1

          MINE SAFETY AND HEALTH ADMINISTRATION


          + + + + +

          PUBLIC HEARING

          + + + + +

          TUESDAY


          OCTOBER 28, 2008

          + + + + +

                      The Public Hearing convened at 1100
          Wilson Boulevard, in the 23rd floor Conference

          Room, Arlington, Virginia pursuant to notice at
          9:00 a.m., Patricia W. Silvey, Chairperson,
          presiding.
               
          PANEL MEMBERS PRESENT:

                PATRICIA SILVEY            CHAIRPERSON     

                JOHN ARRINGTON             PANEL MEMBER
                KEVIN BURNS                PANEL MEMBER
                ELENA CARR                 PANEL MEMBER
                GENE AUTIO                 PANEL MEMBER
                LINDA ZEILER               PANEL MEMBER
                JENNIFER HONOR             GENERAL COUNSEL

                                                                           2

                          TABLE OF CONTENTS


          Welcome and Opening Statement, 
                Patricia Silvey, Chairman . . . . . . . .4

          Witnesses:

          Dan Kane. . . . . . . . . . . . . . . . . . . 18
          Linda Ralsovich-Parsons . . . . . . . . . . . 29

          Danny Callies . . . . . . . . . . . . . . . . 38
          Jim Starns. . . . . . . . . . . . . . . . . . 45
          Randy Wideman . . . . . . . . . . . . . . . . 49
          Dale Byram. . . . . . . . . . . . . . . . . . 55
          Joe Weldon. . . . . . . . . . . . . . . . . . 57
          Daryl Dewberry. . . . . . . . . . . . . . . . 61
          Jimmy Yates . . . . . . . . . . . . . . . . . 67

          Charles Carden. . . . . . . . . . . . . . . . 70
          Patrick Watson. . . . . . . . . . . . . . . . 73
          Steven Miller. . . . . . . . . . . . . . . .  81
          Sandra Blackston. . . . . . . . . . . . . . . 87
          Grady Robertson . . . . . . . . . . . . . . . 98
          Wendell Rigsby. . . . . . . . . . . . . . . .103
          Randall Green . . . . . . . . . . . . . . . .105

          Harold Sickles. . . . . . . . . . . . . . . .108
          Larry Turner. . . . . . . . . . . . . . . . .115
          Ray Lee . . . . . . . . . . . . . . . . . . .121
          Thomas Wilson . . . . . . . . . . . . . . . .123
          Chastity Farr . . . . . . . . . . . . . . . .132
          Patton Bruce. . . . . . . . . . . . . . . . .134
          James Blankenship . . . . . . . . . . . . . .137

          Terrell Stevens. . . . . . . . . . . . . . . 141
          Ron Lovel. . . . . . . . . . . . . . . . . . 143
          David Mlakar. . . . . . . . . . . . . . . . .147
          John Tasson . . . . . . . . . . . . . . . . .148
          Steve Narhi . . . . . . . . . . . . . . . . .151
          Mike Maleska. . . . . . . . . . . . . . . . .154
          Glenn Saarinen. . . . . . . . . . . . . . . .156

          Mike Woods. . . . . . . . . . . . . . . . . .158
          Phillip Johnson. . . . . . . . . . . . . . ..161
          David Toole . . . . . . . . . . . . . . . . .162
          Pat Brady . . . . . . . . . . . . . . . . . .166
          Michael Pauley. . . . . . . . . . . . . . . .175
          George Hill . . . . . . . . . . . . . . . . .179
          Tanya James . . . . . . . . . . . . . . . . .183

          Ricky Clark . . . . . . . . . . . . . . . . .187
          Barbara Ward. . . . . . . . . . . . . . . . .188
          Adam Vance. . . . . . . . . . . . . . . . . .190
          Albert Coleman. . . . . . . . . . . . . . . .193
          Max Kennedy . . . . . . . . . . . . . . . . .195

                                                                           3

                          TABLE OF CONTENTS


          Witnesses:

          Walter Seeba. . . . . . . . . . . . . . . . .201
          Dennis O'Dell . . . . . . . . . . . . . . . .206
          Michael Maynor. . . . . . . . . . . . . . . .223
          Charles Graham. . . . . . . . . . . . . . . .224
          Jay Pruitt. . . . . . . . . . . . . . . . . .225

