regulations
           (30 CFR) chapter I.
                       2, the American Conference of Governmental
           Industrial Hygienists (ACGIH), the Threshold Limit
           Values (TLVs) and Biological Exposure Indices (latest
           edition).
                       3, the National Toxicology Program, the
           (NTP), Annual Report On Carcinogens, the latest
           edition.
                       4, International Agency for Research on
           Cancer (IARC) Monographs or Supplements.
           2.  THE HAZARD COMMUNICATION PROGRAM.
                       The hazard communication interim final
           rule requires mine operators to develop, implement and
           maintain a written plan to establish a hazard
           communication program.  The program must include:
                       1, procedures for implementing hazard
           communication through labeling, MSDSs, and training of
           miners;
                       2, a list of the hazardous chemicals known
           to be present at the mine;
                       3, a description of how mine operators
           will inform miners of the chemical hazards present in
           non-routine tasks and of chemicals in unlabeled pipes
           and containers.
                       If the mine has more than one operator, or
           has an independent contractor on-site, the hazard
           communication program also would have to describe how
           the mine operator will inform the other operators
           about the chemical hazards and protective measures
           needed.
           3.  CONTAINER LABELING.
                       A label is an immediate warning about a
           chemical's most serious hazards.  The hazard
           communication interim final rule requires mine
           operators to ensure that containers of hazardous
           chemicals are marked, tagged, or labeled with the
           identity of the hazardous chemical and appropriate
           hazard warnings.  The label must be in English and
           prominently displayed.
                       I would like to clarify one point about
           the labeling requirements.  Practically speaking, very
           little labeling is required.  You only have to label
           stationary process containers and temporary portable
           containers and then only under some circumstances.
                       Chemicals coming onto mine property are
           almost always labeled.  You should not have to re-
           label them unless the existing label becomes
           unreadable.
                       You would not have to label containers of
           raw material being mined or milled while they are on
           mine property.
                       You would not have to label mine products
           that go off mine property.  You would have to provide
           the labeling information to downstream users upon
           request.
           4.  MATERIAL SAFETY DATA SHEET.
                       A chemical's material safety data sheet
           (the MSDS) provides comprehensive technical and
           emergency information.  It is a reference document for
           mine operators, exposed miners, health professionals,
           and firefighters or other public safety workers.  The
           hazard communication interim final rule requires mine
           operators to have an MSDS for each hazardous chemical
           at the mine.
                       Mine operators should already have MSDSs
           provided by the supplier for those chemicals brought
           to the mine.  The MSDS must be accessible in the work
           area where the chemical is present or in a central
           location immediately accessible to miners in an
           emergency.
           5.  HAZCOM TRAINING.
                       The hazard communication interim final
           rule requires mine operators to establish a training
           program to ensure that miners understand the hazards
           of each chemical in their work area, the information
           on the MSDSs and labels, how to access this
           information when needed, and what measures they can
           take to protect themselves from harmful exposure.
                       Under the interim final rule, mine
           operators have the flexibility of combining the
           training requirements for hazard communication with
           the existing Part 46 and Part 48 training.  The
           interim final rule does not require mine operators to
           have an independent training program separate from
           Part 46 and Part 48 training. 
                       Many operators already cover some of the
           above information in their current training program. 
           If so, they DO NOT have to re-train miners about the
           same information.  We designed the hazard
           communication training requirements to be integrated
           into existing training programs for miners.
           6.  MAKING HAZCOM INFORMATION AVAILABLE.
                       The hazard communication interim final
           rule requires mine operators to provide miners, their
           designated representatives, MSHA, and NIOSH with
           access to materials that are part of the hazard
           communication program.  These include the program
           itself, the list of hazardous chemicals, labeling
           information, MSDSs, training materials, and any other
           material associated with the program.
                       Mine operators DO NOT have to provide
           copies of training materials purchased for use in
           training sessions, such as videos.
                       Also, mine operators DO NOT have to
           disclose the identity of a trade secret chemical
           except when there is a compelling medical or
           occupational health need.
           Comments
                       Now let me share with you our thoughts on
           some of the comments we've received on the interim
           final rule.
                       Commenters representing the aggregate
           industry argued strenuously that the hazard
           communication rule is unnecessary and that the
           aggregate industry should be exempt from the rule. 
                       The HazCom rule does not duplicate other
           MSHA standards as claimed by some commenters
           representing the aggregate industry.  It augments,
           supplements, and complements these existing standards.
                       The rule specifically deals with chemicals
           and chemical exposures.  Chemicals may be used in any
           mine, including those in the aggregate industry. 
           There have been hundreds of chemical burns in the
           aggregate industry.  Chemical burns can occur on any
           part of the body.  Skin burns may require multiple
           skin grafts and require repeated hospitalization.  Eye
           burns can be serious and result in permanent loss of
           eyesight.
                       We believe the burden on small mines is
           less than some commenters stated.  First, small mines
           typically use fewer chemicals than large mines, and in
           many cases, no new chemicals.
                       Second, small mines typically use
           chemicals in small quantities and for shorter periods
           of time, similar to household use.
                       Third, many of the chemicals used at small
           mines are not covered by the rule.  For example, soaps
           used for washing hands are cosmetics and are exempt. 
           A can of spray paint is a consumer product and is
           exempt when used in small quantities intermittently. 
           The length of exposure, as well as the amount, is
           really the determining factor -- a can of paint only
           lasts a short time.  Glue or adhesives, when used
           intermittently in small quantities, are exempt. 
           Again, the length of exposure, as well as the amount,
           is the determining factor in whether or not a consumer
           product is exempt.
                       We recognize, however, that not all mines
           are likely to use a wide range of chemicals.  Although
           we cannot exempt the aggregates industry from hazard
           communication, as we said, there are steps we can take
           to minimize the burden of the rule.  For example, we
           intend to make extensive Compliance Assistance Visits
           and conduct extensive outreach.
                       We also will be publishing a compliance
           guide to help operators and miners understand the
           application of the HazCom final rule.  We are
           developing a variety of compliance aids, such as model
           HazCom programs, a training video for mine operators
           about determining chemical hazards, and a training
           video for miners about chemical hazards and reading an
           MSDS.
                       A draft of the MSHA compliance guide has
           been on the MSHA web site for months.  If you refer to
           the compliance guide, many of these issues are
           explained.  If you have any questions in these areas,
           send them by e-mail to comments@MSHA.gov or to the
           Office of Standards at the address listed in the
           hearing notice.  We will use these questions to
           clarify your responsibilities and include additional
           or better examples in the compliance guide. 
                       In the same vein, mine operators may
           obtain help from organizations that have developed
           generic guides to meet OSHA's hazard communication
           standard because HazCom contains the same basic
           requirements.  We will provide links on our website to
           some organizations which have developed a variety of
           generic HazCom materials.
                       While it will remain the responsibility of
           each mine operator to develop and implement a HazCom
           program and to have MSDSs, to the extent possible, we
           will help you establish a hazard communication program
           if requested.  We have already taken other steps in
           revising our interim final rule to make it easier for
           mine operators to comply without reducing the
           protections offered by the rule.
                       We are considering the following
           substantive changes to the interim final rule in
           response to commenters' concerns.  We also are
           considering several non-substantive changes to clarify
           our intent and correct errors based on commenters
           perspectives and questions.
                       Under Hazard Determination, we may revise
           the reference to ACGIH, NTP, and IARC from those
           considered in determining if a chemical is a hazard
           and if the chemical is carcinogenic.  One option we
           are considering in determining whether a chemical is
           a hazard is to refer to the 2001 editions of the ACGIH
           TLV booklet, IARC, and NTP.  In determining whether a
           chemical is a carcinogen, we are considering referring
           only to the 2001 editions of NTP and IARC.
                       We had expected the use of the ACGIH, NTP,
           and IARC lists to reduce the burden on mine operators
           because mines use relatively few hazardous chemicals
           for which they would have to develop an MSDS and
           label.  Commenters objected to the use of these lists
           stating that the organizations which compile them
           offer no opportunity for public comment; they impose
           unknown future requirements by citing the latest
           edition; and they violate regulations governing
           incorporation-by-reference.  We are open to
           considering alternatives where the impact of the
           alternative would not reduce protection afforded
           miners by the interim final rule.
                       Concerning labels and MSDSs, commenters
           requested additional language to clarify that the
           designated responsible person mentioned on the labels
           and MSDSs can be the mine operator.  Accordingly, we
           are considering changing the provisions to read the
           name, address, and telephone number of the operator or
           a responsible person who can provide the information.
                       Concerning the availability of MSDSs,
           commenters asked that we increase compliance
           flexibility and recognize that MSDSs may be stored in
           a computer.  In response, we are considering modifying
           the requirement to have an MSDS available for each
           hazardous chemical before using it to one, requiring
           the operator to have an MSDS available for each
           hazardous chemical which they use.
                       MSHA is also considering accepting a
           listing of the OSHA PEL on an MSDS as an alternative
           to a listing of the MSHA PEL.  This would facilitate
           the use of widespread existing MSDSs and reduce costs
           by eliminating the need to develop additional MSDSs.
                       In response to comments concerning hazard
           communication training, we are considering changing
           the language from requiring the operator to train the
           miner whenever introducing a new hazardous chemical
           into the miners' work area, to requiring training when
           the operator introduces a new chemical hazard into the
           miners' work area. This change would clarify MSHAs
           intent that when a new chemical is introduced
           additional training is required only if the hazard
           changes.  This is the intent as discussed in the
           preamble to the interim final rule.
                       Also, in response to comments, we are
           considering revising the definition of health hazard. 
           The interim final rule defines health hazard to
           include chemicals that damage the nervous system
           including psychological or behavioral problems.  We
           are considering deleting the phrase psychological or
           behavioral problems.  We are also considering adding
           the criteria toxic or highly toxic to more closely
           conform the language to that in OSHA's Hazard
           Communication Standard.
                       The hazard communication interim final
           rule is an information and training standard that
           requires mine operators to know about the chemicals at
           their mines and to inform miners about 
                       1, the risks associated with exposure to
           hazardous chemicals.
                       2, the safety measures implemented at the
           mine to control exposures.
                       3, safe work practices.
                       The hazard communication interim final
           rule DOES NOT restrict chemical use, require controls,
           or set exposure limits.
                       We will publish our response to the
           written comments, including those comments received
           today at this hearing, in the preamble to the hazard
           communication final rule.  We will consider all
           comments contained in the rulemaking record, from the
           publication of the advanced notice of proposed
           rulemaking on March 30, 1988, through the close of the
           record on October 17, 2001, in the development of the
           final rule.
