UNITED STATES OF AMERICA
           
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                            DEPARTMENT OF LABOR
           
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                   MINE SAFETY AND HEALTH ADMINISTRATION
           
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                            PUBLIC HEARING RE:
                INTERIM FINAL RULE FOR HAZARD COMMUNICATION
                          IN THE MINING INDUSTRY
           
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                                 TUESDAY,
                            SEPTEMBER 25, 2001
           
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                            REGENCY ROOM C & D
                            HYATT REGENCY HOTEL
                     PITTSBURGH INTERNATIONAL AIRPORT
                         PITTSBURGH, PENNSYLVANIA
           
           PANELISTS:
           
                 ERNIE TEASTER, MODERATOR, Administrator, Metal
                       and Nonmetal Mine Safety and Health
                 RICHARD FEEHAN, Educational Policy Development
                 DEBORAH GREEN, Solicitor's Office
                 CAROL JONES, Metal and Nonmetal Mine Safety and
                       Health
                 EDWARD J. SEXAUER, Office of Standards,
           Regulations
                       and Variances
                 ROBERT SNASHALL, Solicitor's Office
                 ROBERT STONE, Office of Standards, Regulations
                       and Variances                                 I-N-D-E-X
           
           Opening Statement, Ernie Teaster, Moderator. . . . 3
           
           Statement of Mike Wright, United Steelworkers. . .20
           
           Statement of Harry Tuggle, United Steelworkers . .25
           
           Statement of Joy Wilson, National Stone, Sand  
                 and Gravel Association . . . . . . . . . . .38
           
           Statement of Mike Sprinker, International
                 Chemical Workers Union . . . . . . . . . . .53
           
           Statement of Timothy Hroblak, United Mine
                 Workers, Local Union 2300. . . . . . . . . .76
           
           Statement of Randy Bedilion, United Mine
                 Workers, Local Union 2300. . . . . . . . . .82
           
           Statement of Harry Tuggle, United Steelworkers . .89
           
           Statement of Victor Goulet, Safety Director
                 for Brachs Industries, Incorporated. . . . .95
           
           Statement of Harry Tuggle, United Steelworkers . 127
           
           Statement of Mike Sprinker, International
                 Chemical Workers Union . . . . . . . . . . 135
           