          Jon Stewart. . . . . . . . . . . . . . . . . 227
          James Blankenship . . . . . . . . . . . . . .231
          Melissa Earnest . . . . . . . . . . . . . . .235
          James Johnson . . . . . . . . . . . . . . . .240
          Sean Reach. . . . . . . . . . . . . . . . . .244
          Ryan Weston . . . . . . . . . . . . . . . . .247
          John Lindsay. . . . . . . . . . . . . . . . .251

          Randy Bakes . . . . . . . . . . . . . . . . .255
          Larry Spencer . . . . . . . . . . . . . . . .257
          Riley Hullett . . . . . . . . . . . . . . . .259
          Morris Wilson . . . . . . . . . . . . . . . .261
          Dwight Cagle. . . . . . . . . . . . . . . . .263
          Joe Weldon. . . . . . . . . . . . . . . . . .272
          Deandre Bolden. . . . . . . . . . . . . . . .277

          Ned Kimbrell. . . . . . . . . . . . . . . . .280
          Antoine McGhee. . . . . . . . . . . . . . . .307

          Closing Remarks
                Patricia Silvey, Chairman . . . . . . .314

                                                                           4

     1                  P R O C E E D I N G S


     2                                           9:08 A.M.

     3                MS. SILVEY:  Good morning.  We are

     4    back to start the Mine Safety and Health

     5    Administration's public hearing on MSHA's


     6    proposed rule for alcohol and drug-free mines,

     7    policy, prohibitions, testing, training, and

     8    assistance.


     9                Before we start, can I please confirm

    10    that people are at the various locations other

    11    than the Washington, D.C. area?  We are located

    12    at MSHA's headquarters building at 1100 Wilson


    13    Boulevard, Washington, D.C.

    14                Is Birmingham, Alabama on the line?

    15                BIRMINGHAM:  Yes, we are here.


    16                MS. SILVEY:  Okay, thank you.  Is

    17    Virginia, Minnesota on the line?

    18                VIRGINIA:  Yes, we are.

    19                MS. SILVEY:  And Beckley, West


    20    Virginia?

    21                BECKLEY:  Yes, Beckley's on the line.

    22                MS. SILVEY:  Okay, thank you very


    23    much.  

    24                My name is Patricia W. Silvey and I

    25    am the Director of the Mine Safety and Health

                                                                           5

     1    Administration's Office of Standards,


     2    Regulations, and Variances.  I will be the

     3    moderator of this public hearing on MSHA's

     4    proposed rule on alcohol and drug-free mines.

     5                On behalf of Acting Assistant


     6    Secretary of Labor, Richard E. Stickler, I want

     7    to welcome you to this hearing today and

     8    including, obviously, all of those who are


     9    joining us via audio.

    10                At this time, I will provide the

    11    logistics surrounding today's hearing.  The

    12    hearing is being held via audio in Washington,


    13    D.C. and as you just heard, Birmingham, Alabama;

    14    Beckley, West Virginia; and Virginia, Minnesota.

    15                I will start with the persons who --


    16    in the order, as is MSHA's usual practice, I will

    17    start with the persons in the order that they

    18    signed up and the United Mine Workers signed up

    19    first and what I will do is take the United Mine


    20    Workers who are present in Washington, D.C. first

    21    and then the representatives of the United Mine

    22    Workers who are in Birmingham, Alabama.  And just


    23    so to provide people with notice, I would then go

    24    to Virginia, Minnesota with representatives of

    25    the United Steel Workers, Local 45950; and then

                                                                           6

     1    to Beckley, West Virginia.  


     2                And on my list I have Murray Energy

     3    Corporation and I don't know if there are any

     4    United Mine Workers members in Beckley, West

     5    Virginia or not, but if there are then -- and


     6    obviously, as most of you know, at the end, the

     7    presentations from all persons who have signed up

     8    in advance, persons will then have an opportunity


     9    to speak after that.

    10                This is the second public hearing on

    11    the proposed rule.  As many of you know, we had

    12    the first hearing on Tuesday, October 14th, via a


    13    webcast in Washington, D.C.; Pittsburgh,

    14    Pennsylvania; and Englewood or Denver, Colorado;

    15    and via audio in Beckley, West Virginia;


    16    Birmingham, Alabama; and Madisonville, Kentucky;

    17    and Price, Utah.

