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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                                 WEDNESDAY
                             OCTOBER 10, 2001
           
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                            BANQUET ROOMS A & B
                        DAYS INN EVANSVILLE AIRPORT
                           5701 HIGHWAY 41 NORTH
                            EVANSVILLE, INDIANA
           
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           PANELISTS:
           
                 MARVIN W. NICHOLS, JR., Administrator, 
                       Coal Mine Safety and Health, MSHA
                 MICHELLE SCHAPER, Toxicologist, Educational
                       Policy and Development Group
                 RICHARD FEEHAN, Educational Policy and
                       Development Group
                 ROSCOE BRYANT, Solicitor's Office, MSHA
                 
                 PHUC PHAN, Office of Standards, Variances 
                       And Regulations at Headquarters
                 BOB THAXTON, Acting Health Division Chief for
                       Coal Mine Safety and Health
           
           
           
                                            I-N-D-E-X
           
           SPEAKERS                                        PAGE
           
           MARVIN W. NICHOLS, JR., MODERATOR, . . . . . . . . 3
             OPENING STATEMENT
           
           JIM PAPENHAUSEN, RiverStone Group, Inc . . . . . .22
           
           WALTER E. THARP, Irving Materials, Inc./IMAA . . .25
           
           BRUCE H. MASON, Indiana Mineral Aggregates . . . .35
           
           CHUCK BURGGRAF, RAG American Coal Holding. . . . .45
           
           GREG MAHAN, Freeman (UMWA) . . . . . . . . . . . .55
           
           BRIAN PETERS, Mulzer Crushed Stone, Inc. . . . . .61
           
           BUTCH OLDHAM, UMWA . . . . . . . . . . . . . . . .71
           
           DAN SPINNIE, United Mine Workers, Local 2161 . . .76
           
           ED ELLIOTT, Rogers Group, Inc. . . . . . . . . . .78
           
           JAMES SHARPE, National Stone,. . . . . . . . . . .91
                 Sand & Gravel Assoc.
           
            
           