           Statement of Chris Hipes, Environmental and
           Health Safety Coordinator for Luck Stone's
           Western Region, Virginia . . . . . . . . . . . . 140                           P-R-O-C-E-E-D-I-N-G-S
                                                    (9:10 a.m.)
                       MODERATOR TEASTER:  Good morning.  Welcome
           to MSHA's public hearing on our interim final rule for
           hazard communication in the mining industry.
                       I'm Ernie Teaster, Administrator for Metal
           and Nonmetal Mine Safety and Health.
                       The members of the Panel today are Deborah
           Green from the Solicitor's Office; Bob Snashall from
           the Solicitor's Office.  We have Ed Sexauer, who is
           representing the Office of Standards, Regulations and
           Variations.  This is Richard Feehan.  Richard worked
           on the rule.  He's with Educational Policy
           Development.  This is Carol Jones.  She works in Metal
           and Nonmetal Health Division.  And we have Robert
           Stone who is an economist that works for the Office of
           Standards, Regulations and Variances.
                       We are here to listen to your comments on
           the hazard communication interim final rule which we
           published on October 3rd last year.  We are holding
           this hearing in accordance with Section 101 of the
           Federal Mine Safety and Health Act of 1977.  As is our
           practice, we will conduct the hearing in an informal
           manner.  During the proceeding, panel members may ask
           questions of the presenter.
                       Although formal rules of evidence will not
           apply, we will be taking a verbatim transcript of the
           hearing and will make it a part of the official
           rulemaking record.  The hearing transcript will be
           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 to
           all at our office in Arlington, Virginia.
                       If you wish a personal copy of the hearing
           transcript, please make your own arrangements with the
           court reporter.
                       Now let me briefly give some background on
           the interim final rule and highlight its major
           provisions.  Following that I will share with you our
           reaction to some of the comments received thus far.
                       On November 2, 1987, the United
           Mineworkers of America and the United Steelworkers of
           America jointly petitioned MSHA to adapt OSHA's hazard
           communication standard to both coal and metal and
           nonmetal mines and propose it for the mining industry. 
           They based their petition on the need for miners to be
           better informed about chemical hazards and that miners
           working at both surface and underground coal and metal
           and nonmetal mines are exposed to a variety of
           hazardous chemicals.
                       On March 30, 1988, in response to this
           petition, MSHA published an advanced notice of
           proposed rulemaking on hazard communication for the
           mining industry.  In this notice, we indicated that
           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 2, 1990
           and held three public hearings in October 1991.  The
           record closed January 31, 1992.
                       In their comments on the advanced notice
           of proposed rulemaking and the 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 reopened the rulemaking record on March
           30, 1999, requesting comments on the impact of the
           proposed rule on the environment, small mines, State,
           local and tribal governments, and the health and
           safety of children.
                       The National Environmental Policy Act and
           more recent statutes and executive orders included
           requirements for us to evaluate the impact of a
           regulatory action in these areas.
                       At that time, we also requested comments
           on the information collection and paperwork
           requirements of certain provisions of the proposal now
           considered as an information collection burden under
           the expanded definition of "information" under the
           Paperwork Reduction Act of 1995.
                       We received seven comments to the limited
           reopening of the rulemaking record, primarily from
           trade associations and labor organizations.  The
           rulemaking record closed on June 1, 1999.
                       On October 3, 2000, we published 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
           the plain language format and the content of the
           interim final rule, mine operators' experience under
           OSHA's Hazard Communication Standard, and any changes
           in the mining industry since the publication of the
           proposed rule.
                       On December 7, 2000, we personally spoke
           with or e-mailed all commenters and other interested
           parties telling them of our decision to hold a public
           hearing in Washington, D.C. 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 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 final
           rule in the U.S. Court of Appeals and the United Mine
           Workers of America and the United Steelworkers of
           America have intervened in the litigation.
                       Now I will briefly highlight the six major
           provisions of the rule.
                       The hazard communication interim final
           rule requires mine operators to identify the chemicals
           at their mine and determine if they prevent a physical
           or health hazard to the miners based on the chemical's
           label or the material safety data sheet 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: 
           Title 30, Code of Federal Regulations, Chapter 1; the
           American Conference of Governmental Industrial
           Hygienists Threshold Limit Values and Biological
           Exposure Indices; National Toxicology Program Annual
           Report on Carcinogens, latest edition.  Both of those
           are the latest edition.  International Agency for
           Research on Cancer Monographs or Supplements.
                       The hazard communication interim final
           rule requires mine operators to develop, implement and
           maintain a written program to establish a hazard
           communication program.  The program must include
           procedures for implementing hazard communications
           through labeling, MSDS sheets and training of miners;
           a list of the hazardous chemicals known to be present
           at the mine; and a description of how mine operators
           will inform miners of the chemical hazard 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 other operators about
           the chemical hazards and the protective measures
           needed.
                       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
           hazardous markings.  The label must in English and
           prominently displayed.
                       I would like to clarify one point about
           the labeling requirements.  Practically speaking, very
           little labeling is required.  You only have to label
           stationary process containers and temporary portable
           containers and then only under some circumstances.
                       Chemicals coming onto mine property are
           almost always labeled.  You would not have to relabel
           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.
                       A chemical's material safety data sheet or
           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 MSDS
           sheets 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.
                       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 training requirements for
           hazard communication with existing Part 46 and Part 48
           training.  The interim final rule does not require
           mine operators to have an independent training program
           separate from Part 46 and Part 48 training.
                       Many operators already cover some of the
           above information in their current training program. 
           If so, the do not have to retrain miners about the
           same information.  We designed the hazard
           communication training requirements to be integrated
           into existing training programs for miners.
                       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.
                       I will now share with you our thoughts on
           some of the comments 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 far fewer chemicals than large mines,
           and in many cases, no new chemicals.
                       Second, small mines typically use
           chemicals in small quantities and for shorter periods
           of time, similar to household use.
                       Third, many of the chemicals used at small
           mines are not covered by the rule.  For example, soaps
           used for washing hands are "cosmetics" and are exempt. 
           A can of spray paint is a "consumer product" and is
           exempt when used in small quantities intermittently. 
           The length of exposure, as well as the amount, is
           really the determining factor -- a can of paint only
           lasts a short time.  Glue or adhesives, when used
           intermittently in small quantities, are exempt. 
           Again, the length of exposure, as well as the amount,
           is the determining factor in whether or not a consumer
           product is exempt.
                       We recognize, however, that not all mines
           are likely to use a wide range of chemicals.  Although
           we cannot exempt the aggregates industry from hazard
           communication, as we said, there are steps we can take
           to minimize the burden of the rule.  For example, we
           intend to make extensive Compliance Assistance Visits
           and conduct extensive outreach.  We also will be
           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 a model HazCom program, a training video for
           mine operators about determining chemical hazards and
           a training video for miners about chemical hazards and
           reaching an MSDS.
                       A draft of the MSHA compliance guide has
           been on the MSHA website for months.  If you refer to
           the compliance guide, many of these issues are
           explained.  If you have any questions in these areas,
           send them by e-mail to comments@MSHA.gov or to the
           Office of Standards at the address listed in the
           hearing notice.  We will use these questions to
           clarify your responsibilities and include additional
           or better examples in the compliance guide.  As a rule
           of thumb, however, if you are in compliance with
           OSHA's rule, you will be in compliance with MSHA's.
                       In the same vein, mine operators may
           obtain help from organizations that have developed
           generic guides to meet OSHA's hazard communication
           standard because HazCom contains the same basic
           requirements.  We will provide links on our website to
           some organizations which have developed a variety of
           generic HazCom materials.
                       While it will remain the responsibility of
           operator to develop and implement a HazCom program and
           to have MSHAs, to the extent possible, we will help
           you establish the hazard communication program if
           requested.  We have already taken other steps in
           revising our interim final rule to make it easier for
           mine operators to comply, without reducing the
           protections offered by the rule.
                       We are considering the following
           substantive changes to the interim final rule in
           response to commenters' concerns.  We also are
           considering several nonsubstantive changes to clarify
           our intent our correct errors based on commenters'
           perspectives and questions.
                       Under "HazCom Determination," we may
           revise the references to the American Conference of
           Government Industrial Hygienists, the NTP, that's the
           National Toxicology Program and the International
           Association of Research for Cancer 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 the NTP and the 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 the MSDSs can be the mine operator. 
           Accordingly, we are considering changing these
           provisions to read the name, address, and telephone
           number of the operator or a responsible party who can
           provide this information.
                       Concerning the availability of the 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 the widespread existing MSDSs and reduce
           costs by eliminating the need to develop additional
           MSDSs.
                       In response to comments concerning hazard
           communication training, we are considering changing
           the language from requiring the operator to train the
           miner whenever introducing a new hazardous chemical
           into the miner's work area to requiring training when
           the operator introduces a new chemical hazard into the
           miner's work area.  This change would clarify MSHA's
           intent that when a new chemical is introduced,
           additional training is required only if the hazard
           changes.  This is the intent as discussed in the
           preamble of 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 the risks
           associated with exposure to hazardous chemicals, the
           safety measures implemented at the mine to control
           exposures, and safe work practices.
                       The hazard communication interim final
           rule does not restrict chemical use, require controls,
           or set exposure limits.
                       We will publish our response to the
           written comments, including those comments received
           today at this hearing, in the preamble to the hazard
           communication final rule.  We will consider all
           comments contained in the rulemaking record, from the
           publication of the advanced notice of proposed
           rulemaking on March 30, 1988, through the close of the
           record on October 17, 2001, in the development of the
           final rule.
                       You may submit written comments to me
           during the hearing or send them to the address listed
           in the hearing notice.  We will also accept additional
           written comments and other appropriate data on this
           final rulemaking from any interested party, including
           those who do not present oral statements.  All
           comments and data submitted to MSHA, including that
           submitted to me today, will be included in the
           rulemaking record.  The record will remain open until
           October 17, 2001, for the submission of post-hearing
           comments.
                       We ask that everyone sign the sheet at the
           back of the room, if you wish to speak, and there's
           also a separate sign-in sheet for the presenter.
                       We will begin with the folks that have
           signed up in advance to speak.  If there's time at the
           end of that, anyone in the audience who wants to come
           up and make a statement will be able to do so.  We
           will continue the hearing until all speakers have an
           opportunity to address the panel.  Should it be
           necessary, we can extend the hearing beyond 5:00
           o'clock today.
                       We intend to put the hearing transcripts
           on MSHA's webpage within 48 hours of the close of the
           hearing.
                       This concludes my opening statement.  We
           will, as I said, start with the folks that have
           requested to speak and we'll stay as long as we can
           stay to make sure that everyone has an opportunity to
           present their oral argument.
                       First one to sign up was Chris Hypes from
           Lupstone.  He may come in later this afternoon.  I
           know he's over at the -- our second will be Mike
           Wright from the United Steelworkers.  And then Harry
           Tuggle from the Steelworkers.
                       MR. WRIGHT:  Thanks, Mr. Teaster.  We're
           going to do this today.
                       I don't have a written statement to put
           into the record.  I was not sure I was going to be
           here today.  We're in a series of negotiations and I
           was able to make it.
                       My name is Mike Wright.  I'm the head of
           the Health Safety and Environment Department of the
           United Steelworkers of America.  With me today is of
           course Harry Tuggle who all of you who is our Mine
           Safety and Health Specialist and has done terrific
           work for the Union on that subject ever since he left
           the mine where he was the local Union President in
           Missouri 20 years ago now, I think, a little over.
                       We are -- it's customary to say at the
           beginning of a hearing that we are happy to have this
           opportunity to present evidence and argument on an
           important standard.  I have some difficulty saying
           that because we don't think this hearing ought to be
           taking place.  We had a standard in place.  It was a
           final standard and now we are back again in the
           necessity of defending that standard.
                       I think actually it's shameful that we
           have to do this here today in the Year 2001.  OSHA
           proposed its standard in 1983 and I believe the
           standard became effective in 1985.  We petitioned this
           Agency for a standard on hazard communication a decade
           and a half ago.  Virtually every other worker in
           industrialized countries is protected by right to know
           standards.
                       Everybody under OSHA's jurisdiction, every
           Canadian worker, including Canadian miners, are
           protected by the Canadian WIMOS standard.  Miners and
           other workers throughout the European community enjoy
           right to know standards and laws.  Miners and other
           workers in Japan, Australia, New Zealand, Brazil,
           there is, in fact, even a new right to know standard
           in China.  Chinese workers have rights that American
           workers in American mines do not.  We could have done
           this 15 years ago and here we are working on it yet
           today.
                       I don't want to comment in detail on the
           standard itself.  In its original -- oh, and let me
           say one more thing about that.  We don't blame this
           Administration for that problem.  The fact that we
           don't have a standard yet is a problem really shared
           by the three previous Administrations.  This
           Administration could have done the right thing and
           simply allowed the standard to go into effect.  It did
           not do that.  We understand the reasons for that . We
           do not agree with the reasons, but we would like to
           think they were well motivated. 
                       In any event, the thing we want the most
           is to see the standard go into effect as quickly as
           possible because American miners need this standard
           and Harry will talk about that.
                       Let me say in the course of my work on
           this issue I was involved in, of course, the original
           OSHA standard.  I was also the head of the workers
           group that worked on the ILO Convention and the ILO
           recommendations concerning safety in the use of
           chemicals at work which wrote a kind of a voluntary
           right to know standard.  The last 10 years, I've been
           involved in a group working under the auspices of the
           United Nations and the International Program on
           Chemical Safety and the OECD that's charged with
           harmonizing chemical classification and labeling
           systems around the world, so I've had a fair amount of
           experience with this.
                       The one issue I want to comment on, Harry
           will talk about other issues we have, and let me make
           it clear again, our major issue is getting the
           standard in place.  Since these hearings are taking
           place and since they will probably become kind of a
           free for all, we do have some comments on the standard
           itself, but our major comment is to get the thing in
           place in mines so that it protects workers as quickly
           as possible.
                       The one issue I want to comment on is the
           notion that you can't give people information or you
           can't classify a chemical as hazardous without going
           through a full rulemaking process.  Virtually every
           other standard requires miners to be told the ACGIH
           threshold limit value and virtually every other
           standard, including standards in place outside
           America, even though it's the American Conference of
           Governmental Industrial Hygienists, require that
           information be given to workers and use that as part
           of its classification scheme.  It would be completely
           unworkable to demand rulemaking before we could a
           chemical hazardous and before we could say that a
           worker has a right to information about it.
                       And as a matter of fact, that kind of
           system would not withstand review in the tort system. 
           Any company that withheld from workers and the public
           the fact that the ACGIH had declared something
           hazardous and subsequently somebody was hurt by that
           chemical would have enormous liability through the
           tort system and their lawyers simply wouldn't let them
           do it.  So we need the standard.  We need miners to be
           given all information.  
                       We support the standard as written.  We
           have some comments on that standard as written.  If
           you're going to change it, we have some ideas, but in
           the end we'd prefer to see you not spend your time
           changing it, if by so doing, you can get it into place
           as quickly as possible.
                       That concludes my comments and I want to
           give it to Harry.
                       MR. TUGGLE:  Thank you, Mike, and Mr.
           Chairman, and I did -- I will be working from some
           notes and somewhat of a prepared comments and
           statement from the Steelworkers that I'll be reducing
           to hard copy and disk and then getting back to the
           Agency here very shortly.
                       Not to be redundant of some of the things
           that Mike has said, and he speaks from, as you see,
           from off the cuff on these matters.  Maybe that's the
           reason he's the Director of the Department.  And I
           will be working from these notes.
                       As Mike said, I am -- my name is Harry
           Tuggle.  I am a Safety and Health Specialist with his
           Department and a certified Mine Safety and Health
           Professional.
                       Normally, Steelworkers would appreciate
           this opportunity to submit the comments on a highly
           significant rule such as HazCom, but in regard to the
           instant HazCom rule, we find it kind of hard to muster
           that normal appreciation.  Also, as stated by the
           Panel in regard to those who have complained about not
           being ready or prepared for the interim final rule,
           needing further time and so forth, we really find it
           hard to muster any sympathy about their lack of
           approach to this rule.
                       Also, as stated by the Panel, and as
           referenced by Mike, this is a 14-year-old petition
           issue with the UMWA and the USWA; an 11-year-old issue
           on MSHA's proposed rule books.  And all this delay, in
           and of itself is really clearly a disservice to our
           nation's miners as a whole.
                       But first, before getting into a few of
           the specifics of our comments here, I'd like to go on
           record and that is in remembrance of all those injured
           and killed or more so literally murdered in the wake
           of the recent September 11th devastation and attack on
           our nation which is just two weeks ago almost to the
           morning.
                       Given that devastating occurrence, we find
           it necessary to say that our mining community is here
           today in no small part to join our nation's resolve
           that we're still in business.  Obviously, not only are
           we still in the business of mining, we're still in the
           business of addressing the safety and health concerns
           of our nation's miners.  With that said, we realize we
           must get on with the matter at hand to establish
           hopefully and as soon as practicable a comprehensive
           and protective HazCom standard for miners.
                       In that light, regardless of our
           contentions of Agency delay and disservice to our
           nation's miners on the matter, we are prepared to move
           forward and we do recognize the significance of this
           hearing opportunity.
                       In an effort to maintain a semblance of
           order on our comments, we'll attempt to keep them in
           line as reasonably as possible with a few interim rule
           preamble subjects of discussion and in numerical order
           of the standards that we'll be addressing.
                       One is the overview of the rulemaking at
           Federal Register page 59049.  Here, the Agency states
           that HazCom is an information and training standard
           about chemical hazards and continues to state at
           Federal Register 59053 that the provisions of the
           interim final rule are performance-oriented.  We may
           all agree that the HazCom rule at hand is an
           information and training standard and that its
           provisions are performance-oriented.
                       These subtle statements on the matter,
           however, are glaring in the absence of conveying that
           this rule must also be understood as an enforcement
           rule upon lack of compliance.  The Agency continues
           its subtle approach to the rule by applying the plain
           language and government writing.  In this case, it
           replaced the word "shall" in each and every provision
           of the proposed rule with the word "must" in the
           interim final rule.  In our opinion, the word "must"
           versus "shall" is soft language versus plain language
           in anyone's writing.
                       Be that as it may, if the word "must" must
           remain in all the rule, we believe it's incumbent on
           the Agency to convey in some form or fashion in the
           final rule that the term "must" carries the same
           meaning or weight as the term "shall."
                       Also, with that is with what is easily
           perceived as an over-emphasis on this being an
           information, training and performance-oriented
           standard, we propose that Sections 47.1 and 47.2 be
           revised in title and context to clearly address the
           purpose and scope of the final rule.  In regard to
           Section 47.1, it should simply state purpose, deleting
           the reference to purpose of a HazCom standard.  The
           subsection (a) above could easily say that this is a
           purpose and scope of a HazCom standard, titling the
           whole provision under subpart (a).  So we're saying
           that 47.1 should simply say the scope and continue
           with the scope as currently defined by the Agency.
                       However, 47.2 -- purpose.  I'm sorry, 47.1
           should say "purpose" and continue with that purpose as
           defined by the Agency.
                       47.2 which simply states scope.  And we
           propose a change to the lead in sentence in the
           current language.  We believe in the context that
           since it's mentioned nowhere else in the standard,
           only somewhat implied or somewhat to be understood,
           that this an enforcement, still an enforcement
           standard, the meaning should begin as we propose in
           underlining "the scope of this part is to ensure
           compliance and" then go on to read "as currently
           drafted applies to any operator producing or using a
           hazardous chemical to which a miner can be exposed
           under normal conditions of use or in a foreseeable
           emergency."  And we're also concerned and we'd like
           the Agency to take another look within that provision
           about the word or phrase "normal conditions."
                       If someone says it's an abnormal condition
           what context or weight does this provision have?
                       Simply take a look at it.  We're not going
           to belabor the issue there.  But we are saying short
           of the above revision about this being -- the scope of
           this part is to ensure compliance, we do believe that
           many of the inspectors out in the field in many
           instances will be hard pressed to enforce many of
           these quote informative and performance-oriented
           standards that keeps being repeated.  
                       In regard to the need for HazCom as
           discussed at Federal Register, page 59049 and 59050,
           here the Agency revisits the survey record where
           between 1985 and 1989 NIOSH surveyed 500 various mines
           and about 60,000 miners for the National Occupational
           Health Survey of Mining or NOHSM as it was referred to
           at that time.  NOHSM documented over 10,000 individual