                       You may submit written comments to me
           during the hearing or send them to the address listed
           in the hearing notice.  We will also accept additional
           written comments and other appropriate data on this
           final rulemaking from any interested party, including
           those who do not present oral statements.  All
           comments and data submitted to MSHA, including that
           submitted to me today, will be included in the
           rulemaking record.  The record will remain open until
           October 17, 2001, for the submission of post-hearing
           comments.
                       Okay, we have an attendance sheet in the
           back where Cindy is.  Be sure and sign that.  If you
           want to speak, we have a speaker's sheet to be signed. 
           We are scheduled to go until five o'clock.  Unless we
           get a big inrush here, I don't think we'll be here
           that long, but why don't would get started.
                       Our first presenter is Mark Klinepeter
           with Florida Rock Industries.
                       MR. KLINEPETER:  Good morning.  My name is
           Mark Klinepeter and I'm a certified mine safety
           professional and safety director for the Aggregiates
           Group of Florida Rock Industries, Incorporated, which
           is based in Jacksonville, Florida.  Accompanying me
           today is Ron Millican who is our safety and training
           coordinator out of our Georgia Aggregiates Division.
                       I too would also like to express my
           condolences to the families, friends and coworkers of
           the hard working miners who recently lost their lives
           in the mine explosion here in Alabama.
                       Yesterday, I read with interest the
           testimonies that were provided at the public hearing
           in Beckley, West Virginia.  I was amazed and saddened
           to read of the purported illnesses and injuries that
           in many cases were caused by by prolonged contact with
           hazardous chemicals.
                       I found myself wondering where the value
           of safety existed in these organizations and in the
           regulatory agencies who choose a path of promulgating
           bureaucratic overkill instead of using the many
           enforcement tools currently at their disposal.  Values
           of safety need to become the values of the
           organization and the work force.  The safety
           professional needs to recognize that their job is to
           develop commitment from upper management, middle
           managers, the staff and individual workers. 
           Commitment is useless unless it turns into action.
                       Florida Rock has had a hazard
           communication program in place for their Aggregates
           operation since 1989.  Each mining location maintains
           an MSDS book readily available to all of its
           employees.  An alphabetical list of all hazardous
           substances is kept in front of the MSDS book showing
           the common name, the chemical name, the chemical
           abstract system number and percentage of
           concentration, along with quantity regularly on hand
           and the general location of the substance in the mine. 
           Miners do need and have the right to know -- have the
           right to be made aware of the presence of chemicals at
           the mine regardless of the frequency of use.  In
           addition, training is provided to the  miners on
           right-to-know MSDS sheets and hazardous substances via
           new-miner task and annual fresher training.  Location
           managers are responsible for making sure that
           containers of hazardous substances are properly
           labeled.
                       Finally, our safety staff is tasked to
           perform an annual audit at each location to ensure
           compliance with company policy.  Let me repeat,
           company policy, which is augmented, supplemented and
           complimented by existing MSHA regulations and right-
           to-know laws which are on the books in 43 states.
                       Can we make it work without government
           adding another layer of bureaucratic enforcement? 
           Just yesterday, I received a supervisor's report on an
           incident that occurred earlier in the morning.  A
           young employee of a distribution terminal in Florida
           had splashed a mixture of phosphoric acid and water
           into his face and eyes when he attempted to clean a
           haul truck with a pressure washer in preparation for
           painting.  The haul truck was recently transferred to
           this location from another site, so this was not a
           common practice utilized by the location or condoned
           by our safety trainer.  Fortunately the employee
           escaped injury due to the quick thinking of his fellow
           employees, who immediately pulled the MSDS and
           followed the recommended first aid procedures.
                       In the report, the supervisor noted that
           the employee was wearing safety glasses but had not
           thought of using a face shield together with those
           glasses.  Guess what the supervisor recommended to
           prevent reoccurance?  I'll give you a hint.  The
           standard -- or the enforceable standard can be found
           in CFR 30, Part 56.
                       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.
                       MSHA has also failed to distinguish those
           illnesses and injuries which would have been prevented
           if existing MSHA regulations such as Part 46 training,
           labeling or other 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.
                       In addition, it appears that MSHA is
           unable to provide accurate data on how many mines
           already have an effective HazCom program in place, not
           how many injuries or illnesses have actually been
           prevented by such programs alone.  In 1986 MSHA said
           a HazCom rule was unnecessary because it's existing
           regulations offered sufficient protection to miners on
           chemical safety and health.  Those same regulations
           remain in force in effect today.
                       So you ask where's the burden?  By your
           opening comments you are in fact setting a precedent
           for inconsistent enforcement.  For example, you state
           that a can of spray paint is a consumer product and is
           exempt when used in small quantities intermittently. 
           What will small quantities intermittently mean to an
           inspector from the Northeast District versus an
           inspector from the Southeast District?  Can we expect
           that the agency will allocate the training resources
           necessary for its inspectors to ensure consistent
           interpretations unlike the orientation that was
           afforded for Part 46 CAB inspections?  The catch
           phrase is small quantities, length of exposure and
           used intermittently is by design fraught with
           ambiguity.
                       Safety is the control of recognized
           hazards to obtain acceptable levels of risk.  It
           requires that we recognize hazards, understand their
           risk, control them and enforce safety solutions. 
           Safety is not only a moral obligation, but is part of
           the operations commitment to make a profit.  Accidents
           are expensive.  The preamble to the interim final rule
           has failed to quantify a controllable action that
           justifies the risk.  
                       Why do we need another standard to tell us
           what to do when there are laws that already do that? 
           MSHA can and should target its energies towards
           quantifying the real hazards which cause the greatest
           amount of risk.  You know what they are, but you
           choose to push your inspectors more and more towards
           the office file cabinet instead of having them observe
           unsafe work practices which directly leads to
           accidents and illnesses.  Make no mistake, this is an
           administrative standard that actually has very little
           to do with whether or not people are working safely. 
           It is redundant, unnecessary, a classic example of
           command and control management.  The surprise is that
           the agency still believes that situational leadership
           is something that you do to people instead of
           something that you do with people.
                       Total quality management is about changing
           thought processes.  Mr. Zurinsky (ph) has given
           industry a much needed perspective of measureable and
           specific targets.  Do we now really need a standard
           where a deviation in record keeping would be a
           violation of the law?  Is that a measureable result to
           achieve the Assistant Secretary's fatality and
           accident reduction targets?  If you believe that
           safety is first, I submit that you're wrong.  People
           are first.  Safety is a value.  If you walk by someone
           who is not wearing eye protection and handling a
           hazardous substance, you have just witnessed an
           incident.  Wouldn't it be a shame if you missed the
           opportunity to correct the unsafe act?  Put your
           resources where they will really have an impact.
                       You claim that the hazard communication
           interim final rule is an information and training
           standard.  I believe that OSHA's enforcement history
           demonstrates otherwise.  It is an overwhelming
           administrative burden and an easy target for paperwork
           violations.  Why should we believe that history won't
           repeat itself on the MSHA side of the fence?  It seems
           like this rule is just putting forth an opportunity to
           write dual citations perhaps for the same performance
           violation.
                       In closing, I would like to remind the
           audience that the Assistant Secretary of Labor for
           Mine Safety and Health said in his remarks to the
           annual meeting of the Kentucky Mining Institute on
           August 24th of this year, I quote, "On the health
           side, the side we often forget, we set specific
           performance goals as well.
                       Our objectives are" -- and I'm
           paraphrasing -- number 1, to reduce the percentage of
           respirable dust samples.  Number 2, to reduce the
           percentage of silica samples and number 3, to reduce
           the percentage of noise exposures, all at a five
           percent reduction per year.  It is curious that he
           does not set a target for reducing chemical exposures;
           however, we believe that these are targets that we can
           all embrace and measures for a quantifiable return on
           investment.
                       Thank you.
                       MODERATOR NICHOLS:  Thank you.  Under your
           current training program, do miners have the right to
           copies of the MSDS sheets?
                       MR. KLINEPETER:  Yes, they do.  We combine
           a system both using -- and more and more as technology
           allows us to, a system of using computers to store our
           MSDS information, along with bound notebooks that are
           available and readily accessable to all of our
           employees.
                       MODERATOR NICHOLS:  Anybody else got any
           questions?
                       MR. REYNOLDS:  I have one question.
                       MODERATOR NICHOLS:  Go ahead.
                       MR. REYNOLDS:  Mark, would your program
           comply with what we have in the standard here?  I mean
           is there anything you have to do to comply with the
           standard?  It sounds like you already do everything.
                       MR. KLINEPETER:  I do not believe that at
           the current time our program is probably 100 percent
           compliant.  I believe that's going to take additional
           research and time on my part, and Ron's part, to
           determine if we are in fact completely compliant.  I'd
           like to point out -- and I think it's very relevant to
           point out again what an inspector in one district says
           from another inspector in another district can be two
           different interpretations.  We saw that to be true
           under the CAB inspection program for Part 46.  So if
           it -- and we cover three different districts, Florida
           Rock Industries.  So we may well see an inspector who
           believes that we have an element missing in that
           program, whereas an inspector in another district says
           its very good.
                       MODERATOR NICHOLS:  Now how did you
           determine this is a health and safety standard rather
           than an information standard?
                       MR. KLINEPETER:  How did I determine?
                       MODERATOR NICHOLS:  Yeah.  I think you
           said you...
                       MR. KLINEPETER:  I believe I stated that
           MSHA claims that it's a health and safety standard.
                       MODERATOR NICHOLS:  I believe we claim
           it's an information standard.
                       MR. KLINEPETER:  We believe that it's an
           administrative standard.
                       MODERATOR NICHOLS:  Anybody else?
                       MR. FEEHAN:  I have a question.  I
           realize, Mark -- thank you, number one, for your
           comments.
                       MR. KLINEPETER:  Thank you.
                       MR. FEEHAN:  You had an accident
           yesterday.  You mentioned an employee who was -- could
           you tell us a little bit more about what was
           happening?  What was he using for the solution?  He
           was using some solvent to try to disolve--
                       MR. KLINEPETER:  Yes, he was using a
           mixture of -- let me refer back to my notes here very
           quickly.  A mixture of phosphoric acid and water
           utilizing a pressure washer to clean a haul truck. 
           This was a 20-year-old employee.
                       MR. FEEHAN:  He had been there 20 years?