    18                For purposes of today's hearing,

    19    persons who signed up in advance will make their


    20    presentations first, as I just said.  But persons

    21    who did not sign up will be permitted to make

    22    presentations.  


    23                At this point I'd like to introduce

    24    the members of the MSHA panel.  To my right is

    25    Elena Carr and Elena Carr is the Labor

                                                                           7

     1    Department's Drug Policy Coordinator for Drugs. 


     2    To her right is Kevin Burns.  He's with MSHA's

     3    Education Policy Development Office and the Small

     4    Mines Office.  And to his right is John Arrington

     5    with the Coal Mine Safety and Health.  To my left


     6    is Jennifer Honor and I will graciously refer to

     7    her as our learned counsel.  To her left is Gene

     8    Autio and Gene is with the Office of Metal,


     9    Nonmetal Mine Safety and Health.

    10                As most of you know, the comment

    11    period for the proposal will close on November

    12    10th at midnight Eastern Daylight Savings Time


    13    and I would like to reiterate, Eastern Daylight

    14    Savings Time.  You can view the comments on the

    15    Agency's website, www.msha.gov.  


    16                The proposal would amend the existing

    17    metal and nonmetal standards for the possession

    18    and use of intoxicating beverages and narcotics

    19    and make a new standard applicable to all mines. 


    20    The proposal would designate the substances that

    21    cannot be possessed on mine property or used

    22    while performing safety-sensitive job duties,


    23    except when used according to a valid

    24    prescription.  Mine operators would be required

    25    to establish an alcohol and drug-free mine

                                                                           8

     1    program which includes a written policy, employee


     2    education, supervisory training, alcohol and drug

     3    testing for miners who perform safety-sensitive

     4    job duties and their supervisors and referrals

     5    for assistance for miners and supervisors who


     6    violate the policy.

     7                The proposal would also require those

     8    who violate the prohibitions to be removed from


     9    the performance of safety-sensitive job duties

    10    until they successfully complete the recommended

    11    treatment and their alcohol and drug-free status

    12    is confirmed by a return to duty test.  As part


    13    of its mission to improve safety and health

    14    conditions in mines, MSHA has proposed this rule

    15    to protect the safety of all miners from the


    16    dangers of alcohol or drug use at mines by

    17    prohibiting miners from using, possession or

    18    being under the influence of alcohol or drugs

    19    while performing safety-sensitive job duties. 


    20                Before I go further in discussing the

    21    proposal, I want to describe the role of the

    22    Department of Labor, Working Partners for an


    23    Alcohol and Drug-Free Workplace or I will refer

    24    to Working Partners in the development of this

    25    proposal.  Since the late '80s, Working Partners

                                                                           9

     1    has educated businesses about the impact


     2    of workplace substance abuse on productivity and

     3    safety and equipped them with tools and resources

     4    to address the problem.  Working Partners

     5    provides consultation and assistance to all DOL


     6    or Department of Labor programs sinceworkplace

     7    substance abuse affects many of the Department's

     8    policies and missions.  


     9                Working Partners has expertise in the

    10    development of five step drug-freeworkplace

    11    programs and has worked closely with MSHA to

    12    develop this proposal.  The alcohol and drug test


    13    provisions will apply only to miners who perform

    14    safety-sensitive job duties under the proposal.  

    15                Under the proposal a safety-sensitive


    16    position is defined as a miner who is required to

    17    have comprehensive training under part 46 and 48,

    18    as applicable.  Managers who supervise these

    19    miners are also considered to hold safety-


    20    sensitive positions under the proposal. 

    21    Administrative personnel would be exempt from the

    22    proposal.


    23                Under the proposal, mine operators

    24    would be required to establish an alcohol and

    25    drug-free mine program that includes a written

                                                                          10

     1    policy.  A mine's written policy could be


     2    tailored to the specific conditions at the mine. 

     3    However, the policy must address the purpose of

     4    the policy, and contain a clear description of

     5    prohibited behavior.


     6                The policy must outline the means

     7    including testing for determining if the policy

     8    has been violated including an explanation of the


     9    consequences for violating the policy and include

    10    requirements for training.