                                      P-R-O-C-E-E-D-I-N-G-S
                       MODERATOR NICHOLS: Good morning everybody. 
           Can you hear me in the back?
                       Okay.  Welcome to MSHA's public hearing on
           our interim final rule for hazard communication in the
           mining industry.
                       My name is Marvin Nichols.  I am the
           Administrator for Coal Mine Safety and Health with
           MSHA.
                       Before we begin the public hearing I would
           like to ask that we observe a moment of silence for
           those thirteen miners that lost their lives in Alabama
           on September the 23rd.
                       (A moment of silence was observed.)
                       MODERATOR NICHOLS: Thank you very much.
                       Let me begin by introducing our Panel. 
           Then I have a fairly lengthy opening statement I need
           to read in the record, so bear with me.
                       On my right is Michelle SCHAPER.  Michelle
           is a Toxicologist with our Educational Policy and
           Development Group in Arlington, Virginia.
                       Also on my right is Richard Feehan. 
           Richard is with the Educational Policy and Development
           Group also.
                       On my far left is Bob Thaxton.  Bob is the
           Acting Health Division Chief for Coal Mine Safety and
           Health in Arlington, Virginia.
                       Next to Bob is Phuc Phan, who is with the
           Office of Standards, Variances and Regulations at
           Headquarters.
                       And to my immediate left is Roscoe Bryant. 
           Roscoe is with the Solicitor's Office with MSHA.
                       Today we are here to listen to your
           comments on the hazard communication interim final
           rule which we published on October the 3rd of 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 of the
           comments and data that MSHA has received to date.  The
           entire rulemaking record is available at our office in
           Arlington, Virginia.
                       If you wish a personal copy of the hearing
           transcript, please make your own arrangements with our
           court reporter.
                       Now, let me briefly give you some
           background on the interim final rule and highlight
           some of its major provisions.  Following that, I will
           share with you our reaction to some of the comments we
           have received thus far.
                       The Background:
                       On November the 2nd, 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 entire mining
           industry.  They based their petition on the need for
           miners to be better informed about chemical hazards
           and that miners working at both surface and
           underground coal and metal and nonmetal mines are
           exposed to a variety of hazardous chemicals.
                       On March the 30th, 1988, in response to
           this petition, MSHA published an advanced notice of
           proposed rulemaking on hazard communication for the
           mining industry.  In this notice, we indicated that we
           would use the OSHA hazard communication standard as
           the basis for our standard and requested specific
           comments on a number of related issues.
                       We published a notice of proposed
           rulemaking on hazard communication on November the
           2nd, 1990, and held three public hearings in October
           of 1991.  The record closed January 31st, 1992.
                       In their comments on our advanced notice
           of proposed rulemaking and proposed rule, commenters
           represented both small and large mining companies,
           individual miners, a variety of trade associations,
           state mining associations, chemical and equipment
           manufacturers, national and local unions, members of
           Congress, and federal agencies.
                       We re-opened the rulemaking record on
           March the 30th, 1999, requesting comments on the
           impact of the proposed rule on: (1), the environment;
           (2), small mines; (3), state, local and tribal
           governments; and, (4) the health and safety of
           children.
                       The National Environmental Policy Act and
           more recent statutes and executive orders included
           requirements for us to evaluate the impact of a
           regulatory action in these areas.
                       At that time, we also requested comments
           on the information collection and paperwork
           requirements of certain provisions of the proposal now
           considered as an information collection burden under
           the expanded definition of "information" under the
           Paperwork Reduction Act of 1995.
                       We received seven comments to the limited
           re-opening of the rulemaking record, primarily from
           trade associations and labor organizations.  The
           rulemaking record closed June 1st, 1999.
                       On October the 3rd, 2000, we published an
           interim final rule on hazard communication with an
           affective date of October the 3rd, 2001.  We gave
           commenters until November the 17th, 2000, to submit
           comments.  The interim final rule specifically
           requested comments on: (1), the plain language format
           and the content of the interim final rule; (2), mine
           operators' experience under the Occupational Safety
           and Health Administration's Hazard Communication
           Standard; and, (3), any change in the mining industry
           since the publication of the proposed rule.
                       On December the 7th, 2000, we personally
           spoke with or e-mailed all commenters and other
           interested persons, telling them of our decision to
           hold a public hearing in Washington, DC on December
           the 14th, 2000.  The public notice of the hearing
           appeared in the Federal Register on December the 11th,
           2000.
                       We received twenty-two (22) written
           comments on the interim final rule and heard testimony
           from six persons at the public hearing of December the
           14th, 2000.
                       Commenters objected to what they
           considered to be an inadequate comment period and an
           inadequate notice of the hearing.  These commenters
           stated that they did not have sufficient time to fully
           analyze the impact of the interim final rule which
           affected their ability to develop and submit
           meaningful comments.  They also stated that many
           operators were unable to testify at the hearing
           because they did not have enough time to prepare
           testimony and make plans to attend the hearing.
                       Member of the mining community have also
           stated that, because this is the first MSHA
           promulgated an interim final rule, there is some
           confusion about their compliance obligations.  The
           National Mining Association and the National Stone,
           Sand and Gravel Association have asked for a delay in
           the effective date of the interim final rule until we
           respond to their previous comments on it.
                       A number of mine operators and trade
           associations challenged the hazard communication
           interim final rule in the U.S. Court of Appeals and
           the United Mine Workers of American and the United
           Steelworkers of America have intervened in the
           litigation.
                       Now let me cover the major provisions of
           the rule.  There are six major provisions to it.
                       1.  HAZARD DETERMINATION:
                       The hazard communication interim final
           rule requires mine operators to identify the chemicals
           at their mine and determine if they present a physical
           or health hazard to miners based on the chemical's
           label and the material safety data sheets, or MSDS, or
           on a review of the scientific evidence.
                       Under the interim final rule, for the
           purposes of hazard communication, MSHA considers a
           chemical hazardous and subject to the hazard
           communication rule if it is listed in any one of the
           following four recognized authorities or sources:
                       1.  Title 30 of the Code of Federal
           Regulations (30 CFR) Chapter I.
                       2.  American Conference of Governmental
           Industrial Hygienists, the ACGIH, Threshold Limit
           Values (TLV's) and Biological Exposure Indices (latest
           edition).
                       3.  National Toxicology Program, the NTP,
           Annual Report on Carcinogens, the last edition --
           latest edition.
                       4.  International Agency for Research on
           Cancer (IARC) Monographs or Supplements.
                       2.  THE HAZARD COMMUNICATION PROGRAM:
                       The hazard communication interim final
           rule requires mine operators to develop, implement,
           and maintain a written plan to establish a hazard
           communication program.  The program must include:
                       1.  Procedures for implementing hazard
           communication through labeling, MSDSs, and training of
           miners;
                       2.  A list of the hazardous chemicals
           known to be present at the mine; and,
                       3.  A description of how mine operators
           will inform miners of the chemical hazards present in
           non-routine tasks and of chemicals in unlabeled pipes
           and containers.
                       If the mine has more than one operator, or
           has an independent contractor on-site, the hazard
           communication program would also have to describe how
           the mine operator will inform the other operators
           about the chemical hazards and protective measures
           needed.
                       3.  CONTAINER LABELING:
                       A label is an immediate warning about a
           chemical's most serious hazards.  The hazard
           communication interim final rule requires mine
           operators to ensure that containers of hazardous
           chemicals are marked, tagged, or labeled with the
           identity of the hazardous chemical and appropriate
           hazard warnings.  The label must be in English and
           prominently displayed.
                       I would like to briefly clarify one point
           about labeling requirements.  Practically speaking,
           very little labeling is required.  You only have to
           label stationary process containers and temporary
           portable containers, and then only under some
           circumstances.
                       Chemicals coming onto mine property are
           almost always labeled.  You would not have to re-label
           them unless the existing label becomes unreadable.
                       You would not have to label containers of
           raw material being mined or milled while they are on
           mine property.
                       You would not have to label mine products
           that go off mine property.  You would have to provide
           the labeling information to downstream users upon
           request.
                       4.  MATERIAL SAFETY DATA SHEET:
                       A chemical's material safety data sheet,
           or the MSDS, provides comprehensive technical and
           emergency information.  It is a reference document for
           mine operators, exposed miners, health professionals,
           and firefighters or other public safety workers.  The
           hazard communication interim final rule requires mine
           operators to have an MSDS for each hazardous chemical
           at the mine.
                       Mine operators should already have MSDSs
           provided by the supplier for those chemicals brought
           to the mine.  The MSDS must be accessible in the work
           area where the chemical is present or in a central
           location immediately accessible to miners in an
           emergency.
                       5.  HAZCOM TRAINING:
                       The hazard communication interim final
           rule requires mine operators to establish a training
           program to ensure that miners understand the hazards
           of each chemical in their work area, the information
           on the MSDSs and labels, how to access this
           information when needed, and what measures they can
           take to protect themselves from harmful exposure. 
           Under the interim final rule, mine operators have the
           flexibility of combining the training requirements for
           hazard communication with existing Part 46 and Part 58
           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 the above information in their
           current training program.  If so, they DO NOT have to
           re-train miners about the same information.  We
           designed the hazard communication training
           requirements to be integrated into existing training
           programs for miners.
                       6.  MAKING HAZCOM INFORMATION AVAILABLE:
                       The hazard communication interim final
           rule requires mine operators to provide miners, their
           designated  representatives, MSHA, and NIOSH with
           access to materials that are part of the hazard
           communication program.  These include the program
           itself, the list of hazardous chemicals, labeling
           information, MSDSs, training materials, and any other
           material associated with the program.
                       Mine operators DO NOT have to provide
           copies of training materials purchased for use in
           training sessions, such as videos.
                       Also, mine operators DO NOT have to
           disclose the identity of a trade secret chemical
           except when there is a compelling medical or
           occupational health need.
                       Okay.  Let me cover some of the previous
           comments and our thoughts and reactions to those.
                       Commenters representing the aggregates
           industry argued strenuously that the hazard
           communication rule is unnecessary and that the
           aggregates industry should be exempt from the rule.
                       The HazCom rule does not duplicate other
           MSHA standards, as claimed by some commenters
           representing the aggregates 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 aggregates industry. 
           There have been hundreds of chemical burns in the
           aggregates 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 have 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 us.
                       Third, many of the chemicals used at small
           mines are not covered by the rule.  For example, soaps
           used for washing hands are "cosmetic" 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,  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 rule. 
           We are developing a wide variety of compliance aids,
           such as model HazCom programs, a training video for
           mine operators  about determining chemical hazards,
           and a training video for miners about chemical hazards
           and reading MSDSs.
                       A draft of the MSHA compliance guide has
           been on the MSHA web site for months.  If you refer to
           the compliance guide, many of these issues are
           explained.  If you have any questions in these areas,
           send them by e-mail to comments@MSHA.gov or to the
           Office of Standards at the address listed in the
           public hearing notice.  We will use these questions to
           clarify your responsibilities and include additional
           or better examples in the compliance guide.
                       In the same vein, mine operators may
           obtain help from organizations that have developed
           generic guides to meet OSHA's hazard communication
           standard because HazCom contains the same basic
           requirements.  We will provide links on our website to
           some organizations which have developed a variety of
           generic HazCom materials.  While it will remain the
           responsibility of each mine operator to develop and
           implement a HazCom program and to have MSDSs, to the
           extent possible, we will help you establish a hazard
           communication program if requested.  We have already
           taken other steps in revising our interim final rule
           to make it easier for mine operators to comply,
           without reducing the protections offered by the rule.
                       We are considering the following
           substantive changes to the interim final rule in
           response to commenters' concerns.  We also are
           considering several non-substantive changes to clarify
           our intent and correct errors based on commenters
           perspectives and questions.
                       Under a HazCom determination, we may
           revise the reference to ACGIH, NTP, and IARC from
           those considered in determining if a chemical is a
           hazard and if the chemical  is carcinogenic.  One
           option we are considering in determining whether a
           chemical is a hazard is to refer to the 2001 editions
           of the ACGIH TLV booklet, IARC, and NTP.  In
           determining whether a chemical is a carcinogen, we are
           considering referring only to the 2001 editions of NPT
           and IARC.
                       We had expected the use of the ACGIH, NTP,
           and IARC lists to reduce the burden on mine operators
           because mines use relatively few hazardous chemicals
           for which they would have to develop an MSDS and
           label.  Commenters objected to the use of these
           listings, stating that the organizations which compile
           them offer no opportunity for public comment; they
           impose unknown future requirements by citing the
           "latest edition;" and they violate regulations
           governing incorporation-by-reference.  We are open to
           considering alternatives where the impact of the
           alternative would not reduce protection afforded
           miners by the interim final rule.
                       Concerning labels and MSDSs, commenters
           requested additional language to clarify that the
           designated "responsible person" mentioned on the
           labels and MSDSs can be the mine operator. 
           Accordingly, we are considering changing these
           provisions to read "...the name, address, and
           telephone number of the operator or a responsible
           party who can provide the information."
                       Concerning the availability of MSDSs,
           commenters asked that we increase compliance
           flexibility and recognize that MSDSs may be stored in
           a computer.  In response, we are considering modifying
           the requirement to have an MSDS available "for each
           hazardous chemical before using it" to one requiring
           the operator to have an MSDS available "for each
           hazardous chemical which they use."
                       MSHA is also considering accepting a
           listing of the OSHA PEL on MSDSs as an alternative to
           a listing of the MSHA PEL.  This would facilitate the
           use of widespread existing MSDSs and reduce costs by
           eliminating the need to develop additional MSDSs.
                       In response to comments concerning hazard
           communication training, we are considering changing
           the language from requiring the operator to train the
           miner whenever introducing "... a new hazardous
           chemical into the miner's work area ..." to requiring
           training when the operator "... introduces a new
           chemical hazard into the miner's work area..."  This
           change would clarify MSHA's intent that when a new
           chemical is introduced additional training is required
           only if the hazard changes.  This is the intent as
           discussed in the preamble 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:
                       1.  The risks associated with exposure to
           hazardous chemicals;
                       2.  The safety measures implemented at the
           mine to control exposures; and,
                       3.  Safe work practices.
                       The hazard communication interim final
           rule DOES NOT restrict chemical use, require controls,
           or set exposure limits.
                       We will publish our response to the
           written comments, including those comments received
           today at this hearing, in the preamble to the hazard
           communication final rule.  We will consider all
           comments contained in the rulemaking record, from the
           publication of the advanced notice of proposed
           rulemaking on March 30th, 1988, through the close of
           the record on October the 17th, 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 public 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 17th, 2001, for the submission of post-hearing
           comments.
                       We need you to sign the sign-up sheet and
           also, if you wish to speak, the sign-up separate
           sheet.  And we plan to be here until five o'clock
           today.  We could go longer if we needed to.  By the
           size of the crowd, I don't think we will need to do
           that.  So why don't we go ahead and get started with
           your presentations.
                       The first person we have signed up, I
           believe is Jim Sharpe.  Is Jim here?
                       UNIDENTIFIED FROM THE FLOOR: Jim is not
           here.  His plane was delayed in Pittsburgh.
                       MODERATOR NICHOLS: Okay.
                       UNIDENTIFIED FROM THE FLOOR: He is coming. 
           He is just not here.
                       MODERATOR NICHOLS: Okay.  Well, we are --
                       UNIDENTIFIED FROM THE FLOOR: He is going
           to contact me when he gets a little bit closer.
                       MODERATOR NICHOLS: Okay.  We will work him
           in later today then.
                       Ed Elliott, with the Rogers Group.
                       MR. ELLIOTT: My apologies.  I should have
           asked sooner.  Could I wait until a later time?
                       MODERATOR NICHOLS: Yes.
                       MR. ELLIOTT: Thank you.
                       MODERATOR NICHOLS: Jim Papenhausen, with
           RiverStone Group.
                       MR. PAPENHAUSEN: I would like to thank you
           for the opportunity to comment on the HazCom.  My name
           is Jim Papenhausen.  I am the Corporate Safety
           Director for the RiverStone Group.  We are a small
           business.  We operate about two dozen mines in Iowa
           and Illinois and Missouri.  We employ approximately
           two hundred and fifty people.
                       We feel that this piece of legislation or
           regulation is unnecessary for our industry.  We feel
           that all of the elements that are in the HazCom are
           covered both in Part 56 and in Part 46.
                       We have the standards in Part 56 that
           cover labeling, the training of new miners.  And again
           in Part 46 it requires that each -- all of our new
           miners, and current miners in the off-areas, annual
           refreshers on all of the changes that the inspectors
           thinks about are already there.  The people that are
           responsible are already there in the training program,
           training plan.  Ultimately, this reverts back to the
           operator and the people that are responsible on the
           plant.
                       We are not in the business to hurt people. 
           We feel that a safe workplace is a good workplace.  It
           costs money when employees are injured, in lost time
           and lost wages, and lost production.
                       The burden of this standard, we feel, is
           great.  We are still trying to climb out from under
           Part 46, and now Part 52 also we are familiar with.
                       We feel that this detracts from our goals
           of providing a safe workplace.  We  are trying to
           focus on items where miners are getting injured, which
           typically are unsafe acts and practices.
                       We have been involved in state board's
           meetings that are being held around in this effort to
           reduce accidents and fatalities.  We all want to do
           that.  We don't want to see anybody hurt.  But we feel
           that more legislation along these lines, with
           basically more paperwork that duplicates what we are
           already doing will not be in our best interests nor in
           the best interests of the miners in our group.
                       I would note that (inaudible) is now in a
           letter that was sent to the Office of Management of
           Labor, December 4, 2000, with like several of the
           state aggregate associations and (inaudible) joint
           metal associations.  We feel this is worthy of comment
           to our cause.
                       I guess to wrap up, we do not feel that
           this regulation will reduce any injuries to our
           aggregate miners  that aren't already covered.  I
           think we should let Part 46 take its turn to work a
           while, and everything that you do has balance if you
           accomplish here Part 46.  We would like to see it go
           that route than more regulations.  We feel that this
           ain't nothing but more citations being written.
                       That is all I have to say.
                       MODERATOR NICHOLS: Okay.  Do you include
           HazCom training in your current Part 46 training?
                       MR. PAPENHAUSEN: Yes, we do.
                       MODERATOR NICHOLS: And do you provide the
           MSDSs to your miners?
                       MR. PAPENHAUSEN: Yes, we do.  Every mine
           has a book of MSDS sheets, and it is all included
           under new miner training and the annual refresher
           training.  That is part of the Part 46.  You know, the
           miners are also eligible to request other copies.  I
           mean, this is one of the recommended copies for the
           health and safety standards.
                       MODERATOR NICHOLS: Have you had any
           chemical burns in the last two or three years?
                       MR. PAPENHAUSEN: We have not.  I have
           served on the state association for the Illinois
           Aggregate Association and the Iowa non-metal
           producers, on the state committee there, and I have
           been on it for fourteen years and I have  not been
           aware of any accidents (inaudible) at the mines
           (inaudible).
                       MODERATOR NICHOLS: Okay.  Anybody else?
                       (Panel members indicated no further
           questions.)
                       MODERATOR NICHOLS: Thanks, Jim.
                       MR. PAPENHAUSEN: Thank you.
                       MODERATOR NICHOLS: Walt Tharp, also with
           the RiverStone Group.
                       MR. THARP: Good morning.  My name is Walt
           Tharp.  I work for Irving Materials, Incorporated.  I
           am the Safety Director for the corporation, and I am
           also the Chairman for the Safety Committee of the
           Indiana Mineral Aggregates Association, so I guess I
           am speaking here relaying some of my personal
           thoughts, but I am also here speaking for the Indiana
           Mineral Aggregates Association that represents a
           hundred and sixty-plus locations in Indiana mining
           operations and in excess of three thousand miners.
                       Let me start by saying that I don't think
           there is anything that we do in the mining industry
           that is worth somebody getting injured over.  And I
           speak not only for my company, but I think for the
           Indiana Mineral Aggregates Association members.
                       At the mines that I am familiar with, the
           people that work there are not just employees, they
           are family, not only figuratively, but actually.  So
           if there is an injury, or heaven forbid a fatality, it
           is not just an economic loss, it is actually a
           personal loss.
                       Having reviewed part of the testimony in
           some of these hearings in the past, it appears to me
           that the answer to some of our differences may rest on
           the issue of separating the aggregates industry from
           other types of mining.  Let me see if I can't address
           that.
                       We in the aggregates mining industry do
           not use hazardous chemicals -- do not use a lot of
           hazardous chemicals.  And if you would come back and
           say, `Well, you don't use a lot and this is not going
           to affect you particularly,' I guess I would respond,
           `Why do I have to spend time and money on something
           that is not really a concern to the health and safety
           of my employees?'
                       I would like to ask what has changed in
           the last ten years that now makes HazCom so vital.  We
           are not using hazardous chemicals now any more than we
           were ten years ago.  Although, I do believe we have
           somewhat better knowledge about actually occurring
           minerals that are present in our mines and even about
           some of the products that we use at our mines.  But
           that knowledge is passed along through existing
           channels, and particularly within Part 46 training.
                       I feel that it could be argued that the
           OSHA Hazard Communication Standard has been carried
           far beyond its original intent.  Many of the mining
           companies are involved  in not only mining operations
           but non-mining operations that fall under the OSHA
           regulations.  And they have been dealing with this
           compliance issue for as long as the OSHA standards
           have had the HazCom Standard.
                       I believe anyone falling into this
           category could honestly tell you that "reduction in
           paperwork" does not apply here.  And for all of the
           efforts that have been made  over this length of time