           hazardous chemicals and mixtures of hazardous
           chemicals to which miners could be exposed.  ACGIH, on
           the other hand, covers about what, 500 or so hazardous
           chemicals.  Between that 10,000 individual hazardous
           chemicals documented by NOHSM and the 600 within ACGIH
           or any of the other remaining documents that the
           standard refers to, there's something missing here. 
           As Mike has said, we need to get on with the standard
           and begin to get something in place and maybe continue
           to address these other some 9,000 chemicals that
           miners deal with on a daily basis out there.
                       But in regard to the matter, the Mining
           Industry reported, while the proposed HazCom standard
           was -- the Agency reported, and this is while our
           proposed HazCom standard was gathering dust on the
           shelf for lack of a better phrase between 1987 and to
           date, over 2500 chemical burns and more than 400
           chemical poisoning were reported.  These were all
           acute effects with no one having a clue as to all the
           likely high toll of chronic effects by these and other
           chemicals to which miners were exposed.
                       In short, if there's any question in
           anyone's mind that this really sums up the USWA's
           anger about this 11 to 14 year delay of HazCom
           standard and a contention that such a delay has been
           a disservice to our miners.
                       In regard to Federal Register page 59097
           regarding the table 4711 on identifying hazardous
           chemicals we may be providing some, after a little
           more review, some additional comments about some
           modification of that table on the basis that we may
           very well believe that there is a need to combine
           items 1 or 2 or (a) and (b) I think it reads in regard
           to chemicals brought into the mine and chemicals
           produced by the mine operator, that somehow that could
           be dovetailed all into one provision.  But we'll be
           speaking or addressing that matter in the written
           context of our comments before the close of the rule.
                       In regard to Section 4731(b) and 4741(b),
           we believe that the three months that's referred
           therein is an inordinate length of time for an
           operator to have to prepare a container label or
           update a label with any significant new information
           about the chemical's hazards.  That's not -- if
           someone knows that this has got to be changed, he
           doesn't -- I can't fathom 90 days to change a label,
           to change an MSDS sheet or whatever the purpose there.
                       So even in that regard, the provision, we
           believe, should require the operator advise all
           affected miners of the precaution and this should be
           able to be done at least within 30 days.  And in that
           interim, they would advise all miners that's handling
           this about this upcoming change and advise them how to
           protect themselves in the interim period of time.
                       In regard to Section 4731(b), we propose
           that the additional sentence be added to read as
           follows, where it initial says -- this provision says
           that a "mine operator will not be responsible for an
           inaccurate label" -- we believe that still in that
           context it still should go on to read, "however, it
           will be the responsibility of the operator when first
           knowledgeable of an inaccurate label to take
           immediate, corrective measures to obtain an accurate
           label as soon as possible."
                       There's no need to simply let that
           standard lay there and say it's not your fault.  Well,
           we agree.  Maybe it's not his fault.  But let's do
           something about it and that means address it
           immediately.  We're talking about hazardous chemicals
           here.
                       In regard to Section 4734(b) at Federal
           Register 59098, we propose barring from the proposed
           rule on this matter portable containers and there it
           simply says that a portable container that has
           contained hazardous materials shall be left empty at
           the end of the shift.
                       And we need, we think we need to borrow
           from the original 1990 proposed rule on that matter
           and continue with the sentence that says "the portable
           container is intended only for the immediate use of
           the miner who performs the transfer."  So if he's
           transferring something from a large container or
           barrel or bucket or whatever into a portable unlabeled
           container, that he's -- it's his duty to immediately
           use that or dispose of that material back into its
           original container or as seen fit by other handling of
           the hazardous chemical.
                       In regard to 4741(d), we believe the
           second sentence needs some serious consideration about
           the operator, if professionally qualified, developing
           their own MSDS or may obtain one from another
           professionally reliable source.  Here the standard
           simply refers that a mine operator may develop his own
           MSDS.  Anyone developing an MSDS in some context,
           there's got to be some credence to their
           professionalism in being able as an industrial
           hygienist or whatever to develop that MSDS, just to
           say he can develop his own and leave it lay in that
           kind of weak state, we believe is inappropriate.  The
           standard should simply convey in some form or fashion
           that he or some other responsible person under his
           directive has the professional credentials to do such
           things as change MSDSs.
                       In regard to Section 4745, at Federal
           Register page 59099, we propose that this provision be
           deleted in its entirety and that Section 4753 be
           revised and that would be as underlined to read, "the
           operator must make a record of each MSDS for each
           hazardous chemical it has used or produced at the mine
           and a record of each miner's HazCom training
           thereunder.  And keep these records for a minimum of
           30 years.  To keep these records for two years really
           pulls the underpinning of the original OSHA HazCom
           standard, reduces the underpinning, weakens the
           underpinning of what that standard was all about.
                       And that was to develop a record for long-
           term and latency period symptoms coming forward some
           10, 20 years later and there's a paper trail in regard
           to those symptoms then, to just say well, we'll keep
           them two years, and miner, if you want them, you can
           have a copy and it's now your responsibility.  We
           think it's really dumping the responsibility off on an
           individual that the legislative history of the Mine
           Act itself doesn't convey in any other context in
           regard to any other standard and it shouldn't be
           conveyed here.
                       Not to revise this provision, to provide
           for a long term holding of these records such as 30
           years we believe would be a disservice to the miners.
                       So at this point this concludes my
           comments with the reserve to provide additional
           comments as deemed necessary before the close of the
           record.  However, I wish to also say that the USWA
           stands in full support of all the findings and
           comments of the UMWA.  We jointly petitioned for this
           rule and so we stand in further support of any changes
           in the final rule that the Agency may make based on
           the comments or findings of the UMWA.
                       So with that, I thank you for this time
           and opportunity.  Any questions?
                       MODERATOR TEASTER:  Just a clarification
           on the use of the word "must" versus "shall", we had
           an Executive Order that directs us to try to write the
           regulations in a plain language, something more or
           less like talking to the mining public.  But I can
           assure you the intent is when we use "must" in place
           of "shall" is to carry the same weight in every
           responsibility as "shall" interchangeable in terms of
           responsibility. 
                       We did ask for comments on that plain
           language and we've gotten some and I can also say that
           we say that this HazCom rule is primarily a training
           and information and that it sets forth requirements
           for identifying chemicals, what hazards are associated
           with those chemicals and training of miners and record
           keeping and that stuff.  It doesn't set any limits for
           the pails or things of that nature.  But they are,
           these requirements are mandatory and we want to fully
           convey that to the mining public that once we get
           these implemented that they are mandatory standards,
           that carry the full effect of the regulations.
                       Does the Panel have any questions or
           follow-up, clarification?
                       MR. SEXAUER:  I have one comment, just for
           clarification for the record.  In discussing 4731,
           requirement for container labels, paragraph (d), you
           mentioned that the operator is not responsible for an
           inaccurate label.  Just to clarify that paragraph (d)
           goes on to say "inaccurate label obtained from the
           chemical's manufacturer or supplier."  4732, label
           contents, speaks to what is required on a label and
           the fact that it needs to be accurate for labels that
           the operator produces.
                       MR. TUGGLE:  Yes, I stand correct.  Thank
           you.
                       MR. WRIGHT:  Let me just comment on
           "must", "shall."  We're fine with "must."  We just
           think that in the preamble to the final rule you need
           to say that "must" is replacing "shall" and has the
           same legal meaning, but that's fine.  I think "must",
           I frankly think that we've all grown up working with
           "shall", "must" is actually a better word and we
           certainly support the plain language initiative.
                       On the fact that the mine operators are
           not responsible for labels that are inaccurate
           received from suppliers, our concern is to make sure
           that where the mine operator knows the label is
           inaccurate, that then they have an obligation to
           obtain an accurate label as quickly as possible and we
           want to make sure that the final regulations basically
           says that.
                       There are, as all of you know, a lot of
           very dangerous chemicals used in mining and the use is
           really these days increasing as we are using more
           cyanide in these leach mining systems and we've had
           not that I'm aware of in the mining industry, but
           there was a very serious accident some years ago in a
           film recovery operation where a worker died from
           cyanide used to recover silver out of silver halite
           film, old x-ray film I think, because there was no
           labeling on the material that he was using that said
           it was cyanide.  So it's a pretty serious hazard and
           if the operator knows that the label is inaccurate,
           the operator ought to get an accurate label real fast.
                       MODERATOR TEASTER:  Thank you very much.
                       MR. WRIGHT:  Thank you.
                       MODERATOR TEASTER:  We'll next have Joy
           Wilson who is President and CEO of the National Stone,
           Sand and Gravel Association.
                       MS. WILSON:  Good morning.  I'm Joy
           Wilson, President and CEO of the National Stone, Sand
           and Gravel Association, headquartered at 2101 Wilson
           Boulevard, Suite 100, Arlington, Virginia.
                       For the record, with the merger of the
           National Aggregates Association and the National Stone
           Association and according to the USGS, the NSSGA is
           now the world's largest mining association with more
           than 900 member companies, mostly small businesses,
           operating in thousands of locations across America.
                       Our membership represents about 90 percent
           of the crushed stone and 70 percent of the sand and
           gravel produced annually in the United States.  During
           2000, 2.7 billion metric tons of crushed stone, sand
           and gravel, valued at $14.2 billion was produced and
           sold in the United States from 10,000 locations
           nationwide.
                       On behalf of NSSGA's members throughout
           America, I want to express our appreciation for the
           opportunity the Mine Safety and Health Administration
           has provided today and its six more public hearings in
           the coming weeks for NSSGA and others to comment on
           MSHA's interim and final hazard communication rule. 
           This is a matter of principle and importance to
           aggregate producers and I welcome the chance to make
           available to use NSSGA's views on the impacts of this
           rule as published, will have on aggregate producers.
                       Safety.  This has never been at the top of
           all Americans' minds like it has since September 11th
           and reinforced in all of our industries' minds after
           the tragic mine explosion in Alabama.  From the
           firemen, police, search and rescue, medical teams,
           iron workers, to the political, military intelligence
           and charitable forces, American heroes are lifting us
           up from our national grief to aid us all in recovery
           and prevention of future terrorist attacks.  We're all
           proud of our government's leadership in both
           individual and company response.
                       One of our members has been heavily
           involved at Ground Zero and others provided logistical
           and equipment support along with people in financial
           contributions as so many Americans have.
                       It is clear that the highway system is
           serving its critical defense role as identified by
           President Eisenhower when he proposed the interstate
           system, especially in the aftermath of attacks on our
           people and the airways were temporarily shut down. 
           And about 40 percent of aggregates are used for
           highway repair and construction; 20 percent for
           residential construction; 20 percent for commercial
           construction and 20 percent for public works, such as
           water treatment plants, airports, schools and defense
           installations.
                       Safety and security, around all of our
           mines and this is not a hearing to debate, but to
           unify in our strongly held commitment to the
           importance of safety for our workers in America.
                       Safety is the name and mission of MSHA. 
           It is part of organized labor's priorities and it has
           been a long held priority of the Association I'm
           privileged to help lead.
                       Not only do the products of the
           construction aggregates industry help repair and
           improve roads, and 14,000 fatal accidents are
           attributed annually to unsafe road and bridge
           conditions, but also our industry is committed to
           safety specifically for industry workers.  
                       Our association whose predecessor
           organizations have been in existence since the early
           1900s organized for safety, environment and health
           purposes during the 1970s.  Our Environment, Safety
           and Health Division was created, then staffed full-
           time in the 1980s.  We now have a staff of five
           people, led by a certified industrial hygienist, a
           geologist, and an engineer devoted to member and
           industry service in furthering our safety, health and
           environment guiding principles, principles refreshed
           and readopted by our new Board of Directors just this
           past January.
                       Our members create association training
           courses, model environmental management systems,
           safety award programs, recognizing the exemplary
           achievements of people, operations and companies and
           their multi-year safety records and a new occupational
           health program is currently under development.
                       Our member companies are constantly
           working to improve worker safety and health, as well
           as ensure quality environment for communities nearby.
                       The safety and health professionals who
           are members initiated discussions with MSHA, other
           industries and labor organizations to create a rule
           appropriate to the aggregate and other surface mining
           industries in lieu of Part 48.  Together, through the
           Coalition for Effective Miner Training, we worked
           together and together we figured out a regulatory
           structure, Part 46, that made sense.
                       However, had there been a requirement that
           the government examine cumulative, regulatory impacts
           before imposing any new regulation on an industry, I
           think MSHA would have had a difficult analysis to make
           regarding its constituencies.  Part 46, the noise
           rule, diesel particulate, HazCom and a variety of
           additional regulations in the pipeline are hitting
           this industry within 12 months of each other and that
           is impacting the ability of our small businesses to
           stay in business, as it is also impacting the ability
           of our members to do the good job they know they can
           do and want to do, to be in full compliance with all
           applicable local, State and federal laws and
           regulations.
                       I give you that history so that you have
           the context of my remarks today and appreciate that we
           can both support the same goal without having
           agreement on the method to reach that goal and that is
           how I characterize this regulatory divide.
                       I am here today to address the policy
           impacts of the published interim final rule.  Because
           this matter remains in litigation, I will address any
           legally sensitive or technical questions to you in
           writing.  
                       The changes MSHA recently proposed to the
           interim final rule and articulated again this morning
           are currently under review by NSSGA and our members
           and the association's position on the proposed
           changes, along with other technical comments, on the
           interim final rule will be delivered later in the
           comment period.
                       I have three primary points to make.  One,
           NSSGA favors proper labeling of chemicals, providing
           hazard information to miners and providing the means
           for miners to protect themselves from exposure.
                       Two, NSSGA submits that the published rule
           is unnecessary and inappropriate for the nation's
           aggregate industry because it duplicates existing
           regulations and we believe safety needs to be the
           priority and not redundant paperwork.  Communications
           about how the hazard communications rule might work
           without overlaying existing and new requirements by
           the government with industry has been woefully
           lacking.
                       Three, NSSGA believes the interim final
           rule would not accomplish MSHA's goal in releasing it
           which is to reduce the number of injuries and
           illnesses to miners from exposure to hazardous
           chemicals.  We stand ready to work with MSHA and
           labor, however, in determining solutions to any
           specific gaps or failures in existing regulations so
           that they can work better for the safety and health of
           miners.
                       This interim final rule will only tie up
           safety and health resources that could be more
           effectively applied elsewhere and will be a
           substantial paperwork burden on small operators
           without concomitant benefit.
                       In 1986, MSHA itself stated that a hazard
           communication rule on chemical health and safety was
           unnecessary because its existing regulations offered
           miners sufficient protection.  The Administration took
           comments and did not proceed to final rulemaking for
           10 years.
                       The only thing that changed up through
           2000 is the implementation and enforcement of new
           regulatory requirements including the new Noise Rule
           and the new Part 46.  Workplace safety has continued
           to improve, generally, during this time period, during
           record production for the aggregates industry.
                       There was insufficient attempt by the
           government to articulate a problem with existing
           regulations so that meaningful dialogue could ensue
           and solutions found.  Indeed, we would welcome such a
           dialogue to correct deficiencies when and where the
           need exists.  But instead, an entire new comprehensive
           rule with significant paperwork burden has been thrust
           upon the sector of our economy on top of regulations
           already capturing the hazard communications
           requirements.
                       Duplication of regulatory requirements
           contained in the published interim final rule is not
           proper and it's not the solution that will work. 
           However, MSHA released an interim final rule on hazard
           communications in October 2000 and set it to go into
           effect on October 30, 2001.  NSSGA and other industry
           groups have filed a petition to review with the Court
           to challenge the rulemaking.
                       As noted last year in testimony on the
           proposed rule, NSSGA does not oppose the principle of
           chemical hazard information collection and
           dissemination which MSHA states is the chief purpose
           of the rulemaking.  Obviously, miners need to be
           informed about potential hazards that might have an
           adverse impact on their health and safety in the
           workplace, including hazardous chemicals and they need
           to be provided with the wherewithal to protect
           themselves against such hazards and that information
           needs to be repeated at periodic intervals, both to
           reinforce and to assure that miners not forget.
                       Of course, mines also have a
           responsibility to use the knowledge that they have
           been given to safeguard their own health and that of
           fellow miners once miners have been made award of
           potential hazards.  MSHA's regulations and our
           convictions on this point seem to diverge.
                       As I've indicated, MSHA and the industry
           agree on the goal but part company on the means to
           accomplish the worthwhile end of informing miners
           about chemical hazards on the job and how to protect
           themselves.
                       MSHA says the interim final HazCom is the
           way.  We say that the rules you already have in place
           can and should do the job adequately.  We have listed
           those regulations in early written comments.
                       We are specifically emphasizing Part 48
           and Part 46, safety and health training regulations,
           and your labeling requirements which represent several
           significant provisions in your already impressive
           regulatory arsenal.  Further, we consider in our
           opinion, the pervasive OSHA hazard communication
           standard on which by your own admission has closely
           modeled, as well as right to know laws in 43 States. 
           HCS affects aggregate operations that have active
           ready mix or asphalt operations directly as do right
           to know laws that do not exempt mining.  Additionally,
           both HCS and the right to know laws affecting mining
           indirectly.  We see great redundancy here in MSHA
           putting the numerous requirements of the interim final
           rule on top of existing MSHA and external
           requirements.
                       In aggregates, relatively few hazardous
           chemicals are needed and the hazards of these are well
           recognized even by the late public:  welding fumes,
           motor fuels and lubricants, used motor oil, solvents,
           paints, varnishes, cleaners, anti-freeze, battery acid
           and explosives.   The obviously dangerous nature of
           explosives, coupled with the heavy burden of training
           and other regulations imposed upon those who use them
           by the Bureau of Alcohol, Tobacco and Firearms, has
           led most aggregate producers to turn blasting
           activities over to contractor specialists.  For those
           that do their own blasting, only miners specially
           trained to meet the stringent explosive regulations
           handle this delicate operation.
                       MSHA's existing regulations mandate that
           all hazardous products at the mine carry hazard
           warning labels.  The need for a new labeling standard
           in the interim final rule we find unnecessary.
                       HazCom requires training and MSHA's new
           rule assumes existing Part 46 training is insufficient
           to satisfy the requirement and thus must be augmented. 
           Why, we ask.
                       Part 46 and Part 48 which applies to
           underground aggregate operations both require
           extensive training for new and experienced miners and
           refresher training every 12 months.  More to the
           point, under both regulations the miner must be
           trained additionally on the health and safety aspects
           of the task to which he or she is assigned before
           being permitted to perform that task unsupervised.  If
           the task requires the use of hazardous chemicals,
           these regulations require the miner to receive
           training on the hazard and how to work with it safely. 
           If the requirements are already in place, what's the
           rationale for piling on new ones?
                       We provide analysis of the database MSHA
           put forth as justification for the rule in written
           comments, but to show an example of the redundancy,
           the duplication of his HazCom interim final rule,
           please note that some 50 percent of all the chemical
           burn entries for the aggregates industry involve
           penetration of the eye by limestone dust.  MSHA has a
           regulation on its books specifically dedicated to
           prevention of eye injuries with requirements to use
           eye protection if there is a risk of injury to this
           vital organ.  
                       Approximately another 25 percent of the
           cases dealing with batteries and fueling accidents are
           also covered by existing MSHA regulations which
           mandate the use of appropriate personal protective
           equipment to prevent injuries.  The majority of the
           incidents relating to aggregate workers in the MSHA
           database are not as a result of unregulated activity. 
           They can and should be prevented and NSSGA has offered
           and continues to work with industry, our members,
           labor and MSHA to determine how we can together
           continue to bring down incident rates and especially
           reduce any fatal accidents.
                       We do not believe an entirely new rule,
           yet another layer of bureaucracy for the aggregates
           industry and our workers can be justified if the real
           problem is that the current rules need to work better. 
           Therefore, as with the labeling requirements of
           HazCom, we are hard pressed to appreciate the need for
           a new training requirement contained in it.
                       Researchers comment that MSDSs are flawed
           as viable instruments of communication to workers
           because they try to serve too many potential
           audiences:  lawyers, occupational physicians and
           nurses, industrial hygienists, marketing personnel,
           regulators, customers and workers, among others.
                       The 17-year-old lesson of OSHA's HCS is
           that it represents a paperwork shuffle that has drawn
           resources away from legitimate health and safety
           concerns.  Moreover, because it bleeds off resources
           and is a bottomless pit of citation activity, it has
           bred cynicism about government health and safety
           efforts among business owners and industry health and
           safety practitioners alike.
                       MSHA's HazCom, with 24 of 30 provisions,
           carrying a paperwork burden, is poised to spread
           OSHA's mistake into the mining sector where we are
           concerned the outcome will be the same.
                       MSHA had it right long ago when it
           concluded that no hazard communication rule was
           necessary in the mining industry because sufficient
           regulations were already in place to protect the
           miner.  Now 16 years later, in light of part 46, the
           Paperwork Reduction Act amendments and more, MSHA's
           former conclusion is even more accurate.