    11                MSHA intends to assist mine operators

    12    in developing their policy by providing a sample


    13    template that can be used to address all required

    14    elements of the proposal.  Operators can tailor

    15    the template to the specific needs and conditions


    16    of their mine.  A mine operator must assure that

    17    every miner has been informed of the policy and

    18    the proposal would require that the policy be

    19    reviewed during training and made available upon


    20    request to miners and their representatives.

    21                Each operator would be required to

    22    implement an education and awareness program for


    23    nonsupervisory miners to provide them with the

    24    information they need to fully understand and

    25    comply with the proposal.  Miners who are

                                                                          11

     1    required to take comprehensive training under


     2    existing Parts 46 and 48 would be required to

     3    take the training under the proposal.  The

     4    proposal would require newly hired miners to

     5    receive 60 minutes of training before they are


     6    assigned to safety-sensitive job duties and

     7    nonsupervisory miners would be required to

     8    receive at least 30 minutes of annual retraining. 


     9    The proposal would require that time allotted for

    10    this training be added to the total number of

    11    hours required under existing part 46 or part 48

    12    so that there is sufficient time to cover all


    13    required training topics.

    14                Operators would also be required to

    15    implement training programs for their supervisors


    16    and to make them aware of their responsibilities

    17    for assuring compliance with the proposal.  Under

    18    the proposal, supervisors would have to receive

    19    at least two hours of initial training and one


    20    hour of  training annually. 

    21                The proposal would require operators

    22    to make miners who voluntarily admit use of


    23    prohibited substances aware of available

    24    assistance through an employee or miner

    25    assistance program, a substance abuse

                                                                          12

     1    professional or other qualified, community-based


     2    resources.  Under the proposal, mine operators

     3    would be required to implement an alcohol and

     4    drug testing program that is valid, reliable, and

     5    protects the privacy and confidentiality of


     6    miners tested.

     7                Mine operators would be required to

     8    follow the U.S. Department of Transportation or


     9    the DOT drug and alcohol testing requirements in

    10    49 CFR Code of Federal Regulations Part 40,

    11    Procedures for Transportation, Workplace Drug

    12    Testing Program.


    13                Although operators would be

    14    responsible for implementing the testing program

    15    and making decisions as to when to test,


    16    consistent with DOT, mine operators may use

    17    qualified service agents to carry out the

    18    collection, laboratory analysis, and medical

    19    review and verification of test results.


    20                Consistent with the DOT procedures,

    21    MSHA's proposal would require testing for alcohol

    22    and the following five controlled substances: 


    23    amphetamines, including meta amphetamines,

    24    cannabinoids, meaning marijuana or THC, cocaine,

    25    opiates and PCP, phencyclidine.  The proposal

                                                                          13

     1    also includes testing for barbiturates,


     2    benzodiazepines, methadone, propoxyphene, and

     3    synthetic and semi-synthetic opiods,

     4    specifically hydrocodone, hydromorphone,

     5    oxymorphone, and oxycodone and all of these drugs


     6    that are covered in the proposal and the proposal

     7    is on the Agency's website.

     8                And do we have copies of it here?  We


     9    have copies of the proposal in the back of the

    10    room and we have copies in the back of the room

    11    for persons who are in attendance here.

    12                The proposal would allow operators to


    13    test for additional substances beyond those in

    14    the proposal and would allow the Secretary of

    15    Labor to add to the list of prohibited


    16    substances.  Under the proposal, testing would be

    17    conducted in the following circumstances: 

    18    preemployment, randomly at unannounced times,

    19    post-accident, if a miner may have contributed to


    20    the accident, based on a reasonable suspicion

    21    that a miner has used a prohibited substance,

    22    and as part of a return-to-duty process for


    23    miners who have violated the rule.

    24                Consistent with DOT procedures,

    25    testing for drugs would be conducted using urine

                                                                          14

     1    as a specimen and alcohol testing would be


     2    conducted using a breathalyzer.  However, unlike

     3    the DOT procedures that have a bifurcated

     4    standard, no actions to remove miners from work

     5    would be required unless the breathalyzer results


     6    showed that the blood alcohol content or the BAC

     7    level is .04 or greater and is deemed to be a

     8    positive test.  