           that the OSHA HazCom Standard has been in place and
           all that has been involved there, various parts of the
           OSHA Hazard Communication Standard, in particular the
           paperwork maintenance parts of that standard still
           continue to be one of the most frequently cited
           violations by OSHA inspectors.
                       I would ask, has the result been a
           significant reduction in OSHA reportable injuries as
           related to Hazard Communication?  I don't have that
           answer.  Maybe you could address that, whether that
           has made a difference in the reduction of injuries.
                       Talking from my own experience with our
           company and the other members of the Indiana Mineral
           Aggregates Association, I have not seen anything
           obvious in the way of  a reduction of injuries as
           related to Hazard Communication.  We had very few
           injuries before OSHA Hazard Communication  that
           related, and we still have very few injuries related
           to hazard communication issues.
                       Being the safety director of our company,
           I have occasion to visit all of our facilities from
           time to time, including OSHA plants, OSHA regulated
           plants, and we have our "Policies Manual" that is a
           bright-colored yellow folder that has HazCom Material
           Safety Data Sheets, and this manual is conspicuously
           displayed for the benefit of our employees, but also
           for the benefit of compliance personnel that would
           visit the site.
                       Whenever I am visiting a location I try to
           make it a point to check this manual.  Without
           exception, it is covered with a layer of dust that has
           accumulated since the last time I was there and dusted
           it off.
                       The point is, our employees do not
           perceive that the workplace is dangerous because of
           the hazardous chemicals that are present.  I guess I
           would like to think that that is because we are doing
           a good job in training our employees about the true
           hazards of their job.
                       Incidentally, it could be argued that the
           majority of the products used in our operations are
           not hazardous, but we have been forced into having
           MSDSs by OSHA enforcement.  The ferocity with which
           OSHA enforced Hazard Communication mandated that the
           business community take a shotgun approach to
           supplying Material Safety Data Sheets.
                       I was involved in the National Stone, Sand
           and Gravel review of the employee injuries that MSHA
           has used as a database for an indication that a HazCom
           rule is needed, so I think I can tell you firsthand
           that many of these incidents were not -- were only
           mildly related to chemicals, handling chemicals.  Many
           were for suffering lime dust in the eyes.  I believe
           Joy Wilson made the comment that fifty percent of the
           injuries could be put into this category.  I was
           wondering if you could tell me how the proposed HazCom
           Regulation is going to prevent this.
                       You may think that since many companies
           have been involved with the OSHA Hazard Communication
           Standard for so long that it is no big deal to
           implement a similar rule for  our mining operations. 
           And to a certain extent that may be true.  But I can
           tell you, and I think that most any other company can
           that has been involved with OSHA's Hazard
           Communication Standard, that honestly maintaining the
           program is a paperwork and time burden.  We feel that
           we ought to be spending our time on safety and health
           issues that are of a greater concern.
                       My fear is that the HazCom rule will on be
           an opportunity for compliance personnel to write more
           paper.  And I use OSHA as a basis for this.
                       If you don't have the "program" where it
           is and in the manner that the inspector thinks is
           appropriate, a citation may be written.  If the MSDS
           are not located where and in the manner that the
           inspector thinks is appropriate, a citation may be
           written.  If the training has not been documented in
           the manner that the inspector thinks is appropriate,
           a citation may be written.  If an employee cannot
           answer the questions that the inspector poses about
           the "program", at a minimum additional questions will
           have to be answered about the shortcomings of the
           "program", and a citation may be written.  If a
           container of something is found on the premises and
           the MSDS is not available, a citation may be written.
                       These statements have all been made from
           my experience with OSHA.  Are our OSHA regulated
           locations better off for these citations?  I don't
           think so.
                       And are our employees better informed as
           a result of these citations?  I don't think so.
                       If you could assure me that the MSHA
           inspectors will be thoroughly trained in the nuances
           of the proposed HazCom Standard and they will
           uniformly enforce the standard, a new standard would
           be easier to swallow, so to speak.  But the years of
           dealing with MSHA inspectors has shown that you cannot
           assure this.  You cannot assure consistency in one
           inspection to the next on the rules that have been in
           place for years.  I, for one, fear any new regulation
           for  this very reason.
                       I am not convinced that the aggregates
           industry needs a HazCom standard.  I don't see that it
           will make an impact on the health and safety of our
           miners, because we don't have a problem in this area.
                       That concludes my comments.  I thank you
           for your attention and this honored high opportunity
           to make my thoughts a part of this public hearing.
                       MODERATOR NICHOLS: Thank you, Walt.
                       Our records indicate that since 1983 to
           the year 2000 there have been fourteen thousand, five
           hundred injuries or ill -- or injuries.
                       PANEL MEMBER FEEHAN: It is all injuries.
                       MODERATOR NICHOLS: Say that again?
                       PANEL MEMBER FEEHAN: It is all injuries.
                       MODERATOR NICHOLS: It is all injuries? 
           Okay.  Forty-six hundred of them are chemical burns,
           and nine hundred and eighty-eight of those with the
           aggregates industry.  I think we could both agree that
           that ought to be zero.
                       Are you saying that this HazCom rule, as
           written, would do nothing to reduce or eliminate
           those?
                       MR. THARP: No, I wouldn't say that.  But
           at that, what margin was caused by chemicals?  We
           have, since 1983  --
                       MODERATOR NICHOLS: Well, what number is
           acceptable to you?
                       MR. THARP: Zero.
                       MODERATOR NICHOLS: Well, that is what I am
           talking about, too.  Are you saying you can do it
           through Part 46?
                       MR. THARP: Yes.
                       MODERATOR NICHOLS: Are you saying the
           biggest problem the aggregates industry has with this
           rule is inspector consistency?  Did you say that at
           the end of your --
                       MR. THARP: Well, that is one of my biggest
           concerns.
                       MODERATOR NICHOLS: If we could improve
           that, then you would have less problem with the rule?
                       MR. THARP: I don't have any problem with
           the intent of the regulation; although, I think you
           are accomplishing  it without a reasonable layer of
           regulations.
                       MODERATOR NICHOLS: We have indicated we
           are going to do a lot of outreach with a compliance
           guide, compliance assistance visits.  Would that do
           anything to lessen your concerns about consistency?
                       MR. THARP: No.
                       MODERATOR NICHOLS: Okay.  Anybody else?
                       PANEL MEMBER FEEHAN: I guess I have a
           question, Marvin.  
                       You are doing Part 46 training now, Walt?
                       MR. THARP: Yes.
                       PANEL MEMBER FEEHAN: And you think -- did
           I hear you correctly that you are covering hazard
           communication as a part of that already at your
           company?
                       MR. THARP: Yes.
                       PANEL MEMBER FEEHAN: What exactly does
           that training amount to; what are you doing to make
           people aware of chemical hazards?
                       MR. THARP: Trying to review the data on
           the data sheets and the labels, make them aware of
           what they are working with, make them aware of what
           safety precautions they need to be taking, providing
           appropriate protective equipment for handling whatever
           they might be using.
                       PANEL MEMBER FEEHAN: All right.  Well,
           take a fairly common maintenance chore around
           aggregate operations, like changing the oil in the
           equipment.  If you look at the MSDS on motor oil, you
           know, for Exxon motor oil, for example, it will tell
           you that there are animal studies indicating that
           there are -- that there is a high risk of getting
           cancer as a result of exposure to used motor oil.
                       Do you train your mechanics, the people
           who do the lube work on your equipment, about that?
                       MR. THARP: Yes.
                       PANEL MEMBER FEEHAN: You do.  Okay.
                       PANEL MEMBER SCHAPER: In the training that
           you conduct, how much time would you say or estimate
           is spent on discussion of chemicals and chemical
           specific exposures?
                       MR. THARP: In the scope of our training it
           would be very little.  Again, we don't, you know,
           perceive that as one of our biggest concerns.
                       PANEL MEMBER SCHAPER: Thank you.
                       PANEL MEMBER PHAN: Could we get a copy of
           the HazCom Training Program that you have in practice?
                       MR. THARP: Sure.
                       PANEL MEMBER PHAN: Okay.  That would be
           great.
                       MR. THARP: I don't have it with me today.
                       PANEL MEMBER PHAN: Yeah.  If you can
           please send one in, that would be great.  Thanks.
                       MODERATOR NICHOLS: Okay, Walt.  Thanks.
                       Bruce Mason?  I have you down as
           RiverStone Group.  That may or may not be right.
                       MR. MASON: That is all right.
                       MODERATOR NICHOLS: Okay.
                       MR. MASON: The RiverStone Group must be
           rather widening.
                       MODERATOR NICHOLS: I guess.
                       MR. MASON: I am Bruce Mason, the Executive
           Director  -- is there a problem?
                       MODERATOR NICHOLS: We can hear you okay.
                       MR. MASON: I am Bruce Mason, Executive
           Director of the Indiana Mineral Aggregates
           Association, which is a great association that
           represents, by your records, about ninety-two percent
           of the man-hours reported annually.  It is my
           intention as administration in Indiana, I want to
           expand upon Walt's remarks from a couple of aspects.
                       We have a membership that represents
           fifty-four companies and a number of aggregate
           (inaudible) plants, around a hundred and seventy-four. 
           A number of those do not come under the purview of the
           regulatory aspects of MSHA.  They are slight producing
           plants and those plants are under the auspices of
           OSHA, so we have kind of an intervenor base.
                       Our industry is also integrated so that
           the number of our member companies are also integrated
           into construction activities, pavers or suppliers of
           ready-mix concrete, so we have, you might say, an
           ongoing relationship with OSHA Standards.
                       Also, I want to point out that I am a
           member of the board of directors of ACE, the Aggregate
           Concrete Executives, which are a formal group composed
           of state aggregates association directors.  And I am
           not here necessarily to represent their point of view,
           but to represent the view of the Indiana Mineral
           Aggregates Association with a number of companies.
                       Of the fifty-four companies, four of those
           could be characterized as large, multi-national
           companies.  The bulk of our membership are close
           family operated companies.  A few of those are large,
           large in the scope of our membership in Indiana, but
           the bulk of them represent family-owned companies with
           five to ten employees.
                       Our approach to safety, we think, is
           probably better than most because for over twelve
           years we have had a recognition program, recognizing
           those plants and plant managers who go through a year
           -- not a calendar year, but a fiscal year -- with zero
           reports.  So I stand here, I think, better informed as
           to this issue and how it affects our industry in
           Indiana than the average presenter.
                       And we have annually that recognition
           program, and it is in partnership with IMAA.  And we
           are always able to have a district manager, in this
           case Felix, where in the past employ we didn't have
           this, district secretary to present these awards
           annually.
                       So reviewing your records as the approach,
           as they  concern Indiana, we find practically no
           incidents of chemical burns in our industry in the
           last eleven years.  A lot of (inaudible) say the
           records aren't always available.
                       We have a significant number of companies
           annually, eighty-five to ninety, who receive an annual
           plaque for zero reports.  So I want to focus on the
           fact that we are for safety.
                       But on the other hand, we represent a lot
           of companies who are burdened with paper requirements
           that don't really contribute to safety.  And we are
           also burdened with paper requirements, paper-people
           requirements, on other regulatory issues.  And it is
           probably one of the number one items facing the small
           aggregate producer, `How do we cope with that?'
                       Safety is not in issue.  We believe there
           is nothing that this industry does that justifies
           putting our worker at risk.
                       But I would echo what Walt has said, is we
           think that what you are asking us to do is already
           covered and that we can handle it under the present
           rules.
                       I don't want to hand fight the care
           crisis.  It is like saying you mean anti-safety.  We
           think we are ahead of the curve on promoting safety. 
           We work annually with our members, direct members on
           the work sites to work at zero.  That is acceptable.
                       But having reviewed what we think
           are records that are viable as they come to you, we
           don't see that this is a problem in Indiana.
                       Now as an ACE director, we meet
           periodically and gather and talk about subjects and
           problems that are of a concern to MSHA.  I can tell
           you, based on past meetings I have attended with my
           fellow executives, hazard communication is viewed by
           most aggregates organizations -- I speak only for them
           -- as being another layer of paper for them to produce
           on safety.
                       We are not against safety.  We will work,
           and you can check with your own people to know that we
           try to be ahead of the curve and not behind it.  We
           are concerned about the paperwork requirements for
           this and the inconsistency on it.
                       We don't believe that writing citations
           really gets to the meat of the problem.  We feel like
           we need to educate the workers.  We need to educate
           our members and those who are exposed to the hazards,
           and we work hard to do that.  But we really feel like
           what you are asking us to do is already covered and we
           would just rather maybe improve some of those aspects
           rather than look at another layer of paperwork.
                       Those are all of my comments.
                       MODERATOR NICHOLS: Okay.  Thanks, Bruce. 
           Anybody have a question of Bruce?
                       PANEL MEMBER PHAN: I do.
                       MODERATOR NICHOLS: Go ahead.
                       PANEL MEMBER PHAN: Can you please define
           what you call a large entity?
                       MR. MASON: Well, I would say we have one
           or two companies that have eleven or twelve plants. 
           In Indiana, that is significant.
                       PANEL MEMBER PHAN: You don't label them
           according to the number of employees?
                       MR. MASON: We track the number of
           employees from the records just so we have that
           information available when we deal with agencies.  We
           think within our membership there are probably right
           around between twenty-eight hundred and three thousand
           employees.
                       The industry as a whole, based upon real
           (inaudible), our records are about a year old, it
           would probably run about thirty-eight hundred, and we
           get that from your sheets.  We just -- when we put
           this in our data we just total it.  And now not all of
           those are members, because we do have twenty to thirty
           smaller companies in there, something like the
           dimension stone industry, that are not really members
           of our industry, so that number kind of pops out.  But
           if you are interested I could probably get it.  I
           don't have it here today, but I can provide those
           numbers to you.
                       PANEL MEMBER PHAN: That would be great. 
           Thanks.
                       PANEL MEMBER FEEHAN: I have a question. 
           How about the concrete people?  You work with the
           aggregates and concrete executives.  Are the concrete
           people having chemical burns at all?
                       MR. MASON: Nothing in our discussions I
           have had come to the surface.  Now some of those
           associations represent both industries.  In Indiana we
           just represent aggregates.  But the ACE organization
           represents those aggregate industries that have both
           sides in there for their base history.
                       PANEL MEMBER FEEHAN: In the preamble we
           kind of -- for the interim final rule we provided
           information about chemical hazards, primarily chemical
           burns, because they were the most easy to identify. 
           They are acute injuries, you know.  But there is still
           a, I think, a certain amount of concern about long-
           term effects, which, you know, which are more
           difficult to associate because of all of the different
           factors that have to be considered.
                       Do you have concerns about long-term
           exposures also, or are you -- you know, are your
           members doing training to deal with the long-term, or
           analyzing the injuries for long term injuries?
                       MR. MASON: Well, I think from my point of
           view, and I can't talk about specific companies.  I
           can only really relate what takes place when I am like
           on a safety committee.  I need them to explain how
           that is composed of.
                       We have no limit on membership of our
           committee, so  any person who is an employee of one of
           our member companies says I want to serve on a safety
           committee, that is kind of automatic.  About the only
           thing we are rigid about is that you want a company,
           you can only have one vote if it comes to a vote.
                       But we meet periodically to discuss issues
           of interest and to design workshops and to cover this
           reg a little bit here.  We have actually worked with
           MSHA to take workshops out to some of our customers
           that enter on our property, focus on a hazard rate
           committee, making sure that those who enter onto our
           property are aware of what they need be.  And I think
           we are probably one of the first organizations to do
           that.
                       We have developed subject matter for
           workshops based upon what is the overall problem need? 
           If it is colleagues, then we focus on the -- ask for
           proper speakers from MSHA, and that is a good
           partnership, because we feel like we are informing
           people where they need to be informed, how to address
           issues.
                       Hazard communication just doesn't fit the
           rate in any way, shape or form, and I think that is
           because we don't see it as something that is really
           flagging our industry.
                       Now if we have to do more to educate
           people to prevent things, we are more than willing to
           do that.  I mean, we are probably one of the biggest
           distributors of your materials.
                       What I want to reiterate is that because
           of the high number of small companies, their struggle
           is this: is how do they handle the paperwork.
                       And another thing is the consistency in
           inspectors.  If there is a pressure point between our
           industry and your agency is that yesterday somebody
           comes in and examined something, the next day somebody
           else comes in, it is a different person and you get a
           different opinion, and those opinions lead to
           citations.  They don't lead to safety.  They really
           don't.
                       So we are not so much interested in
           citations.  We are interested in focusing on how we
           get at zero, because we are with you on that.  There
           is nothing we do that justifies hurting our workers.
                       PANEL MEMBER FEEHAN: One part of the
           justification of the -- in our preamble, for the
           paperwork, because we recognize that this is a -- this
           is in -- it is an information and training standard,
           and that translates into paper in a lot of respects.
                       But a lot of the costs for developing the
           rule, for having the rule, we relied on -- and we have
           heard recent testimony just in these public hearings
           that people already are in compliance and they are
           doing, you know, they are sharing the information with
           employees, and that is because they have labels and
           they have MSDSs.  And how is it that this is more of
           a burden to you?  It sounds like people are doing it
           already.
                       MR. MASON: Well, we think -- we think we
           are, so that is why we are paving the same roads. 
           Really it is nothing that affects us, but we are -- I
           won't say that our record coast-to-coast and border-
           to-border is stellar.  But in the Midwest, which I am
           more familiar with because of my interaction with the
           ACE Group and with the members who have plans in other
           states, we just don't really see it as an issue.
                       I guess if there is, and I kind of look at
           the bottom line, if there is going to be HazCom
           communications, we think that maybe the way to
           approach it is to get more people -- not another load
           of paper, not another regulatory requirement, and
           let's not provide another friction point with your
           inspectors.
                       We don't argue the fact that they keep
           coming in and pointing out deficiencies, and we need
           to address them.  But we really don't need them
           providing another friction point if it is not going to
           address our goal and your goal, which is zero.
                       PANEL MEMBER FEEHAN: Yes.  Thank you.
                       MODERATOR NICHOLS: Thanks, Bruce.
                       MODERATOR NICHOLS: Okay.  The next
           presenter will be Chuck Burggraf, RAG American Coal
           Holding.
                       MR. BURGGRAF: Good morning.  I am Chuck
           Burggraf, and I am the Safety Director of RAG American
           Coal, Incorporated.  Talk a little bit about MSDS
           sheets.
                       I would recommend that MSHA maintain the
           MSDS sheets.  I have several reasons for that.
                       In some of the other hearings it was
           stated that miners are reluctant to request MSDS
           sheets.  They feel intimidated or threatened by that. 
           I don't know if this is a fact, but if it is a concern
           then let's take a different approach.
                       MSHA could maintain the MSDS database. 
           Miners could us a designated phone or a designated
           phone number to call in to MSHA, to a central
           location.  They could get information on MSDS sheets. 
           They could request MSDS sheets.  Or there could be a
           computer setup where miners could access the MSHA home
           page, which is already available, and go into a
           section of that and access the MSDS sheets there.  And
           then if they have questions they could call this
           number that would have to be maintained seven days a
           week, twenty-four hours a day, so these people could
           get their questions answered.
                       They could call in from their work
           location.  If they didn't want to do that, they could
           call in from home.  People have computers in a lot of
           homes now.  They have fax machines in a lot of homes,
           or they could use a fax machine at their work
           location.  I think the companies would be responsible
           to maintain a computer, a phone and a fax machine that
           they could use at their disposal to get this, the MSDS
           sheets from.
                       Labor has expressed that the MSDS sheets
           should be maintained for a longer period of time, and
           if MSHA would  maintain the database that would make
           it easier to do that.  The people maintaining the MSDS
           sheets, like I just said, they could answer questions,
           a miner's questions.  The cost to do this should be
           acceptable to MSHA, since that is an expectation you
           have for hundreds of mine companies.
                       This method would also help the concern
           that smaller mining companies would not be able to
           maintain MSDS files.  Let's make this a process to
           provide the information to the miner and not a law
           that results in multiple violations.
                       Concerning hazard analysis, we may
           determine that a chemical is non-hazardous and an
           inspector may determine that it is hazardous.  What is
           the process in place to make a determination?
                       Then that leads to training concerns. 
           MSHA is asking miners to remember many things about
           many chemicals, and this is not realistic.  If an
           inspector asks someone for details on a chemical they
           are using and they don't remember, even though they
           have been trained, what happens then?
                       According to the draft compliance guide,
           miners can be trained by categories of hazards from
           chemicals.  Is this compliance guide still a draft and
           is that still a true statement, and would you give
           more explanation of what you mean?
                       In Table 47.91, MSHA defines the health
           professional, has a definition for a health
           professional.  I think the definition should only
           include the professionals that can legally diagnose
           and treat illnesses and injuries, because it refers to
           this in some sections in a case of emergency, a health
           professional.  Well, people don't need to be confused
           about who they should go to to get treatment.
                       We will all need compliance assistance and
           extensive outreach programs that you speak of.  I am
           anxious to see the model of the HazCom program,
           compliance aids, the final compliance guide.  Will
           MSHA help us establish a hazard communication program? 
           Do you have a model of that, is what I am asking.
                       I am concerned that the rule will result
           in a huge paperwork burden, result in many citations,
           and do little to protect the health and safety of the
           miner, and that is what we are all after in the end
           thing.
                       I thank you for the opportunity to
           comment.
                       MODERATOR NICHOLS: Thank you, Chuck.  The
           answer is yes on outreach and model programs.  As
           Strom Thurmond would say, speak into the machine.
                       PANEL MEMBER FEEHAN: You can take a look
           at the model HazCom Program in our website, MSHA.gov. 
           There is a -- right on the web page there is a button
           for HazCom and you can go in there.  It is in the
           compliance guide.  You can also see the draft of the
           compliance guide for the standard in there.
                       MR. BURGGRAF: Yeah.  Right.  I looked at
           that.  That is why I said is that still a draft or is
           that --
                       PANEL MEMBER FEEHAN: That is still a
           draft.
                       MR. BURGGRAF: That is still a draft.