                       This interim final rule detracts from its
           stated goals when it insists on moving forward with
           the regulation that fails to advance the cause of
           health and safety, fails to take into account
           significant differences among industries and fails to
           take into account prior and relatively recent
           regulations designed to improve worker health and
           safety.
                       In closing, let me emphasize to this Panel
           and the mining community that NSSGA stands ready to
           work shoulder to shoulder with MSHA and labor in
           pinpointing and filling any gaps that may be found to
           exist between the regulations already on the books. 
           If we need new training materials or a specified
           amendment to Part 46, let's be responsible and take
           reasonable initiative and work that through, rather
           than impose a 10-year-old solution that didn't fit
           then and doesn't fit now.
                       Again, thank you for the opportunity to
           appear this morning.
                       MODERATOR TEASTER:  Thank you.  Assuming
           that MSHA would go forward with the hazard
           communication standard, what compliance assistance do
           you think that the Agency could provide to small
           operations in terms of coming into compliance with
           this type of standard?
                       MS. WILSON:  I'll probably have to give
           that answer some thought and put it back to you in
           writing, Mr. Teaster, because I'm not confident that
           with your proposed changes to the interim final rule,
           I fully understand the impact of where it appears
           you've attempted to reduce some of the paperwork
           burdens.  So I think I would prefer to make that part
           of our extended written comment.
                       MODERATOR TEASTER:  You mentioned that we
           had regulations in place that could have prevented
           some of the accidents that we referenced.  Do you know
           whether or not any analysis has been done whether they
           were in or out of compliance with the standards or
           whether or not they had knowledge of the hazards that
           they were being exposed to?
                       MS. WILSON:  I do not.
                       MODERATOR TEASTER:  Does anyone else have
           any questions?  
                       Okay, thank you very much.  Let's take a
           short break and we'll reconvene.  
                       (Whereupon, the proceedings went off the
           record at 10:23 a.m. and went back on the record at
           10:45 a.m.)
                       MODERATOR TEASTER:  Next will be Mike
           Sprinkon from the International Chemical Workers
           Union.
                       MR. SPRINKER:  I'd better fix my
           handwriting.  It's actually Michael Sprinker.  It's --
           and I try to do my best when I print things out, too,
           but --
                       MODERATOR TEASTER:  What's the name?
                       MR. SPRINKER:  Sprinker.  S-P-R-I-N-K-E-R.
                       MODERATOR TEASTER:  Looked like O-N here.
                       (Laughter.)
                       MR. SPRINKER:  It was all those years of
           signing sampling sheets and --
                       (Laughter.)
                       MODERATOR TEASTER:  We apologize.
                       MR. SPRINKER:  -- other things.  Oh, no
           problem.  I've been called worse, much worse.
                       So, anyway, thank you.  I'm Michael
           Sprinker.  I am the Health and Safety Director of the
           International Chemical Workers Union Council of the
           United Food Commercial Workers Union.  
                       We actually merged about five years ago
           now and represent a fair number of miners, folks that
           use mining products, which, I mean, like I say, there
           isn't a whole lot that doesn't either come out of the
           earth or is grown that ends up in -- in chemicals and
           in our products.
                       I've also been a certified industrial
           hygienist since 1991.  Before April 1994, when I came
           to work for the Chemical Workers, I spent close to 10
           years as an OSHA compliance officer in the Oregon
           state plan, Oregon OSHA, as an industrial hygienist,
           beginning there about 1990 -- or 1984, just before the
           OSHA HazCom standard came into place.
                       I also spent a couple of years in the
           former Yugoslavia doing some research and talking to
           companies and workers and government folks about some
           of these very similar areas, some of the issues in
           mining and chemical production, health and safety
           communications, how various systems work.
                       I have to say, however, I guess I have to
           say I'm not very pleased to have to be before you once
           again on this same standard.  It's not that I don't
           value the opportunity to listen, listen, and to
           testify.  But this rule has been so long in the
           making, adopted as an interim final rule, then
           hearings held, and now pulled back for
           reconsideration.
                       I'd like to say also I strongly agree with
           Mike Wright about the need to continue to include the
           ACGIH threshold limit values, contrary to what you'll
           undoubtedly hear during the hearing, during these
           hearings over the next month.  While these exposure
           limits -- voluntary exposure limits, I should say --
           may not be perfect, there are a number that we would
           argue are too lax.  
                       But they are a very important source of
           information, and they are considered by many people
           throughout the world and used by a number of companies
           to improve their health and safety programs.  
                       I think we all recognize a lot of the OSHA
           limits and the MSHA limits, which are based on, what,
           I think the 75 threshold limit values that were
           adopted by law and were considered, are rather old and
           may not always reflect anything close to current
           knowledge.
                       The TLBs provide a good source of
           information.  There are companies also that will put
           their own exposure limits on MSDSs, their own
           suggested exposure limits.  I know the factory ceramic
           fiber industry has been doing this for years, as well
           as a number of others, including Monsanto and some of
           our larger companies will do that when they have a
           recommended limit which they think employers should
           try to follow.
                       So, you know, I do think that those need
           to continue to be included, and we would very much
           oppose any move to delete those.
                       I think, in general, it probably does make
           sense for the ease of things to include the OSHA PELs,
           since those are already on most data sheets.  I don't
           think there's too many places where those are
           different.  If there are some places where they're
           different, and MSHA is stricter, we would like to see
           those included.
                       But anyway, this rule is long overdue, and
           I think it's important to remember that during the 12
           years between January 20th, 1981, and January 19th,
           1993, MSHA, OSHA, and other agencies that deal with
           health and safety, both of workers and of the public,
           were not wanted or supported by two administrations,
           except maybe when there were some tragic events.
                       They also -- those administrations didn't
           really want to see the agencies change or move or
           adapt to -- to what even at that time was current
           knowledge.  So we sort of understand why this whole
           process took a long time, you know, and there was some
           comment about 1986 it was decided not to go ahead with
           the standard.
                       I mean, there are quite a number of
           standards that were held up in the mid '80s.  In fact,
           most of the standards promulgated in OSHA at that time
           either came out because Congress finally said, "Look,
           you know, this -- the administration has to adapt this
           -- has to adopt this standard, has to propose this
           standard," or the courts did, especially when there
           was lengthy record that there were hazards --
           formaldehyde, ethylene oxide, benzene, update on
           benzene, even process safety management in OSHA.
                       There was a time when I heard a lot from
           employers.  Remember, this was the time I was at
           Oregon OSHA -- about how come all these rules came out
           at the same time.  And there was a reason.  They had
           been worked on for a long time, and they were kept
           from coming out.  They were prevented from coming out
           by administrative decisions.
                       There's also the burden of -- of
           rulemaking not being done, the burden on employees,
           the burden on workers.  The experience with chemical
           workers under HazCom -- and I'll go to the experience
           in general industry -- there's a lot of products,
           trade secret.  You couldn't find out what the heck it
           was.  The company wouldn't tell you.  There weren't
           data sheets.  There wasn't a good source of
           information.  They'd be claiming trade secret.
                       We're talking about things that were
           reproductive hazards.  We're talking about things that
           could cause severe burns, and we're talking about
           things that actually did cause these problems --
           sensitizers.  And it wasn't until people were able to
           get access to that information that people were able
           to take the precautions needed.
                       And I believe a lot of times even the
           supervisors on the floor didn't know what the heck
           people -- the hazards of what people were really
           working on or working with.
                       We certainly found that, as people
           understand what they're working with, what the risks
           are, what the stuff can do to you, what the symptoms
           are of exposure, they'll use -- they'll use the
           precautions.  A lot of times, too, they'll be finding
           out the precautions they've been given won't work.
                       One of the major mining companies told our
           workers for years, on the issues of diesel exhaust,
           that these little -- nice little paper dust masks are
           just fine against that.  And even ignoring the
           byproducts issue of diesel exhaust, you have the
           issues of carbon monoxide, faulty running equipment. 
           "Oh, this is fine.  This is fine."
                       You know, we've wished many times that
           data sheets had more information or information in a
           better format than what is out there.  Unfortunately,
           it's up to the manufacturers of those products of
           those chemicals to write the data sheets.  And they
           may not always be so well written, but they are an
           important resource. 
                       We find our members use them quite a bit. 
           We find our mining sector members would really like to
           have access to those things.  We also end up doing a
           fair amount of training of our members and find that
           the value they place on understanding how to use the
           information in data sheets, other information sources
           about chemicals, is something they value quite a bit.
                       We've had mining sector members who have
           gone some -- gone through some of the training and
           through some of the hazardous waste training who talk
           about this being the first time they have ever learned
           some of these -- some of these things.
                       So, you know, we've heard a lot -- we've
           heard a lot over the years about how so much is being
           done voluntarily by industry.  And there are some
           companies that are doing that.  Some of our members
           have been decently trained, provided decent
           information.
                       But while some companies were doing that
           sort of training, were doing training on chemical
           hazards, on proper use of PPE, the need to use it on
           engineering controls, others were taking basically a
           free ride on the -- on the backs of the workers on the
           health and safety, and, truthfully, also taking
           advantage of the companies that were spending time and
           money to do training.  We're talking about having a
           level playing field.  This rule, like the HazCom
           standard, will put on a minimum standard which all
           companies must meet.
                       I do have some comments specifically about
           the rule, and some may mirror what the steel workers
           have said.  And I'll be also expanding on a number of
           areas in our written comments.
                       You know, the issue of a written hazard
           communication program is very important.  There's
           nothing that says this has to be 20 pages long and
           match ISO 9000 language either.  In fact, some of the
           worst -- I've seen some very good hazard communication
           programs that are a couple of pages long, or even
           less.  And we're talking, you know, big type with a
           fair amount of space on the pages, too.
                       I've seen memos from management, and
           they'll send companies which are longer than hazard
           communication standards and harder to understand, too,
           or have -- than their hazard communication program,
           and they're harder to understand.
                       The labeling issue -- also, the labeling
           on temporary use, short-term use containers -- I think
           is a very important issue, too, and really does need
           to be something -- a container which is controlled by
           the person who fills it, because one of the problems
           is you have something which, for example, is contained
           -- a little bit of a reactive compound.
                       If that's left around, what happens when
           someone pours in some water or something else that
           reacts with it the next day?  You're going to have --
           you may have some dust remaining there.  You could
           have a small problem.  You could have a bigger
           problem.  But labeling of containers is extremely
           important, and I think we need to ensure that that's
           done even on the temporary containers.
                       With the hazard communication program
           contents there should be some statement as to who's in
           charge of the program, because people need to know who
           to turn to, because lot of times when -- it appears
           that nobody is in charge of anything.
                       MSDSs should be kept for the 30-year
           period, as suggested by -- by Harry Tuggle of the
           Steel Workers.  Those things do change.  We have
           products which have changed from containing silica,
           crystalline silica, to containing something more
           innocuous.  And where is the record going to be of
           what the worker was exposed to?  
                       With the real paucity of exposure
           monitoring which goes on in mining, with some
           companies the only people who ever monitor in a mine
           is MSHA.  There may be no record that a person was
           ever exposed to anything.  In 20 years when they
           develop a disease, or they get the newest company has
           the latest data sheet, that's not what they're exposed
           to 20 years before.  There needs to be a way to
           clarify that.
                       In fact, you know, if there's a concern
           that this is hard on the smaller employers, then I'd
           suggest that perhaps the industry associations might
           not have a hard time keeping some of this.  That would
           be a nice voluntary effort on their part to offer it
           to maybe keep some of these older records, these older
           MSDSs.
                       It's also important workers have the right
           to get those MSDSs, which the rule would provide,
           which otherwise it's totally voluntary on the part of
           the company.  
                       We're also happy that the standard had the
           requirement for hazardous waste, and I think it's not
           only protection for the worker, I think there's going
           to be protection for the operator, too, because I
           think a lot of operators would just as soon know what
           was coming in to be used or to be stored, or whatever
           is being -- whatever is being done with this.
                       I think some of the use of material which
           was contaminated with dioxins which were dumped on
           roads, and I think a lot of construction operators and
           others who use those materials, who use those oils,
           might have really thought, again, if they realized
           this was actually contaminated material that was
           coming to them, not only wouldn't they want the
           liability, I mean, I've dealt with a lot of those
           folks, and they don't want -- they don't want to take
           the risk of making their people sick with something
           which is a major health concern.
                       There's been some discussion of the
           training issues, and, you know, this additional level
           of training would be a burden.  That all depends on
           what training has been done.  I think MSHA has made it
           quite clear you don't have to redo training you've
           already done.  
                       You are looking at basically a performance
           standard here.  Do workers understand the hazards?  Do
           they understand the signs and symptoms?  Do they
           understand the ways to protect themselves?  And that's
           not just PPE, but that things can be controlled
           through other means such as ventilation, and so on. 
           If that's already being done, hey, it's real easy to
           comply with that part of the standard because you
           already have.
                       Some of this stuff, I mean, I -- I keep --
           I'm looking at these things which were fought over for
           so many years in general industry, including small
           employers, including employers with four or five
           people.  And now for a lot of those folks it is really
           common.  I've had employers, small employers in the
           State of Oregon, actually be grateful that some of
           this information -- that they've been able to find out
           some of this information, and even to choose better
           and safer products for people.
                       There are some -- of course, there are
           some burdens.  There are some burdens with every
           standard.  There are some burdens also when there
           aren't standards.  I mean, who ends up paying for the
           injuries and illnesses of workers?  Especially the
           illnesses, which a lot of times are never traced back
           to chemical exposures or to something somebody worked
           with.  And in some states in this country you don't
           get worker's compensation for an occupational illness.
                       And so what are we talking about here? 
           We're talking about preventing some of those at the
           very -- before they can happen.  We believe this rule
           will go a long ways towards helping with that.  I
           think we've seen a lot of that in general industry. 
           We've certainly seen improvements -- like I said,
           improvements in the way personal protective equipment
           is used, in glove selection when that is needed, in
           respiratory selection when that is needed, and even in
           engineering controls.
                       It may be hard to measure the -- how many
           people's health have been saved.  But we also know
           what happened in those industries before all this
           information was available, and how many people were
           made sick, how many people did suffer burns, how many
           people did lose -- did lose function.
                       And, you know, I think this is a -- I
           think that is a way to show that having such a
           standard and having requirements of, "Look, in your
           training you've got to include this stuff" will do
           that.
                       I know that as a member of one of the
           industrial -- a couple of the industrial hygiene
           associations I have talked with a lot of industry
           health and safety people over the years.  I count some
           of them as friends and people I respect.  
                       And what I usually find with them is, how
           do we find ways to better talk about the hazards, not
           just to educate the workers about the hazards, but to
           educate corporate management, plant management about
           -- about the hazards of the various chemicals they're
           working with, how to effectively do that.
                       And that's really been the big focus of
           many of those people.  How do we do effective
           education of everyone involved in chemical use?  Be it
           the engineer who is designing a system, to the
           purchasing person who is buying the stuff, to the
           worker who is using it, to the supervisor who is
           overseeing what's being done.
                       And there is a great appreciation for the
           fact that this information has to be provided -- the
           MSDSs have to be provided by the -- by manufacturers
           and distributors now.  
                       You know, is it absolutely the perfect
           solution?  There is no perfect solution to every
           problem.  But it gives us all a basis on which to
           work, a basis on which we're saying every employer
           needs to at least be at this level, and we can work
           from there.  We've worked very well with a lot of our
           employers on hazards, on dealing with these hazards,
           on educating our workers and helping to educate them.
                       And we're perfectly willing to -- to work
           with employers and with MSHA and with our members to
           raise the level of health and safety in our plants. 
           But I think we need a rule like this, which everyone
           is -- is expected to follow.
                       So, as I said, I will expand on -- on more
           in my written comments.  And I'm happy to answer any
           questions you might have.
                       MODERATOR TEASTER:  Just a couple of
           clarifications.  The interim final rule adopted the
           latest -- what are required pails in accordance with
           the latest version of the -- whether it's the American
           Conference of Industrial Hygienists, whatever was the
           latest edition.
                       MR. SPRINKER:  Right.
                       MODERATOR TEASTER:  What we said in the
           opening statement that we would consider employing in
           2001 for each of those documents identified in there.
                       The other point that I wanted to make --
           on the pails you said that we should accept OSHA's,
           and that's something the agency has stated that it
           would consider, saying that the OSHA pails would be
           acceptable on these labels or the MSDS use.
                       MR. SPRINKER:  Yes.  And I guess one --
           one thing on that, too, is, you know, I realize that's
           a -- I think in many ways we'd like to see whatever
           the current rules are, MSHA's rules.  But on the other
           hand, I think that could be an acceptable compromise
           to us.  
                       I mean, truthfully, we don't really see
           why -- in some ways why we're back here on this.  And
           if it was a choice between the rule going through as
           it was adopted in December, or waiting another year,
           we'd take the rule in December and work with it.
                       MODERATOR TEASTER:  Well, the one thing
           that -- and just for clarification -- what an interim
           final rule is is it -- and this to my knowledge is the
           first time MSHA has issued one in my 30-plus years. 
           But it's a final rule with a piece of proposal up
           front.  
                       And what the agency had intended to do was
           they opened the rulemaking record up for 45 days after
           publication, and then they were going to take the
           comments that they had received during that period,
           and then have a hearing later, and then draft a final
           rule.  And that never did occur, and a lot of things
           took place.  But hopefully at some point we can get
           all of this information and come out with a final
           rule, engulf the interim part of the rule.
                       MR. SPRINKER:  And I think there are some
           basic things in there which are, you know, labeling,
           and so on, which -- you know, it's very disappointing
           to see the stay in effective dates or dates by which
           people need to be in compliance.
                       MR. SEXAUER:  Mike, I have a couple of
           questions I'd like to ask you about personal
           protection.  Earlier we heard a speaker say that 50
           percent of chemical burns affected the eyes and they
           were covered by another standard.  In your experience,
           you would probably agree that a hazard communication
           standard is necessary in addition to the other
           standard.  And I wondered if you care to comment on
           that.
                       MR. SPRINKER:  Yes, sir, because I -- you
           know, you see situations where people do get things in
           their eyes, even using -- for example, even using
           goggles and face shields, because there are times you
           get sweaty, stuff drips down, you take off your PPE,
           it drips into the eye.  People don't know really what
           the hazards of these materials are, and what they can
           do, and what starts out as a little stinging can
           quickly become much worse.
                       They may go far longer before they --
           before they go to an eyewash and wash it out or wash
           it out long enough.  I mean, if I get something in my
           eye, I mean, hey, I'm -- I may rinse it out for a
           while.  If I know that it can cause serious burns, not
           only am I going to make sure I get the -- a good -- 15
           minutes is a heck of a long time.  
                       I'll probably go and seek some medical
           attention if -- or at least someone to look at that
           eye who knows what they're looking at to make sure I
           have gotten it out, because it's not hard to get
           something back -- you know, back behind up at the top
           or whatever.  
                       And these things are -- you know, and
           there are a lot of times, too, when you know what the
           hazard is and what it can do.  You may realize --
           well, I realize, you know, these safety glasses with
           slide shields aren't going to do a darn thing in this
           case.  
                       So I think that's -- that's one of the
           keys.  I mean, knowing -- knowing there is a PPE need
           is one thing, but understanding really why and making
           sure that you take all of the additional precautions
           -- because PPE can fail and it usually does.  None of
           it is perfect.  None of it fits our heads right or our
           bodies correctly all the time, and there are a lot of
           conditions out there that can make -- that can limit
           the usefulness of PPE.
                       MR. SEXAUER:  You stated also that your
           members have found MSDSs to be very useful.  And you
           said that you would expect that miners would also find
           them useful.  I wonder if you could expand a little
           bit on how miners might find it useful.
                       MR. SPRINKER:  Well, one, not only just
           from seeing the exposure limits -- and, of course, no
           one can look and say, "Geez, that looks like a
           milligram per cubic meter out there, and I know -- and
           that's above the limit."  I mean, you know, no one can
           really just look and see that, but it gives them an
           idea of ranking of hazards.
                       Also, the issues on -- I mean, admittedly,
           some MSDSs are far better than others.  I've seen
           MSDSs for arsenic which, you know, even in the '80s or
           '90s didn't acknowledge arsenic as a carcinogen. 
           Quite surprising.
                       We also see MSDSs which do discuss at
           times what kind of gloves are proper, do discuss the
           symptoms -- signs and symptoms of exposure.  Some even
           get into -- certainly list whether something is -- has
           been found to be a carcinogen or not.  So they're used
           as a tool, as a reference, maybe as one of several
           references.
                       We've taught a number of our -- in some of
           the teaching that we do we deal with New Jersey fact
           sheets, Canadian fact sheets, and so on.  Clearly,
           something that not every workplace has, very few have. 
           But it helps to give our members -- the MSDSs help
           give our members certainly some information that if
           they need more they know where to go to.
                       You know, they could look these things up
           on the internet.  They can contact us.  They can talk