     9                Under the proposal, miners who fail

    10    an alcohol or drug test would be removed from the

    11    performance of safety-sensitive job duties until

    12    they complete a return-to-duty process.  During


    13    the time required to complete the process, the

    14    mine operator may, but would not be required to,

    15    assign the miner to nonsafety-sensitive job


    16    duties. 

    17                A miner found to be in violation of

    18    the alcohol and drug-free mine policy for the

    19    first time would be allowed to complete treatment


    20    under the proposal.  If treatment is successfully

    21    completed and miners comply with the return-to-

    22    duty requirements, they would be allowed to resume


    23    safety-sensitive job duties.  Operators would

    24    address the consequences for subsequent

    25    violations at their discretion.

                                                                          15

     1                The proposal would prohibit mine


     2    operators from taking adverse action affecting

     3    the miner prior to receiving verified test

     4    results.  

     5                The Medical Review Officer or the MRO


     6    would be responsible for providing verified test

     7    results to the mine operator.  The Medical Review

     8    Officer process would include determining whether


     9    a miner possesses a valid prescription for any

    10    prohibited substances and if so, whether the

    11    miner is using the substance in accordance with

    12    the prescription.


    13                Miners who have failed their test or

    14    refuse to submit to a test, would be prohibited

    15    from performing safety-sensitive job duties until


    16    they have been evaluated by an SAP and complied

    17    with the Substance Abuse Professional's

    18    recommendations for education and/or treatment. 

    19    After completing the Substance Abuse


    20    Professional's recommendation, the miner would be

    21    reevaluated to determine whether the miner can

    22    return to performance of safety-sensitive duties.


    23                The proposal would require that

    24    operators maintain records related to alcohol and

    25    drug testing.  The DOT

                                                                          16

     1    regulations, require mine operators to use


     2    the OMB-approved alcohol test form and the

     3    controlled custody form to document the integrity

     4    and security of alcohol and drug tests.

     5                MSHA has estimated the economic


     6    impact of the proposal and included discussions

     7    of the costs and benefits in the preamble, as

     8    well as in the preliminary regulatory impact


     9    analysis.  

    10                The Agency welcomes any comments that

    11    you have on the data and assumptions that the

    12    Agency used to develop the estimates of


    13    information collection and cost estimates and all

    14    other data assumptions that the Agency used in

    15    the proposal.  As you provide your comments,


    16    please be as specific as possible and include

    17    with your comments your specific suggested

    18    alternatives if you have any, your suggested

    19    rationale for alternatives, and your suggestions


    20    with respect to safety and health benefits to

    21    miners and specific data to support your

    22    comments.


    23                Please include any technological and

    24    economic feasibility information as appropriate. 

    25    The Agency will use this information to help

                                                                          17

     1    evaluate the requirements in the proposal.


     2                As many of you know, the hearing will

     3    be conducted in an informal manner.  Also, the

     4    Agency asks a number of specific questions in the

     5    proposal and as you provide your comments either


     6    today or before the record closes on November

     7    10th, we would like it if you would address the

     8    specific questions that the Agency included in


     9    the proposal.

    10                With respect to today's hearing, it

    11    will be conducted in an informal manner.  Formal

    12    rules of evidence and cross examination will not


    13    apply.  The Panel may ask questions of the

    14    witnesses.  The witnesses may ask questions of

    15    the Panel.


    16                MSHA will make a verbatim transcript

    17    of the hearing available on the Agency's website

    18    within one week of the hearing.

    19                If you wish to present written


    20    statements or information, please clearly

    21    identify your material and give it to the Court

    22    Reporter or a Designated Agency Representative at


    23    one of the designated locations.

    24                You may submit comments following the

    25    hearing and as I said earlier, the last date for

                                                                          18

     1    submitting commits, November 10th, and I will


     2    reiterate again midnight Eastern Daylight Savings

     3    Time.  

     4                We will now begin today's hearing and

     5    as you come to the microphone please begin by


     6    clearly stating your name and your organization

     7    and I would ask if you would spell your name so

     8    that the Court Reporter will have an accurate


     9    record.