                       MR. KLINEPETER:  Twenty years old.  Twenty
           years of age.  He had been with the company
           approximate two and a half years, two to two and a
           half years.  This is not a standard practice that we
           recommend.  Certainly using a pressure washer, as you
           can imagine, and mixing that type of solution is
           absolutely a recipe for disaster.  What happened was,
           they had transferred a haul-truck -- which normally
           they have not used a haul truck at that location
           previously.  This is a distribution terminal versus an
           actual mine site.  So they brought an old haul-truck
           in from another location and they had the idea they
           were going to clean the truck up and paint it.
                       MR. FEEHAN:  Who was that, the person --
           just the employee took it on himself to clean it up
           and paint it?
                       MR. KLINEPETER:  I can't -- I can't
           factually answer that without -- without additional
           investigation.  I just received this report yesterday
           afternoon.  But I would assume, to some degree, he was
           under the direction of his supervisor to clean that
           haul-truck and his supervisor, in all likihood, was
           probably not aware of the methodology that he set
           about to clean it.
                       MR. FEEHAN:  But you have phosphoric acid
           at the property to use as a solvent on this?
                       MR. KLINEPETER:  At that location, I would
           -- and again, I'm assuming, so I'm not speaking in
           factual tones.
                       MR. FEEHAN:  No, I'm -- I'm sorry to
           really kind of press you on it, because I realize --
                       MR. KLINEPETER:  I appreciate that.  I
           would assume that they probably had recently purchased
           it, if not that day, because running a haul-truck at
           that location is not a standard practice.
                       MR. FEEHAN:  I guess what I'm trying to
           figure out is why wasn't the employee trained in the
           hazards of the thing if your program is covering
           chemical hazards?  You know, if you feel that you have
           a program that's mainly in compliance?
                       MR. KLINEPETER:  I think the employee was,
           in fact, trained in the hazards of using chemicals. 
           If he was trained specifically in the hazard of that
           given chemical, I do not know again without
           investigating.  But we have a regular schedule of
           training via new-miner tasks and annual fresher
           training where we regularly teach our employees
           methods of interpreting MSDS sheets.  We also task our
           supervisors to train their employees on the chemicals
           that they use on their site.  That they had the
           wherewithal to know where to go to consult when the
           incident occurred and they knew how to read the MSDS
           and they knew the proper actions to take to avoid an
           incident becoming a serious injury.
                       MR. FEEHAN:  Let me ask you -- you and
           Ron.  There's a fairly -- there's a very common
           maintenance task of changing oil in equipment.  There
           are lots of haul-trucks and front end loaders and
           equipment that needs to have its oil changed.  Your
           mechanics do that work or your lub people do that
           work?
                       MR. KLINEPETER:  Both.
                       MR. FEEHAN:  Both.  Now the MSDSs for used
           oil indicate that there are studies that have shown
           carcinogenic  effects from used oil in the -- there
           have been animal studies showing a carcinogenic
           effect, that it can cause cancer, or there's a
           potential to cause cancer.  Is that something that you
           train your lub people on, or your mechanics on, the
           people who do that oil change?
                       MR. KLINEPETER:  In terms of handling the
           specific chemical, yes, we train our people on how to
           handle chemicals or lubricants in a safe -- in a safe
           manner.
                       MR. FEEHAN:  Are they warned about the --
           that's there's a potential?
                       MR. KLINEPETER:  That there's a -- I
           wouldn't go--
                       MR. FEEHAN:  A carcinogenic potential.
                       MR. KLINEPETER:  I wouldn't go as far as
           to say they are -- they are directly warned that
           there's a carcinogenci potential.  They are warned
           that there's always a risk associated with handling
           anything that contains a hazardous substance.
                       MR. MILLICAN:  If that risk is contained
           in the MSDS -- if it's identified in the MSDS, yes,
           they've been trained on that.  If it isn't identified
           and they don't have some outside source of information
           in regard to that, then they would not be trained on
           that particular issue.
                       MR. FEEHAN:  How do they go about -- how
           are your MSDSs reviewed?  Has someone actually
           reviewed the MSDS for oil -- for motor oil?
                       MR. KLINEPETER:  Yes.  We annually audit
           our MSDS files at each of our locations.  That is one
           of the functions that Ron is tasked with, being a
           direct safety contact for our Georgia aggegates
           operations.  We also have staff in Florida and
           Virginia and Maryland where we also operate.  So it is
           an annual -- it is an annual target.  It's part of our
           annual business plan and our annual operations to
           audit the materials that are on site and to ensure
           that we have a current MSDS sheet on file.
                       MR. MILLICAN:  All supervisors are also
           responsible for any new chemical that comes on the
           site for taking the MSDS and covering it with anyone
           who'll be using that particular chemical.
                       MODERATOR NICHOLS:  Would you know how
           many chemicals you've identified at one of your
           typical operations that may be hazardous to employees
           and require training?
                       MR. MILLICAN:  Under our particular plan
           now, I would say there are probably -- we have -- and
           I'm not sure they would be identified as hazardous
           under your standard today.  But using the OSHA
           standard, we probably have in excess of 200 different
           chemicals that are there in one amount or another.  We
           didn't try to determine whether it was a small amount
           or a large amount.  We just -- if it was a chemical
           and we thought that it could be hazardous to an
           employee -- if it was in a small spray can, then we
           put it in the MSDS book, put it on the list in the
           front and the index for employees to be able to
           reference if a need arose, and as well as cover that
           with the employees that were using that particular
           chemical.
                       MR. KLINEPETER:  Now our supervisors do
           understand through our training efforts that if we
           bring a new substance onto the mine site, we don't
           have an MSDS available for that substance, then we
           need to -- we need to obtain one.  Now I would tell
           you by and large we are very compliant with that
           training.  Are we 100 percent on target in each and
           every instance, probably not.
                       MODERATOR NICHOLS:  Do you have any idea
           that the fact that you're trying to train on
           everything that comes on mine property versus those
           that may be a true hazard to the employee in any way
           confuses your training?
                       MR. KLINEPETER:  No, I don't believe so. 
           I think we generally take the approach, number one,
           that our employees have a right to know what
           substances they are using and if they inherently have
           any hazardous qualities.  I think it's part of the
           safety culture that we try to maintain within our
           company.  And even if it is a can of WD40, for
           example, it has a warning label on the back, we want
           to ensure that we at least have the availability of
           all information possible.  And again, if we -- if we
           got ourselves twisted up in trying to determine
           intermittent uses or small quantities, then I think in
           a lot of cases we may not be doing a service to our
           employees in terms of letting them know exactly what
           they're using.
                       MODERATOR NICHOLS:  It sounds like this
           fellow yesterday didn't get it.
                       MR. KLINEPETER:  Well he may not have
           gotten it, but in his exuberance he wanted to complete
           a job that perhaps his supervisor asked him to do.  He
           didn't think his steps through.  He didn't stop and
           say what's the worst that could happen.
                       MODERATOR NICHOLS:  If I'm a miner, I'd
           rather be trained on a serious chemical and really
           focused on that rather than a can of WD40.  You know,
           if I'm trying to process 200 chemicals versus those --
           that number that's really hazardous.  I think that's
           better quality training.
                       MR. KLINEPETER:  Well if I'm a miner, I'd
           rather be trained on the safe use of that product.  I
           had rather know what personal protection equipment I
           should use when I'm using that product.
                       MR. MILLICAN:  You also assume that
           training and information will change the action of
           people.  That's not necessarily true.  Look at a
           cigarette pack and then look at the number of people
           in this room who smoke cigarettes.  So information is
           not necessarily going to change the action of people. 
           That's our responsibility through supervision.
                       MR. STONE:  You had indicated in your
           comments that you felt the -- that the interim file
           rule was unnecessary, that it was overkill and
           duplicative.  I wonder if you could expand a little
           bit about why you think -- what's in place that makes
           this rule unnecessary.
                       MR. KLINEPETER:  What is in place is a
           historical perspective that has been provided by OSHA
           in terms of the citations that are written year in and
           year out in their enforcement activities.  I don't
           remember the exact facts and figures, but regularly
           record keeping standards related to their HazCom
           standard is amongst their top 10 written violations
           year after year after year.  Now, I may sound somewhat
           cynical, but I have a hard time believing that MSHA's
           approach is going to be significantly different than
           what history has shown us through OSHA.
                       MODERATOR NICHOLS:  Do you have any idea
           how many chemically related injuries Florida Rock
           Company would experience in a year?
                       MR. KLINEPETER:  Yes, I do as a matter of
           fact.  I took the opportunity to print out -- we do
           keep track of all of our accident incident data, and
           I took the opportunity just for -- just to pick one. 
           All of the accident injuries that we've recorded
           during our fiscal 1998 business year, which our fiscal
           year coincides with the federal government, October 1. 
           In fiscal year 1998, we had a total of 309 reportable
           accident incidents and near misses, and out of that
           total we had three that could be directly related to
           exposure to hazardous substances.  
                       One was contact with dust.  As you can
           imagine, it resulted in an eye obstruction.  A second
           was contact with acid when a battery box exploded. 
           And the third was contact with Liquid Wrench while
           performing maintenance in the plant.  One employee
           accidently sprayed another employee in the face with
           Liquid Wrench.
                       MR. THAXTON:  I would like to ask you a
           question, Mark, to follow up on some comments that you
           made in relation to your training that you provide to
           your employees.  I'm a little confused by the way you
           said it.
                       MR. KLINEPETER:  Okay.
                       MR. THAXTON:  You have identified
           approximately 200 chemicals that are possibly present
           on your properties.  Do you actually train each of
           your miners on each of the chemicals or are you only
           training generically in groups or the hazards
           associated with chemicals since you're only covering
           it, it seems like, in your 48, part 46 annual training
           or new miner training or experienced miner training?
                       MR. KLINEPETER:  Would you like to answer
           that?
                       MR. MILLICAN:  Sure.
                       Each supervisor is responsible for
           covering the MSDSs on the chemicals that are used in
           his department.  So if he's not using those, or his
           men are not using those, then they're not trained on
           each of the 200, only the ones that are in use.  What
           you have to understand is, a number of the things that
           are on there, we've got on there, such as welding rods
           and different types of metals, in that they are
           changed with heat chemically and we've got them on
           there because of the metals and so forth that are in
           those particular units.  So it's not just chemicals
           like something you would pour out of a bottle.  We've
           tried to cover everything that we felt like could be
           hazardous to the employee.  If a guy is welding or
           cutting, he needs to understand what metals that are
           there and what hazards that they present and be able
           to protect himself from those.  So basically it's the
           supervisor's job.
                       Once a year, I cover this is in an annual
           refresher.  I address HazCom in an annual refresher
           from the standpoint of a general what is our policy,
           what each supervisor is supposed to be doing.  Each
           supervisor then covers this with his department and he
           on his safety monthly -- his weekly safety meetings
           then identifies the particular MSDSs that he's covered
           in that particular safety meeting.  So we cover those
           each year.