           to their physician perhaps.  It ends up being used in
           a number of ways.
                       Also, the issue is, too, although it's not
           -- certainly, we like to see much more -- a much
           better section on chemical reactions and incompatibles
           on MSDSs, that information does -- can help, too. 
           Some of that can help just on the basis of what people
           are using to handle equipment.
                       MR. SEXAUER:  We have some statements in
           the record that miners, in fact, do not use MSDSs.
                       MR. SPRINKER:  Hmmm.  Well, I'll tell you,
           when we put on training at some of our regional
           conferences our miners have stated the fact that they
           want to know about chemical hazards, how do -- you
           know, where are the references for materials?
                       You know, I -- we get a lot of frustration
           from them, too, that those things aren't available in
           every workplace.  It's not that everyone -- every
           miner is going to use -- is going to go through every
           single MSDS. I mean, it's -- I don't know anybody that
           -- I don't want to say that crazy, but who wants to
           spend, you know, days and days and days reading each
           MSDS.
                       But if they're taught -- if they learn --
           if they learn what an MSDS contains, what kinds of
           information it contains, how to find it, and they see
           -- and they feel there's a need, just for their own
           curiosity, or because they have been exposed in the
           past, or because they're working -- going to be
           working with something that they haven't worked with
           for a long time, they will use that.  I'm not saying
           every single person will, but I'm confident they will.
                       MR. SEXAUER:  Thank you.
                       MR. SNASHALL:  You said something to the
           effect that a HazCom program can be done in a few
           pages or something -- that you are aware of it having
           been done in a few pages.  They don't necessary have
           to be lengthy.
                       What, in your estimation, makes for a good
           HazCom program?
                       MR. SPRINKER:  Number one, it needs to be,
           you know, fairly complete -- who is responsible, when
           training will take place, you know, a list of what the
           hazardous chemicals are, the hazardous products are.
                       Especially like in OSHA, the thing about
           having the -- the uncommon tasks that are done, the --
           now I'm forgetting my terminology.  You know, such as,
           for example, cleaning out a vessel or a tank, or
           things like that, where you may have exposures you
           wouldn't normally have or different exposures you
           might not normally have.
                       Also, you know, because those sorts of
           things do show what kinds of things people -- you're
           supposed to be trained on, what your rights are under
           the rule for information, where you -- who you turn to
           to get things if you can't find it.  
                       I mean, there are times even the
           supervisors or the foreman may not know who is
           responsible for things, you know, although that should
           be -- that should be helped through HazCom training,
           too.  You know, and that it's readable, in relatively
           plain language.  I mean, it --
                       MR. SNASHALL:  Has this been done in a few
           pages?
                       MR. SPRINKER:  It can be.  Some of it
           takes longer.  Unfortunately, some -- some companies
           find a need to put everything in.  You know, I was
           sort of joking about the ISO 9000.  But the places
           I've -- people I've heard of complaining about how
           long their programs are and how nobody reads them,
           have them in very -- sort of very stilted and, you
           know, formal --
                       MR. SNASHALL:  Legal-ease.
                       MR. SPRINKER:  Yes, legal-ease and all of
           that.  And those are the ones where you don't see
           fingerprints on them.  You don't see the dirty
           fingerprints.  You know, so that's -- and the fact is
           is that it -- really, the written program really
           serves as a reminder of what the -- of what the
           training has been to people, too.
                       So, you know, I used to write things very
           lengthy and very formally, and so on.  And that
           doesn't work so well in training people.  And like I
           said, part of the function of a written program is --
           in many ways it is a part of the training, and it is
           -- it is letting people know who they can turn to, or
           who they're -- who they're supposed to turn to if they
           -- if there are problems, and what the employer is
           supposed to do, and really to some degree what your
           responsibility is, too, as a worker.
                       MODERATOR TEASTER:  Good.  Thank you.
                       MR. SPRINKER:  Okay.  Thank you.
                       MODERATOR TEASTER:  Our next speaker is
           Timothy Hroblak, the United Mine Workers, Local
           Union 2300.
                       MR. HROBLAK:  How are you doing?  My name
           is Timothy Hroblak.  I've been in the mines for 28
           years.  I'm currently Chairman of the Health and
           Safety Committee.  I'm not a paid commentator or a
           lawyer by any stretch of the imagination.
                       I work six days a week, get paid $60 a
           month for performing -- to perform my health and
           safety duties, and they are performed in my spare
           time.  
                       I'm here because I'm concerned for the
           health, safety, and protection of my people.  I have
           seen a dramatic increase in the use of chemicals in
           the workplace.  Traditionally, we -- miners -- are
           exposed to hazards that we cannot see or detect.
                       The miners have the knowledge, advice,
           experience, and know how to deal with hazards in our
           industries, such as methane, coal dust, etcetera.  We
           are now exposed to hazards, chemicals, that we cannot
           see, detect, or have the knowledge or training to
           safely deal with them.
                       The following comments on the HazCom rule
           are real-life examples and experiences.  We live in a
           real world.  We're exposed to many hazards over the
           course of our mining careers -- gases, coal dust,
           diesel particulates, and now potentially hazardous
           chemicals.  I wonder what else the mining industry has
           to hasten our demise.
                       My comments -- miners need basic human
           protection as afforded most other workers in this
           country.  This rule has been debated for 14 years.  It
           is time to enact a rule that truly, truly protects the
           miners.
                       It is obscene to allow coal operators to
           make a determination what or what is not a hazard. 
           Coal operators knew that coal dust caused black lung
           in 1840, but no protection from this hazard was
           afforded to the miners until 1969.
                       The determination on whether a chemical is
           a hazard or not needs to be left to the proper
           scientific determinations, not the mine operators. 
           Labeling of chemicals is of the utmost importance,
           that any chemical container be properly labeled.
                       The miners must know how to properly
           handle and deal with the hazards associated with the
           chemicals.  Labels must be on all containers,
           regardless of the length of use.  The labels must be
           in plain and easy to understand language, and any
           changes to the contents of a chemical must be on the
           label without any three-month delay.
                       You see, the hazard and/or medical
           treatment required by the use or misuse of this
           chemical has no three-month delay.  Medical people
           need the proper knowledge to treat our people in the
           event of an accident. 
                       We use poly grout injection in our roof on
           a long wall.  It is a known carcinogen.  In the past,
           no miners were allowed to be on the downwind side
           while injecting this chemical.  Then, no miners were
           allowed within 500 feet down there.  
                       Currently, the chemical can be injected
           right over your head.  I've seen drums of this
           chemical, without labels on the drums, only cover
           coating.  I've also seen drums of this chemical --
           we're talking large drums, 65 gallons -- punctured by
           scoop forks and leaking all over equipment, the mine
           floor, and people's skin and clothing, wrecking the
           intake air courses, exposing the entire long wall
           section to the chemical's ill effects.
                       How are we, as miners, supposed to deal
           with chemical hazards without proper labels and
           training?  We, as miners, must know what is in these
           chemical drums and how to safely deal with them. 
           Also, medical personal must also know this to properly
           treat our people in case of an accident or an
           emergency.
                       Mine operators, chemical and
           manufacturers, must be responsible for proper,
           current, and accurate labeling information on all
           chemicals brought into the mine.
                       MSDS -- safety data sheets must be in
           plain, easy-to-understand language.  Any changes to
           the MSDS must be updated before the chemicals are
           used.  The mine operator must be responsible for
           maintaining the MSDS.  If the mine operator makes a
           conscious decision to select and use the chemical, he
           must also make a conscious decision to provide and
           maintain the MSDS.
                       Also, the miners should not be responsible
           for retaining MSDS information.  A miner could be
           exposed to hundreds of chemicals over decades of
           employment.  It is impossible for the average miner to
           retain this information.
                       Training -- miners must be trained before
           a chemical is used at the mine.  The miner -- the
           miner must know how to safely handle, use, in the
           event of an accident, treat our people in case of
           emergency.  If the mine operator makes a conscious
           decision to use certain chemicals, the mine operator
           must also make a conscious decision to train miners on
           the proper use in handling of the same chemicals.
                       This makes sense not only from a safety
           perspective but from an effective use perspective. 
           Many times in the past lack of proper training has
           resulted in pain and suffering for our people.
                       Summary -- any comments already stated
           above require very little effort on the part of mine
           operators to protect the miners from hazards.  They
           are mostly all paper-chase issues that require no real
           work to achieve.  The above-stated comments also in no
           way inhibits the mine operators' operations or
           inhibits the use of chemicals in the workplace.
                       The only thing the miners request is that
           necessary protection from the use of hazardous
           chemicals be issued in the workplace.
                       I'm here to entertain any questions.
                       MODERATOR TEASTER:  You indicated that
           there are a lot of new chemicals being introduced at
           your mine.  Are you -- do you have any personal
           knowledge of any injuries or illnesses that resulted
           from the use of chemicals that --
                       MR. HROBLAK:  Yes.  We've had some people
           exposed in our preparation plants.  They have become
           sick, nauseated, dizzy, and had to leave the
           workplace.
                       MODERATOR TEASTER:  Do you know what the
           chemical was?
                       MR. HROBLAK:  No.  We've had MSHA people
           brought in, and they were -- they weren't able to
           detect anything.  We had probably at least three
           people that I know of that have been made sick by this
           chemical.
                       MODERATOR TEASTER:  Are they back to work
           now?
                       MR. HROBLAK:  Yes, they are working.
                       MODERATOR TEASTER:  Any questions?  Thank
           you very much.
                       MR. HROBLAK:  Thank you.
                       MODERATOR TEASTER:  Our next speaker is
           Randy Bedilion, also from United Mine Workers, Local
           Union 2300.
                       MR. BEDILION:  Good morning.  My name is
           Randy Bedilion.  I'm also on the committee with Timmy. 
           He kind of made my job a little easier.  
                       We got together on what we had planned to
           tell you today, but for a matter of the record a
           statement I heard earlier about -- that it was heard
           that the miners did not want the MSDSs.  Well, I've
           been in the mine for 27 years.  When I first started
           in the mine in '75, probably the only chemical I had
           to worry about was rock dust.
                       If you had seen another chemical, it -- it
           was very minimal, to the thousands that we're, you
           know, subjected to today.  But the miners definitely
           -- I represent the miners, being a Health and Safety
           Committeeman.  And the miners definitely want the
           MSDSs.
                       The MSDSs we have now are so -- should I
           say inadequate?  It might say "may cause the skin to
           burn."  It doesn't have anything about the long effect
           of this, about the -- the majority of them don't have
           anything on them as far as the overexposure, the long
           exposure, whether you were exposed one time, or some
           people -- like Tim had mentioned, we had people around
           chemicals in a plant that actually made them sick,
           nauseous, and they had to be taken off site.
                       We've had guys underground that the glue
           that Mike Long came in -- like he said, it used to be
           the most stringent, and now it's down to the minimal. 
           We'd stand underneath it while they've pumped it. 
           We've had guys breathe that.  It has made them
           nauseous, made them sick.  And they've been sick from
           it.  But we -- the miners definitely do want the
           MSDSs.
                       The agency has noted that, in 47.1, the
           purpose of the rule is to reduce injuries and illness
           by ensuring each operator identifies the chemicals at
           the time, determines which chemicals are hazardous,
           establishes a HazCom program, and informs each miner
           who can be exposed, and other onsite operators whose
           miners can be exposed, about the hazards and
           appropriate protective measures.
                       I can tell you from being through many
           companies that has owned Cumberland Mine in Green
           County, the numerous subsidiaries that has had them. 
           It might be some other company, but when U.S. Steel
           went to USX, an operator -- from what I've seen, from
           one end to the other, is going to go with the most
           minimal thing they can as far as the safety of the
           miners.
                       It's been a fact, as far as the operator
           needs -- needs to be held accountable, more so than
           ever right now. 
                       Based on conditions and loopholes
           contained in the rule, as well as the preamble of the
           rule --
                       MODERATOR TEASTER:  Randy, can we stop
           just a minute?
                       MR. BEDILION:  Yes.
                       MODERATOR TEASTER:  Okay.  Sorry about
           that.  If you could back up from --
                       MR. BEDILION:  That's all right.  Okay. 
           However, based on conditions and loopholes contained
           in the rule, as well as the preamble to the rule,
           there is no reason to believe that miners will be
           afforded the necessary protections from chemical uses
           at the mines.
                       The union has previously argued that the
           agency's ardent desire to write a rule that is solely
           performance-based offers little, if any, assurance to
           miners that HazCom is ultimately an enforceable
           standard.  While the union does not argue that the
           limited use of performance-oriented incentives can be
           beneficial, the decision to base a rule of this
           importance solely on such advice is misguided.
                       The agency should understand that their
           operators do not seek these incentives as an
           opportunity to work mutually toward increasing safety,
           and that's what -- one of the things I was trying to
           tell you. 
                       Probably now, if at any time, the safety
           -- safety is there if pushed by the worker. 
           Management, to me, what I see, is at a minimal they
           are going to do at a very bare minimum what they have
           to do to keep the health and safety of the worker.
                       Lacking enforceable standards and left to
           their own devices, some operators have routinely
           circumvented acceptable safety standards for the sake
           of another ton of coal.  This rule written as it is
           does not offer the level of enforceable safety that is
           required in this instance.
                       By its own admission, Federal Register
           Volume 25, Number 192, page 59055, there is no
           intention by the agency to regulate chemical use or
           prohibit to limit chemical use.  Further, HazCom's
           effectiveness is dependent upon operators' and miners'
           knowledge and awareness of hazards.  
                       And, again, back to what I was saying, we
           get minimal -- they tell us minimal knowledge of what
           we need to know, and there is no link in the hazards
           that long-term cause or use of -- being around it
           nowadays compared to 27 years ago, there is probably
           not a day that I don't go in the mine that I'm not
           exposed or close to some kind of a chemical that I
           don't know what the long-term effect is.
                       Therefore, it's unclear what the rule will
           regulate or control, because the ambiguous language
           and enforcement action necessary to protect miners is
           not available.  The union recommends changes be made
           to the interim final rule which recognizes the
           significant hazard chemicals pose to the workplace. 
           They must also realize the use of certain chemicals
           need to be restricted or prohibited.  
                       Considering the history in industry, self-
           regulation of such an important matter is not
           advisable.  The agency must take a proactive stance in
           the instance and issue chemical use guidelines.
                       As far as getting back in touch, my more
           or less final -- on the MSDS, we see contractors come
           underground, and an MSDS may be on the drum of
           material they're using, or the canister.  Things are
           discarded.  We don't know -- the drums are punctured. 
           The MSDS doesn't show us what's going to happen as far
           as that chemical getting into the walkway, on
           machinery that one of the miners may have to use.
                       He walks onto that.  He not only exposes
           himself to it, but when he leaves the coal mine he
           exposes everybody he comes in contact to with that
           chemical.  And it happens.  People don't all shower at
           the mine.  People that work around these chemicals
           carry those chemicals home to their homes, and it no
           longer stays just within the health and safety of the
           miner.  It also goes to the health and safety of the
           people that he surrounds.
                       That's all I have.  
                       MODERATOR TEASTER:  In the Part 48
           training that you received at the mine, is there any
           detailed discussion on the chemicals that they have at
           the mine that -- as far as --
                       MR. BEDILION:  I personally don't believe
           that, in an eight-hour class, which is -- is the
           Part 48 for the annual retraining -- I don't really
           believe that to do it efficiently you could do the
           chemical training also, as far as in that eight-hour
           training and cover everything else you should cover in
           that.
                       It has been touched on, but to the extent
           that I believe it should for the -- our personal
           protection, no.
                       MR. STONE:  Let me ask a clarification. 
           Are you saying that it's not currently being done, but
           -- that the chemical training is not being done
           currently under Part 48 or Part 46?  Or are you saying
           that it could -- you don't believe it's possible to do
           it in an eight-hour training?
                       MR. BEDILION:  And covering all of the
           other Part 48?  I believe that this chemical training,
           as far as the subject to it, the MSDSs, the stuff --
           I think that could probably be its own training in
           itself, as much as there is nowadays in the mining
           industry to cover.  
                       There is -- like I said, 27 years ago
           chemical was your rock dust and uranium.  Today
           there's thousands, and it's in an everyday mining
           process that they're used.
                       MR. STONE:  Okay.
                       MODERATOR TEASTER:  One thing that --
           under the interim final rule that would be more
           focused training on the hazards that would be -- that
           could be, and I think in most cases would be
           incorporated into the Part 48 or the Part 46 training. 
           So there would be some specific items discussed and
           addressed in that -- in those training plans.
                       MS. GREEN:  But for clarity, let me just
           establish -- try to establish one thing, and that is,
           are you saying that you feel that there's a strong
           need for this regulation because it provides you a lot
           more information than your current Part 48 training,
           such as the MSDSs, and such as the specific labeling
           requirements?
                       MR. BEDILION:  Let me follow what you're
           asking.  Do I believe in this rule?
                       MS. GREEN:  Yes.  And do you feel that it
           enhances --
                       MR. BEDILION:  Yes.  I think it is taking
           too long.
                       MODERATOR TEASTER:  Okay.  Thank you.
                       That's all the speakers that have
           requested to speak.  If there's anyone in the audience
           that has not signed up that would like to speak,
           please come forward now.  If there is no one --
                       MR. TUGGLE:  Just a point, Mr. Chairman. 
           If there is no other speakers, I'd like maybe three
           minutes of additional time here just to make a couple
           -- a few more comments.
                       Okay.  Again, Mr. Chairman, my name is
           Harry Tuggle with United Steel Workers of America. 
           And I would like to make just a few brief comments on
           some matters that have been raised this morning. 
           That's in regard to where some comments were made that
           -- that feeling this rule is basically redundant of
           other provisions in the rule, and references to
           various states that have right-to-know laws and that
           the majority of states having right-to-know laws are
           way up there in the forties, or whatever.
                       However, you can call any one of those
           states, and I think the last count that we had --
           approximately 50 percent of those 40-some states that
           have right-to-know laws in place has no enforcement
           office whatsoever.  Some of them have just an
           answering service and tells you to go to OSHA or to
           MSHA or whatever else agency you might have on these
           issues.
                       And I -- and anyone is welcome to make
           those calls and find out just where those standards
           lie on that matter.
                       As far as this particular HazCom standard,
           to many, in review or face value, yes, it may appear
           somewhat extensive.  It replaces one given standard
           that was -- is being deleted, and that's in regard to
           the labeling standard.  With the current labeling
           standard being deleted, the HazCom standard comes in
           place, and it's very necessary.
                       There were some references to very -- or
           some questions in regard to some various known miners
           that have had problems with MSDSs or problems with
           getting assistance in their workplaces.  And the steel
           workers have had numerous occasions -- and in the
           copper range, specifically, and even in regard to
           silica, having underground miners exposed to silica
           coming out from underground, being advised by their
           doctors to come out from underground, who want a
           janitor's job, this, that, or the other.
                       Having not been earlier on advised about
           the hazards of that silica, they wind up on surface. 
           They can't move from a production job or a craft job
           underground, come to a janitor's job on the surface
           and support their families.  And with no other
           protection in place, they simply go back underground
           to the silica exposure.  That's another issue that
           we'll be addressing some years down the road.
                       But by the same token, even in the iron
           range, there is MSDSs in regard to some various
           aimings used in the flotation process to remove the
           silica from the iron ore process.  And the miners
           there are trained in regard to MSDS sheets that had to
           specifically handle this.
                       However, we found that in a number of
           cases -- downstream emergency processes that this
           standard now addresses -- busted pipes, overflowing
           processes, put labor on it, put this one on it, clean
           that stuff up, work for days on it, and these guys
           wind up sick at their stomach, rashes going on,
           nausea, problems breathing.  
                       And come to find out, there is no
           downstream process until you nail it in the company's
           face that you've got to address these people, too,
           just as though they were directly handling it
           themselves.  It's in the process.  So we've had --
           we've had those situations.  
                       In regard to miners wanting MSDSs, the
           steel workers, along with probably every other labor
           organization, has an annual, if not more than annual,
           safety health conferences with its general membership
           from general industry and its miners from the mining
           industry.  
                       And each and every time that we get them
           in a group, and we have an ongoing need for continued
           education because of our election process for new
           officers, new miners' representatives, new employee
           representatives -- every election turnaround, and we
           bring these people back together, and these
           individuals -- you begin to tell about OSHA MSDSs and
           OSHA HazCom.
                       And the miners -- to many of them this is
           the first they've heard of it.  They start raising
           their hand.  Well, what about us?  What do we do? 
           Where do we get this stuff?  And we're talking to
           miners' representatives and miners in these
           conferences.  And we're saying, "Hold on.  There's one
           still in the works.  We're still working on it."  
                       And we've been telling them that now for
           11 years in regard to that.  And where we are at
           today, we seriously need, as we -- as Mike Wright has
           stated -- to get on with this HazCom standard, and we
           really don't believe -- if we can get beyond the
           litigation issues, we don't believe the standard needs
           to be laid in abeyance until June of 2002.
                       There should be a great potential for this
           to go in place, even with the outreach that's already
           been ongoing, all of the information on the standard
           itself that's been going forward, MSHA's assistance,
           ready assistance to get into this issue.  I think we
           should be prepared for this standard by January 1 of
           2002.  
                       Thank you.
                       MODERATOR TEASTER:  We have -- the
           National Stone, Sand, and Gravel Association is having
           a safety awards meeting in Pittsburgh, and they have
           requested to speak at 3:00 this afternoon, different
           representatives.  
                       So if there's no one else here that wishes
           to speak, we will adjourn until 3:00 p.m. this
           afternoon.  All are welcome to come back and join us
           at that time. 
                       Thank you.
                                   (Whereupon, at 11:47 a.m., the
                       proceedings in the foregoing matter went
                       off the record.)
           