                       PANEL MEMBER FEEHAN: Yes.  And it will be
           until there is a -- until this is finalized.
                       MR. BURGGRAF: You do have a -- you have
           one other thing in there that it is telling to the
           miners that I think you need to have your people work
           on that.  You know, that is what we are looking for,
           is guidance like that.  I do think we need a model
           communication plan, too, what is your expectation.
                       PANEL MEMBER FEEHAN: Yeah.
                       MR. BURGGRAF: I think if you put out the
           model program that gives an expectation for what the
           inspectors need to be enforcing and what we need to
           comply with, then that would clear up a lot of
           argument.
                       PANEL MEMBER FEEHAN: Yeah.  Yeah.
                       MODERATOR NICHOLS: Yeah, we had planned on
           doing an extensive outreach.  In fact, when we did the
           outreach on the coal diesel rule, we had planned on
           coupling HazCom with that.  And we, in coal, had gone
           and worked up four model programs.  And I will let Bob
           Thaxton mention what those were.  There were different
           sized operations.  So, Bob, you want to talk a little
           about that?
                       PANEL MEMBER THAXTON: In preparation for
           the HazCom Program that we thought would be in place
           earlier this year, coal did go through and prepare a
           draft document that was actually a HazCom Program.  We
           went out to a small surface mine, small underground
           operation, a preparation plant and a shop area, and we
           wrote up the plan for the mine operators at those four
           locations, including going through and doing the
           chemical inventory, the hazard determination, and then
           putting that in writing for them and gave them a copy
           of that program, with the understanding then that we
           took those programs, cleaned out the identifying
           information and tried to draw those programs up then
           into where they were generic so that anybody could
           take that program and then insert their individual
           information, their inventories.
                       And, at the same token, as part of our
           outreach that we were going to go through, coal was
           going to offer that any coal operator that asked we
           would send somebody to the mine property to make the
           hazard determination for you, in concert with the mine
           operator so that your people then would learn what we
           were looking for as far as making a hazard
           determination on the chemicals that were used at the
           mine properties.
                       Then based on that, we would work with you
           then to draft out that program to make sure that it
           was covering all the areas so that there wasn't a
           disagreement as to what the program at that particular
           mine site should involve.
                       And then as time went on and you added new
           things to your listing, if you needed additional help
           in determining whether that particular chemical
           resulted in changes in hazards that would need
           additional training, then we would have specific
           people in each district that you would be able to go
           to to ask those types of questions.
                       MR. BURGGRAF: I think one of those things
           throughout the plant site it talks about is categories
           of chemicals, or categories of hazards.  You can train
           by categories of hazards.
                       PANEL MEMBER FEEHAN: Right.
                       MR. BURGGRAF: We would like more detail on
           what you mean.  You don't have to train miners that
           they are exposed to many hazards.
                       PANEL MEMBER FEEHAN: But what we were
           talking about was how you go about addressing your
           training so that if, for example, in your shop you can
           train people -- one of the ways to make your program
           more understandable to the people affected is to say
           -- take the mechanics and say, `Well, here are your
           exposures.  You know, you are going to be looking at
           a lot of the solvents or the things that dissolve
           gaskets and adhesives that you are using to, you know,
           when you are doing engine work.  Or, you know, you are
           going to be -- you are going to have certain kinds of
           exposures.'
                       To me there is a way to break that down
           and make it sort of integrated so that you can talk to
           mechanics and do it that way.
                       Their exposures are probably going to --
           they are going to have a lot of similarities to them. 
           And where you can you should probably try to work --
                       MR. BURGGRAF: So you can group them.
                       PANEL MEMBER FEEHAN:  -- so you can group
           them and make it a kind of more efficient way of
           explaining to people so that you are not having to say
           chlorinated solvent fourteen thousand times.  You
           know, you want to say it once and explain to people
           what those problems are.
                       So, you know, yeah, we are looking for --
           you know, it makes good training sense as well as good
           efficiency sense for you to, you know, as an operator,
           that these -- you know, that there not be a lot of
           repetition and -- I mean, it could be a boring
           subject, you know.
                       Now, let's face it.  But, you know, I
           think that also it can -- you know, there should be
           ways to make it -- it is also an interesting subject. 
           I think that we have had a lot of testimony from
           people that there is a lot of concern about what
           people are being exposed to out there in those shops,
           you know, what goes into those solvents and what the
           long-term effects are on people.  So --
                       MR. BURGGRAF: And that is part of our
           concern.  We don't know how to train so that they get
           the people to understand how to react to different
           situations.  We want people that walk into those to be
           able to react in the proper manner if something does
           happen so that they get the proper treatment, the
           proper care.  And if we add a lot of paperwork to this
           and everything, we are going to make -- and we have to
           train everybody on every chemical, every product, we
           are going to have a lot of confusion and no one will
           know how to treat in case of an emergency.  And that
           is one of my big concerns, because we want to give
           people the right treatment if something does happen.
                       PANEL MEMBER FEEHAN: Sure.
                       MODERATOR NICHOLS: Okay, Chuck.  Thanks.
                       Now these model programs could also be
           developed for the aggregates industry and the rest,
           the metal and non-metal.
                       The next two presenters will be Greg Mahan
           and Dave Yard with UMWA.  Do you guys need to -- do we
           need to keep going, or have we got time to take a ten-
           minute break?
                       Greg and Dave?
                       GREG OR DAVE: Ten-minute break.
                       MODERATOR NICHOLS: Ten-minute break? 
           Okay.  Let's come back at ten thirty-five.
           (Whereupon, a short recess was had until 10:35 a.m.)
                       MODERATOR NICHOLS: Let's get started back. 
           I should have asked you before, but those of you that
           have written statements, it would help us if you could
           give the court reporter a copy of that.  Any of you
           that have already presented and have a copy of your
           statement, if you would, give it to the court
           reporter.
                       Okay.  Greg Mahan.
                       MR. MAHAN: Mahan.
                       MODERATOR NICHOLS: Mahan.  Greg is with
           the United Mine Workers.
                       MR. MAHAN: I am the local union president
           and also have been a state committeeman for
           approximately eighteen  years in the past.
                       Today I would like to point out that this
           is not just for miners, but it is for all workers. 
           Well, I believe that all workers have a right to know,
           in a place with chemicals, material, to know how
           affect people.
                       But I work for a small company, coal
           company in Indiana, and everything that we use in that
           mine is just -- it has got chemicals.
                       A few years ago we used a drying agent. 
           If we got in some water, we would cut the old cast of
           the bottoms out, put another cast in, and there's no
           MSDS sheets available to us, and the only reason --
           the only way we found out was I opened up a bag.  The
           company did not give us any knowledge of what was in
           it, and we read the -- I  read the package, the bag,
           and it says "Must wear  respirator."  And it said that
           anybody downwind could have respiratory problems, and
           the ingredients in this drying agent could cause
           cancer.
                       I believe that, you know, farmers are
           regulated by the types of chemicals, of gasoline.  I
           believe that not just the coal miners but every worker
           has the right to know what they are working with.  And
           labeling, it must be regulated by your agencies.
                       I live in a little community of around
           fifteen thousand people, and I don't know whether you
           even heard about the Scott Gas, the neuroblastoma,
           that oil was spewed around, and years later come back
           and find out that you had about seven children, and we
           tried to find out where that was -- it is like you
           bring a chemical into the plant.  It is like you go
           home and use your five gallons of gas to go clean this
           one fence.  You are not to use -- you don't want to
           carry any secrets to any of that.
                       I believe this has happened, will happen,
           and will continue to happen, and it must be labeled
           even when it leaves the property.  I mean, we stick --
           our company takes stuff and they give it to the
           miners, and they don't say (inaudible).  And nobody
           knows what it is.  We don't know what is in that stuff
           we use now unless we, ourself, go and nag with the
           company, and it is like pulling teeth.
                       We just had a fire on the surface of our
           mine, and I believe it was oscillation, and with the
           -- some kind of coating on the outside that caused
           this chemical reaction.  And luckily, and like the air
           goes out our mine now, we are lucky we didn't have
           anybody hurt or injured, or even worse yet killed.
                       We asked for the data sheet on that.  We
           did not get it.  They said this was done by an outside
           contractor.
                       I believe that labeling containers is a
           must.  We must know, no matter how minimal the
           chemical, whether it is an irritant to the skin.
                       The hydraulic oil that we use now, you
           have to read it really far in fine print on there,
           "May cause skin cancer."
                       The plant, the gentleman, the first
           gentleman said they are a small company.  We are a
           very small company.  We treat our water, we treat the
           plant, treat our pumps, sewer  pump, we treat it to
           treat the water that goes into the ground.  We treat
           with the hole brace with chemicals.  We use chemicals
           on a daily basis there, and we are a small company. 
           And we don't know ninety-nine percent of the stuff
           that we -- that is used by the company.  We have no
           knowledge of what it is.
                       The first gentleman said that accidents is
           caused by an unsafe act.  I believe maybe the words in
           that training  in the use of chemicals.
                       And we have talked a lot of talk about
           safety.  Safety and health go together on this.  We
           breathe it.  It gets on your skin.  And I believe
           that, you know, we have a right to know.  We have a
           right to know what comes into that mine and what goes
           out of that mine, for our safety of the miners and for
           the public.
                       You know, we have tried to work with the
           company on these sheets to tell us what it is, and
           they refuse to give it to us.  And the only reason
           they looked it up this last time was because we had,
           you know, we had a fire, and it could have been very
           serious.
                       You know, I am out here representing the
           mine workers but also other workers, and I believe we
           have a right to know that we -- we are breathing the
           diesel fumes now, the chemical reaction to eliminate
           smoke and all that on the ground.  You know, we are
           there every day.  I mean, I am not trying to make
           anything like that, that the people here say.  You are
           going to have to breathe this.  You are going to have
           to be around it.  We have to be around chemicals
           almost, you know, at least five days a week.
                       And if we go back in history, your agency
           has been  brought in for, like John L. Lewis, from the
           ground up.  That is why we have got mine
           representatives here to take care of this.  It was a
           priority back then, and it should be now to protect
           the miners and to live to make this, and your agency
           could be a very great help to us.
                       And the only thing I have against
           chemicals is that they are hazardous.  And that is --
           they never teach us about those (inaudible), and they
           do every day.
                       That is all I have.
                       MODERATOR NICHOLS: Okay.  Anybody got any
           question of Greg?  You have got to what?
                       (Laughter.)
                       MODERATOR NICHOLS: Anybody have any
           questions?
                       PANEL MEMBER PHAN: Yes.  Were there any
           chemical injuries?
                       MR. MAHAN: Have I had any at the mine?
                       PANEL MEMBER PHAN: Yes.
                       MR. MAHAN: There has basically been two
           over the past ten, eleven years.
                       PANEL MEMBER PHAN: And were they reported?
                       MR. MAHAN: I think maybe one was.  But a
           lot of it is that we breathe it.  You know, it is not
           just -- you know, a lot of the gentlemen talked about
           burns.  I mean, it is breathing it, getting it on your
           skin.  It is just not burns.  There is a whole rank of
           stuff in here that is  -- it is not just burns.  And
           that is the -- the burns, I think, it is a problem. 
           It can be a problem.  But my concern is what we have
           to breathe, we have to live with it, we have to touch
           it, we have to -- and there is no protection for what
           -- they don't tell us anything about it, just like the
           drying agent.  And finally we made -- the safety
           committee and myself made such a stink about it, they
           took it out of the mine.
                       You can read it on the sheet, but they
           should be trained, the people that handle this stuff,
           and you must wear respirators and goggles, and they
           were working in -- we -- after I found out that this
           stuff was in the mine we got it out of the mine.
                       PANEL MEMBER PHAN: Thank you.
                       MR. MAHAN: You are welcome.
                       MODERATOR NICHOLS: Okay, Greg.
                       MR. MAHAN: Thank you.
                       MODERATOR NICHOLS: The next presenter will
           be Dave Yard with the United Mine Workers.
                       MR. YARD: Well, I am going to decline.  My
           name was inadvertently put on the speaker's list.
                       MODERATOR NICHOLS: Somebody messing with
           you?
                       (Laughter.)
                       MODERATOR NICHOLS: Okay.  Brian Peters
           with M-u-l-z-e-r Crushed Stone, Incorporated.
                       MR. PETERS: Mulzer.
                       MODERATOR NICHOLS: Mulzer.
                       MR. PETERS: Okay.  My name is Brian
           Peters.  I am the Environmental Health and Safety
           Manager from Mulzer Crushed Stone.  We are a family
           owned, small aggregates industry.  We have limestone
           plants as well sand and gravel, and we employ about
           five hundred miners, what we call small mines, mostly
           in the Southern Indiana area.
                       And I am here today I guess in opposition
           of the rule as it stands.  I agree with some parts of
           the rule.  I agree with the intent of the rule.  I
           agree with a lot of the comments the last gentleman
           made on miners having rights to know, to have
           information.  I feel that is vital.
                       But some of the things in the rule as it
           stands I am opposed to, as some of the other gentlemen
           talked already about the OSHA Standard and how this
           mimics it, and I have had some experience in the
           plating industry, in the finishing industry.  On the
           environmental side I am an emergency responder to
           hazardous chemicals and spills; used to do that for
           the State of Indiana.  Had a lot of experience with
           the EPA definition of RCRA, Resource Conversation
           Recovery Act, to hazards, you know, things that truly
           are immediately dangerous to life and health.  We
           talked about the ideal labels for these chemicals.
                       And I can tell you from our concrete
           plants and our asphalt plants and things that that
           rule does not work.  The intent looks good on that
           rule on the OSHA side, but in practice, the paperwork
           burden and doing it on a daily basis is very tough.
                       Of the five hundred miners, I am the
           safety director.  That means I do the safety training. 
           I go out and teach the labeling.  I go out and
           instruct how to read an MSDS sheet.  That is my job. 
           And this will significantly add to the workload that
           I have.  And the thought that the mine would add extra
           resources for me will -- won't happen.
                       You know, the burden of the paperwork
           driving will go on someone else's plate, and for me to
           give more effort and more time to that paperwork end
           of it will mean less time that I can spend training,
           less time that I can spend auditing facilities,
           investigating other accidents and actually getting to
           the root of resolving and lowering the accident rates
           at our facilities, because it is more time for me to
           spend on the paperwork end.
                       In addition to that, we do a lot of things
           already  that are required in this standard.  I will
           admit to that.  You guys have mentioned that already.
                       Number one on that issue is training, and
           I think that has been heard on earlier today, Part 46
           training in these standards.  We came out on that.  We
           do new miner training for every miner.  Part of that
           miner training is training on MSDS sheets, HazCom,
           labeling.  We use the HMIS system of labeling.  We
           have a standardized system for red and yellow codes so
           that everyone can understand it in English.  It meets
           those requirements of your training standards.
                       And we pass out an MSDS sheet.  I do a
           half-an-hour presentation on how to read parts of an
           MSDS sheet.  And then we do a test on MSDS sheets to
           make sure you understand the hazards that you are
           being dealing with and how to read those when you get
           them.  I feel that training is very important.
                       But the burden lies in trying to do this
           on a daily basis.  You mentioned that you don't have
           a lot of labeling.  You shouldn't have a lot of new
           products.  That is not true.  You know, even a small
           mine, like the last gentleman mentioned, there is an
           endless list of new products that come in that you
           try, and make a hazard determination on every one of
           them.  Is this inherently household-like, or is it
           not?  Do I need to do a today, go out and do a
           training for that miner for that new product?  That is
           a tough question.
                       First I have to make the determination. 
           If so, then I have to go out to that remote mine site,
           which may be an hour drive away or maybe ten minutes
           away -- it depends on where I am at -- and do a
           specific training on that particular product, because
           it may be a little different.  And who is going to
           make that determination?  And when the MSHA inspector
           comes out, is he going to have the same interpretation
           that I have?
                       In order to be completely safe with this
           regulation, I have to take it to the inth degree and
           do the training on every chemical.  And that gets very
           tough.
                       Beyond the new miner training we have task
           training.  Part of the Part 46 was the new task
           training.  Any time a miner is new from one task to
           another, he must receive training for his new task. 
           Training is new chemicals in your new task.  You are
           going to be performing a new task.  When you move from
           a loader operator to a shop you have to have training
           on the new chemicals in your workplace.  That is done
           already.
                       Annual training.  Every year we must have
           a certain amount of annual training.  We do that on a
           monthly as well as an annual basis, and every year we
           teach HazCom.  We go over what is required in your
           workplace.  What are some of the new chemicals that
           may be coming out there?  How do you read an MSDS
           sheet?  And you reiterate on that over and over again. 
           And MSDS sheets, for the most part, on the chemicals
           that we feel are most hazardous and are used
           frequently are available.  Maybe that is not the case
           in everywhere, but our books are on stands out in the
           shops.
                       But, coming back to the point of the OSHA
           standpoint, it is very burdensome to keep those up to
           date on a daily and on an hourly basis.  When you have
           one end with your purchasing group bringing in things,
           salesmen bringing in things, keeping those completely
           one hundred percent accurate is very tough.
                       The training portion of it, I feel like I
           meet your requirements today with what I am doing,
           except on the new chemicals coming into the workplace. 
           That would require me to almost full-time be out there
           moving and running and running all day long to try to
           meet the new trainings for new products, because they
           have individual and distinct things on the chemicals.
                       The last gentleman mentioned a respirable
           problem.  We have a respirator program.  Any chemical
           that comes in that requires a respirator you have to
           go through certain steps to be certified to wear a
           respirator.  You have to have skin testing, and you
           have to have pulmonary function testing.  There's all
           sorts of -- a whole list of things that go with that. 
           So if a chemical comes in with that, we don't allow
           them to use it.  That is already covered.  And a lot
           of the health aspects are already covered.
                       Long-term exposure.  We have a respirable
           dust standard.  We already know that our employees are
           kept under the respirable dust standards, and we do
           monitor.  So that is already covered.
                       Most of these issues are already covered
           by other programs.  The training is covered by the
           Part 46, and a lot of the exposure hazards are covered
           by some of the other programs.
                       So, I guess to wrap it up, I would like to
           say it is a very good intent.  OSHA had a very good
           intent with the program.  I feel miners have the right
           to know what they are dealing with.  I think training
           is very important.
                       But when it comes down to where the rubber
           meets the road in the enforcement and the paperwork
           end of it, it will turn into an OSHA program where it
           could be the topsided thing that we have and it will
           not reduce accidents.
                       We have had zero accidents in the last
           three years that I have worked with this company
           related to chemicals, related to the HazCom issues.
                       We have had some dust in the eyes that
           probably comes back to your standard as chemical
           burns.  But we have had none related to chemical
           exposure, save that, and one for water.  We had an
           employee that was exposed to water high pressure. 
           That probably could have become intimately chemical
           burns.
                       So we are going to keep MSDSs for water on
           our sites.  I do.  I keep them for (inaudible) docks. 
           I keep them for carbon monoxide, because they are by-
           products of dust.
                       So it comes down to how far we take this
           program.  Do we want to make it work?  Let's do this
           in training.  Let's tell people with what we are
           using.  But the paperwork end of it becomes a
           nightmare for me personally.
                       Questions?
                       MODERATOR NICHOLS: Do you have a written
           statement there, or do you --
                       MR. PETERS: No.
                       MODERATOR NICHOLS: Okay.  Anybody got a
           question?
                       PANEL MEMBER THAXTON: I have one.
                       MODERATOR NICHOLS: Bob.
                       PANEL MEMBER THAXTON: I heard you mention
           that you currently cover most of the HazCom material
           by your current Part 46 training?
                       MR. PETERS: Yes.
                       PANEL MEMBER THAXTON: And that is, you are
           conducting Part 46 training on a monthly basis as well
           as annual, is that correct?
                       MR. PETERS: Yes.
                       PANEL MEMBER THAXTON: And you said the
           only thing that you would have to do is address new
           chemicals coming on, on like today, because you are
           not conducting that type of training right now, is
           that correct?
                       MR. PETERS: That is correct.  Or has --
           now let me clarify.  We don't do HazCom training every
           month.  It may be a monthly topic; it may be an annual
           topic, but it is covered one time per year.
                       PANEL MEMBER THAXTON: Okay.  So now that
           creates two questions, the one I had originally plus
           this one now.
                       Since you are only doing HazCom maybe once
           a year, and you have chemicals come on property that
           are different than what you -- the hazards are
           different, not necessarily the chemical is different,
           how do you get that information to your employees if
           their task is not changed; the only thing that is
           changed is the -- maybe the manufacturer of the
           chemical is changed, so you have got a new
           manufacturer who wants you to try his product and it
           has got some different hazards to it.  Do you actually
           sit down with those people and discuss that hazard
           change, or do you wait until your next training
           session?
                       MR. PETERS: If we deem it as a significant
           hazard, it will be covered.  Now what does that come
           back to, is that we don't deem many products in our
           industry have very serious hazards.
                       You know, if it is another type of oil,
           they have been trained on the hazards of oil.  We
           would see that as your grouping that you mentioned
           earlier.
                       If it is a cleaner, we group that in with
           most of the cleaners.
                       If it is a totally different type of
           product that has a significant hazard, it would be
           covered.
                       PANEL MEMBER THAXTON: The information as
           far as what you are saying, as far as covering all
           this under Part 46, Part 46 or Part 48 for the coal
           industry, would you be amenable to Part 46 and Part 48
           having some modifications made to it that would
           incorporate more of the HazCom specifics into that
           type of training program as opposed to having a
           separate HazCom program?
                       MR. PETERS: I would much rather see it
           there, in that circumstance, yes.
                       PANEL MEMBER THAXTON: Okay.  Thanks.
                       MODERATOR NICHOLS: Anybody else?
                       Okay.  Thanks, Brian.
                       MODERATOR NICHOLS: Next presenter will be
           Butch Oldham with the UMWA.
                       MR. OLDHAM: Okay.  First of all, I would
           like to take this opportunity to thank the committee
           for the chance to come before you today and speak on
           this subject.
                       You know, I have heard a lot of talk here
           about family-oriented job places, family this.  I know
           myself, I have got three grandchildren and, you know,
           I consider them family, and if I think they are going
           to be exposed to something I am going -- you bet I am