    10                At this point we will begin today's

    11    hearing and we will first hear from Dan Kane,

    12    Secretary-Treasurer of the United Mine Workers of


    13    America and Linda Raisovich-Parons.

    14                So United Mine Workers of America.

    15                MR. KANE:  Good morning.  My name is


    16    Dan Kane.  I'm Secretary-Treasurer of the UMWA. 

    17    Kane is spelled K-A-N-E.

    18                I don't have a prepared text this

    19    morning to give you, but I would like to raise a


    20    couple of really important points and I'd like to

    21    start by strongly encouraging the Agency to

    22    return to the practice of holding hearings


    23    throughout the field in person.  I think it makes

    24    it much easier for rank-and-file miners to

    25    participate and bring their particular point of

                                                                          19

     1    view to the rulemaking process.  


     2                I'm told that there were a number of

     3    miners from Pennsylvania who wanted to testify

     4    today, but they couldn't get to Beckley, West

     5    Virginia and back in time to go to work this


     6    afternoon.  And I think their voices need to be

     7    heard.  I think what we've done in the past has

     8    served us much better.  I think we need to return


     9    to that forum for rulemaking.

    10                I'd like to begin by saying that

    11    MSHA's commentary presents this proposed rule as

    12    an urgent need, but it provides no statistical


    13    data to prove that alcohol and drug use in the

    14    mining industry is attributed to accidents and

    15    injuries.  The Department of Labor internal


    16    review of injury and accident reports referred to

    17    in the preamble of this rule revealed only a

    18    number of instances where drugs or drug

    19    paraphernalia were found.  Whether the miner was


    20    impaired or whether drugs or alcohol contributed

    21    to any accident was not addressed.  This is not a

    22    sound basis for this rule.


    23                The majority of the coal industry,

    24    about 80 percent, already has drug testing

    25    programs in place that have been used for many

                                                                          20

     1    years.  Furthermore, some states like Virginia


     2    and Kentucky, also have regulations governing

     3    alcohol and drug testing.  Nearly four out of

     4    five workers in the coal industry are already

     5    subjected to preemployment drug and alcohol


     6    testing.

     7                In addition, three quarters of those

     8    working in the mining industry are randomly


     9    tested which is more than double the reported all

    10    industry average.  In spite of the frequency of

    11    such testing, neither MSHA nor the mine operators

    12    shows any demonstrated benefit.  Apparently,


    13    neither do they see a need for showing any

    14    benefit.

    15                UMWA fails to see the urgent need for


    16    these regulations.  Statistical data for mining

    17    accidents injuries does not support that there is

    18    a significant enough problem in this area to

    19    justify spending Government resources to


    20    duplicate what the industry is already doing. 

    21    Instead, among other well-documented problems,

    22    the Agency should be using these tax payers'


    23    dollars to promulgate improved dust controlled

    24    standards.  Data published by NIOSH shows that

    25    black lung is once again on the rise and the use

                                                                          21

     1    of Government resources for a proven problem area


     2    would be far more productive and save more lives.

     3                Neither drugs nor alcohol were

     4    involved in any of the recent major disasters. 

     5    Instead, those miners died as a result of the


     6    actions of mine management and MSHA itself.  For

     7    the Agency to try to deflect focus away from

     8    their own culpability in the death of these


     9    miners by proposing rules to blame the miner,

    10    when there is no evidence to support the need for

    11    such rule is unethical.

    12                Miners are tested following


    13    accidents.  So should mine management, especially

    14    when they are shown to be at fault.  The proposal

    15    would also exclude administrative and clerical


    16    personnel from the drug testing requirement. 

    17    These workers do drive on mine property.  They

    18    often go underground to deliver supplies and

    19    usually purchase supplies.  We have seen the


    20    disastrous effects of incompatible fittings on

    21    fire hoses at Aracoma.  Why should they be

    22    exempt?  Miners would be subject to their comings


    23    and goings on mine property.

    24                Further, the proposal does not make

    25    clear who will be responsible for the testing of

                                                                          22

     1    contract workers on mine property or even if


     2    contract workers must be tested.  Mine operators

     3    have historically taken a hands off approach to

     4    contractors, accepting no responsibility for

     5    these employees.  The rule must make clear that


     6    the mine operators are responsible for these

     7    employees, if they are hired to perform work on

     8    mine property.  Eight of the 24 fatal accidents


     9    to this date had been the employees of

    10    contractors.  