                       MR. THAXTON:  So you actually are doing
           like ongoing training?
                       MR. MILLICAN:  Yes.  Now obviously the
           majority of the chemicals that are on our site are on
           there year after year after year, but you have an
           influx of new people, so you have to continuously
           cover these things so that the new people will be
           oriented toward safety also.           
                       MR. THAXTON:  Since you bring up the new
           people, do your supervisors then cover the chemicals
           that these people would be associated with before they
           actually start to work?
                       MR. MILLICAN:  In new-miner training they
           are -- that subject is covered, yes.
                       MR. KLINEPETER:  Our supervisors are the
           primary delivery mechanism for new-miner training.
                       MR. THAXTON:  And you don't have any
           problem with your supervisors understanding enough to
           present the training that would be necessary to cover
           the hazards associated with the chemicals that are in
           use?
                       MR. KLINEPETER:  No, I do not, because as
           Ron mentioned, they are on an annual basis.  We
           reaffirm and teach on how to interpret an MSDS, and
           the supervisors are part of those classes, just as the
           general work force are as well.
                       MR. MILLICAN:  We conduct train-the-
           trainer programs within our company to train the
           supervisors on how to do the training and what
           subjects that we feel like are appropriate for them to
           train on.
                       MR. THAXTON:  So you actually don't have
           to bring outside people in?  You don't have to wait
           for somebody to come in on the property to present the
           training?  You're actually -- your supervisors are
           prepared -- if a new person's assigned to them today,
           they could go over the chemicals that they would be
           exposed to?
                       MR. KLINEPETER:  That is correct.  Again,
           this is all -- this is all internal company policy. 
           It's policy that was formulated by the foresight that
           number one, we had the obligation to protect our
           people, but secondly, is to maintain the company's
           profitability.  Florida Rock is a company that's a
           self-insured company, so accidents -- when accidents
           occur, you know, we all know accidents cost a lot of
           money.  They cost a lot of money in terms of medical
           bills and they cost a lot of money in terms of down
           time.  They cost a lot of money in terms of potential
           turnover, putting someone else in that place and then
           ramping them up to a high level of productivity.  So
           it benefits the company for us to do this type of
           training.  It benefits the company to eliminate all
           accidents and incidents related to chemical exposures
           because it takes money off the bottom line if we
           don't.
                       MR. THAXTON:  Thank you.
                       MR. REYNOLDS:  I have a couple of
           questions.  I'm curious, in your program, how do you
           label hazardous chemicals?  Do you have a system for
           labeling chemicals that you've identified as a hazard
           in the workplace?
                       MR. MILLICAN:  We simply label whatever --
           if we take it from whatever the chemical came in and
           put it in some other type of container, then we label
           that container and identify what the chemical is.  As
           far as to labeling a particular hazard of that
           chemical, that isn't being done at this particular
           moment.  We simply refer back to the MSDSs and the
           previous training for that information.
                       MR. REYNOLD:  Okay.
                       MR. MILLICAN:  But we identify the
           chemical, whatever the chemical is, on the container
           anywhere within the mine site.
                       MR. REYNOLDS:  The other question I have
           is, what kind of records do you keep of all the
           training you do now and how long do you keep the
           records?  Do you have any idea?
                       MR. MILLICAN:  We keep our records for
           five years.  We keep annual refresher training, we
           keep safety meeting training because safety meetings,
           as you well know, now can be used as a part of Part
           46.  So we're keeping them all for five years at this
           moment.
                       MR. REYNOLDS:  And for -- how long do you
           maintain your MSDSs?  Do you maintain them for 30
           years?
                       MR. MILLICAN:  We maintain at the site as
           long as the chemical is on site.  When a chemical is
           no longer used, then that is mailed to our corporate
           safety department where it's kept for 30 years.
                       MR. REYNOLDS:  How do you treat substances
           that you might have miners encounter during the course
           of mining, such as silica?  Are you treating them as
           a -- for example, do you have an MSDS for that?
                       MR. MILLICAN:  Yes.
                       MR. KLINEPETER:  Yes, we do.
                       MR. REYNOLDS:  Are there any unusual
           things that you encounter in the course of mining that
           are hazardous that are -- that you might think would
           be subject to the standard?
                       MR. KLINEPETER:  In terms of silica
           exposure?
                       MR. REYNOLDS:  Or something -- other --
           other things you might encounter during the mining
           process from the material that you're mining that you
           may think of that might be covered by the standard.
                       MR. MILLICAN:  Basically in -- and Georgia
           is the area where I do most of our work.  Basically in
           that area you're using diesel fuel, gasoline, various
           types of oils and solvents and that's basically all
           that you have, in addition to welding rods and those
           types of things.  And, of course, you've got battery
           acid.  There are a number of things when you begin to
           look at MSDSs that have some type of hazard.  Now it
           may be as simple as it causes redness to the eyes for
           15 minutes.  We don't want employees encumbered by
           that, so we cover that in our training process also
           with MSDS.  But there's not any unusual particular
           hazards.  As I was telling Bob this morning, there's
           not anything unusual this morning in the things that
           we use.  It's -- and we don't create anything other
           than by the crushing action we do create silica dust. 
           But we do -- we do constant monitoring -- I do
           constant monitoring of quantities of silica dust at
           all the locations.  Most of our locations today, and
           equipment, is completely covered.  It has air climate
           control in the control booths as well as at all of the
           equipment out there.  So very few people -- when I
           first came into the mining business in '76, you had a
           lot of people that were exposed because a lot of the
           equipment didn't have climate control systems.  You
           had control booths that didn't have climate control
           systems, and you had a lot of people that worked on
           the ground.  
                       Even our maintenance is being done at
           times when the plant is not running to avoid high
           exposures of silica dust.  So we've changed -- once we
           understood the danger of   silica dust, we've changed
           the way we do things in order to protect our miners
           better.
                       MR. REYOLDS:  I have a theoretical
           question.  If we didn't have to worry about Mark's
           concern with getting citations for somebody
           interpreting the standard in different ways, just from
           your role as Safety Director for Florida Rock, is
           there anything in this standard or the interim final
           rule that you would be required to do that you're not
           already doing?  I think you've exceeded the standard
           in everything we've talked about.
                       MR. MILLICAN:  The only thing I can think
           of is the labeling of the particular hazard out there. 
           The standard is more strict in regard to that.  But
           that's the only thing that I can see.
                       MR. KLINEPETER:  Well as I stated earlier,
           I think the greatest discomfort for me is interpreting
           some of the ambiguous phrases such as small quantities
           used intermittently and so on.  Again, that's a highly
           subjective terminology.  What one inspector sees very
           possibly can be extremely different from what another
           inspector interprets.
                       MR. REYNOLDS:  Just to focus on what Ron
           said as to the labeling, if I understand what you're
           doing now, you have your MSDS and you put a label on
           the substance all the way down to smaller containers?
                       MR. MILLICAN:  Yes.  Each container is
           labeled, but it's simply the name of the chemical --
           the common name of the chemical is what is on the
           label and there's nothing that identifies it as a fire
           hazard or toxic or anything like that.  That training
           is done in the orientation when the chemical is
           brought on site with the people that'll be using it.
                       MR. KLINEPETER:  And I would scarcely --
           and I would like to add, I would scarcely say that
           Florida Rock is highly unique in the regard that we
           have approached our own internal hazard
           communications.  I think you could go across the board
           of all the major producers in this industry and
           probably find an extremely high degree of internal
           compliance, if you will, with protecting workers from
           chemical exposures.  And I made the comment in a
           statement that we haven't really quantified.  I don't
           think the agency through their -- through the comments
           provided in the preamble have really gone out there
           and quantified how many folks really do have a problem
           and how many people really have a hazard -- or
           elements of an effective hazard communications program
           already in place.
                       MR. REYNOLDS:  Ron, if you had to guess,
           how difficult would it -- if I understood, you said
           there's probably six things that you would have to
           label.  How difficult would that be to expand the
           label that you're now using?
                       MR. MILLICAN:  The difficulty would not be
           in the -- in labeling things, the difficulty would be
           in maintaining the labeling in that atmosphere out
           there.  Because if you've got -- if you've got a
           container that has oil in it, you're going to get oil
           on the outside and things that stick on are not going
           to stay on.  So it would be easy for an inspector
           coming around who found something -- where a label had
           fallen off -- to write that because it wasn't labeled
           properly.  And so basically he's dealing with a
           paperwork type of thing and not a real hazard.  The
           hazard has been covered in an orientation with the
           MSDS and with the chemical at the mine.  The
           particular agent had been labeled at one time but it
           had fallen off because of oil and so forth or
           whatever, and being out in the rain and the wind and
           everything else out there, you're going to have those
           fall off.  So then you're going to have inspectors who
           see that as an opportunity to write a citation.
                       MR. FEEHAN:  Just a comment on that.  OSHA
           has that requirement at construction sites, which are
           also very similar kinds of environments.  They are
           open to the weather, they are subjected to oils.  I
           don't think their citations for labeling are what is
           really causing problems in the construction industry.
                       MR. MILLICAN:  That may be true, and maybe
           I'm a bit paranoid, but I have seen in -- with Part 46
           and with the CAVs as the different inspectors came
           around and was enforcing that, almost to a man, each
           one had a different idea of how that was to be done. 
           So it tells us how the training is being done by MSHA
           for their inspectors, to allow them to come out with
           such a diversity of understanding, and we can see this
           same horror story coming with HazCom.
                       MR. KLINEPETER:  Can I ask you a question?
                       MR. REYNOLDS:  Sure.
                       MR. KLINEPETER:  Okay.  Just to turn it
           around.  How would this standard -- or what process
           would this standard have to be revised once, you know,
           some of the initiatives concerning global
           harmonization and international symbols in terms of
           labeling will obviously -- you know, there's going to
           have to be something that changes, at least perhaps in
           the wording of the interim final standard once that's
           adopted, you know, in the worldwide market.  From your
           perspective, how is that going -- how is that going to
           change the regulation as it's now written?
                       MR. REYNOLDS:  I'll defer to Richard on
           that one.
                       MR. FEEHAN:  I don't know, but talking
           about, you know, global harmonization is -- I don't
           know when that'll be coming out.  I mean we're having
           enough trouble getting HazCom out.  I don't when --
           I'll be anxious to hear your testimony on the global
           harmonization standard when it comes along, Mark.
                       (Laughter.)