           going to want to know what it is.  So, you know, we
           talk about family, but do we practice it.  So that is
           a point that I would like to be explained.
                       You know, just as the Methane explosion
           that killed the thirteen miners in Alabama, other
           miners in the industry are dying each year.  The only
           difference is that these miners are suffering longer
           because these miners are being exposed to hazardous
           chemicals daily.  And the longer we wait the more coal
           miners and their familiar are going to suffer.
                       I know that just the few chemicals that I
           personally have been exposed to over the years, such
           as the Perk Chlorethylene in the prep vats; the
           Norbad, the ceramic bead liner used to repair the
           hydra cyclones; and the various glues to cement the
           ceramic tile that is used to line chutes, and the list
           just goes on and on.
                       You know, people don't think we use very
           many chemicals in and around the industry, but when we
           really look at the situation there is a whole lot more
           there.  You know, and I know personally that when we
           used these chemicals we were never told of the hazards
           that was involved in using them, until we read about
           them ourselves.
                       For example, the Norbad, the ceramic bead
           liner, you know, it looks relatively harmless.  Get a
           spatula or a trowel and get it out of a can, spread it
           on.  But then when we read the precautions it says if
           you get it on your clothing or you, or even on your
           boots, you throw them away.  Discard them.  Don't use
           them any more.  So we wouldn't know that, that it
           could be absorbed through your boots or your clothing,
           so we weren't trained on it.
                       You know, another example that has just
           been recently is at the Squaw Creek Mine in Indiana
           here.  They have been exposed to a type of by-product
           that was hauled in to the mine from Alcoa for years,
           twenty-something years, only to find out that this by-
           product may be linked to a type of cancer found
           primarily in the aluminum industry.
                       When doctors tried to determine how
           individuals at the coal mine contracted a disease that
           seemed to be linked only to the aluminum industry, it
           became apparent where the problem was.
                       If the HazCom rule had been in place years
           ago, when it was first discussed, maybe things would
           be different for some of those miners.  Instead, there
           have been several miners that worked at the Squaw
           Creek Mine that have died of cancer.  And we just had
           an individual that had a liver transplant because of
           the cancer that he may have been exposed to at that
           mine.
                       Chemicals that are being introduced
           underground, in  a mining such as rockloc, the
           Polyurethane foam sealants for ventilation control and
           other chemicals where miners are exposed to in
           oftentimes areas of limited ventilation and inadequate
           personal protection, are showing signs of illnesses in
           the workplace which are linked to these chemicals.  If
           miners had been provided adequate information at the
           time of exposure, they would have used proper
           equipment.
                       I think one point that a lot of are
           missing, we don't see that physicals acts of being a
           broken leg or a broken arm or something immediate. 
           You know, it is the long-term illnesses that is
           associated with handling these chemicals.
                       It is not the accidents and injuries.  It
           is the things that we don't see when that individual
           gets cancer, and all of us say, `Well, Old Joe Blow
           here, he died of cancer the other day.'  But nobody
           ever checked to see why.  It may have been one of the
           chemicals he was handling.  But if it had been one of
           your family, wouldn't you have liked to set back and
           say, `Hey, let's look at this.  Let's look at the
           sprays.  Let's think about what we are exposing our
           families to.'
                       You know, I know, in the twenty-six years
           that I have been in the mining industry, and from
           Kentucky, we have  sixteen hours of daily re-training. 
           It starts at eight on most days.  And hazardous
           chemicals hasn't been ever thought of.  I have never
           been trained on hazardous chemicals in sixteen hours
           of daily re-training, or in any  safety talks.  So it
           has just not been an issue.
                       And people say, `Well, why do you all
           bring it up now?  Why is it important today?'  Well,
           it has been important to the labor union that I work
           for.  For the last fourteen years it has been
           struggling, trying to get a rule in place where people
           know what they are exposed to.
                       Also, you should remove any of the
           language that allows the mine operators to make the
           determinations on what is or is not a hazard.  This
           should be clearly defined in the regulations and also
           in the final rule.
                       Require the operators to receive training
           on the hazardous chemicals present before allowing
           them to train miners on what is or is not hazardous. 
           And I think that if we are all honest in this, they
           are no more aware of the hazards that exist in these
           chemicals than the miners are, your everyday safety
           directors at most of the mining operations that
           usually does the site training.
                       The training should include an explanation
           of where and how a chemical is being used and what
           precautions the employer has adapted to limit miners'
           exposure.
                       Require that specific chemical information
           be included on any label or MSDS sheet, and update the
           labels and MSDS sheets immediately when the contents
           change, and require that the burden for maintaining
           and making MSDS sheets available to miners be the sole
           responsibility of the operator.
                       Now these are just a few of the things
           that I believe should be in the final rule.  And
           lastly, I hope it doesn't take another fourteen years
           to develop and finalize this rule, because truthfully
           the miners need it now.
                       We thank you.
                       MODERATOR NICHOLS: Thanks, Butch.  Anybody
           got a question for Butch?
                       (No questions indicated.)
                       MODERATOR NICHOLS: Okay.  Thanks.
                       Dan Spinnie.  Dan is also with the United
           Mine Workers, Local 2161.
                       MR. SPINNIE: Dan Spinnie, Local 2161
           United Mine Workers, Coulterville, Illinois.
                       As a miner and a miner representative, I
           think that every miner and every worker should be made
           aware of anything he is working with, especially
           hazardous chemicals.
                       Now I can tell you that, from working in
           mines for better than twenty-six years, as Butch was
           talking about annual re-training, I have never had
           anything to do with chemicals explained in any way or
           any training in the coal mines in twenty-six years.
                       And I think that all chemicals should be
           labeled, and a determination be made by MSHA, and
           these data sheets on there, that they be -- I don't
           know how to say this -- made legible in, I call it the
           King's English, where you can understand it.  Most
           coal miners, working people, they are not chemists or
           they are not biologists.  It needs to be explained to
           them in a way in which they can understand it.
                       These labels, as I was saying, should be
           in language that we can understand them.  I have seen
           them, you know, these chemicals and these data sheets,
           and after I read it I didn't, you know, even
           understand what it said.  I mean, I knew that it was
           hazardous, but I didn't know why.
                       One other thing I would like to point out,
           this gentleman over here was talking about the
           citations.  I have been a safety committeeman for just
           over twenty years, and I -- one thing that the coal
           company understands is when they get a citation they
           have got to do it.  And I can tell you from past
           experience, and these guys will agree with me, that
           coal companies ain't going to do nothing they don't
           have to do.
                       If it wasn't for the law, our belts
           wouldn't get cleaned.  If it wasn't for the law we
           wouldn't have the ventilations we have, and you have
           to have that safeguard.
                       Thank you.
                       MODERATOR NICHOLS: Thank you, Dan. 
           Anybody got a question for Dan?
                       (No questions indicated.)
                       MODERATOR NICHOLS: Okay.  That is all the
           people present that had signed up.  We have a couple
           of more coming in late.
                       Is there anybody else in the audience that
           would want to come up and make a statement?
                       (None indicated.)
                       MODERATOR NICHOLS: Okay.  We will break
           and come back at twelve-thirty for at least two more
           presenters and anybody else that might come in late.
                       Thanks.
                       (THE TIME BEING APPROXIMATELY 11:15 A.M.,
           A LUNCH BREAK WAS HAD UNTIL 12:30 P.M.)
                       MODERATOR NICHOLS: Okay.  Our next
           presenter will be Ed Elliott with the Rogers Group.
                       MR. ELLIOTT: Thank you.  My name is Ed
           Elliott.  I am a Corporate Director of Safety for
           Rogers Group, Incorporated.  We are a company of
           approximately two thousand employees and we have
           operations in six states.  We are the eighth largest
           stone producer in the United States and we are the
           largest privately held stone producer in the United
           States.
                       I personally have about twenty-one years
           experience in mining, and seven of those years have
           been in surface coal mining.
                       I want to thank you for the opportunity to
           make comments concerning the interim final HazCom
           rule.  And first let me say that this rule is
           unnecessary.
                       As you state in the Federal Register,
           there are existing standards that address the hazards
           of chemicals in the workplace.  And I would like to
           take just a moment to  quote a section out of the
           Federal Register dated Tuesday, October the 3rd of
           2000, that talks about the need for HazCom, and it
           says:
                       "Our existing standards already require
           you to train miners in occupational health, hazard
           recognition, and the safety and health aspects of
           tasks, among other subjects, except in underground
           coal mines you must also label hazardous materials."
                       For years there has existed regulations
           that could be used to address every concern that I
           have read in the transcript of public comments at all
           of the hearings for this interim rule.
                       Could it be that the agency, itself, has
           not educated or trained inspectors in the area of
           occupational health and how it applies to the mining
           environment, including chemicals.  And I would like to
           ask a question, I think maybe more directly at you,
           Mr. Nichols, not to answered at this moment, but after
           I conclude my comments.  Exactly how much training do
           inspectors receive on occupational health other than
           for dust and noise sampling?
                       If there are situations where miners are
           being exposed improperly to unsafe chemicals, then the
           mine operator should be held accountable.  And MSHA
           should aggressively do just that under existing
           regulations.
                       You cannot legislate safety.  You cannot
           ensure safety through regulation.  Safety can only be
           present when miners, operators and regulatory agencies
           want.  Each of us is responsible for their part.
                       I read where the representatives of the
           UMWA feel that all operators are denying miners their
           right to safety in the workplace.  And I was very
           concerned about the adversarial tone of the UMWA
           representatives and comments in the most previous
           meeting that was held.
                       I have never worked with UMWA, but I am
           sure they have the same objectives that we do of
           providing a safe and healthy workplace.  My experience
           of working with other labor organizations in
           development of the Part 46 training regulation was
           very positive and constructive.  And the labor
           organizations that I am familiar with provide training
           for their members, and training on chemical hazards in
           the workplace is an important contribution that can be
           made by these groups.
                       Yes, there may be some operators out there
           that are living in the past with respect to safety and
           health.  But the vast majority have done a tremendous
           job of promoting safety and health in the workplace,
           and their statistics show that.
                       To add another rule to the Code of Federal
           Regulations would only make compliance more
           complicated and require inspectors to focus in an area
           of massive paper trails and take precious time away
           from other more important duties.
                       As I mentioned earlier, we have the means
           to better manage the safety and health of miners when
           it comes to chemical use, but no one has been the
           champion to do so.  For years the training regulations
           in the metal, non-metal industry were not enforceable. 
           But now, with the new regulation, Part 46, they are. 
           And education on chemical hazards should be a part,
           and the industry fully supports that.
                       Rogers Group fully supports the education
           and training of all our employees on hazards in the
           workplace and the safe way to do their job.  We do
           many hours of training.
                       For example, every day we have a five-
           minute safety contact at the start of each shift. 
           Once per week we have a twenty- to thirty-minute
           formal safety meeting.  And annually we have an eight-
           hour refresher training course.  Communicating about
           chemical hazards in the workplace is a part of the
           refresher training and, when necessary, a part of
           safety meeting information.
                       In addition, we do task training, which
           would include training and education on chemical
           hazards, if necessary.  And any non-routine tasks
           require a job safety analysis prior to work activity.
                       Our company goal is zero injuries, and
           that includes any chemical exposure that would harm
           employees.
                       We feel that what we do is in support of
           what is the spirit and the letter of the current law. 
           Rogers Group is no different than any other company in
           that we sometimes fall short of our goal.  But with
           industry, labor and MSHA working as a team, we can
           improve the health of the miner without a new
           regulation.
                       And what I would like to do is talk also
           for a moment about, and comment on a couple of things
           that were mentioned earlier.
                       As far as the burden, you -- I think you
           asked the question of one of the presenters, `How
           would this add a burden to you?'
                       I would say that the burden would come
           from having to comply with some technical aspects of
           the rule that may have no direct reporting benefit.
                       For example, let's say the inspector comes
           on site, goes to the shop, sees a mechanic changing
           oil in a piece of equipment, as Mr. Feehan brought out
           earlier.  Potentially there could be something there
           that would indicate that there may be a negative
           health effect.
                       And let's say through activity of the
           operator that they have developed a method where the
           employee that is doing the changing of the oil does
           not have to come in contact with the oil whatsoever. 
           But the inspector says,  `I want to see your material
           safety data sheet on that.'
                       He is taking and changing Texaco oil out
           of the machine.  We go to the office, pull out the
           latest material safety data sheet for 10W40 oil, but
           it is BP oil.  Then the inspector says, `Okay.  You
           don't have a material safety data sheet.  I am going
           to leave you my autograph.'
                       Has no bearing whatsoever on the safety of
           that employee, but that technical aspect, that is
           where the burden could come from, and that is from the
           practical perspective.
                       Also, chemical exposure without training. 
           This is something that I heard Mr. Mahan -- I don't
           think he is here -- when he mentioned about -- they
           wanted to know about what they were using and they
           couldn't get the information or weren't told, or
           wouldn't be -- you know, the supervisor wouldn't tell
           them.  I think that is appalling.
                       And I also say that I think MSHA has a
           responsibility that they should have been enforcing
           some of the existing regulations to require that
           operator to educate them on the task that they are
           undertaking.  That is there.
                       Now let me throw out one suggestion. 
           There is n o question that once you start down the
           slippery slope and you have a regulation out there,
           and here is something that appears as though it is the
           magic bullet and it is going to make it better for
           everybody with this HazCom rule, I say in -- from my
           perspective, Part 46 is available for us.
                       There are regulations already out there
           that say we have to do the training.  The MSHA
           inspector comes in the operation and says, `Okay. 
           Look.  I see Sue Smith using this particular chemical. 
           How are you training her on those hazards?'
                       It is the responsibility of the operator
           to demonstrate clearly how they are doing that.  If
           they are not doing that, they are in violation of the
           regulation and they should be cited for that.
                       But Part 46 is there.  That operator can
           say, `Okay.  Clearly this is an issue I should
           address.  I will.  I am doing this.  Here is my Part
           46.  Here is my training plan.  Here is how I am
           addressing that on a task training basis.  Here is how
           I am addressing this in annual refresher training.'
                       Then, on the other side, people would say,
           `Well, Part 48 doesn't have anything that addresses
           that.'  I think it is probably time that Part 48 be
           looked at and open up -- reopen that regulation, and
           then have the opportunity to clearly put in Part 48,
           if it follows a similar format to its current state,
           for hazard communication, the use of chemicals would
           have to be covered as a section in Part 48.  It could
           be covered in task training.
                       I think there is the flexibility there. 
           And clearly in 46, with the current regulations, it
           could be easily done in Part 48 without trying to
           develop an entire new regulation that is going to take
           years of training with the inspectors, with the
           operators, to learn about the technical aspects of it.
                       This isn't rocket science, what we are
           dealing with in our industry.  If I was working for
           DuPont or 3-M in a chemical manufacturing plant, you
           are doggoned right it is potentially life and death
           every day.  I don't think we face that.
                       We clearly need to get operators to
           provide information to the miners so they don't get
           sick, long-term or short-term, from what they are
           working in.  That is a moral obligation.
                       And one gentleman said, "I look at a place
           where I go about safety and I give it my daughter
           test."  I have a daughter that is going to University
           of Evansville.  She is nineteen years old.  And the
           way I judge the place, I will go in and say, `Would I
           have a problem with my daughter working in this
           operation?  If I would not want her to work there, it
           is unsafe or it is unhealthy.'  And I think if more of
           us use that standard as operators, we wouldn't have
           some of the problems like we have mentioned this
           morning.
                       But those are my comments.  I want to
           thank you for the opportunity.  I would like to refer
           back to my question to Mr. Nichols, if you could tell
           me about the amount of training that inspectors
           receive.
                       MODERATOR NICHOLS: I don't know that, but
           I have got somebody that should know it.  Bob?
                       I know that we have made an effort to hire
           industrial hygienists in each of the districts.  I
           don't know how much of that training and expertise has
           been passed on down to the inspectors.
                       PANEL MEMBER THAXTON: I can speak
           specifically on the coal side, as we have talked
           earlier about coal was preparing for the
           implementation of the HazCom rule back earlier this
           year.
                       In preparation of that, we brought in two
           to four people per district into our academy in
           Beckley, and provided specific training on HazCom
           hazard determination and what we were going to be
           doing with the hazard communication rule.  That was to
           be taught to those people as train-the-trainers, and
           then they were to go back to the districts and put on
           the same type of training then for all inspection
           personnel at their respective district.
                       That did not go through at that time
           because we did not pursue the implementation of HazCom
           at that point.
                       Right now we are holding those people in
           abeyance until the final work is done on the HazCom. 
           And, if need be, we will pull those people back in and
           update their training, and we still would intend that
           those people would go back to their district, to those
           people at the mine site.
                       But there are specific people, though,
           that we had identified in each district that were
           going to be available to assist mine operators with
           their specific programs, with the determination of the
           hazard of specific chemicals, and to assist them in
           developing a program that they felt then would cover
           what needed to be, and everybody understood pretty
           much what that was, so that we would have those key
           people in each district that would work with people,
           as well as the industrial hygienist that we have on
           staff in the different districts.
                       Metal and non-metal, since we don't have
           anybody from metal and non-metal, I know that metal
           has been conducting several training courses at the
           academy on working with hazardous chemicals,
           recognition of those chemicals in specific industries,
           such as cement kilns, working with biological waste
           being burned as a fuel, asbestos and a few other
           things.
                       So the training has been going on within
           the agency on different areas.  As to whether we have
           trained everybody, I don't think we will ever get to
           the point where we have said we have gotten to
           everyone.
                       MR. ELLIOTT: Thank you.
                       PANEL MEMBER SCHAPER: I would also like to
           respond. 
                       MR. ELLIOTT: Yes, ma'am.
                       PANEL MEMBER SCHAPER:  I am also teaching
           at our academy as well.  I am teaching basic
           toxicology for a day to our new inspectors, and I am
           also teaching an intermediate toxicology course for
           three days to whomever wishes to attend, inspectors,
           industrial hygienists, et cetera, and covering a lot
           of different things from basic principles of
           toxicology, specific classes of toxicants and their
           health effects.
                       So you asked about beyond dust and noise. 
           Absolutely.
                       MR. ELLIOTT: And I think those are all
           very positive things that are going on.
                       PANEL MEMBER SCHAPER: Uh-huh.
                       MR. ELLIOTT: But I think that what has
           happened over the years is I believe a lot of the
           inspectors -- it is new to them also.  And I think
           understanding what is going on out there and the
           inspector being able to take a more active role in the
           broad spectrum of occupational health is important.
                       And I know I heard Mr. Lauriski speak in
           Denver and how he envisioned the inspector as looking
           at the entire operation in a broader perspective, and
           I think that would include standards dealing with
           chemicals.
                       And I don't think there is any question,
           if I put myself in the position of a district manager
           or a field office supervisor and I heard some of the
           things that were mentioned this morning, how people
           are being put in positions of using things that could
           definitely make them sick, I would send somebody out
           there and say, `Hey.  We have got some regulations
           already.  We are going to make this happen.'  Because
           I think that is -- that is just not right that they
           would have to deal with that.
                       But I understand that there are so many
           things for inspectors to know that they can't know
           everything as well as, you know, each and every thing.
                       MODERATOR NICHOLS: Well, we have said we
           are going to do a compliance guide, we are going to do
           a model program, and we are going to do extensive
           outreach that would help with the consistency concern
           that you folks have, I think.
                       MR. ELLIOTT: Right.  I agree, and I don't
           know that it will ever be solved, the inconsistency
           issue.  I bet you have heard that.  If you have heard
           it once you have probably heard it ten thousand times. 
           And I think the effort is there to try to do that.
                       I am just concerned, under the regulation
           as it appears right now, that those technical aspects
           of it can be used and in a way that it is going to
           take away from what we really want to do most.
                       MODERATOR NICHOLS: Okay, Ed.  Thanks.
                       MR. ELLIOTT: Thank you.
                       MODERATOR NICHOLS: The next presenter will
           be Jim Sharpe, with the National Stone, Sand and
           Gravel Association.
                       MR. SHARPE: Good afternoon.  Thank you
           very much for the opportunity to be heard.
                       My name is Jim Sharpe.  I am here today to
           offer testimony on MSHA's interim final Hazard
           Communication rule.
                       I am employed by the National Stone, Sand
           and Gravel Association as Vice President of Safety and
           Health Services.  NSSGA is the world's largest mining
           association with more than nine hundred member
           companies, mostly small businesses operating in over
           thirty-five hundred locations across America.  Our
           membership represents about ninety percent of the
           crushed stone and seventy percent of the sand and
           gravel produced annually.
                       Before I go on, I want to say that I have
           a lengthy set of remarks.  In the interest of time and
           my present download somewhat, I will be pleased to
           submit it in written form in its entirety before the
           close of the comment period on October 17th.
                       NSSGA appreciates the opportunity to
           comment afforded by MSHA"s decision to reopen the
           rulemaking record until October 17, 2001, and to hold
           public hearings across the country.  We further
           appreciate MSHA's decision to stay the effective date
           of the regulation until at least June 30th, 2002. 
           When the Agency promulgated the interim final rule on
           October 3rd, 2000, it allowed just forty-five days for
           stakeholders to comment on a rulemaking record that
           spans more than a decade.
                       NSSGA and its predecessors, NAA-NSA and
           NSA, have offered an extensive body of testimony on
           the HazCom rule to the record since it was first
           proposed in 1990, as follows:
                       There was an NSA submittal dated April
           5th, 1991.  There was another NSA submittal dated June
           1st, 1999.  And there was a submittal dated November