           
           
           
           
           
           
           
           
           
           
           
                                A-F-T-E-R-N-O-O-N  S-E-S-S-I-O-N
                                                    (2:58 p.m.)
                       MODERATOR TEASTER:  Back on the record.
                       Our first speaker for the afternoon
           session is Victor Goulet.  He's with the National
           Sand, Stone, and Gravel Association.
                       MR. GOULET:  Good afternoon, ladies and
           gentlemen.  My name is Victor Goulet.  I actually
           prefer Vic.  And I'm the Safety Director for Brachs
           Industries, Incorporated, which is headquartered in
           Dracut, Massachusetts.
                       We own and operate five mines located in
           New Hampshire and Massachusetts.  And by any
           definition, we are small mines.  Of the 175 people who
           work for us, who are employed in our company,
           approximately 50 to 55 are employed at our mines. 
           Now, this number varies depending on the employees who
           have duties that would be shared with our asphalt,
           paving, and real estate divisions.
                       By last accounting, we have a company-wide
           incident rate of 1.56 and a mod rate of .65.  We try
           to maintain a safe and healthy workplace for our
           miners, and, indeed, all of our employees.  I'm here
           to represent the position of my company, a small mine
           operator, with a safety department of one, a strong
           safety committee, and a team of good and committed
           plant managers.
                       I have responsibility for employees who
           work in OSHA-regulated construction and general
           industry divisions, as well as MSHA-regulated mines. 
           I say this just to give you a quick thumbnail sketch
           of what my experience tells me is the position of
           literally hundreds of safety professionals just like
           myself.
                       They are typically people who wear many
           hats, whether it is several job responsibilities
           besides safety and health or responsibilities for the
           occupational well-being of employees, and workplaces
           who fall under the jurisdiction of several agencies,
           be they federal, state, or local.
                       I'm here to try to explain to you why I
           feel that this HazCom rule would be a burden to my
           company, my efforts, and that of my small mine
           associates.
                       I read your opening statement with great
           interest, because in it you share with us the agency
           thought, which in part states precisely my argument. 
           You stated that, "The HazCom rule does not duplicate
           other MSHA standards as claimed by some commenters
           representing the aggregates industry."  And this is
           where I agree. "It augments, supplements, and
           complements these existing standards."
                       Outside of reviewing and listing every
           standard that you have claimed this rule would
           augment, supplement, and complement, I prefer to
           explain why this will burden my existing standard
           compliance safety and health efforts.
                       Looking your claims up in my comment desk
           dictionary has raised concerns with what you propose
           this rule will do to my company.  Augment means to
           make greater, as in size, extent, or quantity.  A
           second definition means to add.  Supplement is defined
           as something added in part.  And complement, as a
           noun, refers to the number or quantity required to
           make up the whole.
                       Even taking into consideration the balance
           of the definitions, nowhere is there a relationship to
           the quality of a requirement, only to the quantity of
           requirements.  When you increase the quantity of a
           safety requirement, you increase my burden to comply
           with it.
                       Now, if this were by design to enhance a
           deficiency in the way that chemical hazards are
           labeled, recognized, or their avoidance was improved,
           I suppose my argument about burden would be less
           valid.  But the agency, by your own acknowledgement,
           has accomplished that.
                       I don't even have to refer to the old 1986
           program information bulletin in which the agency
           argued itself that a HazCom rule was not necessary
           because, among several other reasons, it was
           duplicative.  
                       Instead, in the current record of this
           interim final rule, MSHA states no fewer than 24 times
           that existing standards in the programs that they
           prescribe address requirements of HazCom.  When
           someone tells me something 24 times in 48 pages, I
           figure that they mean it.  
                       Again, not wanting to be redundant and
           list the gamut of existing standards that address
           these things already, I can only say that to duplicate
           these requirements will add to my precious and
           overtaxed job responsibilities providing necessary
           assistance in those areas where we have experienced
           injuries and illnesses.
                       For instance, we have had miners seriously
           hurt by trips, slips, and falls, by defective tools or
           their improper use, etcetera.  We have not had a
           chemical-related injury. 
                       Now, I know that I represent only one mine
           operator with only five mines.  But in my case, and in
           the case of several of my associates with whom I share
           and compare information, this is not the prioritized
           cause of incidents that you state.
                       Not unlike any single anecdotal
           justification cited in the preamble, my submission for
           your consideration is that this isn't happening to us. 
           And I can certainly testify that I know of no cases
           where anybody suffered injury or illness because every
           T wasn't crossed and every I wasn't dotted in a
           written plan -- by the way, which OSHA has elevated to
           the infamous status of their most cited standard.
                       As a matter of fact, we do use the OSHA
           HCS with our miners based on the recommendation of
           MSHA, in 46.4 of the training standard.  Because of
           our treatment of this existing requirement, and with
           this recommended way to handle the training to
           recognize hazards in our mine, it has been
           incorporated into our approved Part 46 training plans
           with the agency's blessings.
                       So in terms of my take on how another
           existing standard is augmented, supplemented, or
           complemented by HazCom, I prefer the term
           "duplicated."  There's no ambiguity in my
           understanding of the definition of the word
           "duplicate."  It is simply defined as to double, to 
           make twofold, copy, replicate, repeat, and imitate. 
           It is here that I am burdened, and my efforts will be
           duplicated.
                       There is the presentation in the final
           regulatory economic analysis of September 2000 that a
           mine the size of one of ours should only incur an
           annual burden of $230.  
                       I can assure you that I've already
           expended that in just the time it took me to read all
           of this material, as well to expend the time to assure
           that my existing program would be adequate to make
           necessary changes to assure that I -- that I've
           trained all affected or potentially exposed miners,
           and document all of this in accordance with the new
           rule, I will experience a cost to my employer that
           will be several times the stated amount, not to
           mention the time required to keep me properly trained
           to be qualified to keep this program in compliance.
                       I don't argue that these steps are not
           necessary, or that cost analysis alone is a primary
           consideration, but, to the extent that they are
           redundant, detracts from my actions to make my hazard
           information and training program of chemical hazards
           any more effective than is already built into my
           approved Part 46 plan.
                       I suppose -- and you have commented on --
           that a lot of these tasks could be contracted out. 
           But I am still responsible and liable for compliance,
           and that will still cost my time on top of the cost of
           the contractor.  And I believe that the miners at our
           mines will realize no greater nor more effective
           safeguards to their safety than currently exist.
                       I was about to find an excellent study on
           some of the problems with the OSHA HCS in the form of
           an agency requested analysis that was done by the
           National Advisory Commission on Occupational Safety
           and Health.  And it was released in September of 1996.
                       This OSHA request was based partly on
           complaints of small businesses to the burdensome
           requirements of the standard, and by the Clinton
           administration as part of the effort to make the rule
           more efficient, less of a burden, improve
           understanding and compliance, and reduce ineffective
           paperwork.
                       Some of the findings in this report echo
           what I'm trying to say here today.  This report
           recognized the paperwork burden as real.  It also
           pointed out that MSDSs are flawed, that training based
           on these MSDSs was ineffective.  That the complexities
           of compliance with the standard resulted in inadequate
           programs and cynical attempts to present a program
           that was little more than ignored paperwork.
                       More troubling were the findings that
           enforcement actions were cast in an unflattering
           manner.  The report detailed how OSHA compliance
           officers wrote citations that were based on their
           misunderstanding and misinterpretation of the
           requirements of the HCS.  
                       It as well points out that perceived
           deficits on the details of written plans on
           understandable MSDSs, and a minutia of non-hazard-
           correcting requirements, added to small business
           suspicion of the intent of the citation writers, and,
           indeed, the standard itself;  hence the report's
           recommendation for a de minimis violation and several
           paperwork infractions.
                       To this day, paperwork violations
           represent the most cited standard by OSHA, and five of
           the top of the 20 cited general industry violations
           that are written.
                       Now, if I were to associate this statistic
           with the MSHA HazCom rule, I as well would argue that
           this presents a burden to your enforcement efforts as
           well as to my compliance efforts.  We would
           undoubtedly both be tied up with precious inspection
           time debating the lack of or the perceived lack of
           dotted I's and crossed T's.
                       As well if this were to become MSHA's
           number one cited violation, can you quantify for me
           the amount of time that your inspector supervisor and
           I would be tied up in conference?  Not unlike me, he
           and his staff of ARs would much rather be at the mines
           assessing the working conditions that injure,
           potentially fatally injure, our miners.
                       I'm asking you to consider the burden on
           your acknowledged strained enforcement efforts.  I'm
           asking you for your economic analysis of costs to
           enforce this rule.
                       In the preamble for Part 46 rule, you
           identified that the annual cost burden on mines of our
           size would be about $1,800.  This is a cost that we
           have already acknowledged, accepted, and expended.  As
           well the compliance costs of the other existing
           standards, agency acknowledged existing standards,
           have already been invested in our safety budget.
                       This is just the small guy speaking here. 
           But since we've invested this substantial amount,
           wouldn't it be more cost effective and, more
           importantly, more protective for the miner for you and
           me to expect that your compliance efforts should be
           emphasized with the equally protective and currently
           existing standards and not on undue duplicative rule?
                       Couldn't we look at the existing Part 46
           training rule as adequate to ensure that chemical
           hazards are as real and as important as the other
           hazards that exist?  And, if not, why?  Is that rule
           deficient?  
                       I fail to recognize how my intentions to
           work to protect our miners, in compliance with our
           corporate management's commitment, our employee's best
           interest, and a desire to protect their health and
           safety, will be increased or improved with duplicating
           that which already exists.  To me, and to many of my
           fellow safety professionals, this has the unfortunate
           flavor of rulemaking for the sake of rulemaking.
                       Thank you very much.
                       MODERATOR TEASTER:  Thanks, Vic.  You say
           that your Part 46 plan incorporates training that
           addresses the chemicals that are used at your
           operation?
                       MR. GOULET:  Yes, sir.
                       MODERATOR TEASTER:  Would that -- do you
           feel that that would comply with our interim final
           rule as far as the training requirements for --
                       MR. GOULET:  I feel that that very much
           complies with what I interpreted Part 46 to mean when
           we talked about training miners in the avoidance of
           hazards, one of which is chemical hazards that I
           recognize.
                       I think it would meet the intent, as I
           perceive it -- this is my perception, Mr. --
                       MODERATOR TEASTER:  That's what we're
           asking for.
                       MR. GOULET:  Right. 
                       MODERATOR TEASTER:  And you say you comply
           with OSHA's hazard communications standard?
                       MR. GOULET:  We adopted OSHA's HCS as part
           of our Part 46 training plan, as we did several other
           either national consensus standards or other training
           programs, information and training programs that were
           available in the marketplace -- again, taking the
           lead, from what I read in the record, concerning
           Part 46, that there is availability of existing
           programs that can be incorporated to meet the intent
           or the intention of that training regulation.  So in
           our case, yes, we -- we used HCS.
                       MODERATOR TEASTER:  Do you have an idea of
           how many chemicals, different chemicals, that you have
           there that you address in your Part 46 training?
                       MR. GOULET:  In terms of an actual number,
           Mr. Teaster, I don't have it.  I can get it for you. 
           We address chemicals in -- well, our Part 46 plan
           obviously is different at each of our mining sites. 
           We have specific plans for it, where we talk and teach
           in general chemical hazards, and in specific what we
           have located at that location.
                       I didn't submit these or anything, but
           this is just a picture of our MSDS shelf, which
           happens to be at my office.  Each mine has their own
           for the hazard that exists on the mine site, and I
           maintain a library for not only reference but
           availability for anybody that has a request for
           availability.
                       MODERATOR TEASTER:  And those are
           available for review by the miners?
                       MR. GOULET:  By the miners, yes.
                       MODERATOR TEASTER:  So if your -- is it
           reasonable to say that you comply pretty much with the
           OSHA standard?
                       MR. GOULET:  Yes, sir.
                       MODERATOR TEASTER:  What we are saying for
           the most part, that if you comply with -- with MSHA's
           interim final rule that -- that that would satisfy our
           rule, if you comply with OSHA's.
                       MR. GOULET:  I understand that.  My
           compliance with OSHA's HCS is because it is in my
           Part 46 plan.  It's there.  And I felt that I was
           directed to do that when I adopted my Part 46 training
           plan.
                       This would duplicate several of the
           efforts and add on to the burden some additional --
           and I understand as well in your opening statement you
           talked about looking at some of the requirements in
           this interim final rule and making some adjustments
           based on the comments that you've received.
                       I didn't address those in my testimony,
           but I recognize them, and I'd say carry on, but
           continue to carry on.
                       MODERATOR TEASTER:  You mentioned in your
           statement something about a flawed MSDS sheet.  Did I
           understand you correctly?
                       MR. GOULET:  Yes, sir.
                       MODERATOR TEASTER:  Could you clarify
           that, or expand --
                       MR. GOULET:  I extracted that from that
           report by -- that OSHA ordered and was -- and I have
           a copy of it here.  They talked about some problems
           that they've noticed with MSDSs in the marketplace in
           that -- you know, available out there, supplied by
           suppliers and manufacturers, supplied to workplaces on
           request when the chemical was brought onsite.  And
           that was by the National Advisory Committee on
           Occupational Safety and Health.
                       And flawed -- when they talked about
           flawed, they talked not only about content.  But the
           way, again, that I perceived and read this report is
           the type of information that was presented, the fact
           that because there would be omissions in there, some
           operations, some companies would assume that the
           chemical did have a hazard that didn't necessarily
           exist, based on their use of the chemical and these
           sorts of things.
                       They recognized that since they were
           written, which seemed to be primarily for attorneys,
           cover litigation issues, other users of that, rather
           than strictly an employee, that that made them flawed
           in terms of their use that they were designed for, at
           least that HCS and MSHA has looked at them -- you
           know, as information for the miner.  I guess in a lot
           of words, to sum it down, understandable.
                       MODERATOR TEASTER:  Do you have any
           knowledge how often a miners may refer to the MSDS to
           different operations?
                       MR. GOULET:  In my operations, in the past
           three years I've never had a request for an MSDS by a
           miner.
                       MODERATOR TEASTER:  Would you have
           knowledge of any request made at the mine?
                       MR. GOULET:  No, sir.  No, meaning I -- I
           have knowledge that there has been none.
                       MODERATOR TEASTER:  Okay.  Assuming that
           the agency goes forward with this interim final rule,
           in your opinion, what can the agency do to best assist
           the small operators to come into compliance?
                       MR. GOULET:  Well, I'm not exactly sure
           how you would be able to assist me.  I know I've read
           in the record, as well as in other documents that have
           been supplied by the agency, that there are several
           steps to include outreach and compliance assistance.
                       And I don't want to appear cynical,
           because I will represent to you that I have, in my
           opinion, a good relationship with MSHA, at least on
           the local level.  I know, Mr. Teaster, we've spoken on
           this before.  I have yet to have a CAD on Part 46.
                       Our particular local office is having
           difficulty meeting their requirements for inspections
           for several reasons.  And this is not in terms of
           criticism; this is real world that I'm talking about. 
           I wouldn't hardly expect that they would be able to
           expend effort in helping me write or train or
           understand anything in this standard.
                       EFS has one available person for New York
           and New England.  John Montgomery is a great guy. 
           I've worked with him on a lot of things, but he is
           stretched so thin.
                       MODERATOR TEASTER:  Yes.  I agree that
           we're short on resources, and we -- based on the
           discussions we've had here with you today, I -- you
           seem to be very progressive as a small operator in
           terms of compliance.  
                       But I think as far as doing the compliance
           assistance visit on Part 46, we try to focus with
           folks that -- that need the help first, and then we go
           to anyone that we think that needs it or has requested
           it.  We try to get to all of them, but I think during
           this outreach, going -- during the interim period of
           waiting for the rule to become final and after, we've
           done a tremendous outreach.  
                       And I think we've tested a lot of mines to
           notify them, make them aware of the Part 46.  But we
           -- if we had an operator that we felt was in
           compliance, we try to call all of the Part 46 and find
           out if we needed help with it.
                       I think we visited most of the small
           operations that really needed assistance.  We're going
           to I guess stop doing the compliance assistance at the
           end of the month.  Hopefully, we've reached all of the
           folks that have needed help, and I think we have for
           the most part.
                       MR. GOULET:  I didn't come prepared with
           statistics of people I'm associated with who have or
           haven't had visits.  I'm speaking primarily myself. 
           But I did mention that I communicate often with
           people, and that's based on sort of the direction --
           informal direction I got from the agency back in June
           when we sat in a room for a brainstorming session, and
           we talked about what each other can do to help us meet
           what Mr. Larisky has set as goals for both the agency
           and industry and labor combined to meet.
                       And one of the recommendations that came
           from the MSHA side of the table was a mentoring
           program.  Why doesn't industry actually get a
           mentoring program?  So I jumped on that, and this is
           where I'm coming up with some of the inputs.
                       Some of the small mines -- and we're small
           mines, but smaller than us -- where their safety
           director, unlike I am -- my responsibility is also the
           bookkeeper, and possibly one of the supervisors, and,
           heck, may spend hours driving a haul truck for that
           matter, and there's a couple of those like that.  And
           we've talked about -- I've talked about this with
           them.
                       So that's why I had said I represent sort
           of their point of view as well, so maybe you can say
           my program seems to be in order, and I wouldn't have
           to do much to comply with this, although I -- I would
           still consider it a serious burden, and a burden as
           well on our relationship, as I had stated in -- in
           your enforcement efforts and my compliance.  They've
           indicated to me that they're having a tough time with
           it.
                       MR. FEEHAN:  How long had you had the
           program, your -- how long have you included your
           HazCom program in the training?
                       MR. GOULET:  In terms of Part 46, since
           its inception.  Prior to that, we have OSHA regulated
           industries within our -- the confines of our mine
           sites.  So we've had that requirement since before
           Vic, my predecessor, in terms of making sure that
           people that are regulated by the OSHA regulation have
           the proper training.
                       And I had said that we have some range of
           miners, and that's because our people move back and
           forth.  So they've received HazCom HCS training prior.
                       MR. FEEHAN:  Have you had a HazCom
           program?  And do you have MSDSs and --
                       MR. GOULET:  Correct.
                       MR. FEEHAN:  -- labeled?
                       MR. GOULET:  I don't know if I showed you
           that.  It's been shelved.
                       MR. FEEHAN:  Well, it seems -- you know,
           and I'm interested in hearing from you, but to me the
           $267 cost that we've costed for this, I don't think
           there's any cost.  I mean, don't you already have
           compliance with the standard?
                       MR. GOULET:  I have compliance with --
           from my OSHA operation, HCS, and I believe I have
           compliance on the MSHA side with Part 46.  And I'm
           just saying that you're asking for compliance with a
           new rule that has some differences.  It will take time
           and effort away to make sure that we're in compliance.
                       MR. FEEHAN:  Well --
                       MR. GOULET:  Notwithstanding some changes
           that you're proposing, okay, the rule -- the interim
           final rule as it stands -- and I haven't measured --
           haven't had the opportunity to measure it -- this will
           make a big difference, some of these changes you
           propose.  I would suspect it would be a difference,
           but still a burden.
                       MR. FEEHAN:  The changes from OSHA's HCS,
           though, there are about five of them, and they're all
           basically liberalizations of the compliance
           requirements, except for -- you know, excepting, let's
           say, the hazardous waste requirement which doesn't
           apply at your operation.  And the training record
           retention.  Okay.
                       Other than that, almost everything else is
           a liberalization of the compliance requirements.  Now
           how is it that it would be more difficult to do?
                       MR. GOULET:  Well, as I had stated, it's
           my understanding -- and although you've mentioned
           several times that if I'm in compliance with HCS I
           will largely be in compliance with this.  
                       But this still doesn't mean I'm in
           compliance with it.  I have to run the program as I
           understand it the way -- the way it is written or I am
           subject to be in violation in terms of compliance with
           this standard, which takes time and effort to do these
           changes, and changes in the labeling requirement.
                       And, again, you're addressing some of that
           as well.  But there are changes from HCS to HazCom and
           labeling requirements.  And, again, I talked about a
           burden that involves the relationship with MSHA and my
           company, both in their time and cost, and in my time
           and cost, which will add to it now because, as my
           local office can tell you, we sit down and talk when
           there's a -- when I've been cited for a violation for
           a couple of reasons.  Maybe I disagree, or maybe I
           need an education to help me get into compliance.  But
           this will just add to that again.
                       MODERATOR TEASTER:  Vic, if you're
           planning on submitting some post-hearing comments,
           we'd be interested in your comments on our thoughts
           addressing some of the concerns in our opening
           statement, how that might reflect on -- on your
           overall view of the interim final rule, and the
           differences with complying with what you're doing now
           and how that might make it easier to comply, if those
           changes were implemented, and what effect it would
           have on it.  Any comments in that area we'd appreciate
           it.
                       MR. GOULET:  Okay.  As well it will give
           me the opportunity to talk to some of these people
           that I'm working with out there in the field in this 
           little mentoring program that we've started.  I
           solicited comments from them.  I don't represent them
           in front of you, and I understand that.  I'm just
           trying to give you what I perceive is sort of --
                       MODERATOR TEASTER:  Sure.  I understand
           that.
                       MR. GOULET:  -- feeling from the -- my
           part of the country or similar operations. 
           Notwithstanding changes that you have proposed, you
           may look at in your statement this morning, as well I
           don't want to leave this table watering down the
           message that I came to say, that I believe it's
           duplicative.  
                       I believe I already have it on my
           workplace, based on existing standards, and I believe
           you have acknowledged that to a large extent.  That's
           what brought me here, is that my belief is they're
           there, and they are working.
                       MR. SEXAUER:  I think I, too, was struck
           by your comments in light of the existing standards
           that there would be an increase in burden, and I'm
           just trying to pin down what that increase in burden
           would be.  So if you are submitting any additional
           comments, that would be interesting to see how that
           would break down.
                       You showed us a photograph of your MSDS
           roll, I think you called it.  And what I was going to
           ask you is if you don't mind parting with that
           photograph, we'd like to put it into the record --
                       MR. GOULET:  Absolutely.
                       MR. SEXAUER:  -- if that's all right with
           you, and we'll call it Exhibit 1.
                       MR. GOULET:  Sure.
                       MR. FEEHAN:  I have a question about them. 
           Are they broken down by -- do they represent -- they
           represent MSDSs from all of your mines.  Does that
           mean if five of your mines have diesel number 2 being
           used for the equipment that you have diesel number 2
           in five times?
                       MR. GOULET:  No.
                       MR. FEEHAN:  Is it broken down by mine or
           is it --
                       MR. GOULET:  No, and let me explain the
           photograph, if I may.  I wasn't sure if I was going to
           be able to introduce it, but we got into a
           conversation.  There are two shelves of white
           notebooks labeled MSDS.  The top shelf is, and I have
           represented to you, here's our MSDSs at all of our
           locations.  They're alphabetical.  They're found
           alphabetical.  So if the person wants to come in and
           look for diesel number 2 generically, maybe because
           they feel they may be exposed to it at several
           locations or, you know -- they're able to find it
           alphabetically for the company.