                       MR. KLINEPETER:  I thought it was a
           singing group.  I don't know.
                       (Laughter.)
                       MR. FEEHAN:  Are you done?  You had some
           more, Larry?
                       MR. REYNOLDS:  I did have one more
           question.  Could you break down how much you spend on
           your HazCom program?  Would you have any idea of what
           it costs you to set this all up and run it for a year?
                       MR. KLINEPETER:  No.  I wouldn't even
           venture to put a dollar figure on it at this time
           without really stepping back and doing some
           quantifiable analysis.  Obviously most of the cost --
           and I know there's a lot of discomfort amongst the
           industry and what the preamble has stated in terms of
           an annual cost.  But I think probably we're missing
           the real cost that's associated with the standard
           perhaps for those producers who have to put a lot of
           money up front to get a program under way and to
           initially obtain MSDSs and do the type of research
           that's necessary to put a -- to put inventory lists
           together and obtain the MSDSs and perhaps put extra
           efforts in terms of the training that they deploy to
           their miners.  I mean that's where the real cost is
           going to come from.  I think for us in terms of a
           routine annual expense, yeah, there's annual expenses
           associated with that, and I would venture to say that
           it far exceeds the number that's written into the
           preamble.  I mean, Ron's time, for example, in going
           out there and doing training, going out and auditing
           the files once a year, the technology that's necessary
           to put MSDSs on computers, for example, I mean $267 or
           87 -- I don't remember exactly what the figure is, but
           that's not going to go very far in terms of annual
           maintenance costs that are associated with maintaining
           this program.  Real dollar figures, I would have to
           work on that.  But I feel pretty confident that it
           would far exceed the number that's stated in the
           preamble.
                       MR. REYNOLDS:  Could you say how far?
                       MR. KLINEPETER:  I'd say substantially.
                       MR. REYNOLDS:  Substantially.  Could you
           put a number on that?
                       MR. KLINEPETER:  And I'll defer to Ron on
           putting a number on that.
                       MR. MILLICAN:  When you consider the
           amount of hours that are spent with this particular
           subject, with supervisors, even with office personnel,
           because we have -- in addition to the MSDS book and
           the list in front of that, we have this on all of the
           computers.  As the MSDS sheets come in, they have to
           re-enter that into the computer.  If something goes
           out, that has to come off.  The supervisor is covered
           in new-miner training.  We cover it in annual
           refresher training and it's covered individually in
           the department meetings.  When you take all the time
           of all of the people that are involved -- and that
           adds up -- you're talking about hundreds maybe of
           thousands of dollars in a year's time.  So there's a
           lot of money and it's hard to quantify it unless you
           do a study to -- specifically to figure out how much
           time is associated with that.  If you take a
           department with eight people and you spend 30 minutes
           talking about MSDS, you've got a supervisor and eight
           people, that's nine people times X number of dollars
           per hour for that period of time, and you do this
           repetitively    over the year, it gets expensive. 
                       MR. KLINEPETER:  My mail is full, day in
           and day out, of software products that are available
           out there in the market, everything from -- everything
           conceivable in terms of OSHA and MSHA training, along
           with what seems to be recently a lot of software
           programs of MSDS.  And if you look at that in terms of
           maybe a small producer trying to ramp themselves up to
           compliance, the easiest thing for me to do would be to
           go out there and purchase one of this software
           programs and just fill in the blanks.  Well I can tell
           you that the cost of that software program -- you
           know, if you're going to get yourself a program that
           does everything you need, it's going to cost you well
           in excess of $267.
                       MR. FEEHAN:  I have --
                       MR. STONE:  One question.  How many miners
           work in your...
                       MR. KLINEPETER:  Between 900 and 1,000.
                       MR. FEEHAN:  That's total employment for
           Florida Rock?
                       MR. KLINEPETER:  No, that's total
           employment for the Aggregates group of Florida Rock
           Industries.  We're currently spread out over five
           states, Florida, Georgia, Tennessee, Virginia and
           Maryland.
                       MR. FEEHAN:  How many of those states have
           state right-to-know laws?
                       MR. KLINEPETER:  Now I'm new to Tennessee. 
           We just acquired an operation in the Chattanooga area
           here within the last couple of weeks, so I'm not sure
           about the state of Tennessee at this point.  But I do
           believe that the remaining four states that we operate
           in do have right-to-know laws.
                       MR. FEEHAN:  Do you know how many of those
           apply to mining?  My understanding is that there's
           only six states that actually have --
                       MR. KLINEPETER:  Oh, really.
                       MR. FEEHAN:  -- state right-to-know laws
           that apply to mining, otherwise it's always in general
           industry and specifically excludes mining.  Do you
           know about Florida?  Does it exclude mining in state
           right-to-know?
                       MR. KLINEPETER:  No, it does not.
                       MR. FEEHAN:  It includes mining?
                       MR. KLINEPETER:  It includes mining.
                       MR. FEEHAN:  How about Georgia?
                       MR. MILLICAN:  No, Georgia does not. 
           Georgia does not have a HazCom rule.  But we have had
           Georgia -- what we decided years ago when we had to --
           when Florida adopted their HazCom rule, we decided --
           and we had to do it in Florida.  We decided that we
           would be consistent across the board.  If we were
           going to protect the employees in Florida, we needed
           to protect them in Georgia.  So we established the
           same type of policy for each location, each state.
                       MR. FEEHAN:  But does the state require --
           the state does not require it in Georgia?
                       MR. MILLICAN:  It does not require it.
                       MR. FEEHAN:  Okay, thank you.
                       MODERATOR NICHOLS:  I sense that a lot of
           your concern is consistent MSHA enforcement.  If those
           fears could be allayed in any way you would be a lot
           more comfortable with this rule I think, right?
                       MR. KLINEPETER:  No, I wouldn't say that's
           true.  I'd say that we have a pretty good program in
           place that is self-administered internally and that we
           really don't need, you know, the spector of additional
           government enforcement, you know, to make sure that
           we're doing the right things.  We can handle it just
           fine, thank you.
                       (Laughter.)
                       MODERATOR NICHOLS:  That translates into
           we've got something better than you're offering and we
           don't want to open ourself up for tickets.
                       MR. KLINEPETER:  Well it's -- from our
           perspective it's better, it's easier, it's more
           feasible for us to monitor and maintain our own
           internal program.  I believe we set a high standard
           for ourselves.  I believe our accident and incident
           history of Florida Rock Industries as a whole will
           bear that out.  We believe that we're the best -- that
           we are the best individuals internally to protect our
           miners.  We know -- you know, we know our job sites,
           we know our people, we know how to approach them.  A
           lot of operations, you know, as an aside and I'm --
           and I'm extremely proud to say, I came into the
           Aggregates group as safety director five years ago and
           I grew up in Florida Rock Industries through the
           finance department, which, you know, as you imagine is
           a little bit of a -- a little bit of a left-hand turn. 
           But one of the things I'm very proud -- proud to say
           is, I walked into an extremely well established
           program and hopefully we have maintained and enhanced
           that.
                       We're probably one of the few major
           producers around that still institutes our own annual
           refresher training.  Ron Millican goes out and does
           training himself four times a year.  Our policy is
           that we do annual refresher training quarterly in two-
           hour segments because we want to have a regular
           contact with our people.  We don't believe that doing
           an annual refresher class eight hours once a year is
           really going to achieve the objectives that we set out
           for maximum safety performance.  So we're very much in
           touch with our people.  I even go out and do annual
           refreshers because I sincerely enjoy doing it.  I
           enjoy making contact with the hourly work force.  So
           visibility is something and accessibility is something
           that we really, really emphasize through our safety
           programs and we don't think the government can tell us
           how to do it any better.
                       MR. MILLICAN:  To add to Mark's comments,
           we're in compliance, we're over and beyond compliance
           at this particular moment.  We protect our employees,
           so what do we need it for?
                       MR. STONE:  Well if I could respond, it
           sounds like you have a laudable program, an excellent
           program.  In fact, this rule may be unnecessary for
           you, but I wonder whether all the other operations,
           particularly many of the smaller operations have the
           same experience and commitment that you have had. 
           Some of these provisions may well be appropriate for
           operations that have not engaged in the HazCom
           training that you have done.
                       MR. MILLICAN:  When you separate your
           training requirements for different needs in the
           mining industry, 4846, maybe you should consider
           separating the HazCom so that the people that need
           this training get this training -- people who have
           shown that they need the training by the number of
           incidents get this type of training.  Maybe you need
           to look at it from that -- from that perspective.
                       MR. STONE:  Well I think the hope is that
           for an operation such as yours, if you are in full
           compliance or virtual compliance with the interim
           final or what becomes the final but is different, that
           your expenses would be negligible in relation to this
           additional rule for you.  But that wouldn't
           necessarily be the case for other operations which
           would probably incur more substantial cost and would
           also provide much greater benefit to the miners.
                       MR. MILLICAN:  I think that's an accurate
           statement as long as you make sure that when you send
           inspectors out that they're well trained and that they
           all interpret the standard the same way.
                       MR. STONE:  Okay, but that gets back to
           Marvin's point.
                       MR. KLINEPETER:  Well, I would like to
           suggest that you talk about your intention to put
           together extensive outreach efforts to assist
           essentially the small operator to become compliant
           with the standard.  Why not extend those outreach
           efforts to insist -- to assist the small operator to
           become compliant with the current standards that you
           already have on the books?  You made that attempt
           under Part 46, why not make that attempt under the
           applicable Part 56 standards instead of relying on a
           whole new set of standards and a whole new game plan
           in terms of outreach efforts?  I mean go with the
           program that you currently have in place.
                       MR. FEEHAN:  Well I can answer that to
           some extent anyway, Mark, and that is because the
           program -- we believe that the program we currently
           have and the regulations we currently have in place
           have voids in them.  They have gaps in them.  You
           know, for example, access to information that small
           operators, other operators, less -- you know, less
           feeling about their employees perhaps would not be
           willing to do.  There may actually be intimidation or,
           you know, indifference.
                       MR. KLINEPETER:  As I mentioned early in
           my comments, when I read the testimonies from Beckley
           and I saw case after case of stories that they related
           of miners and close friends who had contracted
           terminal illnesses and injuries as a result of these
           chemical exposures, the thought that came to my mind
           is somebody ought to be -- somebody being a federal
           agency, ought to be reminding those operators and
           those supervisors exactly what their responsibilities
           are under the Mine Act and what their liabilities are
           to adhere to the rules and regulations under the Mine
           Act.  In short order, help those operators build a
           safety culture.