           17th, 2000.  This document was signed by NAA-NSA and
           twelve other mining industry trade associations.
                       For the record, the microphone started
           screaming.
                       Testimony of NAA-NSA at MSHA public
           hearing held on December 14th, 2000; an NSSGA
           submittal of May 11th, 2001, to Secretary Chao and
           entered into the rulemaking record after August 28th,
           2001.  This submittal included a cover letter from
           NSSGA President and CEO Joy Wilson to MSHA Assistant
           Secretary Dave Lauriski dated August 16th, 2001.
                       An Article in Stone, Sand & Gravel Review,
           July/August 2001, and entered into the rulemaking
           record after August 28th, 2001.  NSSGA testimony by
           Joy Wilson on September 25th, 2001.
                       On the off chance that the submittal to
           Secretary Chao and the magazine article from
           July/August 2001, have not made it into the record, I
           am resubmitting them today.  Additionally, I offer yet
           another submittal, an article from the former MSA's
           Stone Review magazine, the January/February 2000
           issue, entitled "NSA's Message to MSHA on HazCom: Just
           Say No."  We also enter into the record MSHA Program
           Information Bulletin 86-2M dated April 7th, 1986.
                       I have all of these with me.  You know,
           what do I do with them?
                       MODERATOR NICHOLS: Just give them to us.
                       MR. SHARPE: Let me do it before I forget.
                       MODERATOR NICHOLS: Also, Ed, could we have
           your statement, your written statement?
                       MR. ELLIOTT: Well, I don't think it is in
           the format.  If you agree with me, what I can do is go
           back and retype it and send it.
                       (Mr. Sharpe hands documents to Moderator
           Nichols.)
                       MODERATOR NICHOLS: Thank you.
                       MR. ELLIOTT: If that would be appropriate. 
           I mean, I can give it to you --
                       MODERATOR NICHOLS: Well, I think all we
           need it for is for a convenience of the court
           reporter.  Are you okay without it?
                       REPORTER: He is the best speaker we have
           had yet, but I would still like to have it.
                       MR. ELLIOTT: Do I work for you?  Could you
           send a letter to my supervisor?
                       (Laughter.)
                       MODERATOR NICHOLS: Them UMWA guys aren't
           smiling.
                       Okay.  Go ahead, Jim.
                       MR. SHARPE: NSSGA'S POSITION.  The
           Association and its member firms have been active
           participants in this rule-making process since it
           first began more than a decade ago.  When the Agency
           issued its interim final rule last September, we
           requested copies of the data used to support MSHA's
           position.  After some delay, the data was provided and
           we have now completed an analysis of that information. 
           These results have been submitted, and a comprehensive
           summary makes up part of the attachment submitted to
           Secretary Chao and Mr. Lauriski this past summer.  We
           summarize these findings later in this testimony.
                       We agree with the principle that miners
           have a right to know about the chemical hazards they
           face on the job and of the means to protect themselves
           from harm.  But the standard under consideration does
           not achieve that laudable purpose, and hence should be
           set aside.  The rule duplicates existing regulations,
           is unsupported by any finding of significant risk in
           the aggregates industry, will not appreciably reduce
           injuries and illnesses associated with hazardous
           substances, and, due to the burdensome paperwork
           requirements, will distract safety and health
           personnel from effectively addressing genuine safety
           and health issues.
                       As we have repeatedly stated, the
           duplicative nature of HazCom is a position MSHA itself
           took in 1986, when it issued Program Information
           Bulletin 86-2M, entitled "Hazard Communication," which
           is referenced above.  In this document, the Agency
           stated that the intent in issuing it is to provide,
           quote, "guidance concerning the impact of the OSHA
           hazard communication standard...and various State
           right-to-know laws on the mining industry," end of
           quote.
                       After summarizing OSHA's HazCom, Hazard
           Communication Standard, MSHA discusses its
           responsibilities under the Mine Act and then turns to
           a discussion of the OSHA/MSHA interagency agreement:
                       And I quote again from the Program
           Information Bulletin: "This agreement states the
           general principle that MSHA will exercise jurisdiction
           over unsafe and unhealthful working conditions on mine
           site and milling operations.  Accordingly, MSHA has
           promulgated standards requiring miners to be trained
           in hazard recognition and avoidance including the
           hazards of handling chemical products.  Moreover,
           warning and labeling requirements for metal and non-
           metal mines specifically require that hazardous areas
           be posted in order to warn miners and that toxic
           substances be labeled, both in a manner which
           identifies the hazards involved.  In advising
           operators, applicable MSHA standards are attached for
           your information."  That is the end of the quote.
                       MSHA goes on to discuss the effect of
           state right-to-know laws, noting that they would apply
           to mining if they did not conflict with MSHA
           requirements.  MSHA writes, quote, "State laws that
           are more stringent than MSHA requirements, or cover
           health and safety in mines where MSHA has no such
           standards, are still applicable in mines -- still
           applicable to mines."  Excuse me.  End of quote.
                       The attachment to the Program information
           Bulletin lists 11 MSHA standards that accomplish in
           mining what OSHA's Hazard Communication Standards
           accomplishes outside that industry.  Before
           promulgation of MSHA's HazCom rule, every one of those
           eleven regulations still apply to the aggregates
           industry, except that the eight references to Part 48
           in the Program Information Bulletin are now applicable
           instead to Part 46.
                       The Agency further states in MSHA's Final
           Regulatory Economic Analysis, that was done for this
           interim final rule, is that, quote, "Some operators
           comply with most or all of the provisions of this
           interim final rule and many comply with some of them. 
           Few operators, if any, comply with none of HazCom's
           provisions because existing regulations require them
           to train miners about the health and safety hazards of
           their tasks."  End of quote.
                       I might also add that MSHA has an
           initiative at the moment to reduce and streamline its
           rules.  It is called Improving and Eliminating
           Regulations, and its goal is, quote, "to reduce burden
           or duplication, and streamline requirements."  End of
           quote.  The current promulgation of a HazCom Standard
           runs directly counter to that initiative.
                       THE LEGAL UNDERPINNINGS OF THE RULE ARE
           UNCLEAR:
                       We note initially that while we support
           HazCom's general goals, it is not at all clear if MSHA
           has authority to proceed with such a broad hazard
           communication rule.  It is unlikely that HazCom is the
           type of standard that Congress intended to fall within
           the scope of Section 101(a)(6)(A) of the Mine Act. 
           The legislative history of that provision reveals that
           Congress intended it to authorize standards that would
           address specific exposure limits for individual or
           classes of hazardous chemicals.  S. Rep. No. 95-181,
           95th Congress, 1st Session.
                       Quote:  "The Secretary's authority under
           this section includes not only the promulgation of
           standards covering individual substances but also
           standards covering classes or groups of substances."
           End of quote.
                       This conclusion finds support in Section
           101(a)(6)(B) of the Mine Act, which establishes a
           related procedure by which MSHA receives input on
           whether specific materials or agents are potentially
           toxic at the concentrations in which they are found in
           mines.  That cite is 30 U.S.C. 811(a)(6)(B).
                       The Mine Act, in Section 101(a)(7) of this
           does provide MSHA with authority to require labeling. 
           Section 101(a)(7) of the Mine Act provides that
           mandatory health and safety standards, quote, "shall
           prescribe the use of labels or other appropriate forms
           of warning as are necessary," end of quote, to ensure
           miner safety.  That citation is 30 U.S.C. 811(a)(7).
                       The legislative history of that provision
           indicates that Congress envisioned that labeling was
           the extent of MSHA's authority to address hazard
           communications.  Congress cautioned that MSHA should
           not use this provision to, quote, "over warn," end of
           quote, miners of potential hazards, a strategy that is
           often counterproductive:
                       And we quote: "While labels are useful in
           apprising miners of the hazards to which they are
           exposed, in many circumstances other forms of warning
           may be equally or more effective.  It is not intended
           that labels be prescribed indiscriminately, because as
           labels proliferate, their effectiveness will be
           diminished.  The Secretary, that is the Secretary of
           Labor, in determining the most effective means of
           apprising miners of hazards, should bear in mind the
           diminished effectiveness that may result from excess
           labeling, and should consider other means of informing
           miners of hazards, such as safety and health training
           or requiring periodic briefings of miners."  That
           citation is S. Rep. No. 95-181, 95th Congress, 1st
           Session.
                       As discussed further below, it seems that
           the HazCom rule runs afoul of some of the, quote,
           "excess" warnings that -- or, quote, "excess" end of
           quote, warnings that concerned Congress.
                       On to a new section now called SIGNIFICANT
           RISK IS NOT DEMONSTRATED BY DATABASES; HAZCOM WILL
           HAVE NO APPRECIABLE IMPACT:
                       As reported, NSSGA has analyzed the
           chemical burns and chemical poisonings databases MSHA
           has advanced in support of the need for HazCom in the
           aggregates industry.  These databases were available
           to the former NAA-NSA during the comment period last
           fall, but we did not have sufficient time to complete
           our analysis of them before the close of the 45-day
           comment period on November 17th, 2000.  The databases,
           which cover the period 1983 through 1999, do not
           support findings of significant risk that would be
           reduced through implementation of the regulation. 
           They fail because:
                       One: The databases include entries that
           fall outside the scope of the interim final rule.
                       Two: An overwhelming number of entries
           would most likely not have been prevented if HazCom
           were in place.
                       Three: In nearly all cases, regulations
           already in place apply and would have prevented the
           incidents from occurring in the first place.
                       To summarize the data, we included in our
           May 11th, 2000, submittal to Secretary Chao, in the
           two databases a total of five thousand, five hundred
           and fifteen (5,515) entries appear.  Of these, eight
           hundred and twelve (812) make up the poisonings
           database.  Of these eight-twelve, a hundred and fifty-
           three, or 18.9 percent, apply to aggregates.  Twenty-
           five of the hundred and fifty-three incidents, or 16.3
           percent, are cases that would not be covered under the
           interim final rule:
                       They are snake and insect bites, suicide,
           cuts and punctures, carpal tunnel syndrome, and
           apparently unrelated illnesses and unconsciousness.  
                       And addition ten entries are unverified
           complaints by employees, and another two cases
           represent unauthorized employee work practices.  A
           total of fifteen other entries could not be evaluated
           due to insufficient information.  This results in an
           average of six or seven injuries per year over the
           seventeen-year-period, depending upon whether or not
           the fifteen entries lacking information are included
           or not.
                       There were forty-seven hundred and three
           entries in the burns database, of which eight hundred
           and ninety-two, again 18.9 percent, involve aggregates
           employees.  Seventeen of the aggregates entries appear
           to be incidents that fall beyond the scope of HazCom,
           two are unauthorized work practices and sixteen fall
           into the category of too little information available
           to evaluate.
                       The most telling finding from the burns
           database is the overwhelming number of miners who
           suffer eye injuries; specifically, five hundred and
           sixty-six of the eight hundred and ninety-two
           incidents, that is 63.5 percent, involve a solid or
           liquid substance affecting the eye.  The majority of
           these five hundred and sixty-six cases involve a
           solid, predominantly lime dust.  Additionally, another
           eighty-six incidents, and that is 9.6 percent, involve
           injuries, overwhelmingly, to the eye from battery
           explosions or similar occurrences related to working
           with batteries.
                       Several other eye injuries were due to
           exposure to fumes and vapors, some of these during
           fueling operations.  Thus, about three-quarters of the
           injuries in this database are eye injuries.  NSSGA
           believes this is a valuable finding that points the
           way to a focused solution, not an unfocused one, which
           is what HazCom represents.  More will be said about
           our suggested solution later.
                       We would also note that MSHA's regulation
           at 56/57.15004 requires that employees be protected
           against such injuries through the use of appropriate
           personal protective equipment.  The fact that an MSHA
           regulation already exists that, if properly complied
           with and enforced, would reduce about seventy-five
           percent of all chemical burns incidents reinforces our
           argument about the duplicative nature of this
           rulemaking.
                       We further conclude that, when entries to
           both databases are excluded that don't belong there
           for one reason or another, as we have noted, and
           separating out the eye injuries, we are left with an
           average injury occurrence of about twenty cases per
           year over the seventeen-year-period in a universe of
           some one hundred and ninety-five thousand employees. 
           This finding comports with testimony offered in other
           recent hearings that very few chemical injuries are
           being seen in aggregates.
                       This testimony was offered by the
           following safety and health professionals: Vic Goulet
           of Brox Industries, Chris Hipes of Luck Stone
           Corporation, Dave Pfile of Hanson Building Materials
           America and Mark Klinepeter of Florida Rock
           Industries.
                       While any injury is one too many, this
           hardly seems to us to justify imposition of a multi-
           million dollar regulation.  Rather, we recommend a
           focused approach that studies each incident
           individually with the aim of determining the root
           cause and then developing an effective solution.
                       We note with surprise and disappointment
           that, unlike us, MSHA apparently did not review these
           databases.  In its Final Regulatory Economic Analysis,
           on Page 33 the Agency writes:
                       Quote: "There are two primary reasons why
           we did not review each chemically-related miner acute
           injury and illness individually to determine whether
           compliance with this rule would have prevented such
           injuries or illnesses."  That is the end of the quote.
                       MSHA's mandate under Section 101(a)(6)(A)
           of the Mine Act, which requires that mandatory health
           and safety standards be based on, quote, "research,
           demonstrations, experiments, and such other
           information as may be appropriate...the latest
           scientific data in the field, the feasibility of the
           standards, and the experience gained under this and
           other health and safety laws," end of quote.  This may
           not have been complied with due to this failure to
           review the supporting data.  In fact, failure to do so
           may be construed as arbitrary and capricious.
                       One reason the Agency provides for not
           reviewing these data is:
                       Quote: "The first reason is that
           significantly less information is available for a non-
           fatal injury or illness than for a fatality.  Whereas
           MSHA' investigation of every fatality for a fatality
           report includes a mine visit by MSHA personnel, the
           description of an injury or illness is generally based
           only on the mine operator's report.  Because the mine
           operator's report is generally less complete than is
           a fatality report done by MSHA personnel, determining
           the potential preventability of each illness or injury
           is more subjective and speculative than is the case
           for a fatality."  End of quote.
                       MSHA uses these two databases to buttress
           its position that significant risk exists to justify
           a major new health and safety regulation, while
           arguing that they cannot be used in prevention
           efforts.  But if these data are that unreliable, how
           can MSHA use them as the basis for a new regulation?
                       In the OSHA benzene case two decades ago,
           the court held that a regulatory authority must both
           establish that sufficient risk exists to justify a
           regulation and that the regulation proposed will
           substantially reduce that risk.  We don't believe MSHA
           has met that two-fold test.
                       In the Final Regulatory Economic Analysis
           the Agency further states:
                       "The second reason is that the information
           garnered by OSHA during the public rulemaking on its
           rule is available for us to use.  OSHA estimated that
           its rulemaking would reduce chemically-related acute
           injuries and illnesses by twenty percent.  We agree
           with OSHA's methodology and assumptions and have
           therefore assumed that the OSHA estimate can be used,
           with modifications described below, as the basis for
           the MSHA estimate."  End of quote.
                       Once again, MSHA fails to satisfy its
           statutory responsibility to determine how effective
           OSHA's Hazard Communication Standard has been in
           reducing chemically-related illnesses and injuries. 
           Section 101(a)(6)(A) of the Mine Act requires MSHA to
           consider, quote, "experience gained under...other
           health and safety laws," end of quote, before it
           issues standards such as HazCom.  But because it had
           no data at the time, OSHA had to make an educated
           guess about what impact its Hazard Communication
           Regulation would have in reducing injuries and
           illnesses.
                       MSHA's interim final rule was released in
           September of 2000, allowing a full thirteen years to
           evaluate its impact after OSHA expanded HCS to the
           non-manufacturing sector in 1987.
                       Also available to MSHA is the experience
           of thirty-nine states that passed Right-to-Know laws
           during this period, some promulgated before OSHA's
           expansion of its HCS rule.  Again, we believe this is
           clear evidence of MSHA's failure to satisfy its
           statutory mandate under the Mine Act.
                       It is also insufficient for MSHA to base
           its rule on a general, unsupported "finding" of risk
           reduction.  MSHA has stated that, quote, "Because our
           HazCom rule was modeled on OSHA's HCS, and the Mine
           Act and OSHA Act are similar with respect to
           regulatory requirements for the promulgation of
           mandatory health and safety standards, we believe that
           we have satisfied our statutory threshold of
           significant risk with our general finding of risk
           ...." This is a quote from the preamble for the HazCom
           rule.
                       The finding of risk reduction that
           supports the HazCom rule is that the, quote, "lack of
           knowledge regarding chemical hazards increases a
           miner's risk of suffering a chemically-related
           occupational injury or illness ... because precautions
           and appropriate protective measures are used only when
           the presence of a chemical hazard is known."  End of
           quote.
                       That finding is unsupported because
           nothing in the rulemaking record or in the preamble to
           the interim final rule documents the relationship, if
           any, between (one) HazCom's information collection and
           dissemination requirements, and (two) reducing the
           alleged occupational risks that miners face through
           exposures to hazardous chemicals.
                       I will now move to another section,
           ALTERNATIVES TO HAZCOM:
                       NSSGA offers the following alternatives to
           HazCom.  Although they are offered separately, there
           is no intent by doing so to infer they are mutually
           exclusive.
                       Option 1: The Part 46/Diesel Particulate
           Matter Alternative.
                       MSHA state in 1986 that a HazCom rule was
           not needed because sufficient rules were on the books
           to prevent chemical injuries and illnesses.  At the
           time, eight of the rules it cited pertained to Part
           48, the predecessor to Part 46.  Now fifteen years
           later, the aggregates industry remains regulated by
           all these same provisions, or, in the case of Part 46,
           the new and improved successor to Part 48.  During the
           decade, training was also expanded to include
           supervisors.
                       Why MSHA does not see Part 46 as a
           solution to  aggregates is mystifying -- as a solution
           in aggregates is mystifying.  Excuse me.  The rule
           requires twenty-four hours of new miner training and
           eight hours of refresher training every twelve months,
           as well as newly hired experienced miner training. 
           Operators and contractors must also exchange
           information on site-specific hazards, and that would
           include chemical hazards.  Perhaps more importantly it
           also requires task training; that is, a miner must be
           trained in the health and safety aspects of assigned
           tasks, and demonstrate proficiency to the satisfaction
           of a competent person, before the miner may undertake
           the task unsupervised.  By the Agency's own estimates,
           Part 46 should prevent ten fewer fatalities per year
           and five hundred and fifty-seven fewer injuries.
                       In 2001, a rule specifically devoted to a
           chemical hazard, diesel particulate matter, went into
           effect for all underground miners -- or went into
           partial effect, I guess would be more accurate.
                       MSHA's estimates of its health benefit are
           that, over time, a minimum of eight-and-a-half lung
           cancer deaths would be avoided per year.  This is
           under the DPM Standard.  Unquantified health benefits
           of the DPM Rule also include reductions in the risk of
           miner death from cardiopulmonary, cardiovascular and
           respiratory causes.  Also, there will be reductions in
           miner sensory irritation and respiratory symptoms.
                       In its preamble to the DPM Rule, MSHA
           said, quote: "MSHA expects the reductions in the risk
           of cardiopulmonary, cardiovascular and respiratory
           causes to be significant, and expects reductions in
           irritation and respiratory symptoms to be large."  End
           of quote.
                       Surely some of this case-avoidance will be
           among the twenty incidents per year allegedly now
           occurring in the aggregates industry.  The first
           alternative to HazCom then is Part 46 and the DPM
           Rules.
                       Option Number 2, under alternatives to
           HazCom, Increased Emphasis on Preventing Eye Injuries
           Under 56/57.15004:
                       A second alternative is increased emphasis
           on compliance with 56/57.15004, which, as we have
           seen, already mandates eye protection if a miner risks
           injury to that vital organ.  The results of a recent
           study by the International Safety Equipment
           Association of road construction workers suggests
           greater emphasis is warranted on eye injury prevention
           through personal protective equipment use.  As noted,
           three-quarters of the injuries in the burns database
           could be affected through improved compliance with
           this provision.
                       This emphasis could take the form of
           providing additional compliance training materials. 
           We propose to develop, in concert with MSHA and
           organized labor, effective, targeted instructional
           tools for both operators and miners alike that address
           the prevalence of eye injuries and of the necessity
           for wearing appropriate PPE to minimize the risk. 
           This collaborative effort should begin immediately and
           that once developed, these instructional tools would
           be available at all operations, with operators
           strongly encouraged to use them.
                       We also recommend that a standing task
           force be created from among industry, labor and
           government to examine the databases periodically for
           trends, and to develop training tools that address the
           kinds of injuries reflected in them.  We believe such
           focused attention will be far more effective in
           reducing accidents and injuries than HazCom, which
           wastes resources by failing to differentiate between
           real workplace risks and only remotely possible ones.
                       Option Number 3: Revise HazCom.
                       While we want the interim final rule to be
           set aside, we do not oppose portions of it.  Our
           Revised HazCom Rule would consist of the following:
                       Incorporate two changes MSHA has proposed
           to the interim final rule that pertain to MSDSs;
           namely, (one) eliminate the incorporation by reference
           provision in the existing interim final rule, without
           change.
                       What we mean by that is, MSDSs that are
           written right now, there would be no changes made to
           them.
                       And, (two) remove from the definition of,
           quote, "health hazards" end of quote, the reference to
           behavioral or psychological problems and add the
           criteria, quote, "toxic, or highly toxic," end of
           quote.
                       Labeling requirements would conform to
           those in OSHA's HCS.
                       The portable container exemption would be
           retained.
                       MSDSs would be made available to miners
           who ask for them; labels, or copies thereof, and mine-
           generated MSDSs would be made available to customers
           who ask for them.
                       Generic instructions on how to work with
           hazardous chemicals and what to do in an emergency
           would be posted in all areas where a significant
           potential exists for a HAZMAT incident.  A suggested
           set of such instructions has been offered in a
           previous submittal.  What we offer here again today is
           a slightly modified form.  I won't burden you with
           reading it.
                       Office workers, whose risk is de minimus,
           would be exempt.
                       Operators would be exempt who neither use
           hazardous chemicals beyond how they would be used by
           ordinary consumers nor produce hazardous chemicals at
           the mine site.
                       New section: HAZCOM IS BURDENSOME.
                       The sub-title under this section: One
           NSSGA Member's Dilemma.
                       At the hearing held December 14th, 2000,
           we were repeatedly asked to characterize the burden of
           this rule.  Steve Sandbrook of Eastern Industries,
           Incorporated, responded by explaining that he
           maintained two three-ring binders of MSDSs, each four-
           and-a-half inches thick, on all chemicals used
           throughout his company.  His company is covered both