                       This second shelf, the lower shelf, if you
           will, on there is where it is broken down by location. 
           If someone says, "I was at Location X, I thought I saw
           a chemical," he may want to go to that.  So that's why
           I said I needed to qualify those pictures.  I had
           showed you the picture of one shelf, I think, I hope.
                       MR. SEXAUER:  Let me just clarify for the
           record that there are five photographs, each showing
           different angles of the same display of shelves.
                       MR. GOULET:  Correct.
                       MR. FEEHAN:  But this is not just the
           MSDSs for the mining section.  This is MSDSs for all
           of the companies.
                       MR. GOULET:  That's correct.  I said we
           have within the confines of our property, OSHA, both
           construction in general, industry jurisdiction
           divisions, as well as MSHA.  And I felt, as I do my
           training, that the miner, as he moves around our site
           that he has to, would be exposed to those hazards that
           are brought in there by our other divisions.  No
           different than if a contractor in the back of his
           pickup truck or on his service truck brought in a
           hazard.  I would be obligated to train the miners on
           their potential exposure to that.  I do the same thing
           here.
                       MS. JONES:  Excuse me.  You said you had
           five mine sites?  Do miners at each of those mine
           sites have access to these MSDSs?  Is that how it
           works?
                       MR. GOULET:  At the mine site, this is my
           library that is available --
                       MS. JONES:  To miners from all five mines.
                       MR. GOULET:  That's correct.
                       MS. GREEN:  But would they get a copy of
           it?  Are they entitled to a copy?
                       MR. GOULET:  Yes.
                       MS. GREEN:  Or are they just entitled to
           review it?
                       MR. GOULET:  No, no.  They get --
                       MS. GREEN:  They get a copy for
           themselves?
                       MR. GOULET:  It's not in the picture but
           a little bit over to the left of that is a copy
           machine.
                       MS. GREEN:  I'm just going to ask you, you
           referred to an OSHA document --
                       MR. GOULET:  Yes.
                       MS. GREEN:  -- I believe, that you have
           there in your notebook.  If it you'd like to submit it
           for the record, we'd appreciate it.  If that's your
           only copy, we could just take the reference.
                       MR. GOULET:  Okay.
                       MS. GREEN:  The cite for the document.
                       MR. GOULET:  Yes.
                       MS. GREEN:  But it needs to be in the
           record.
                       MR. GOULET:  I understand.  This document
           was downloaded off of the OSHA web site, www.osha-
           slc.gov.  It is titled, "Report of the Hazard
           Communication Work Group to the Nation."  It is an 83-
           page report.
                       MR. FEEHAN:  Can you tell me what your
           understanding is of the recommendations or conclusions
           of that report?
                       MR. GOULET:  There were several
           recommendations, some of which is that the program
           should not be changed.  There were some comments in
           there as well, recognizing some changes that needed to
           be made and some that have actually already taken
           place, some of which have not; the Agency has not
           moved on them.
                       MR. SEXAUER:  How many -- you have two
           shelves of MSDSs and basically there are duplicates
           arranged according to different formats, right?
                       MR. GOULET:  That's correct.  And I hoped
           I made the representation that I was talking about the
           top row, because that's my library of MSDSs.  It's
           just rearranged for --
                       MR. SEXAUER:  How many would you say you
           have in that top row?
                       MR. GOULET:  Sir, I'll have to get back to
           you with an exact number or anything close to it. 
           Hundreds.
                       MR. SEXAUER:  What do you do with, I
           guess, older MSDSs as they get replaced with new ones?
                       MR. GOULET:  I archive them, as well as I
           archive --
                       MR. SEXAUER:  Would you do updates?
                       MR. GOULET:  Oh, absolutely.
                       MR. SEXAUER:  Yes.
                       MR. GOULET:  Yes, absolutely.  We recently
           got in one on a chemical where it specifically stated
           that this replaces previous MSDSs, and they stated to
           archive or to remove the library --
                       MR. SEXAUER:  And you keep a copy of the
           older one somewhere.
                       MR. GOULET:  Absolutely.
                       MR. SEXAUER:  By the way, we mentioned
           this morning that our intent is to put transcripts on
           each hearing on our web site within 48 hours after the
           hearing.  So to refresh your memory, if you're
           thinking about what was said here, that would be a
           good place to go back to.
                       MR. GOULET:  Thank you.  I realize that
           I've downloaded already previous testimony, which is
           why I didn't want to be redundant when I said I'm not
           going to start listing the numbers of the existing
           standards as I see them, and they've been testified to
           before and so on and so forth.  I just wanted to go
           from my perspective.  But as it stands alone, because
           this other stuff is already entered into the record. 
           Again, my beef is replication and duplication.
                       MODERATOR TEASTER:  When we talked earlier
           about how many chemicals or MSDS sheets you had for
           one of your mining operations, you said you'd get back
           to us on them, but could you take like the smallest
           operation that you have and give us the number of
           chemicals that you would have MSDS sheets on at that
           specific operation?
                       MR. GOULET:  I'm representing a
           recollection here.  It's not a number that -- because
           I may get back and find out I could be off as much as
           twice, because it is -- 20 to 25, I want to say I
           recall, in that range.  A couple of dozen if that
           answer works.
                       MR. FEEHAN:  That sounds about right.
                       MR. GOULET:  And I'll make sure to verify
           that to you when I get back with additional written
           comments --
                       MODERATOR TEASTER:  Okay.  We appreciate
           that.
                       MR. GOULET:  -- since it's a specific
           question and I don't want to leave on -- make it that
           general.
                       MODERATOR TEASTER:  Okay.  Appreciate it.
                       MR. SEXAUER:  One further.  You mentioned
           that no miners have looked at your MSDSs to your
           knowledge.
                       MR. GOULET:  Have requested.
                       MR. SEXAUER:  Have requested.
                       MR. GOULET:  I think that was the
           question.
                       MR. SEXAUER:  Right.  Have requested to
           look at them.  But you certainly have looked at them,
           right?
                       MR. GOULET:  Yes, I have.
                       MR. SEXAUER:  And so you're familiar with
           them to some extent.  You know where --
                       MR. GOULET:  I'm familiar with what they
           look like, and I'm familiar with what they are.  I
           don't represent myself as having a large scientific
           background.  Quite a bit of it's confusing to me.
                       MR. SEXAUER:  I guess my question really
           goes to is have you had occasion to use the MSDSs?
                       MR. GOULET:  Outside of training?  No. 
           When you say "used," maybe I'm confused.  Maybe I'm
           not quite clear on the question.
                       MR. SEXAUER:  Well, I guess one question
           would be if there was an incident at your facility,
           another question would be whether or not as a
           reference, if you were to --
                       MR. GOULET:  As I have testified, excuse
           me, we haven't had one.  That's another thing, that I
           can't justify a whole new rule, and I think I
           qualified that by saying that we're one mine operator,
           five small mines, but that's my testimony.  We haven't
           used it, and we have had hazards that have hurt our
           miners.  But I would much rather spend my time on and
           much rather have MSHA's help in ensuring that if we
           can do something about that rather than this.
                       MR. SNASHALL:  Do you give Part 46
           training every time a new chemical hazard is
           introduced in the environment?
                       MR. GOULET:  As a new chemical is
           introduced into the environment --
                       MR. SNASHALL:  Or a new hazard.
                       MR. GOULET:  -- we do that at weekly
           safety meetings.  And it's the time that's spent is
           entered into the training record as time spent on that
           or any other hazard or a new process or those sorts of
           things.  That seems to be the best time when we have
           the attention of the miner and he understands that
           this is a safety meeting and we're going to be
           discussing hazards versus -- our five locations tend
           to be remote; they're rather scattered.  Small
           geographic area to a lot of people if you're from the
           West, Texas or something, but up in New England we've
           got some mountains between some of our places, so this
           is how we do it.
                       I do it with safety meetings that are held
           on site by the person that's designated in each of the
           plants.  He tends to be our Plant Manager.  So I'm
           able to discuss it with him, and then he imparts the
           information on to the miner and it's recorded on our
           weekly meetings and, as well, is recorded on the
           training records.
                       MR. SNASHALL:  Could there be some
           exposure of the miners to a new chemical hazard before
           they receive any training?
                       MR. GOULET:  Could there be?  Yes.  And
           the reason I say that is getting the MSDS is often not
           an easy thing.  It's often not an easy thing.  Now, in
           your proposed test common rule where it says that the
           MSDS must be there, well, if you will, prior to the
           chemical, prior to the exposure, we, as best we can,
           get copies so that they arrive at the site with the
           exposure.  Those are the ones that are ordered and
           under our control, the ones that are purchased locally
           in quantities.  I can't represent to you that they
           receive the training before that chemical hits the
           site.
                       MR. SNASHALL:  Does your assessment of a
           hazard depend upon the MSDS?  In other words, do you
           identify a hazard based on an MSDS?
                       MR. GOULET:  No.
                       MR. SNASHALL:  How do you assess that
           hazard?
                       MR. GOULET:  The label.  Because it comes
           with the product.  It's there at least the same time
           as the product; actually, not often before but it
           comes with the product.  And we can work off the label
           because typically on the label they will identify the
           chemical name, the hazard, and more often than not
           necessary avoidance or at least required PPE.  And,
           again, that's on the chemicals that are ordered and
           controlled sort of universally -- guy goes out and
           buys a case of ammonia for windows or WD-40.  I will
           admit to you that that would be difficult or is
           currently, and it would be under the requirements of
           the standard as well.
                       MODERATOR TEASTER:  Thank you very much. 
            We appreciate it.
                       MR. GOULET:  Thank you.  And I will make
           sure to get back with you on those, as I told you I
           would.
                       MODERATOR TEASTER:  Appreciate it.
                       MR. GOULET:  I appreciate the opportunity
           to speak.
                       MODERATOR TEASTER:  Appreciate you coming. 
           Is there someone in the audience who would like to
           speak?
                       MR. TUGGLE:  Yes, Ernie.  I'd like to
           follow-up with some of my comments this morning.
                       MODERATOR TEASTER:  Okay.
                       MR. TUGGLE:  Harry Tuggle here again on
           behalf of the steel workers.  And, Ernie, I do
           appreciate this opportunity again.  This is going to
           be only -- about the only hearing I'll be able to
           attend so I'd like to make the best of it while I'm at
           it.
                       MODERATOR TEASTER:  Sure.
                       MR. TUGGLE:  But something I did want to
           relate this morning and I think now is an appropriate
           time, and that was to convey that the United Steel
           Workers represents about 20,000 miners in the U.S. and
           about 30,000 miners in Canada.  And of our 20,000
           mining membership in the U.S., about 4,000 to 5,000,
           or a little less than a fourth, of our membership is
           in small sand gravel stone operations and a few other
           of non-metal mining processes.
                       But in this part of the industry, we would
           fully agree with what we understood from the speaker
           from NSSGA this morning in that chemicals are quite
           limited in this industry.  And in our opinion, HazCom
           can easily dovetail or be dovetailed into Part 46, and
           that's even without having to extend on their annual
           eight-hour refresher training in most instances.
                       And in regard to the HazCom Program that
           has to be outlined for these particular industries, I
           do believe that would easily fit on the two or three
           pages that even Mike Sprinker spoke about this
           morning.  In our opinion, this is not extensive
           material to get into.
                       In general, we find that these operations
           deal with, by and large, some petroleum products --
           hydraulic oils, fuel oils and transmission oils and so
           forth.  And these are almost on a borderline of
           consumer product.  It is common sense products.  You
           know, you don't drink this stuff.  There's a potential
           of fuel oil to burn.  Gasoline, if they have it on
           their property, the potential for explosion.  But it's
           common sense safety measures that regulates a lot of
           those issues.
                       MSDSs, yes, should be available on those
           products.  Beyond that, we've seen where you have some
           parts of washer tanks for small parts to be cleaned,
           steam cleaner solvents that's used to steam clean
           equipment with, and a few other products like that,
           very few others.
                       And, in general, for the small mine
           operator, and we're talking about anywhere from the
           ten-, 20-, to possibly 50-man operation, that these
           MSDS listings may range to two dozen, in general, or
           more likely around one dozen items to, quote,
           "hazardous chemicals" to be concerned about and to be
           trained in regard.  And that may be, especially in
           this area, that's besides, for lack of a better term,
           their in-house silica they may be confronted with or
           whatever that would add to it.
                       But, in general, we feel that this HazCom
           standard for those industries it simply provides an
           extension on these hazardous materials to the Part 46
           provision for small mines.  And in all due respect to
           Mr. Victor Goulet, is it, and I wish that all of our
           sand gravel stone operations where miners are
           represented came as well prepared as he is with having
           a HazCom -- basically, a HazCom standard in place.  If
           all of ours were like that, we would be asking our
           mine operators, "What's the problem?"  And I think the
           provision is clear enough to simply state that if you
           have a HazCom standard in compliance with OSHA HazCom,
           then it's basically acceptable without modification. 
           As matter of fact, it may go above and beyond, and
           there's nothing wrong with that, and it seemed like a
           case there.
                       I wouldn't want to play -- and, again, in
           regard to a statement just recently made by Mr. Goulet
           about the term "augment."  Not to be the horse to
           death or come up with semantics or whatever, at face
           value, as we have read the preamble, the standard and
           so forth, we perceive the term "augment" to mean to
           improve upon basically without burden.  It's simply
           almost a given here to improve it to this degree with
           little, if any, burden.  And that was our perception
           on that.
                       I would go into some of the matters
           recently spoke about on the limited manpower and so
           forth that MSHA has, but I think at some point in
           time, as we speak, we're even getting beyond that by
           what's going on.  To my understanding, there's some
           training of inspectors coming down the pike,
           especially for metal on metal.  And hopefully get a
           better handle on this.  We're very shorthanded where
           your inspectors were just basically for enforcement
           purposes, running from one line to another, face to
           fact, versus a mine even in its entirety and going on
           down the road to the next operation.  We hope to see
           that change.
                       And, again, something else that was just
           spoken about by Mr. Goulet and against somewhat of all
           that was said, and I appreciate basically all that he
           said except the reference to time and cost.  And
           something I spoke on this morning, and it's already in
           the record in the preamble, is on the somewhere around
           2,500 burns have been recorded from industry to the
           Agency, 500 poisonings between somewhere around '96
           and '99 or late in the game.  And there's time and
           cost and money in that.  I mean there's lost time,
           there's hospital time, there's all the time and worry
           -- I mean if you could pull that cost back out, surely
           an operation would buy into another approach to avert
           that cost.
                       With that said, I'd like to make one last 
           point in regard to MSDSs in general.  And that is in
           the regard to the miners' needs for such documents. 
           And at the point in time that we get back into the
           conferences and at the point in time that we hope to
           see this HazCom rule in place, hopefully very soon, we
           will be advising our miners and our miners'
           representatives that if you have concerns about
           understanding MSDSs, as was conveyed I think by some
           comments this morning that, you know, miners may not
           even understand what they're looking at, and I think
           they highly underestimate the comprehension of their
           own miners.
                       But if these particular MSDSs are going to
           be made available through this HazCom process, we will
           be advising our miners and miners' representatives
           where you have concerns and where you have symptoms
           from chemical hazards, chemical burns, one thing or
           another, ask or a copy of that MSDS as you have a
           right to do under the standard, and take it to your
           physician along with your symptoms and say, "Here's
           what I'm working with, and here's the problems," and
           let them -- let a, quote, "a little higher level
           professional" assist in reviewing that.
                       And we're going to be advising our people
           that to make use of those things, hopefully they don't
           have to make use of them, that the protection factors
           are in there to where they're not needed to be
           requested other than review and training.  But in the
           emergency situation, then we're going to be informing
           our people of their right to have that information and
           to take that to a professional either within their own
           union, if they have to take it up to Mike Wright, take
           it to an agency, industrial hygienist, take it to
           their own doctor and go from there with it.
                       With that, again, I thank you for this
           time to speak.
                       MODERATOR TEASTER:  Harry, you have some
           of your representation-at-large mines that are covered
           by Part 48 training.  Are you familiar with any of the
           -- is that right?
                       MR. TUGGLE:  Yes.
                       MODERATOR TEASTER:  Do you have any
           knowledge of how Part 48 would address the hazard
           communication part of the plan?
                       MR. TUGGLE:  Possibly somewhat unlike Part
           46, which I think is minimal, or chemicals under
           smaller operations, which is minimal, as I said, and
           may dovetail into their Part 46 some of the larger
           mines and some of the numerous other exotic chemicals,
           hazardous chemicals, there may be cases to where if
           they want to include it in their Part 48, it might
           very well make them go beyond the eight hours.  But
           that eight hours is a minimum of training.  And if
           this standard causes situations to where they have to
           go to ten hours a year, oh, my God.  In short, we
           think it would be very worthwhile even if it infringed
           on that eight-hour time frame.
                       In that regard, we also want to make it
           clear, as hopefully we understand it, that where these
           matters are dovetailed into Part 46 on HazCom or
           HazCom has dovetailed into Part 48 for some of the
           larger mines, other mines, and that may be where Mr.
           Goulet was concerned about time and cost and effort in
           that regard, these would have to -- that Part 46
           modifications or Part 48 modifications has to be
           approved by the District Manager.
                       To get back to your question there, but
           for the larger mines, longer lists of chemicals, there
           may be some infringement on their attempt to continue
           to try to crunch everything they must address within
           eight hours.  That standard simply says that they'll
           do the training a minimum of eight hours.  In a lot of
           cases that HazCom training will fit right in.  In some
           cases, it may exceed it by 30 minutes.  In some cases,
           an hour or two, over a year.  That can be addressed
           and divided out just as Mr. Goulet had referenced even
           under Part 48 on the 30-time basis on a tailgate
           meeting or a monthly meeting.  And within a couple of
           those meetings, you've got everything right back in
           context within over a year's period of time.  And we
           don't perceive it to be a burden.
                       MODERATOR TEASTER:  Any questions?  Thank
           you, Harry.
                       MR. TUGGLE:  Thank you.
                       MODERATOR TEASTER:  Did Chris Hipes leave? 
           While we're waiting on Chris, he's the only one that
           I have signed up that has not spoken, is there anyone
           else in the audience that would like to --
                       MR. SPRINKER:  I do.  Yes, Michael
           Sprinker again with the International Chemical
           Workers' Union, and like Harry, I probably won't be
           able to make the other -- any of the other meetings
           also, being almost a one-person health and safety
           department except for our training side.
                       It was interesting listening to some ideas
           of some of the things I didn't want to take the time
           with this morning, but some others issues we've seen. 
           And part of this comes from my experience in enforcing
           the OSHA HazCom standard too.  And there is -- I mean
           I will admit there is a need to have enforcement staff
           well-trained so they also understand what is a
           significant hazard, what isn't a significant hazard
           under HazCom.
                       I think that in many cases, certainly not
           all, but in many cases I've been able to look at
           things, look at different hazards, what is the extent
           of the hazard?  Someone, for example, not having an
           MSDS for a particular brand of gasoline that they're
           using versus the other probably, I would hope, would
           very rarely be considered a citable issue.  If people
           know that, hey, just because I'm using Shell diesel as
           opposed BP diesel the hazards are basically the same.
                       That's a -- there are other things which
           are more serious.  For example, having a set of MSDSs,
           I've seen in the past, both in large and small
           companies where basically the MSDSs might as well be
           put in a stack on the table all at random and when you
           ask people or even the plant, plan management, "I'd
           like to look at this MSDS just to see what hazards are
           in this particular product," and it takes half an hour
           to find the MSDS because they're scattered in totally
           random order.  Well, those are certainly times when
           you won't find -- where those really aren't very
           available, because people just don't have half an hour
           to go searching through.
                       I think that it's -- I know in dealing
           with people doing spray painting on large trucks the
           labels used to say on the paints, used to say that you
           could get by with a regular respiratory, air-purifying
           respirator.  I believe the MSDSs used to also.  But
           the medical information and symptom information on the
           MSDSs would talk about respiratory sensitization and
           things like this with, for example, the isocyanic-
           based paints.  Many times that may not be so readily
           available on the label, and truthfully, as I get older
           and my eyesight's not so good, it's hard to read that
           what often times on a label could be eight-point or
           six-point print.  So that is certainly one value of an
           MSDS.
                       And it's interesting, we've been having
           these discussions on the EPA high-production volume
           chemical testing, on the need for information and how
           much information should be available on either the web
           site which has the information about this
           toxicological testing on chemicals and the question of
           whether workers meet that or not.  And, truthfully,
           while I said that, certainly speaking for our members
           and a lot of the people that we do training for, that
           they can actually use the more detailed information. 
           They may not be able to understand everything on
           there.  There's a number of things I won't be able to
           understand everything on too.
                       But when they -- for example, when you
           start to see that with such and such a chemical we
           find these effects -- you know, these effects were
           found in rats, these effects were found in other
           species, that raises flags.
                       And if -- and then people will turn to
           myself or I may turn to our consulting physicians or
           to other folks, either within government or without,
           to try and find out the answers as to what kind of a
           problem could this pose to people or could this pose
           to people in certain situations?  Maybe a male who is
           -- he and his wife are trying to conceive a child.  Is
           this a potential birth defect issue?  And that's the
           kind of information which isn't always readily
           apparent and which hopefully things like data sheets
           do contain.
                       They're certainly not all perfect.  One
           large mining company used to be quite famous for on
           their arsenic data sheet refusing to put down that
           arsenic was a carcinogen, and this was in the early
           '90s.  We're certainly not talking -- this is a large
           multinational.  So there are problems with data
           sheets, and they aren't always perfectly accurate. 
           But to the extent that OSHA or MSHA can enforce the
           accuracy of those data sheets to cite manufacturers
           for not reporting proper information, it will make
           those better.
                       So all in all, I do expect to -- that
           we'll see perhaps more and more requests from our
           members in mining through what they learn in their
           training and through what they see in the data sheets
           so we can make it safer.
                       Again, too, there's also other times when
           someone may have a concern and because they can give
           me the information of the contact at the company
           that's made the chemical, because they can give me the
           chemical abstract number, because some of those names
           get real lengthy and could be messed up pretty badly
           when you're looking things up, I can do some research
           and find out perhaps that this chemical and where
           you're using it really isn't a huge hazard, sometimes
           because people have the name mixed up with something
           it is -- tetrachloroethylene versus trichloroethane;
           similar names but a big difference in hazard.
                       But that's really about all I'd like to
           add, and I'm -- I'll -- of course, I'll have more in
           my written testimony for you too.
                       MODERATOR TEASTER:  Our next speaker is
           Chris Hipes.  You're representing Luck Stone?
                       MR. HIPES:  Yes, sir.  Good afternoon.  I
           guess you guys have probably been here since early
           this morning, so I'll try to run through the
           information.  I'm the Environmental and Health Safety
           Coordinator for Luck Stone's western region in
           Virginia.  I'm kind of the guy that -- I'm kind of a
           field guy.  I like to spend my time in the field.  I
           like to spend my time interacting with our miners. 
           That's where I feel like I'm the most valuable in our
           organization.  And I'm also the guy that usually,
           after all the dust settles from the lawsuits and the
           position papers, I'm usually the guy that gets the
           standard or the compliance manuals and opens them up
           and sits down and says, "Okay, how are we going to
           attack this?  How are we going to do this for multiple
           facilities with different settings."  And so just to
           kind of give you a little background from where I'm
           coming from.
                       At Luck Stone, we're very committed to the
           health and safety of our associates, and we absolutely
           don't oppose the collection and dissemination of
           chemical information.  We do feel like current intra-
           regulations that already cover hazardous chemicals,
           and I know you've heard them already -- labeling for