                       MR. REYNOLDS:  Mark, I just have one more
           question.  During -- you mentioned secretary --
           Assistant Secretary Zurinsky's (ph) challenge to the
           industry to reduce various things by five percent. 
           What if he did challenge you to reduce your accidents
           and injuries associated with chemical hazards by five
           percent?  What would you -- what part of your program
           would you look to first to improve in order to do
           that?
                       MR. KLINEPETER:  What part of the program
           would I look to first?
                       MR. REYNOLDS:  Yes.
                       MR. KLINEPETER:  Well, as I stated
           earlier, we had -- we had three exposures out of 309
           accidents and illnesses.  What I would address first
           -- if I had to, what I would address first would be
           the miners' work habits.  How they're handling the
           materials and are they handling them in the safest
           possible manner.  As accident records will indicate,
           I think a large majority of those injuries could have
           been avoided if they had used proper protective
           equipment -- personal protective equipment.
                       MR. REYNOLDS:  So what I heard you saying
           is task training?
                       MR. KLINEPETER:  As an element of task
           training, yes.  But safe work habits would be -- would
           obviously be the thing.
                       MODERATOR NICHOLS:  Okay, thanks for your
           testimony.  
                       MR. KLINEPETER:  Thank you.
                       MODERATOR NICHOLS:  Is there anyone else
           in the audience that wants to present testimony right
           now?
                       (No response.) 
                       MODERATOR NICHOLS:  Okay, we'll go off the
           record.
                       (Whereupon, a recess was taken at 10:29
           a.m.)
                       MODERATOR NICHOLS:  This is Marvin Nichols
           and we're back on the record at eleven o'clock. 
           There's still no one available to present testimony,
           so we'll go off the record.  We'll be here until five
           o'clock.
                       (Whereupon, a recess was taken until
           twelve o'clock.)
                       MODERATOR NICHOLS:  This is Marvin
           Nichols.  It's twelve o'clock noon and there's no one
           available to give testimony.  We're going to break for
           lunch, from twelve o'clock noon until one o'clock.  At
           that time Bob Thaxton will be here until five o'clock
           to chair the hearing should someone show up to
           testify.  Bob is the Acting Health Division Chief with
           Coal Mine Safety and Health.
                       (Whereupon, a recess was taken at 12:00
           p.m., the public hearing to resume at 1:00 p.m.)
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
                                A-F-T-E-R-N-O-O-N  S-E-S-S-I-O-N
                       MR. THAXTON:  This is Bob Thaxton.  It's
           now one o'clock and still no additional persons have
           shown up to testify.  So we'll break again until two
           o'clock.
                       (Whereupon, a recess was taken until 2:08
           p.m.)
                       MR. THAXTON:  We're back on the record now
           and Mr. Kelly Bailey is our next speaker.
                       Mr. Bailey.
                       MR. BAILEY:  Good afternoon.  My name is
           Kelly Bailey, and I'm here today to offer testimony to
           MSHA on it's interim hazard communication rule.  I'm
           employed by Vulcan Materials Company as it's manager
           of occupational health for its Construction Materials
           Group operations.  I would like to state up front that
           Vulcan and the aggregates industry appreciates the
           decision by MSHA to re-open this rulemaking record and
           stay the rule until next June and possibly longer.
                       Vulcan Materials Company, based here in
           Birmingham is the nation's largest producer of
           construction aggregates, a leader in the production of
           other construction materials and a major manufacturer
           of chemicals.
                       Vulcan's chemicals group is composed of
           two businesses.  Vulcan Chemicals manufactures
           chlorine, caustic soda, hydrochloric acid, potassium
           chemicals and chlorinated organic chemicals.  Vulcan
           Performance Chemicals offers a unique blend of
           products with emphasis on pulp and paper and water
           management.  Vulcan is a S&P 500 company that is
           listed and traded on the New York Stock Exchange under
           the symbol VMC.  Vulcan has approximately 10,000
           employees nationwide.  
                       Vulcan's construction materials group
           operates 300 aggregate production and distribution
           facilities, 47 asphalt plants and 28 ready-mix
           concrete facilities.  These operations provide a
           diversified line of aggregates and other construction
           materials and related services to all parts of the
           construction industry in 21 states and the District of
           Columbia.  Last year Vulcan produced and shipped
           approximately 222 million tons of aggregates.
                       Vulcan's Construction Materials operations
           are second-to-none in the industry with respect to
           safety, health, environmental stewardship and
           community relations.  Vulcan's programs have set the
           standard for the industry in all of these areas. 
           Vulcan firmly believes that the future success in the
           aggregate industry will be increasingly dependent upon
           strong performance as a good corporate citizen.  Each
           of Vulcan's divisions has implemented programs
           designed to monitor conditions at company facilities,
           assure compliance with relevant laws and regulations
           and develop practices and procedures for the
           protection of the environmental resources.  
                       Now I am a chemist, human biologist and
           certified industrial hygienist by education, training
           and experience.  I began my career with Vulcan 22
           years ago as the industrial hygienist for our
           Chemicals Division.  In that position, I experienced
           first hand the efforts to meet the requirements of the
           OSHA hazard communication standard in the chemical
           manufacturing industry since I was charged with
           designing and implementing the Company's program at
           that time.
                       Communication of potential health hazards
           within the chemical industry, where many chemicals are
           used, produced as by-products and manufactured in
           large quantities is a necessary part of any
           comprehensive occupational health program.  Vulcan
           performed this training and communication for its
           workforce long before there was an OSHA or an OSHA
           HazCom standard.  Material Safety Data Sheets for our
           chemical products have been sent to our customers for
           over 30 years.  With the passage of the OSHA HazCom
           standard in 1983, the first MSDSs for our aggregate
           products were produced and made available to customers
           and our construction material facilities regulated by
           OSHA, such as ready-mix and asphalt.
                       OSHA's original standard was targeted at
           the chemical and petrochemical industries where the
           communication of chemical hazards to employees was
           indeed needed.  The reason it was needed was unlike
           MSHA, OSHA did not have any broad-scope regulations
           other than the general duty clause to address the
           potential health hazards presence.  In many ways,
           MSHA's existing regulations dealing with the
           communication of health hazards are more comprehensive
           than what OSHA had at that time and are most likely
           equally or more effective that what OSHA has now.
                       The OSHA HazCom standard was conceived
           with good intentions but it was designed and
           promulgated as one of the most burdensome, paper
           intensive and ineffective rules ever to be promulgated
           by the Department of Labor.  The use and value to our
           employees of the massive number of MSDSs collected in
           our chemical plants and maintained in volumes and
           volumes of three-ring binders is nil.  We have had
           very, very few employee requests for MSDSs in the past
           five years.  As an occupational health and safety
           professional, I am greatly disturbed and discouraged
           that MSHA would even consider duplicating OSHA's
           massive misuse of precious safety and health
           resources.
                       My comments today are from the perspective
           of an aggregate producer and not all mining.  In 1999,
           Vulcan acquired CalMat Company with approximately 90
           operations in California, Arizona and New Mexico.  In
           California, CalOSHA regulates mining under OSHA rules
           alongside the federal MSHA; therefore, the OSHA HazCom
           Standard was not only in effect at the numerous
           traditional OSHA-regulated facilities that we
           acquired, but also at our newly acquired mine sites. 
           In an evaluation of our HazCom compliance status in
           California and elsewhere across the nation, and the
           possibility that MSHA would promulgate its proposal. 
           Vulcan decided to outsource the compilation of MSDSs,
           maintenance of these files and MSDS access for
           employees.  The contractor for this effort was
           selected in late 1999 and the program was initiated
           across all Construction Material Group facilities
           nationwide last year.
                       To implement this program, an initial
           inventory of all liquids, gases, pastes, burn-use
           metals, insulation materials, et cetera was conducted
           at nearly 400 operations during the first half of last
           year.  The inventory listings were compiled by Vulcan
           employees or summer co-op students going through each
           facility writing down the product information from
           labels.  The lists of each facility were then sent to
           my department to identify product duplicates and to
           produce a comprehensive computerized spreadsheet that
           lists all the identified products used within the
           company by site.  There were nearly 16,000 products to
           sort through, of which approximately one-half were
           found to be duplicates.  It took one person one and a
           half months full time to compile the spreadsheet.  I
           should add here that the inventories compiled varied
           in quality and completeness, since this is the first
           time out for many folks.  So I am sure that these
           numbers are on the low side of reality.
                       Once the spreadsheet was completed, the
           company-wide product list was sent to our contractor
           for MSDS acquisition, comparison to the contractor's
           existing database, computerization, file maintenance
           and fulfilling employee MSDS requests.  Inventory
           items that could not be reconciled by the contractor
           based on the list that we sent are currently being
           reviewed at numerous facilities and a new inventory
           update is currently being obtained.  Thus far, we have
           spent nearly $120,000 just on contractor services. 
           These costs do not include the legwork of many, many
           Vulcan employees or the efforts expended in my
           corporate office.
                       There was also a program to roll out the
           program throughout the company to explain the system
           to employees.  We estimate that to maintain this
           program, the inventory database and provide access to
           MSDSs for our employees, that we're going to be
           spending $50,000 a year to do that, just to keep the
           MSDSs available to employees.
                       So how MSDS requests have we had since we
           implemented this $120,000 program?  172, of which 107
           occurred because several plants wanted to have MSDS
           paper copies of their inventory.  This program is a
           fax on demand program.  How many requests were
           initiated due to concern of exposure to the product
           being handled?  Less than five.  What is even more
           disturbing is that the MSDS inventory was probably out
           of date the day after the inventory was collected at
           the plant.  This is no way to spend the safety and
           health dollars -- no way.
                       Once an employee has the MSDS, it is
           practically useless because it is not written as an
           educational tool.  It was written primarily for
           product liability concerns and OSHA compliance, then
           as a communication tool to medical and industrial
           hygiene professionals.  It rarely accomplishes the
           objective of employee hazard communication. 
           Unfortunately, in the United States, approximately 13
           percent of the U.S. adult population are functionally
           illiterate.  In the mining population, this percentage
           is probably higher.  Even if we can get the MSDS to
           the miner, many will be incapable of reading it.  MSHA
           must accept that reality and adjust to it if they
           truly are interested in the objective of hazard
           communication for miners.
                       In my opinion, it is absolutely
           unforgivable for MSHA to not examine in detail its own
           database and identify where specific hazard
           communication efforts are needed.   The National
           Stone, Sand and Gravel Association has identified that
           nearly two-thirds of the chemical-related injuries
           dealt with lime dust in the eye, acid from batteries
           blowing up and fueling mishaps.  Not all chemicals
           should be treated equally with respect to hazard
           communication, but they all will be in the MSHA rule.