           by OSHA and MSHA at forty-six different operations,
           seventeen quarries and so forth.
                       He said it is easier for him simply to
           copy all of the MSDSs in the file at all of these
           operations and make them available at all of his
           operations.
                       As he said it is easier for him -- and I
           am repeating myself now -- simply to maintain a copy
           at each location of every single MSDS used anywhere
           throughout his company, regardless of whether or not
           the product the MSDS was for existed at any particular
           site.
                       We think MSDSs in binders totaling nine
           inches in thickness is a burden, especially since each
           must be constantly updated as new MSDSs are added and
           updated ones replace others that have become obsolete.
                       Other aggregates industry safety and
           health professionals have made similar statements
           during the current round of hearings.  We see no
           safety and health benefit to this exercise.
                       Another Sub-Section under the larger
           section of HAZCOM IS BURDENSOME is entitled Our
           Experience with Setting Up a HazCom Program.
                       NSSGA also attempted to answer MSHA's
           burden question by setting up a partial HazCom program
           of our own that strictly followed the relevant
           provisions of the interim final rule.  We selected a
           fifty-three-person stone operation, and focused on
           those HazCom provisions dealing with preparing a
           chemical inventory, obtaining MSDSs and producing a
           written program.  
                       Here is what we found, and I will
           summarize it:
                       Preparing the inventory consumed eight
           hours.  In all, fifty-seven products were catalogued. 
           All but one, trap rock, came from off-site suppliers. 
           These products fell into the following general
           categories: lubricants, coolants, fuels and oils,
           solvents, cleaners, acids, paints, welding products,
           insecticides, conditioners, batteries, as well as the
           specific rock product mined at the facility.
                       As of this writing, forty-two MSDSs have
           been collected, or seventy-four percent of the total. 
           That is a hundred and seventy-three sheets of paper. 
           The size of the MSDSs range from a single page for Dry
           Graphite Lubricant and Parting Compound to eleven
           pages for Extended Life Antifreeze; the average length
           of the MSDS is four pages.
                       Information on some of the MSDSs appeared
           on the front and back of the pages, while the vast
           majority, having been faxed, occupied only one side of
           the document.  If only a single side were used, the
           volume of MSDS paperwork would expand from a hundred
           and seventy-three sheets to a hundred and eighty-seven
           sheets.  Using the lower number and adding the
           fourteen-page chemical inventory brings the total
           amount of paperwork to a hundred and eighty-seven
           pages.
                       Since only about three of every four MSDSs
           were collected, we assume that the remaining as-yet
           uncollected MSDSs would add another forty-three
           sheets, bringing the estimated paperwork burden for
           the MSDSs and chemical inventory to two hundred and
           thirty pages.  I have a list of everything that was
           inventoried as part of your testimony.
                       We also learned that MSDSs in a timely
           fashion -- that obtaining MSDSs in a timely fashion
           can be an exercise in frustration, and may require
           technical resources beyond those available to small
           producers.  One local supplier referred us to their
           fax-on-demand long-distance number.  But after four
           unsuccessful attempts to reach them, we decided
           instead to use the website address the local supplier
           suggested.  At that site, we were introduced to a
           catalog containing two hundred and sixty-five
           products.  Two hundred and sixty-five products.  It
           was necessary, therefore, to skim the catalog to find
           what we wanted, and then print the associated MSDS. 
           Some small producers will not have ready access to the
           Internet or a printer.
                       Our experience from this undertaking tells
           us that a number of producers, especially smaller
           ones, will be overwhelmed by the three most burdensome
           requirements of this rule: to do the inventory and
           keep it current, obtain MSDSs and develop a written
           plan.  They will be overwhelmed because they do not
           have the time to comply with these requirements, they
           will grow frustrated with the enormous paperwork
           burden, and they will likely encounter technical
           problems, especially if they lack a fax machine or
           personal computer, as we know some do.
                       So this lack of availability of this
           hardware may retard MSHA's efforts at compliance
           assistance, especially if it involves accessing MSHA's
           website, which we note from your Final Regulatory
           Economic Analysis on Page 70, that you plan to use for
           that purpose.
                       Another category under the BURDEN OF
           HAZCOM:
                       The Experience of Others with OSHA's HCS
           Rule.
                       I submit as part of NSSGA's testimony,
           comments on OSHA's Hazard Communication burden a
           number of weeks before the U.S. Senate Small Business
           Committee and before a task force commissioned by OSHA
           under former President Clinton's government
           reinvention initiative.  Only selected comments made
           at the Senate hearing appear below.  In other words,
           I am only going to read selected comments.
                       Other Senate hearing comments and those
           made before the OSHA panel appear in Appendix A of my
           written testimony.  All of this is out of this for the
           record, filled full of comments about the burden on
           small operators of OSHA's HCS Rule.
                       There is another one of similar size that
           was produced about nine months before at another
           hearing.  I didn't bring it along as a visual today,
           but I did bring this one.  I especially like the red
           cover on the book.  I had nothing to do with it.
                       PANEL MEMBER FEEHAN: Is that the small --
                       MR. SHARPE: The U.S. Senate Small Business
           Committee hearing.
                       PANEL MEMBER FEEHAN: Small Business
           Committee hearing.
                       MR. SHARPE: Because the MSHA rule is so
           closely patterned after the OSHA rule, we believe
           these remarks are relevant for your consideration
           today.  And here are some of the remarks:
                       Senator Dale Bumpers, Chairman: I favor
           the goals of this regulation, too.  But I am
           absolutely convinced it is unworkable in its present
           form.
                       And what I thought when I came here today
           was a rule gone awry, I am now convinced has become an
           absolute monster.  The rules are unnecessarily
           burdensome, unnecessarily expensive, and simply must
           be revisited.
                       Comment from Don Flowers, a Baltimore
           florist, and I didn't give him his name Flowers and I
           didn't put him  in the florist industry.  It just
           worked out that way.
                       But OSHA's current standard is not working
           because it requires a technical sophistication not
           enjoyed by many small business owners.  It is
           ambiguous and subjects businesses to paperwork and
           worry all out of proportion to the benefits gained.
                       Representative Norman Sisisky said:
           Everyone, and I must emphasize this, everyone agrees
           that informing employees of potential workplace
           hazards is a matter of paramount importance.  However,
           I do not see how this standard efficiently and
           effectively achieves that goal.  In fact, it seems to
           me as if the regulators created a complex, expensive,
           and unruly system wherein worker education is not as
           important as the paperwork burden.
                       And this is a quote from Representative
           Sisisky, and that is particularly dear to my heart. 
           I am quoting:  "According to the Office of Management
           and Budget, the Hazard Communication Standard ranks as
           the sixth greatest paperwork-intensive requirement
           ever developed in this Nation."
                       The Burden on MSHA of your HazCom Rule:
                       While we have attempted to document the
           burden of HazCom to our industry, we believe MSHA
           needs to consider the additional burden it will also
           place on the Agency.  MSHA's inspector staff already
           cannot meet its required twos-and-fours inspections;
           enforcement of HazCom will make realization of mandate
           even more difficult.
                       In fact, a high-ranking MSHA individual
           himself admitted as much at the hearing in Pittsburgh. 
           In response to a comment from presenter Vic Goulet,
           who pointed out that his company had never received a
           compliance assistance visit for Part 46, and that
           MSHA's enforcement and Educational Field Services
           personnel seemed to be stretched thin.  
                       Earnest C. Teaster, Jr., Metal/Non-metal
           Administrator, replied, "Yes.  I agree that we are
           short on resources ..."  End of quote.
                       If MSHA chooses to enforce HazCom in the
           manner suggested by the Agency's draft Compliance
           Guide, MSHA may expect many citations to be
           conferenced and contested, tying up MSHA's resources
           still further.  OSHA has expended considerable
           resources in outreach and compliance assistance, and
           has been required over the years to provide so many
           interpretations of its own HCS rule, it has published
           a book on the subject.  It is reasonable to expect
           MSHA's experience will be similar.
                       ENFORCEMENT OF HAZCOM -- a new section
           now.  ENFORCEMENT OF HAZCOM MAY STRAIN INDUSTRY'S
           RELATIONS WITH MSHA.
                       Under the new Administration, that is the
           Bush Administration, the relationship between MSHA and
           the aggregates industry is off to a positive start,
           with both sides calling for better communications and
           more joint collaborative efforts, including
           cooperation in rulemaking.  If HazCom is trivialized
           through nit-picking enforcement practices with no
           relationship to improved safety and health, this
           auspicious beginning may be jeopardized.
                       A statement about enforcement in MSHA's
           draft Compliance Guide, on Page 7, evokes concern.  In
           response to the hypothetical question of, quote, "Will
           I get a citation if I don't follow my HazCom Program
           exactly?"
                       MSHA states, quote: "The inspector will
           issue you a citation if you fail to follow your
           program, such as if you keep MSDSs in the work area
           and your program says they'll be in the mine office,
           or if you inform workers about a new chemical hazard
           in a written notice rather than verbally, as you have
           said in your Program."
                       In other words, an operator will be
           penalized for doing the right thing the wrong way.
                       Aggregates producers have reason to be
           concerned if MSHA enforces HazCom with the same zeal
           as OSHA inspectors have enforced the HCS rule.  The
           HCS has consistently been among the top ten most cited
           of all OSHA regulations.
                       Take Fiscal Year 1999: Four of OSHA's top
           ten violations that year were for HCS deficiencies. 
           HCS is the Hazard Communication Standard.  In the
           Number One position were violations associated with
           OSHA's written program requirement; Number Four,
           labeling and other forms of warning; and Number Five
           in OSHA's top-ten discipline rate for that years --
           Numbers Five and Eight were employee information and
           training.
                       Since 1986, OSHA has written three hundred
           seventy-eight thousand, two hundred fifty-four
           (378,254) citations for violations of its Hazard
           Communication Standard, and has levied almost forty-
           seven million dollars in penalties.
                       The biggest moneymaker for OSHA has been
           deficiencies in the written HCS program, a shortcoming
           that has led to a hundred thirty-six thousand, forty
           (136,040) citations and a penalty total of nineteen-
           point-one million.
                       We fear a similar situation will occur in
           the aggregates industry once enforcement begins,
           especially in light of information supplied by MSHA
           from its CAV inspections about apparent deficiencies
           in written training plans under Part 46.
                       Violations of OSHA HCS provisions dealing
           with information and training garnered the second
           highest number of citations and penalties, a hundred
           and two thousand, three-forty-three (102,343), and
           fifteen-point-four million dollars; with violations of
           labeling, sixty-eight thousand, one hundred and fifty-
           seven (68,157) citations, and six-point-five-six
           million, and MSDS provisions seventy-one thousand,
           seven hundred and fourteen (71,714) citations, five-
           point-seven million in the third and fourth monetary
           positions, respectively.
                       That concludes my testimony.  If you have
           questions for me I would caution you that on advice of
           counsel I may not answer, unless they are real soft
           questions.
                       MODERATOR NICHOLS: Do you think it is fair
           to compare an economic analysis of the OSHA rule with
           OSHA having a hundred million work sites as compared
           to MSHA with four or five thousand?
                       MR. SHARPE: Yeah, because you have at
           least as many inspectors as they do, and you are going
           to be at every work site at least twice a year,
           sometimes more.  I absolutely, positively think it is
           fair.  Absolutely, positively.  Why would you not
           think so?
                       I mean, I don't understand the question. 
           There is no question in my mind I think it is
           appropriate.
                       Let me tell you something, Marvin.  I have
           told you this before.  I had to install an OSHA Hazard
           Communication Program at the employer I formerly
           worked with.  It was a building services company in
           the Washington, D.C. area that had about two hundred
           and fifty residential and commercial office buildings,
           and residential -- residential buildings and
           commercial high-rise offices.
                       When I joined the company in 1989, I
           hadn't even heard of an OSHA HCS, even though OSHA HCS
           was in effect at the time.  I hadn't even heard of it. 
           And this is, I can tell you, a very sad building
           services development and real estate property
           management company.
                       I put OSHA's HCS into effect.  It required
           a written inventory at every single commercial
           highrise office building, every single residential
           building, a written plan at every one of those
           locations, and MSDSs in eighteen sites at every one of
           those locations.
                       And then I enforced it.  And what an
           experience that turned out to be.  After doing it for
           about six months, six months, I was actually fearful
           for my physical safety, because every time I went to
           a site -- every time I went to a site, from the best
           all the way through to the worst, I found a violation
           of the OSHA HCS rule, I found a violation.
                       All you have to do is be guilty.  You will
           find it.  Written programs not on the table, MSDSs out
           of date, chemical inventories not up-to-date, and on
           and on and on.  Every single time I inspected, every
           single operation, good, bad or indifferent, I could
           have written paper.  And that is what you are going to
           find there.  I know that that is what you are going to
           find.
                       And whenever they asked me, "Why are you
           doing this?"  I said, "The government made me do it." 
           All that grim cynicism I got for it; and frankly, it
           kicked that cynicism right back on me, because they
           were cynical because they were saying, "We don't see
           any relationship to health and safety here."  And I
           was saying, "You know, you are right, folks.  There is
           none."
                       MODERATOR NICHOLS: Anybody have any
           questions?
                       MR. SHARPE: I have some for you guys.  I
           missed your opening statement, but I did read it.  You
           say you, quote, "cannot," end of quote, and that to
           exempting the aggregates industry from HazCom.  Why
           did you make that statement?
                       MODERATOR NICHOLS: Well, that is the --
                       MR. SHARPE: Cannot.  You used the word
           cannot.  I assume that is a carefully chosen word.
                       MODERATOR NICHOLS: Well, that is the
           position of the Agency, Jim.
                       MR. SHARPE: Can you explain it?
                       MODERATOR NICHOLS: I don't think I have
           to.
                       MR. SHARPE: What does the word cannot
           mean?  Why can you not do that?  Why can you not?  Is
           there some legal  imperative here?  I don't understand
           the reasoning.  I just -- that has to be a carefully
           chosen word that I assume has a basis in law.  What is
           it?
                       PANEL MEMBER FEEHAN: Where is that from? 
           I guess  that is out of that guide they gave us from
           somewhere, but I --
                       MR. SHARPE: There will be another speaker. 
           After him, I will come back up and I will read it to
           you.
                       PANEL MEMBER FEEHAN: Yeah.  Well, I will
           tell you part of what I would consider my rationale
           for it, for that, and that is that the most common
           hazardous chemicals in the mining industry in this
           country are common to the operations, irrespective of
           whether they are aggregate or metal.  We are talking
           about diesel fuel.  Okay?
                       It doesn't matter if you are an aggregate
           operation or if you are in a gold operation.  That is
           the most common -- that is the single -- I believe
           that that is the most common hazardous chemical that
           there is.  Okay.  It has the most exposures, and it
           doesn't have it with any regard to whether it is an
           aggregate or whether it is a metal or a coal.  Okay.
                       That is also true of gasoline.  It is true
           of brake fluid.  It is true of antifreeze.  The most
           common hazardous chemicals are at aggregate
           operations, and I don't think we could, in good
           conscience, exempt them.
                       MR. SHARPE: Okay.  So that is your reason. 
           So it is not a legal one; it is a --
                       PANEL MEMBER FEEHAN: Well, it is -- I
           would say that it is a factual one.  I mean, how could
           you exempt when you know that the exposures are the
           same or that the same chemicals are the same?  How
           would you go about exempting one group?
                       MR. SHARPE: Well, I will let my testimony
           stand and allow that to be the answer to that
           question.
                       The second question that I have for you is
           in Pittsburgh -- this types of what Stone asked you a
           question about, whether or not Windex, which he used
           an example of being used two or three times a day by
           a truck driver cleaning the windshield of his truck,
           as opposed to a janitor who uses it in part of
           cleaning the shops.  Obviously that, HazCom has proved
           Windex, which is assuming  that it has hazardous
           ingredients in it.  I suppose it has got chlorine and
           --
                       PANEL MEMBER FEEHAN: Ammonia.
                       MR. SHARPE: Ammonia.  Excuse me.
                       PANEL MEMBER FEEHAN: Yeah.
                       MR. SHARPE: That would make it relevant
           for the janitor.  He asked the question about the
           truck driver, and that question was thrown back at
           him.  But I would like to throw it back to you.  What
           is your position on him?
                       PANEL MEMBER FEEHAN: Our position is that
           if a truck driver is using Windex -- and this is in
           the compliance guide, Jim, and actually I thought that
           --
                       MR. SHARPE: I know it is in the compliance
           guide.  But you see, you kicked the question back to
           him, and I didn't understand why you would do that
           when it was in the compliance guide.  So now I am
           asking for clarification.
                       PANEL MEMBER FEEHAN: Well, all we are
           doing is restating what is in the compliance guide. 
           And there was something I -- well, never mind.
                       There was a problem about the way he
           phrased it that was of concern, you know.  I think
           that there was a twist on the fact.  Not that he was
           intentionally trying to distort something, but there
           was a problem in the way the information was
           presented.
                       The case is: If someone is using Windex
           two or three times a day to wipe the windshield on a
           truck, okay, that is not so much of an exposure, to
           our thinking, and this is the guidance that we are
           given to -- it is in the compliance guide, so it is
           the guidance of the inspector of that, too.
                       It is not so much exposure that it would
           exceed what a consumer would ordinarily have.  Okay? 
           It is not so much of an exposure that it is going to
           be of greater duration or of frequency or of amount as
           a consumer would have, so it would be exempt from
           hazard communication.
                       MR. SHARPE: Okay.  You have to recognize
           now that that is a real judgment call.  The amount --
           I use Windex, for example, and the amount that that
           truck driver uses, he uses a lot more than I do at
           home, I can tell you that.  So, you see, you are into
           a judgment call here.  And I fear, going -- getting
           back to the MSHA burden, which is what afflicted OSHA
           in its HCS rule, you are going to have to write a book
           to explain all these things.
                       Almost every single one of these you are
           going to have to come up with something, guidance. 
           And I submit you don't want to go there.  That is just
           my opinion.  You don't want to go there.
                       PANEL MEMBER FEEHAN: Well, actually, I
           think we already did.  I mean, I use Windex once a
           week, okay, at home.  But the idea was to provide an
           example that would allow you to exercise judgment.  I
           mean, that is why we gave that Windex three times or
           four times a day as the example in there.
                       Now that is -- you know, that should
           provide you the guidance that you need.  That was the
           thought.  Now if it fails to do that, we will look --
                       MR. SHARPE: Well, you know what I think,
           Richard?  I think people are going to be so worried
           whether the Windex is an isolated example, and they
           are going to have other examples that aren't going to
           be quite the same.  There is going to be a little bit
           of difference or twist to take on, that they are going
           to be constantly asking you that question.  Please
           clarify mine unique individual examples.  And unless
           you can come up with some generic --
                       PANEL MEMBER FEEHAN: Well, give me another
           --
                       MR. SHARPE:  -- definition, it is going to
           be tough.
                       PANEL MEMBER FEEHAN: Would you submit five
           examples, you know, ten, however many you want to have
           addressed in the compliance guide, we would be glad to
           see them.
                       MR. SHARPE: Richard, I would love to take
           you up on it, but I am telling you my -- after today,
           my participation with this ruling, and it is over on
           the 17th essentially.  For me it is over today.  I
           have planned no more submittals unless some revelation
           strikes me.  And what you will get, I promise you, if
           you put this rule in effect, you will get so many of
           those examples that you will be plenty busy trying to
           answer them.
                       Question number three, and I may know the
           answer to this, but let me ask it anyway.  Will a
           HazCom training trainer have to be a competent person?
                       PANEL MEMBER FEEHAN: Have to be a
           competent person?
                       MR. SHARPE: The ones that we know --
                       PANEL MEMBER FEEHAN: Yes.  He has to be,
           I think, according to --
                       PANEL MEMBER SCHAPER: Or she.
                       PANEL MEMBER FEEHAN: Huh?
                       PANEL MEMBER SCHAPER: He or she.
                       PANEL MEMBER FEEHAN: Okay.  He or she.
                       MR. SHARPE: Oops.  Sorry.  My apologies. 
           He or she.  That is correct.  That is correct.  Thank
           you.
                       PANEL MEMBER FEEHAN: I think the
           regulation, I think it says qualified, doesn't it?
                       MR. SHARPE: Well, I think it does try to
           address it, but I am not sure, Richard.  And my
           concern is that are you going to then make a different
           standard for somebody who teaches HazCom as opposed to
           somebody who doesn't?  How is that all going to work?
                       PANEL MEMBER FEEHAN: Well, it is the -- we
           are talking about the trainer?
                       MR. SHARPE: Yeah.
                       PANEL MEMBER FEEHAN: It is the same
           standard, I think, that is in Part 48.  And I think
           that you can --
                       MR. SHARPE: Oh, you mean it is somebody
           who has to have MSHA -- has to be an MSHA trainer?
                       PANEL MEMBER FEEHAN: No.  No, I think that
           they -- let me look at what the requirement is first.
                       MR. SHARPE: Okay.  And I do understand, I
           think, from previous testimony that the Part 46
           training plans will have to be modified to accommodate
           HazCom.  Is that not your case, Panelists?
                       Robert, my last question was: Will Part 46
           training plans have to be modified to accommodate
           HazCom.
                       MODERATOR NICHOLS: Restate that.  Ask it
           again.
                       MR. SHARPE: Will the Part 46 training
           plans have to be modified to accommodate training
           under HazCom?
                       MODERATOR NICHOLS: I don't know.
                       MR. SHARPE: It will not have to be?
                       MODERATOR NICHOLS: No, I said I don't
           know.
                       MR. SHARPE: Oh, you don't?
                       PANEL MEMBER FEEHAN: Although -- and I
           think that this is also in the compliance guide, Jim. 
           If your -- it depends on what your training plan looks
           like.  If you are so specific in how you tie yourself
           down in your training plan that there is no room to
           interpret it as accommodating hazard communication or
           chemical hazard training, then yes, it will have to be
           modified.
                       Typically it should not have to be
           modified.  There are places the rule -- the language
           of the standard was written so that it could be
           integrated into Part 46 and Part 48.  Okay?
                       MR. SHARPE: Do I want to get off the
           record here and have somebody else speak while Richard
           looks for that, in the interest of saving time, and
           come back up, or --
                       MODERATOR NICHOLS: Go ahead.
                       PANEL MEMBER FEEHAN: Well, actually, I
           think Michelle has a couple of questions.
                       PANEL MEMBER SCHAPER: My questions, a
           couple of them, concern -- you discussed the reasons
           or some of the thoughts behind why HazCom would be
           burdensome, particularly related to material safety
           data sheets.
                       The first one, you talked about, you know,
           notebooks of material safety data sheets, or keeping
           up the material safety data sheets.
                       Did I understand you to say that there was
           no safety and health benefit to this?
                       MR. SHARPE: That is my read on it.
                       PANEL MEMBER SCHAPER: Do you believe that?
                       MR. SHARPE: Yeah.  Right.
                       PANEL MEMBER SCHAPER: So you don't think
           that it is important to maintain a current version of
           the material safety data sheets?
                       MR. SHARPE: For the miners, no.  Because
           thirteen percent of the American public is
           functionally illiterate, and probably more miners who