           toxic materials, barricades and warning signs where
           health and safety hazards exist, containers for
           hazardous materials and storage of hazardous materials
           -- along with current Part 46 training regulation and
           some specific programs to target the most common types
           of chemically related injuries in the aggregate
           industries would be best suited for Luck Stone.
                       I think all these things combined would
           meet the goals that MSHA's trying to obtain.  I can
           tell you right now that we have MSDSs on-site.  We try
           to keep MSDSs not only for hazardous chemicals; we try
           to keep them for mostly all chemicals.  I can also
           tell you that most of the time the MSDS books sit
           there on the shelves, because at least at our sites
           most of the materials or chemicals we bring in are
           labeled -- have good labels on them.
                       If our miners have questions or our mine
           foremen have questions, supervisors have questions on
           chemicals, we tend to use the back of cans and
           container labels.  If they have a question, at least
           at Luck Stone, then they would come to either me or
           call the manufacturers.  In a rare instance of an
           emergency, I feel like that's what they would do, so
           it's kind of I'm there to assist for questions on any
           chemicals.
                       I know the question's been asked and
           answered and asked and answered, but one may ask what
           is the true burden of the HazCom rule.  Like I said,
           we have no problem with the intent of the HazCom rule. 
           But I've heard the statement that HazCom only asked
           operators to pull together information that they
           already have, such as MSDSs and labels, and they can
           incorporate or we can incorporate training into
           existing training plans, and I think all that's true.
                       But I think the burden becomes very
           apparent when I sat down to try to make some of these
           comments and I started printing off reams of paper
           from web sites and a 39-page draft compliance guide
           and a combined 47 pages of HazCom preamble and
           standard and started trying to weave my way through
           them and figure out exactly how we were going to do
           it.
                       Just to hit some of the major points, on
           the inventory of chemicals at your mine site, we sat
           down to determine which are hazardous and keep a list
           of those that are deemed hazardous.  This sounds easy
           enough until I sit down and I start thinking, how are
           we going to keep a truly accurate count of product, 
           specific chemical inventory at each one of our sites?
                       Our managers are constantly looking for
           better products.  They're looking for the cheapest
           vendor.  And I guess my -- the burden comes in when an
           inspector comes on-site and says, "Okay, do you have
           -- I see here on your list you have glass cleaner A
           from this vendor.  What's on the shelf here is glass
           cleaner C from this other vendor, and there's a
           problem in your list or your inventory."  So that's
           where I see some of the potential burden coming in,
           because it's out of citation, so interpretation gets
           thrown in there.  Because that's where -- that's the
           end of things I live on is that when we get to that
           point.
                       There was an example about glass cleaner
           in the 39-page draft compliance guide that said if a
           miner uses glass cleaner and he uses it as a consumer
           would, then it would not be considered a hazardous
           chemical.  And it does give an example that upfront
           seems to be straightforward.  If you have a janitor
           on-site that's using glass cleaner, he would certainly
           be exposed above and beyond what an average consumer
           would be.  And I agree with that.
                       But where the, I guess, the gray areas
           come in and where the burden becomes is if my operator
           gets up in his haul truck in the morning before he
           goes to work and sprays his glass off once and he does
           it three more times throughout the day and then once
           before the end of the shift, is that more than the
           average consumer?  And I think, again, there's where
           I foresee spending a lot of time when those questions
           arise in the field trying to figure out and defend or
           conference citations.
                       To move on to the next point, I don't feel
           like a written HazCom Program will strengthen the
           quality and value of our hazard communication efforts
           at our mine sites like it's stated in the compliance
           guide.  I truly feel like a written HazCom Program is
           a paperwork exercise.  And, again, the Program itself
           can be a potential source of endless citations,
           citation conferences and time I'll spend in my office
           and not in the field.
                       I speak with experience not only with MSHA
           regulations, because I also have compliance with EPA,
           Virginia DEQ, DMME regulations and regulations that
           have written plans.  I can honestly say that most of
           the time there's written plans, although the key
           concepts are certainly in there.  I can tell you that
           until the inspector comes and asks for them, they're
           kind of usually sitting over to the side.
                       And I know that you may ask the question,
           well, how do you ensure that you're complying with the
           regulation if you're not looking back and saying,
           "Okay, here's my program, here's what I'm doing?"  I
           wouldn't say I never have to look back at a program,
           but I can tell you really that's my job, to know what
           requirements are, and that's what I do on a daily
           basis is help our plants, work with our plants, work
           with our hourly associates to help determine those
           types of things and the best way to staying in
           compliance, and not only staying in compliance but the
           best way to be safe in an environment and be good
           environmental stewards.
                       If I had to carry -- again, because I deal
           with not just safety but environmental also, if I had
           to carry all of those regulations around and the
           accompanying compliance plans that are already out
           there, I'd have to get U-Haul to carry my company car
           to travel that way.
                       So that's where I feel like the written
           HazCom Program what that's going to do is I'm not
           going to have a right name and a right place or our
           managers switch from site to site on occasion and I
           feel like that to spend time writing citations and
           conferencing citations for the I's not dotted and the
           T's not being crossed and this not being in the right
           place on a piece of paper is not necessarily what's in
           the truly best interest of our associates and miner
           safety.
                       MSDS and labeling requirements, like I
           talked about already, we already have huge reams of
           MSDS sheets for most of the chemicals on-site.  And
           like I talked about, we already have -- most of the
           things that we bring into our operations are very
           well-labeled, and if we have a question, we will go to
           that label.  And past that, if they had a question,
           then that's where I would probably step in to help
           with a certain situation.  But the vast majority --
           you know, if we had an emergency situation, we would
           certainly refer back to an MSDS, but the vast majority
           of the time we really don't find that that's
           necessary.
                       We, at Luck Stone, already trained on
           hazardous chemicals.  I do.  I have five crush stone
           sites that I've helped with environmental and safety
           and health compliance.  And I do every new hire that
           comes through in the western region.  I personally do
           the Part 46 new miner training.  And I feel like
           that's -- we just recently switched to that.  We were
           doing new miner training -- our site managers, our
           foremen were doing new miner training, and we just
           recently added a couple more people onto our staff in
           that department for that, and I think that has -- I
           think that is and has and will continue to reap the
           benefits of that.  I'm very excited about being able
           to get in front of every new associate that comes
           through.
                       And in our other regions there's my
           counterpart.  There's four of us, and we see all the
           new hires when they come through to give them a
           consistent and what I feel like is very thorough new
           miner training.  We don't do all the new miner
           training.  We do eight hours of the new miner
           training.  It's mainly six hours of a classroom
           setting where two hours of it sometimes tours or out
           in the plant, and then the additional 24 hours past
           that eight hours is done by a site manager.  But I
           think that works well.
                       And I know we cover, it's in there -- I
           feel like when Part 46 regulations says we'll cover
           hazards, I didn't think twice or we didn't think twice
           about covering every hazard.  So chemical hazards are
           in there; we're already doing them.
                       Another goal for MSHA, as stated in the
           HazCom standard would be to reduce the rate of
           chemically related injuries.  So I went back and
           didn't do an extensive study, but I did go back and
           look at our reportable injuries for '99 and 2000 and
           so far in 2001, and what I found was 22 reportable
           injuries during that time frame.
                       And I felt like -- I don't know exactly
           how you all rate injuries or if they're chemically
           related or not but using what I think is good judgment
           and common sense I found two out of the 22 that would
           be, in my opinion, rated a chemically induced injury. 
           And both of those injuries were during fueling
           operations.  And I feel like that both of those
           injuries could very well may have been -- or could
           have been avoided very easily with existing
           regulations, existing company procedures and existing
           PPE procedures.  So, again, even those two that are
           chemically related, I feel like if the people that
           were injured were truly following things that are
           already out there, they very may well have avoided it
           in the first place.
                       So seeing that that is -- you know, I
           can't speak for other metal and non-metal -- I think,
           I think, and I don't know, but I think that's probably
           fairly typical for an aggregate company, an aggregate
           in the aggregate industry.  Like I say, I can't say
           for sure, but that's what we have.
                       So I read in the preamble of the HazCom
           standard that from 1990 to 1999 the mining industry
           reported 2,500 chemical burns and 400 poisonings. 
           Those are -- I think when you read that number it's
           alarming.  So my next question was, you know, where
           are these happening?  What's going on?  Because I've
           had two out of 22 out of 18 or -- we have 18 to 19
           operations -- 18 part of that time, 19 now -- and only
           two out of the past three years were chemically
           related.  So my next question is where are they
           happening?
                       And I can't -- I didn't find that answer
           before today 100 percent.  It did say in the preamble
           that evidently -- it didn't give any numbers, but it
           said most of them -- let's see, the preamble also
           stated that the coal industry reported the most
           chemical burns, with crushed and broken limestone
           mines reporting the most in metal and non-metal.  So
           then I started trying to find some more about those
           numbers.
                       So I reviewed a letter dated May 11, 2001
           sent to the Secretary of Labor from Joy Wilson, the
           President and Chief Executive Officer of NSSGA.  And
           like I said, I did review that document, and in that
           letter there's a pretty detailed breakdown of MSHA's
           chemical poisoning database and chemical burns
           database.  And I don't have a whole lot of statistics
           on that, but like I said, I did review that.
                       And I guess the bottom line conclusion
           that I drew from that is that it's quite obvious to me
           that if we take a detailed look at these databases,
           that the risk to chemical exposures in the aggregate
           industry can be accomplished more effectively by other
           means than the HazCom standard.  I think, again, a
           combination of existing regulations with a partnership
           between MSHA and the industry, with a focus on the
           most common type of chemical injuries, and that we
           should create specific programs to attack or go
           towards those specific types of injuries.
                       Because, again, I don't have the
           statistics in front of me but from what I remember
           about reading the article it seemed to me that in the
           aggregate industry there were two or three -- I think
           fueling was one of them that jumped out at me, eye
           injuries with solids and liquids in the eyes, and
           maybe there's one more.  If that -- I'm a pretty -- I
           usually try to attack problems at the source, and if
           it were, that's what I'd go after rather than try to
           blanket an industry with a broad standard that I feel
           like at least the aggregate part of the industry is at
           least complying with the intent.  Certainly, I don't
           know that we'd be in compliance with all the paperwork
           parts of it, but we're already -- I feel like we are
           at least complying in the spirit with the regulation.
                       So I agree with the comments that Mr.
           Teaster made last night at the Safety and Health
           banquet at the NSSGA.  Mr. Teaster highlighted the
           fact that MSHA is going to attempt to balance time and
           resources between compliance training assistance and
           education.  Mr. Teaster also suggested that MSHA wants
           to partner with the industry in an effort to reduce
           accidents and injuries.  And also to make sure that we
           don't put regulations out there that don't have that
           end goal of reducing injuries and accidents.
                       So I guess you're next question may be,
           well, what exactly do you suggest?  Here's what I
           suggest.  That MSHA and the industry together spend
           out time and focus our efforts on the following
           things:  As mentioned above, I think using a
           combination of existing regulations combined with the
           creation of specific programs that target the most
           common types of chemical injuries would go a long ways
           towards improving hazard communications in the
           aggregate industry.  I feel like task training
           development is very important.  I know at Luck Stone
           we are in the process of trying to really -- that's
           one of the areas that we feel like is key, and I know
           that MSHA is actually -- and I don't know a whole lot
           about it, but I know that MSHA is working with NSSGA
           right now.  And I think -- maybe Mr. Teaster can tell
           me, I think we're pretty close to being finished with
           a task training module for a haul truck.
                       MODERATOR TEASTER:  Yes.  They're working
           on it.  It should be completed in the near future.
                       MR. HIPES:  So it seems like we're already
           on the same page there.  Like I said, I love to be in
           the field, and I feel like that's -- I can assist in
           task training.  I already do new miner training.  I'd
           love to get -- I was in production for a couple years
           before I got into the environmental health and safety
           part of our Company.
                       I feel like assisting our sites with
           accident and injury investigation with a focus on
           prevention of similar types of accidents and injuries,
           and then in addition to that communication on findings
           of those types of injuries so they don't happen
           elsewhere, that's a major effort that we're going to
           try to improve on within our Company.  Communicating
           the accidents at that site through us out to the whole
           Company.  And past that step, I think the partnership
           opportunities are with NSSGA to communicate those
           injuries and accidents to other companies within the
           industry and then through MSHA to a lot of other
           companies in the industry.
                       I think we should focus on developing and
           implementing near-miss programs in the mining industry
           and focus on being proactive.  There's certainly a
           place for getting a better feel and data management on
           our accidents and injuries.  And we -- fairly recently
           Luck Stone instituted a computer-based program, and
           our managers are going to fill out the drop-down boxes
           to save them time.  And that automatically dumps into
           a database, and we can start to see some real trends
           and be able to sort and filter by just dozens of
           different criteria to try to get a feel for trends,
           maybe some subtle trends that you can't see just by
           looking at an accident form.
                       But in addition to that, what we're also
           trying to focus on is the development of near-miss
           programs.  We're trying to -- we've recently gone
           around to all of our locations and we're trying to get
           our associates -- the miners involved with making
           those programs, having input on their near -- making
           their near-miss programs, getting their input on it,
           letting them have a stake in it in what works for
           them.  And that may -- even from site to site, we feel
           like that at one site this group of guys may be
           comfortable with near-miss reporting to their
           supervisors, directly with their supervisors, and this
           site here may want to go through a middle man, one of
           their senior associates, and then report near misses
           that way.  But the most important thing to us is that
           we get them reported, because we truly feel like near
           misses is where -- is a proactive way to focus.
                       So the other thing that I would suggest is
           that we work with the miners, develop safe behaviors
           and safety as a value.  That's where we're going at
           Luck Stone, you know, behavior-based safety.  That's
           what we want to do.  We want to -- we feel like if we
           have safe behaviors, a lot of the other things will
           take care of themselves.  So we, at Luck Stone, are
           convinced that compliance-based safety programs with
           heavy paperwork and huge policy manuals can take the
           safety program to a certain level, and that we're
           convinced that working with miners to develop safe
           behaviors, involving the miners with the development
           of safety programs, developing good accident
           investigation and near-miss programs, improve task
           training for miners is how we're going to improve the
           safety program in what's truly in the best interest of
           miners.
                       And I'll close on the note that sometimes
           I think we all have to step back, and I know sometimes
           during inspections in the heat of the moment it's easy
           to get into a contest over whether that guard is truly
           compliant, even though if it's safe or not.  It may
           truly be safe but is it -- does it meet this
           compliance or does it meet that compliance?  When
           you're contesting or conferencing citations, it's easy
           to get caught up in the battle.  And so, you know, I
           know sometimes we just have to step back and really
           truly ask what is in the best interest of our miners?
                       I know we, at Luck Stone, truly do believe
           our miners are our most valuable assets and is -- I
           have to ask myself is a detailed paperwork or having
           to write name on a certain section of a training plan
           or saying that I'm going to cover this section in my
           training plan for 30 minutes, and I only cover it for
           24, is our doing and citing and disagreeing over those
           types of issues truly in the best interest of our
           miners?  And that's all I have to say.
                       MODERATOR TEASTER:  Thank you, Chris. 
           Chris, you had alluded to some of the remarks that I
           made last night.  One of them was we want to partner
           with the industry, we want to partner with labor.  We
           want to partner with all of those in the mining
           community that's going to help us reduce accidents and
           fatalities, and I think we've been holding stakeholder
           meetings throughout the country and trying to get more
           input from all segments to develop some kind of an
           idea of what direction we need to go to accomplish our
           goal.
                       Also talked about the near misses.  If we
           look at those in the same light that we do with some
           of our serious accidents because the difference
           between a near miss and serious one there's just very
           little difference.  And so I applaud you for looking
           into those efforts.
                       You mentioned that you covered the
           training for chemical hazards in your Part 46
           training.  Could you tell me roughly how many
           chemicals you address during the training, that six-
           hour training?
                       MR. HIPES:  I can list you some of the
           ones that I know right off the top of my head.  I
           don't have any training program, but I know we're
           training on chemical hazards for, at least during the
           new miner training, for things such as diesel fuel,
           lubricants, even though, you know, some of the things
           I think we train on initially could be covered and
           then some are covered additionally in specific task
           training.  But we feel like there are certainly some
           chemicals that are on the property that everybody has
           some exposure to.  And most of those are the, like I
           said, diesel fuel, lube oils, greases, train on some
           of your what I think we would consider consumer
           products.  We usually take a tour through -- that's a
           lot of how I address, because most of our chemicals
           are housed in the shop areas.  So we usually take a
           tour.  I usually try to incorporate a tour through a
           shop area, and we actually visit -- we look at some of
           the spray paints that we keep on the shelves, the
           cleaners and things of those nature.
                       MODERATOR TEASTER:  Do you feel, based on
           your understanding, that the interim final rule that's
           training that you now provide for your miners would be
           -- under Part 46 will be compliant with the interim
           final rule?
                       MR. HIPES:  I guess I can't answer that
           question, because I have read through the interim
           final rule, but there may be some points in there that
           I can't -- I really can't answer that question that I
           could say hands down it would be compliant with every
           point of the rule.  Again, I can say that I feel like
           it certainly meets the spirit or the intent of the
           rule.
                       MODERATOR TEASTER:  You mentioned earlier
           that two out of the 22 injuries in the offices that
           occurred at your operations over the last three years
           were chemical related.  Do you know if those two that
           received those injuries, you said that they would have
           been -- had they been complying with existing
           standards possibly been prevented.  But do you know if
           they had been trained in the hazards associated with
           the chemicals that caused their injuries?
                       MR. HIPES:  Well, both of these injuries
           happened prior to me physically doing the training and
           the coordinators physically doing the training, so I
           would be -- I can't tell you -- I can't sit here and
           tell you for sure that they were, because unless I do
           the training I certainly can't 100 percent tell you
           that.  I know that we require safety glasses to be
           worn on the property at all times unless you're in an
           office building.  And, again, I can't say for sure
           whether -- I did look back at the injuries, and I
           can't say for sure whether -- I believe one of them
           was the case of improper PPE.  So, again, I think --
           I guess what I'm saying is I can't answer for somebody
           else that trained, because at that point in time I
           think our managers were doing the training.  So I
           would hope that they were trained on them, but I can't
           say for 100 percent sure.
                       MR. FEEHAN:  Could you tell us something
           about the injuries?  Were they -- what happened?
                       MR. HIPES:  I think one was fueling of
           equipment, and, again, I should have probably had the
           injury reports in front of me, but I think one of them
           was fueling equipment, and I think one of them was
           actually putting fuel into a fuel tank.
                       MR. FEEHAN:  And what --
                       MR. HIPES:  Splash.
                       MR. FEEHAN:  It splashed back out?
                       MR. HIPES:  Splashed back out.
                       MR. FEEHAN:  And then were they eye burns?
                       MR. HIPES:  I believe so.  And then the
           rest were pretty cut and dry.  Those two I feel like
           would have certainly fallen into chemical related. 
           The rest were more cut and dry.
                       MR. FEEHAN:  Do you ever speculate about
           -- how come those people weren't wearing their eye
           protection?
                       MR. HIPES:  I can't answer that.  And I
           think one of them may have been the case, and I'm not
           sure about the other one.  Like I said, I look back at
           them just before I came through up here, and they
           weren't -- time-wise again they weren't -- it's been
           a little while since these incidents have happened. 
           They were just real recent.
                       MR. SEXAUER:  Just one question.  You
           mentioned that some of the burden that you feel that
           HazCom would introduce would be from needing to
           address close calls in those borderline cases -- do
           they come under HazCom or don't they come under
           HazCom?  Is there anything we can do as an agency to
           -- assuming, let's assume for the sake of this
           question that there's a HazCom rule in place.  Is
           there anything we can do as an agency to help address
           those kinds of concerns to reduce that burden?
                       MR. HIPES:  Now, when you say -- you said
           close calls and --
                       MR. SEXAUER:  Well, you mentioned one
           example where you said, "Well, if someone uses a
           chemical, household chemical to clean glass on their
           truck one time a day versus four or five times a day,
           whether that four or five time use would come under
           the HazCom rule."  And you said, "Well, part of the
           burden is trying to decide these issues.  Is this a
           consumer use?  Is it a consumer product?  Does it fall
           under HazCom?"  So my question to you is, assuming the
           HazCom rule is in place, what we can do?  Is there
           anything we can do to reduce that type of burden for
           you?
                       MR. HIPES:  Nothing -- I don't know -- you
           know, that's kind of the age-old interpretation, and
           unfortunately I don't have an answer for how do you
           interpret how different inspectors would interpret
           different regulations or the scope of the regulation. 
           So I guess unfortunately I can't make -- answer that
           question with satisfaction.
                       MR. SEXAUER:  All right.
                       MODERATOR TEASTER:  Chris, you said you
           have the MSDS sheets there.  Do you know how often
           monitors may request to view those?
                       MR. HIPES:  I do not.  I can't tell you
           exact numbers.  I know, being in a -- I was in a mine
           for a little over two years mainly at one specific
           location.  And I was not aware of any request.  Again,
           I feel like it's a common procedure, at least at our
           Company.  If there's a question, usually it's fielded
           to our manager, and then if we need to get to the MSDS
           level -- I can pretty honestly say that I don't think
           any of our associates really are interested in reading
           an MSDS.  I can't say that we took a poll of all of
           our hundreds -- 400 or some odd miners, however many
           we have now.  I don't know that they would all say,
           "No, we're not interested," but as a rule of thumb, I
           think most of the MSDS books just sit there.
                       Because, again, if there's a question,
           they're usually going to go to the manager.  And then
           if they -- usually if the manager would have a
           question, then they would probably either go -- the
           manager may go to the MSDS or consult the company or
           -- most of the time, the first step is they're
           probably going to go to the container, and then after
           that potentially go to the MSDS or consult with
           somebody in our group.
                       MODERATOR TEASTER:  You, as the trainer or
           the safety person, do you refer to the MSDS with any
           degree of frequency?
                       MR. HIPES:  No, sir.  I can't say that I
           do.
                       MODERATOR TEASTER:  That's all we have. 
           Thank you.  Is there anyone else that would like to
           speak?  This is a first of a series of seven public
           hearings that we'll have.  The next one will be in
           Beckly, West Virginia on Thursday at the Mine Academy. 
           The following week there will be four:  One in Dallas,
           Texas, one in Reno, Nevada, one in Salt Lake City, and
           one in Birmingham.  And then there will be one the
           following week in Evansville, Indiana.  If any of you
           wish to participate, you're more than welcome.
                       I want to remind you that the record will
           remain open until October 17.  We encourage all of you
           that have any comments or anything further you would
           like for us to consider in drafting this final rule,
           we would very much appreciate it.
                       And with that, we'll close the record. 
           Thank you.
                       (Whereupon, at 4:43 p.m., the MSHA Public
           Hearing was concluded.)