                       If you examine the typical aggregate
           quarry, there are basically five major chemical types
           that are brought onto the property in significant
           quantities that are handled frequently:  fuels and
           their exhausts, lubricating oils and greases, welding
           fumes, degreasing solvents and acid in batteries.  The
           other key health hazards deal with the minerals in the
           mine deposit and the noise created in processing.  Why
           doesn't the agency work with the industry and labor to
           develop high quality, premium training programs that
           address these key chemical products in the aggregate
           mining and mandate that the training be conducted? 
           The just passed Part 46 training rule which requires
           training on health aspects of tasks, is an ideal
           mechanism for this effort.  Why are we spending time
           chasing sheets of paper that many cannot read and if
           they could, wouldn't understand them anyhow?
                       It is essential that MSHA look at the
           experience of others and the results of its own Part
           46 training rule before placing the mining industry
           under the same monstrous rules that OSHA has had in
           place for over a decade.  Has the chemical injury
           experience at mining sites in California and Tennessee
           been dramatically improved when compared to the rest
           of the mining industry?  These two states have
           regulated mines under the OSHA HazCom regulation for
           years.  What has OSHA's experience been in
           manufacturing and in non-manufacturing industries
           before and after their rule was put in place?
                       When I look at what MSHA is proposing and
           then look at what we all want to accomplish -- a safer
           and healthier work environment for miners, I come away
           shaking my head at the continuous failure of the
           agency to examine the data that it requires mine
           operators to regularly submit.  Priorities for
           improving safety and health in mind exists in MSHA's
           own database.  Based on Vulcan's analysis of MSHA's
           database and with work done with MSHA and NIOSH and
           Vulcan, the most promising area for dramatic
           improvement in health and safety is controlling
           accidents during maintenance, construction and repair
           activities.  Nearly 40 to 60 percent of the industry's
           injuries occur during these tasks.  In the aggregate
           industry, approximately 40 percent of the fatalities
           occur during these same activities.  If MSHA wants to
           promulgate a rule that will make a difference, it
           needs to focus on this critical area and work with
           industry and labor to make it happen.  Paperwork rules
           only distract and tie the hands of folks who are
           trying to make a difference in reducing real hazards.
                       I wish to state that Vulcan has totally
           supported the numerous comments submitted by the
           National Stone, Sand and Gravel Association and its
           predecessor associations over the entire rulemaking
           period of this standard.  
                       Thank you for coming to Birmingham and
           allowing me the opportunity to testify on this very
           important concern.  I'll gladly answer any questions
           that I can.  And I have copies of this for you,
           without my ad-libbing.
                       MR. THAXTON:  Any questions?
                       (No response.)
                       MR. THAXTON:  One thing, Kelly, that I
           wanted to ask about and follow up on a little bit is
           where you said that you thought that MSHA should only
           address those areas where we think or our data shows
           that there is truly a problem, your example was the
           maintenance functions, construction, that type of
           work.
                       Are you looking at it only from the
           aggregate group in that light or were you looking at
           all mining?
                       MR. BAILEY:  I really don't have the
           information for all mining.  I believe most of those
           numbers are from the aggregate industry, that's the
           business that we're in.  If we ever get in the coal
           business, I'm leaving Vulcan.
                       (Laughter.)
                       MR. THAXTON:  I was just confused whether
           you were speaking just from the aggregate's stance or
           had you actually looked at the data overall and that
           held true for all industries, all mining industries. 
           And if not, then would you be agreeable then if MSHA
           was to look at something in that light, that we should
           look at it from all of mining, not just one segment?
                       MR. BAILEY:  I think that the data is
           there, I think the data to look at and analyze and
           there's been research on it with NIOSH -- you know,
           Richard Feehan has been involved with it, with Dick
           Seago, in how to look at the descriptions of the
           accidents that happen and see, you know, where they
           occur.  They occur when the plant is shut down, you're
           in repair, you're got tired people, you've got after
           hours, you've got things that happen that are not
           routine, that you have to fix.  A lot of it occurs on
           weekends, a lot of it occurs when safety and health
           people in the companies and safety and health
           inspectors at MSHA are not there -- you get injuries
           and you get fatalities.  And I would venture to say
           that if you looked at it from the other mining side of
           the business, that you would see similar things, but
           that's speculation on my part right now.  It's
           certainly true in the aggregate industry.
                       And you know that's really where we need
           to spend our time.  I know that the new Assistant
           Secretary for MSHA is very interested in reducing the
           injuries and fatalities in the mining sector and
           HazCom is not going to do that.  HazCom is going to
           slow it down.  We really need to focus on where we get
           the biggest bang for our bucks.  And I'll tell you,
           I've lived HazCom for all my professional career it
           seems like, and it consumes people, moving paper
           around and you've got the wrong paper in the wrong
           place or -- it's the largest cause of citations with
           OSHA.  You know OSHA facilities may get inspected once
           in a blue moon, they've got a lot of places to cover. 
           Mines get inspected at least twice a year, sometimes
           four, sometimes more and this kind of paper standard
           is going to create lots of citations because there's
           all kinds of places -- if you're trying as hard as you
           can try, you're going to miss an MSDS here and there,
           it's going to be in the wrong place, someone didn't
           put it in after a safety meeting, someone just bought
           something at K-mart -- that happens and you're going
           to get all kinds of contested citations and it's just
           going to bog down the whole system -- going to bog
           down the whole system.
                       MR. THAXTON:  To follow up on that then,
           if the agency was in a position to where the standard
           was put in place as a means of communicating to miners
           the hazards associated with chemicals but there was no
           specific requirement that if one MSDS sheet is
           missing, but 98 percent of the other MSDSs required
           for that site are present, that citations may not be
           issued, but time given for obtaining that information
           and getting it in the system rather than writing paper
           citations for that; is that more palatable to you?
                       MR. BAILEY:  Well, I mean anything can be
           better, but I still think we're relying on the wrong
           piece of paper -- the wrong thing.  We're saying that
           a piece of paper makes it all better.  The piece of
           paper doesn't get read -- the material safety data
           sheet is not read.  We have 42 volumes in a chemical
           plant and we have people who spend all day, you know,
           gathering MSDSs of this -- is this a new one, is that
           an old one -- it's a ridiculous waste of time.  This
           is an age of instant communication, we have labels, if
           we want to improve the situation, make the labels
           where they really mean something, legible, these are
           our first aid cases, this is what you do if you get
           this stuff in your eyes, on your skin, make it clear
           to where it's not all fine print and make it symbolic. 
           You know, make it where people who don't read English
           can understand it if you really, really want to talk
           about hazard communication.
                       If you want to talk about having a piece
           of paper that no one is going to read, no one
           understands, then we're not talking about hazard
           communication, we're talking about compliance with I
           don't know what.
                       MR. THAXTON:  So you would propose then
           that a good labeling of containers or chemicals would
           be a better way of handling hazard communication for
           the industry as opposed to MSDS tracking plus the
           training that would be required?
                       MR. BAILEY:  I think that the simpler you
           can make the communication to the employee, the
           better.  And MSDS is not that, it's not made for that,
           it is made to protect people from this litigious
           society that we're in -- that's what it's made for. 
           And then also OSHA compliance.  I mean that's what
           it's made for, it's not a communication took for
           employee education, it's really not, but it does, in
           the OSHA hazard communication standard, consume an
           unbelievable amount of time just keeping track of
           that.  You know, it's a huge waste of resources,
           particularly when you can say if you get it in your
           eye, no matter what it is, wash it out, flush it out. 
           I mean you look at 99.99 percent of the material
           safety data sheets that are there, it'll say that. 
           And basic first aid will tell you that.  If you get it
           on your skin, wash it off.  If you drink it, it's a
           little more complex, depending on what it is.
                       But you know, then we would look at how
           many times we're drinking toxic chemicals in the
           mining industry and we're going to build this entire
           standard to cover that.  You have to remember that
           these same people that are going to be charged with
           implementing this program and maintaining that program
           are the same people doing those safety inspections
           during the construction, maintenance and repair
           activities.  And these same people are training people
           to watch out for those hazards.  You take it away from
           there and here we have a part of activities going on
           in mining that's 40 percent of the fatalities -- 40
           percent of the fatalities, 40 to 60 percent of the
           injuries that are reported -- probably a lot more not
           reported.
                       Where are we shooting our gun -- where are
           we shooting our gun?  I just shake my head -- don't do
           this.
                       Now, are there chemical injuries?  I think
           that Jim Sharp of the NSSGA was -- did a great
           service, I think he did MSHA's job in a lot of ways. 
           You know, where are these things happening.  And you
           know, if we've got a problem with people not knowing
           how to jump a battery or charge a battery, you know,
           I would venture to say that we could get together as
           an industry, labor, government and the manufacturer
           and put together the best training program on that
           particular hazard that exists.  The problem is one
           doesn't really exist right now.  And then you have
           that -- you can make it a mandatory training, if you
           charge batteries at this plant, you've got to show
           this.
                       Lime in the eye, I was amazed -- lime in
           the eye -- lime dust in the eyes.  We have a few lime
           plants and we have -- in our chemical industry, we
           have a great training program on caustic in the eye
           which is even more dangerous, and a high quality
           program that really come home to the workers.  You
           won't find anybody walking around without goggles in
           a caustic plant.
                       Why don't we do that?  I mean here we have
           injuries of the eye which we have a standard that's
           supposed to protect that, but they don't appreciate it
           because we still have injuries of the eye.  So how do
           we make them appreciate it?  Well, we have a good
           quality training program on what lime in the eye does. 
           Not one out there.  That's what we could do together
           with industry, and watch that thing go down.
                       Now a lot of people say that's
           reactionary.  Well, so is the Mine Act, so was OSHA's
           Hazard Communication Standard; you know, so was the
           benzene standard.  I mean that's just the unfortunate
           way it is in life, is that we are reactionary,
           particularly in health and safety regulation, but to
           not react would be even worse, not being reactionary. 
           We should react to that because it says these are true
           hazards that are happening to folks and we say find
           the lime dust hazard MSDS in this two volume set of
           MSDSs and, you know, that's the one we want to focus
           on, along with the white out and whatever that is
           there.  It's not helping the industry, not helping the
           miner, it's really hurting the miner.
                       I mean I can see if this thing that
           happened on October 3, even after spending $120,000
           and spending $50,000 more and having armies out there
           gathering these things, we would not be ready to be
           100 percent compliant, and I don't think anybody ever
           will.  And the amount of energy to spend to try is
           such a waste -- such a waste.