           are illiterate than that.  That is not a document that
           was designed for them at all.  A document for OSHA
           compliance and product liability is written for
           lawyers.  It is written by lawyers.  It is written
           secondarily for industrial hygiene people, toxicology
           people.  It will not serve to benefit for the miner,
           to the miner, that it is intended.  It is not a useful
           safety and health communication tool to the miner.
                       First of all, you can -- you have heard
           the testimony over and over again, they didn't want to
           ask for it.  They don't ask for it.  They don't look
           at them.  And I can see why, because they are hard to
           read.
                       PANEL MEMBER SCHAPER: But that is not the
           only application or use of a material safety data
           sheet, is that not true?
                       MR. SHARPE: That is true.
                       PANEL MEMBER SCHAPER: And if there was a
           -- let's say if there was an emergency situation,
           wouldn't you want to have the most current MSDS
           available?
                       MR. SHARPE: I am not arguing.  If you have
           read my testimony, I was not arguing with MSDSs should
           not be in the workplace.  What I object to is having
           these massive amounts of documents available to
           workers who aren't going to use them.
                       MODERATOR NICHOLS: So how are you going to
           get this information to the workers?
                       MR. SHARPE: Through instructors and
           through labels.  Through instructors on task training
           in Part 46, and through my suggestion and the
           association's suggestion about generic labeling, and
           also labels on containers.
                       PANEL MEMBER FEEHAN: And how would we go
           about changing generic labels when ninety-nine percent
           of the products that need labeling on mine property
           come from non-mine operators?
                       MR. SHARPE: But they are OSHA labels,
           right?
                       PANEL MEMBER FEEHAN: They are OSHA labels.
                       MR. SHARPE: Well, that -- you might
           require a suggestion to HazCom, saying that you should
           have used the OSHA label.  Whatever OSHA's labeling
           standards are, are what your labeling standards should
           be.  Am I --
                       PANEL MEMBER FEEHAN: I those that our
           standard is substantially the same as OSHA's.
                       MR. SHARPE: Well, I am making it clear
           that we favor that particular aspect of this, that
           what we want are labels that are common to America. 
           OSHA requires a certain standard for labeling, then we
           would hope that MSHA would be as well, exactly the
           same kind of labeling, rather than different labeling
           considerations.  That was actually one of the reasons
           why the OSHA HCS extended to the non-manufacturing
           sector, because of those different labeling
           requirements being posted by the different states as
           well as the (inaudible).
                       MODERATOR NICHOLS: So you don't think
           these miners are smart enough to understand the MSDS
           sheets?
                       MR. SHARPE: No, that is what you are
           saying.
                       MODERATOR NICHOLS: Well, that is what I
           thought I heard you say.
                       MR. SHARPE: No.  I am telling you that
           they are not a -- they are not a useful safety and
           health tool to the miner because they are too
           difficult -- they are not -- they are not written by
           the miner or for the miner.
                       Your statement that they are not smart
           enough is your statement, Marvin; not mine.
                       MODERATOR NICHOLS: That is what I heard
           you say.
                       MR. SHARPE: No, I did not say that.  I did
           say that thirteen-point-four percent of the American
           public is functionally illiterate and that there are
           probably a higher percentage of miners who are
           functionally illiterate.  That is what I said.  And
           that is the information that is in search pockets. 
           That is not -- I am just quoting.
                       MODERATOR NICHOLS: So how big was -- was
           this a rock quarry where you --
                       MR. SHARPE: Fifty-three workers.
                       MODERATOR NICHOLS: Fifty-three workers. 
           How  many MSDSs?
                       MR. SHARPE: Let's see now.  What did I
           say?  Fifty-seven chemicals, so fifty-seven MSDSs.
                       MODERATOR NICHOLS: And how many workers?
                       MR. SHARPE: Fifty-three.
                       MODERATOR NICHOLS: Fifty-three.  So how
           many of these chemicals did you determine were
           hazardous to the employees that they needed to know
           about?
                       MR. SHARPE: Every one of the fifty-seven
           chemicals that was listed on the inventory had a
           hazardous ingredient associated with it, either by
           reading the MSDS or the label.  We screened the ones
           out that weren't, with the -- either did not have
           hazardous chemicals or would not fall under the
           consumer product exemption or any of the other
           exemptions.
                       Is there a -- Oh, I am sorry.
                       MODERATOR NICHOLS: Go ahead.
                       PANEL MEMBER SCHAPER: Wed heard a little
           bit earlier, I think before your arrival, from a Mr.
           Peters about his efforts to actually teach miners to
           read a material safety data sheet, work with examples,
           and actually give a short exam to go over the elements
           of a material safety date sheet and to make sure they
           understand.
                       Don't you think this could work?
                       MR. SHARPE: I don't know.  I would have to
           either hear the testimony or don't -- I haven't a clue
           of what he is talking -- the gentleman, Mr. Peters,
           wouldn't have a clue to what he is talking about.  So
           I cannot answer your question without having --
           knowing something about it.
                       PANEL MEMBER SCHAPER: I have one more
           question for you, also returning to the material
           safety date sheets.
                       You talked about trying to collect them,
           I believe, in what were the same mines that we are
           talking about, and you said you were able to get maybe
           seventy-four to seventy-five percent of them.
                       MR. SHARPE: About three-quarters of them
           before I had put this down on a piece of paper and
           probably didn't tell you about it.
                       PANEL MEMBER SCHAPER: Okay.
                       MR. SHARPE: I mean, we will obviously --
           we would get them all, I --
                       PANEL MEMBER SCHAPER: Right.  But, well,
           I guess what I wanted to ask you is if you were in a
           situation like that and you were having difficulties
           in getting a material safety data sheet for a
           particular product, would you want to use that product
           without having it?
                       MR. SHARPE: I guess it would depend.  If
           it were a common lubricant, like (inaudible) WE40, for
           example, I probably wouldn't be too shaken up by using
           it without a MSDS.
                       PANEL MEMBER SCHAPER: But if you have a
           product that has just some kind of a trade name that
           you are not really sure what is in it, would you feel
           comfortable using it without taking a look at the
           material safety data sheet?
                       MR. SHARPE: I would want to know more
           about it.
                       PANEL MEMBER SCHAPER: Thank you.
                       MR. SHARPE: And if the label -- if the
           label didn't provide that information, I might look
           further.
                       PANEL MEMBER SCHAPER: Thank you.
                       PANEL MEMBER FEEHAN: Through some help,
           Jim, I do have the section here that talks about the
           instructor qualifications, and it does not specify
           that the person be qualified or competent.  Now we
           assume that, and the rationale is: If people are doing
           the training for, under Part 46 or Part 48, we expect
           that those same people will be doing the training
           under HazCom, because we expect that HazCom will be
           integrated into the Parts 46 and 48 training.
                       So however the person is qualified to
           train about electrical hazards, or however you go
           about setting for any technical issue you have about
           your training, the same will apply to training about
           hazardous chemicals.
                       MR. SHARPE: Okay.  So he will have to be
           a competent person?
                       PANEL MEMBER FEEHAN: Well, he will have to
           be able to speak competently about chemicals.
                       MR. SHARPE: Yeah.  And I guess where I am
           going with that question, Richard, is that there are
           -- it is going to take people, probably some effort to
           get them to speak, now I would think.  And that may
           mean that they will have to go to a class, go to like
           a school, maybe to clarify the record, and I am not
           sure that that is covered under Part 48.  I am not
           sure those considerations were calculated.
                       PANEL MEMBER FEEHAN: I believe it was.  I
           believe it was calculated in.
                       MR. SHARPE: No, I don't think, outside
           what -- you said that you thought that possibility was
           (inaudible).
                       PANEL MEMBER FEEHAN: Well, we are --
                       MR. SHARPE: Do I stand corrected?  I mean,
           I could be.  I had to do a lot of reading and so I
           could be quite wrong.
                       PANEL MEMBER FEEHAN: The other thing is
           that we do -- we are developing training materials so
           that people can speak about it.
                       MR. SHARPE: Yes, I understand that.  I
           understand that.  And OSHA's experience is that you
           have better bring -- have a lot of them and had better
           be quick, as OSHA did not have that at the outset, and
           got severely reprimanded and criticized for it in
           these hearings that I have read about.
                       Let me make a clarification on the MSDSs. 
           We believe that it is going to be -- what we would
           like to see is, we would like to see it up to the
           individual training person to decide what kind of
           materials they need in order to apply appropriate
           chemical -- hazardous chemical training under the
           existing Part 46.
                       If they feel that they need an MSDS in
           order to do that, that is fine.  If they don't think
           they need an MSDS for that purpose, then that is their
           business.
                       We think they should give performance --
           that performance orientation should be the watchword
           here.  Allow it -- you know, leave it up to the
           individual site to decide how they want to make sure
           that their employees are properly trained on hazardous
           chemicals.
                       But for you to go and say, `Ach, you don't
           have an MSDS.  Gotcha.'  That is not what we are
           looking for.  That is -- that is simply not what we
           feel is an appropriate use of your resources.
                       So I wanted to make that clear.  I don't
           think that I did before.
                       PANEL MEMBER SCHAPER: Should they be
           available on site?  Do I understand you to say that?
                       MR. SHARPE: No.  I am saying that it is up
           to the individual site to make that determination. 
           Now in the revised one of -- Option 3, Revised HCS,
           aid to revise HazCom, I am saying that if a miner
           wants an MSDS, he asks for an MSDS, the -- we would
           expect the mine site to provide him with an MSDS.  But
           he doesn't have to have it on site.  He can call the
           supplier and have it sent to the -- or have it sent to
           the mine site and given to him.
                       So the answer to your question is, we are
           not saying that we expect a full complement of MSDSs
           on all hazardous chemicals to be at any one mine site. 
           What we do expect is that the person responsible to
           provide -- that person or persons responsible to
           provide Part 46 training,  that includes hazardous
           chemicals and task training be up to speed on how to
           do that and do that type performance.
                       MODERATOR NICHOLS: Anybody else?
                       (No further questions indicated.)
                       MODERATOR NICHOLS: Thank you.
                       MR. SHARPE: Thank you.
                       MODERATOR NICHOLS: Okay.  Robert Stone?
                       MR. STONE: First, I want to take this
           opportunity to thank this group for allowing me the
           opportunity to address you and make some comments.  I
           don't know that my comments will be as lengthy or as
           detailed.  I came actually quite unprepared and hadn't
           intended to address this group, but felt compelled to
           make some comments based on some of the presentations
           that I have heard so far today, and there have been
           some good presentations.
                       I know that Mr. Sharpe had a rather
           lengthy presentation and there is a lot of information
           contained.  I will try to be brief, and would invite
           everyone, if you have been sitting for a while and
           would like to stand and let your blood circulate, do
           so.
                       (Laughter.)
                       MR. STONE: While I compose myself.
                       My name is Robert Stone, and I am employed
           by Irvin Materials, Incorporated, as an area manager,
           and I manage the Delta Division, which is the sole
           aggregates producer for IMI South.
                       I am, I think, qualified to make some
           statements here today.  I am the fourth in -- fourth
           generation in my family involved in the mining
           industry.  I am the fourth consecutive generation.  My
           grandfather died at the age of 49, of what was
           diagnosed as silicosis as a result of Product 1.  I am
           49 years old, and I am told that we die as a much
           older man than quite a few years before you today.
                       The oldest cliche in the mining industry
           possibly is the picture of women, children, other
           individuals standing around the heart of a shaft
           waiting to know if a loved one is dead or alive in an
           underground operation.
                       I have stood in that number.  I have stood
           in that group of people.  It happened at a place
           called Barnett Mine in 1971, just prior to the
           calamity at Sunshine Mine which brought about the Mine
           Act.  So just previous to the disaster at Sunshine, I
           had the opportunity to participate in that cliche, so
           I know the importance of the rules.  I know the
           importance of the regulations and the impact that they
           have on our industry.
                       I felt compelled to make some comments on
           some things that possibly were said by Mr. Tharp or by
           Mr. Mason concerning family operations, family-sized
           operations, and I heard comments of organizations that
           may have had five hundred to as many as twenty-eight
           million employees.
                       These organizations were described to you
           as family-size organizations, and I am sitting there
           thinking `How can that possibly be?'  And I wanted to
           just elaborate, Irving Materials is a family operation
           truly.  But I wanted to explain just a little bit more
           in depth into that structure.
                       My division employs about forty employees,
           scattered out over about four locations.  There is a
           manager at each location.
                       I would say to you that each of the
           managers knows very, very well each of the employees
           at their locations. Often they will socialize.  We
           know our employees wive's names, their children's
           names, in some cases the names of their dogs.  And in
           that there is a camaraderie, if you will.
                       I am making these statements basically
           because I too was appalled by some of the things that
           I have heard from individuals from UMWA today.  I
           think that is shocking, and I was truly surprised that
           those situations exist.
                       But how is it possible that an
           organization with forty-eight hundred employees would
           be a family operation, simply that we are scattered
           out and the groups are typically small, and often they
           are composed of people in family units.
                       I have mothers working for us, for
           example, and have people who are uncles and in-laws,
           et cetera.  They are fairly tight organizations, and
           when they make this statement it is a true statement.
                       I would also say that I would hope to give
           you just a bit of insight into how our organizations
           function.  I am not a hygienist.  I am not a --
           basically a chemist or a scientist.  I am thirty years
           in this business.  I completed thirty years in this
           mining industry this year.
                       I started in management twenty-one years
           ago, and has the responsibility for some of the
           training and have responsibility yet for training in
           our organization.
                       Our organization maybe is a little bit
           different than some that have testified here today. 
           We are regulated not only by MSHA, but we are also
           regulated by OSHA, so we have a hazards communication
           program already in place.  And our company purchased
           this aggregates operation three years ago, and we went
           in three years ago and the program was in place.  It
           was written.  The dusty manuals Greg talked about were
           present.
                       When the first year rolled around,
           coincidentally we had first heard about the incidence
           of MSHA plans to go ahead and incorporate HazCom, we
           did a training session on HazCom in our organization.
                       The program under OSHA had been in place
           for a number of years.  I couldn't find an individual
           in our organization who had even seen the MSDS book. 
           It has been there in the office on the counter and
           people walk by it regularly, but I couldn't find a
           person who had ever picked it up and looked at it.
                       I asked them about terms, and actually we
           did give a lecture.  And, as often the case, in our
           safety meetings we will do a quiz, as the gentleman
           from Mulzer had indicated they do, and it is a -- it
           is a simple loaded question.  I asked them to define
           what is MSDS.  And, you know, my people couldn't even
           tell me what MSDS stood for.
                       After having lectured on it in these
           safety meetings, that may translate to you I am a poor
           instructor, or it may translate to you that it is a
           fly subject and basically have people opted to do
           that.  But I wonder if you could just add a little bit
           of insight.
                       In addition to training for OSHA, training
           for MSHA.  Our organization is also regulated by the
           Coast Guard, and there are rules and regulations being
           handed presently for fire prevention on boats.  So I
           am also training my people.  And our boat captains,
           for example, I am also putting them in the position
           now for them becoming teachers and must teach crew
           members how to react in situations of emergency
           relating to a fire.
                       We are also regulated by the Corps of
           Engineers, so actually we have at least those four. 
           And not including also the Environmental Protection
           Agency or our Department of Land, or other state and
           federal organizations.
                       And the three organizations, OSHA, the
           Coast Guard and MSHA are active as far as instituting
           the regulations.
                       As I stated earlier, we are still in
           organization.  It takes an undue amount of manpower,
           an undue amount of resources in order to comply with
           these regulations and stay abreast of these
           regulations.
                       We are -- I think I could aggravate this
           problem.  Us, in the scheme of things with IMI South,
           we are Fort Apache.  And it is -- sometimes
           information doesn't dissimilate well out here to us
           because there are so many other locations in order to
           reach.  And we are in that somewhat not alone, and we
           work very hard reaching resources that we have to make
           sure that we are current and to make sure that we are
           in compliance.  That is what we are required to do.
                       But I say, gentlemen, I think we mirror a
           lot of organizations that are represented here today. 
           And we want to do it with just a little bit of insight
           into our perspective (inaudible) with the amount.
                       I thank you for the opportunity to address
           this group.  I promised to be brief, and will do so.
                       Are there any questions?
                       PANEL MEMBER THAXTON: I just have one, if
           you don't mind.  You did state that you, while you
           have an MSDS book on the counter, that nobody --
                       MR. STONE: At each of the locations, yes,
           sir.
                       PANEL MEMBER THAXTON: But nobody really
           knew that it was there and made use of it?
                       MR. STONE: I picked it up and used it to
           do the first training session, and people weren't
           aware of its existence.
                       PANEL MEMBER THAXTON: Even though they may
           not be aware of its existence or made use of it, do
           you still consider that you should have those sheets
           with that type of information available in case
           something did come up that you would be interested in
           obtaining information fast?
                       MR. STONE: A situation, as was described
           to us this morning by people of UMWA, a situation
           where something is introduced into the mine site and
           there is no instruction or no information provided for
           what they believe is a hazardous material, it is
           wrong.  It is inappropriate and it is wrong.  The
           information should be available.
                       PANEL MEMBER THAXTON: So even though
           miners have not made use of it, you don't mind still
           having that information available to --
                       MR. STONE: I think that there should have
           been more emphasis made on training those miners.  I
           think that the spirit of OSHA's requirements were
           carried out.  They made the nice yellow folders and
           put them in place, but no one took the time to go out
           and disseminate this information to the people who
           worked on the job site.
                       While we complied with the standard
           because it was there and it was updated, and regularly
           MSDSs came in and people who work in our clerical
           department dutifully took old ones out, put new ones
           in, the information simply wasn't worth coming to the
           individuals most directly affected by the information
           contained therein.
                       Yes, the information should be available. 
           But I think the information, as it is available, is
           fairly valueless if you don't get to the individuals
           to explain to them how these MSDSs are made up, what
           is contained on them, and how they could help the
           individuals on the job.
                       MODERATOR NICHOLS: Have you had any
           chemically related injuries, say in the last four or
           five years?
                       MR. STONE: No, sir.  Now the last three
           years I have spent in the aggregates division, and
           then prior to that I was employed with a minerals
           company.
                       This minerals company actually
           participated in one of the surveys done by NIOSH in
           1983, and they came in and identified, if memory
           serves me -- it has been some years ago, but I think
           they identified five hundred and some-odd compounds on
           that particular job site that may be considered to be
           hazardous.
                       Now at that mineral site, basically a lot
           of the  ores were included on the surveys.  And I
           can't recall at either location where we had an
           incidence where a person was injured or where we had
           a reportable injury based on chemicals.
                       MODERATOR NICHOLS: Okay.  Thanks.
                       Well, that completes the list of people we
           had signed up to do presentations.  Is there anyone
           else that would like to make any comment?
                       Yes, go ahead.
                       MR. ELLIOTT (From the Floor): This is Ed
           Elliott.  I would -- I just wanted to have a maybe a
           question or a clarification  on one Mr. Feehan said
           about instructors.
                       One of the things that I think is the most
           onerous about what (inaudible) is the requirement in
           all cases to have a certified instructor.  And if a
           regulation were to come out that wasn't clear on this
           point with respect to training on hazardous chemicals,
           then I think it could almost make it impossible.
                       And the reason I say that, in our company,
           when we have these maybe five-minute safety contact,
           or one a week safety meeting, those people may or may
           not be certified, but they certainly can be very
           qualified and knowledgeable and be able to give that
           information.
                       Or, if they are actually in a work
           environment and something is brought in that has a
           label on it, you know, do I have to go get a certified
           person before I can talk to them about it?
                       So that would just be an issue that I am
           -- in just my reading, it wasn't exactly clear on
           that.
                       PANEL MEMBER FEEHAN: Well, I know that it
           was our intent to make it compatible with Part 48.  So
           when it comes time for doing the task training, we
           expect that the supervisor would be knowledgeable
           enough about the hazards  where he is supervising, you
           know, let's say some little section of the plant, that
           he would be knowledgeable enough about those hazards
           to be able to talk to the employees under him about
           them.
                       And the same with conducting training.  It
           is intended to be compatible with Parts 46 and 48, and
           we were not going to put extra requirements for
           instructors about chemicals.
                       MR. SHARPE (From the Floor): But we all
           know that -- how can a person who is required to know
           everything else be a competent person who will be
           required to do training?
                       PANEL MEMBER FEEHAN: Right.  Now we have
           very special definitions of competent person.
                       MR. SHARPE (From the Floor): Right.  I am
           using the Part 46 definition.
                       PANEL MEMBER FEEHAN: I would have to look
           at Part 46.
                       MR. SHARPE (From the Floor): The
           experience stream and skills necessary to provide the
           instructor with  the ability to review, to evaluate
           the effectiveness of the  starting rule.  You know,
           that is a rough definition.
                       PANEL MEMBER FEEHAN: Yeah.
                       MR. SHARPE (From the Floor): But that is
           what it is.
                       PANEL MEMBER FEEHAN: Well, I think that it
           was intended that the person who does the training for
           Part 46 ordinarily would be the person who does the
           training for this.
                       MR. ELLIOTT (From the Floor): I would just
           point out about the Part 48, because we do not want to
           have inference that could be misinterpreted that an
           inspector might say, you know, `Well, are you
           certified to do this?'  And that is what I was going
           to.
                       PANEL MEMBER FEEHAN: Okay.
                       MR. ELLIOTT (From the Floor): Because it
           could be misinterpret it if we are not very careful. 
           That is all.
                       PANEL MEMBER THAXTON: And actually in the
           training that we have conducted already with our
           inspection personnel, we have indicated that section
           bosses, surface foremen, prep plant supervisors,
           anybody that is actually at the mine site, can conduct
           any of the training under HazCom.  It is only if you
           roll it in as part of your Part 48 training program,
           then it comes under specific requirements for training
           instructors.
                       MODERATOR NICHOLS: Okay.  Anybody else?
                       (Nothing further indicated.)
                       MODERATOR NICHOLS: It is two-thirty.  We
           will adjourn, but we will be around the rest of the
           afternoon in case people show up to present testimony.
                       (AT THIS POINT THE PUBLIC HEARING WAS
           ADJOURNED.  PANEL MEMBERS AND THE REPORTER REMAINED
           AVAILABLE UNTIL 5:00 P.M., BUT NO FURTHER PRESENTERS
           APPEARED.)