                       You know, I've been trying to find, and
           I'm going to make it myself, a health hazard training
           program on welding fumes.  There's all kinds of
           programs on safety in welding but there's not on
           welding fumes and toxicity of manganese fumes, of
           nickel and chromium.  Why doesn't industry, labor,
           government, the American Welding Society come
           together, make a high quality, first rate, premium
           program that we can mandate that welders, you've got
           to show this, Part 46, Part 48 -- talk about a
           benefit, talk about focused, you know, hazard
           communication, effective.  I mean it's in the morass
           of all this other MSDS stuff now and it's one of the
           key health hazards in mining, is welding, because it
           takes place during construction, maintenance and
           repair.
                       You know, I just see a misuse of
           resources, a huge misuse of resources.  If MSHA does
           it and promulgates it, you know, we'll comply with it,
           but the record is going to suffer and that's not what
           we're after.  We're after protecting the safety and
           health of miners.  And you know, having a bunch of
           paper that they can't read and understand is not going
           to do that -- it's not going to do that.  Having high
           quality programs that directly focus on the injuries
           that you see in your own database, the things that we
           already know -- you know, construction, maintenance
           and repair -- and I think we're going to make a big
           difference in the health and safety of miners.  But
           it's got to be focused, it's got to be focused, can't
           be the shotgun.
                       You know, when you look at OSHA when it
           wrote its hazard communication standard, it needed
           one.  I mean they're dealing with all kinds of
           chemical byproducts, that's just the nature of the
           business.  They're focused on the chemical industry. 
           You just don't have that in mining.
                       And also, OSHA didn't have any regulations
           that would even allow them to cover that aspect of
           health and safety, so they had to come up with a
           hazard communication standard.
                       Here we are and I think MSHA was a lot
           more progressive, even back then with the Part 48
           health and safety tasks of the job -- I mean how do we
           interpret that.  If you've got a hazardous chemical
           you're going to deal with, you're going to know what
           the hazard is, you're going to have the proper
           protective equipment and you're going to know how to
           handle it.  That's part of the rule that exists right
           now.  And if we've got people slopping benzene around
           with no protection, you're going to get a citation for
           it.  And he can write us one right now with the rules
           you've got right now.  You don't need all this hazard
           communication and MSDS books and, you know, 24 hour
           immediate access and fax machines in shops that are
           not going to work in three weeks.  It's not a good way
           to go.
                       I mean I believe the concept -- you know,
           chemicals can hurt you, you've got to respect them. 
           Labeling goes a long way in that.  I don't think
           labeling is good enough but that's a bigger issue than
           all of us here.  And then you have the language aspect
           of the whole thing.
                       But I think what's missing -- what's
           missing in really quality hazard communication is
           there's no programs out there that can speak to our
           miners about the things that we already know they're
           getting hurt with or the things we already know
           they're handling that are one of those five key
           hazardous chemicals.
                       The other thing we don't know is how
           effective Part 46 in the aggregate industry is.  I
           mean it hasn't really fully come into effect until
           this month.  What is it going to be, the experience a
           year from now with these chemical when you have
           enforcement of Part 46 on the health and safety
           aspects of the job that should cover handling these
           solvents and degreasers and welding rods and all that
           sort of thing.  It would be logical to see what the
           impact of that rule, which is pretty much acceptable
           by everybody and was done in a quality way, to see has
           it really affected what we see in the injury database
           from a chemical standpoint.  And even if you wanted to
           say let's emphasize in Part 46 training the chemical
           aspect of the job task, they need to be covered if the
           employee is going to be trained on the hazards of the
           task.  If there's any chemicals involved with it,
           they've got to be identified and the hazards
           communicated.  No problem with that.  It's all that
           bureaucracy and nightmare of paper and guaranteed non-
           compliance even if you're trying the best you can do.
                       You know, I had to start this last year --
           well, in '99, because there's no way I could -- I
           knew, based on my chemical division experience, that
           there's no way I could do it 400 places, it'd take me
           five years to get there and I'm never going to get
           there.  Because the guys are going to go down and say
           you know, I need a can of this, can of that and it's
           not going to be in the book.  And you ask the hardware
           guy, make sure you get an MSDS when you come back with
           that.  The hardware guy is going to look at him, what
           is that?  That's reality -- that's reality.
                       We've just got to step back and say what
           is it that we're trying to accomplish -- what is it? 
           And it's the communication of health hazards to that
           employee.  And MSDS doesn't do that.  The label is
           iffy on that.  And there is a void of quality training
           programs on that.  You'll have Part A solvents in the
           chemical industry, but they're all in chemical plants
           and they don't relate to the -- he's dealing with a
           parts cleaner, that's what he's dealing with.  He's
           not dealing with tank farms of chlorinated solvents,
           it just doesn't compute.
                       We owe it to the miners if we're really
           interested in hazard communication, of giving them
           that, not another regulation like this.
                       MR. THAXTON:  Number one, Kelly, thank you
           for your comments.  They're very good, as I expected
           they would be and to the point, and we really
           appreciate you taking the time to come down and give
           them to us.
                       I also share your concern about the
           specificity that is in training programs for miners
           and for welders, for mechanics, which I think we've
           had -- I think there's evidence that there is higher
           mortality rates among mechanics.  I mean I worry about
           some of the solvents that mechanics are exposed to
           over the course of their careers and I think that --
           you know, I think that you identified the same group
           of chemicals that I did when I was talking to Jeff
           Duncan last week, about creating, trying to create
           specific training programs for groups of occupations
           in mining -- you know, something for mechanics,
           something for lube men, something for welders -- and
           identify what we would consider high risk kinds of
           occupations and try to create some programs. 
                       I was very pleased to hear you talk about
           your interest in creating some of these training
           programs and how they would go about it, because it's
           right in track with ours and I hope that maybe we can
           get together at some point on doing that.
                       MR. BAILEY:  I think so.  As long as all
           the paper doesn't get in the way of doing it.  That's
           what I worry about.  You know, hazard communication is
           the objective and anything in the way of that, if it's
           not helping that, it's in the way of that.
                       MR. THAXTON:  We've also had testimony of
           people who have taught -- if this is testimony, it may
           just be information that we've gathered at public
           hearings -- people who have had employees take some
           product home to work to clean the rug with, you know,
           out of the shop, and bring a milk jug of it home and
           the person would go next door and the nephew would
           stop by and drink out of the milk jug and then we
           would have the person -- the kid would be taken to the
           emergency room and then an emergency room wouldn't
           treat the person until they had had someone talk to
           them about the MSDS and what that MSDS directed them
           to do.
                       Now to me, it seems like you don't need
           very many instances of that to justify just in itself,
           other justifications notwithstanding, to justify the
           needs for MSDSs and for mine operators to know
           precisely.  You know, I think they have a
           responsibility to know precisely what chemicals are on
           their property and what the effects of those chemicals
           are.  I mean, you have no instances of where you've
           actually thought the MSDS was worth having?
                       MR. BAILEY:  Oh, that's not true.  We've
           had them for -- when we do exposure monitoring for
           welding fumes, we determine what metals we're going to
           analyze for -- you know, the rod and the MSDS on that
           rod has to be known.  You can't tell the lab to
           analyze what metals.
                       MSDSs are, you know, in the hands of a
           safety professional, industrial hygienist that can
           take the mumbo jumbo and turn it into layman language
           and make a safety meeting out of it, is totally fine. 
           And they're readily available -- they're readily
           available.  
                       You know, the instance that -- your
           scenario there is -- you know, I doubt that the
           individual who took the stuff home in the unlabeled
           jug that got it to the neighbor's son who drank it,
           you know, if you had an MSDS there would have carried
           it home anyhow.  I mean, I don't think you need all
           this heavy, heavy regulation to solve that particular
           problem.
                       MR. THAXTON:  Our concern wasn't that he
           bring the MSDS home, because they do get the
           information from the property about what was in the
           jug.  The concern to me is what was the quality of the
           training of that person, did that person actually
           understand enough about the hazards of what he was
           bringing that he would take it back into the house,
           you know, and not recognize that there was a potential
           for confusion for someone who was 10 or 12 years old.
                       MR. BAILEY:  Right.
                       MR. THAXTON:  I mean what's the quality of
           that training if there isn't some kind of -- you know,
           either an incentive or some kind of a driving force to
           create -- to generate better information and to
           generate more interest on mine property for what kind
           of hazards there are, and to promote real
           understanding about what those hazards are.  You know,
           to me that's really what's at essence, and I think you
           agree with that, I think that's what you're saying,
           that there has to be an understanding of these
           hazards.
                       MR. BAILEY:  Well, certainly I think that
           people who handle chemicals on the job, that just as
           Part 46 totally expects that the hazards associated
           with the chemicals, if they are hazardous, they should
           be communicated and the proper protective equipment,
           proper way to respect that chemical has got to be
           communicated.
                       You know, I think that that regulation
           already exists for MSHA to use, they need to use it. 
           The generic type of training program that is in the
           miners' realm is needed, it doesn't exist.  Training
           firms out there do not understand mining and, you
           know, solvents, degreasers in mining are -- you know,
           you still see that kind of thing.
                       MR. THAXTON:  Uh-huh.
                       MR. BAILEY:  Welding fumes.  It's mostly
           safety hazards.  There's a huge need.  I mean I've
           been looking for programs like that for a long time
           and we've developed them in an ad hoc sense, but they
           really need to be first rate.
                       MR. THAXTON:  Yes, they do.
                       MR. BAILEY:  And I think looking at the
           injury database and the illness database and
           monitoring that -- you know, if we have a good program
           on lime dust in the eye and blowing up batteries and
           fueling mishaps and we put together programs that
           address those specifically for the types of
           environment that your miners are in and we monitor
           that, that should go down, if training makes any
           difference.  If we know in our heart of hearts that
           what we put together is high quality and that it is
           being given to the employees, then education should
           make a difference.
                       And then on some periodic basis, some
           interval, that trend needs to be looked at.  And if
           degreasing solvents are the top cause of chemical
           dermatitis in the mining industry, we need to make a
           program for it.  That's real focus, that's taking
           something home to the bank and really hitting the
           target on the bullseye versus aiming the gun that way
           and maybe you hit the target and maybe you don't.
                       MR. THAXTON:  Okay, Kelly, we appreciate
           it.  Thank you.
                       (Whereupon, a recess was taken at 2: 52
           p.m.)
                       MR. THAXTON:  It's now 5:00, there are no
           additional people to make statements or testify before
           this group, so therefore, we're going to adjourn this
           particular meeting.
                       (Whereupon, the public meeting was
           adjourned at 5:00 p.m.)