    11                The rule is not clear on which

    12    supervisors would be included in the testing or


    13    how they will be supervised.  If a miner suspects

    14    his supervisor is under the influence of alcohol

    15    or drugs, who would he report this to?  Would the


    16    miner then have the same right to require that

    17    his supervisor be tested for reasonable

    18    suspicion?  The manner in which the proposal is

    19    written only subjects miner to random and


    20    reasonable suspicion testing when in fact

    21    supervisors are often alcohol and drug users. 

    22                In the State of Kentucky, 40


    23    certified mine foremen were reported for drug or

    24    alcohol violations.  Of those 40, 4 were

    25    rescinded, and 36 have had their certification

                                                                          23

     1    suspended.  The proposal must be revised to allow


     2    any person to reasonably suspect drug or alcohol

     3    used by an employee on the property, including

     4    supervisors and provide for oversight in the form

     5    of a second opinion.


     6                As proposed, miners would have no

     7    recourse if they suspect a supervisor of drug or

     8    alcohol abuse.


     9                The union also recommends that in

    10    lieu of a substance abuse professional that a

    11    licensed mental health professional be required

    12    to evaluate miners who have violated a mine


    13    operator's alcohol and drug testing program. 

    14    Alcohol and drug addiction are recognized mental

    15    disorders and should be treated by a licensed


    16    mental health professional.  The loyalty of those

    17    providing assistance should be to the miner and

    18    should not be a part of any procedure that could

    19    lead to disciplinary action.


    20                This substance abuse professional,

    21    their location should be convenient, just as the

    22    chest x-ray facility is required to be


    23    conveniently located for the chest x-ray

    24    surveillance program.  It does no good to have

    25    these located at long distances from where the

                                                                          24

     1    need is.


     2                Services provided by the SAP should

     3    also be covered by the miner's health insurance

     4    plan or paid directly by the mine operator. 

     5    Another problem is the term "under the


     6    influence."  I believe it's defined incorrectly

     7    to include a positive urine test for drug

     8    metabolites.  It's well recognized that a


     9    positive urine test for drugs or metabolites is

    10    only an indicator of previous use that's previous

    11    to the test.  And it is not an indicator of being

    12    influenced or impaired by the drug.


    13                The proposed rule again would

    14    incorporate alcohol and drug awareness training

    15    into part 48 training.  The union believes that


    16    part 48 training is currently overloaded with

    17    every new training requirement that has been

    18    promulgated in recent years.  Such training

    19    should not be crammed into the part 48 training.


    20                The Agency has proposed that

    21    supervisors be trained to be the frontline level

    22    of detection for alcohol and drug use among


    23    miners.  The supervisors will receive a minimum

    24    of two hours of initial training and an

    25    additional one hour annually.  The union

                                                                          25

     1    questions whether a two-hour canned training


     2    presentation would qualify anyone to recognize

     3    and deal with such a sensitive issue.

     4                Further, as raised before, who would

     5    be authorized to recognize and deal with a


     6    supervisor who has an alcohol and drug problem?

     7                As the proposal is written, that

     8    authority is granted only to the supervisors to


     9    test miners.  Under the alcohol drug program in

    10    the State of Kentucky, 36 persons holding mine

    11    foremen certifications have had their

    12    certifications rescinded for a positive test. 


    13    This problem is not exclusive to miners and the

    14    rule should be rewritten to reflect this.

    15                The union questions the availability


    16    of substance abuse assistance programs to the

    17    rural coal field communities.  If a miner is to

    18    participate in such a program, in reality, they

    19    are going to have to travel many miles to gain


    20    access to assistance.  If substance abuse

    21    programs are to be successful, they must be

    22    easily accessible to rural mining communities. 


    23    The union would ask that the Agency take a survey

    24    of what programs are available and that their

    25    locations to supply as a resource to the mining

                                                                          26

     1    community.  


     2                Further, the rule requires the use of

     3    certified facilities and agents under the HHS and

     4    DOT.  When one examines those laboratories

     5    certified under HHS, none are listed as being


     6    located in the major coal states such as West

     7    Virginia, Illinois, or Kentucky.  If specimens

     8    are transported great distances to other states,


     9    to reach a certified HHS lab, would exposure to

    10    conditions of transport affect the outcomes of

    11    the tests?  We don't know.  The union would not

    12    object to post-accident survivors being tested


    13    for alcohol or drugs.  However, we feel that it

    14    is unethical to test deceased miners without

    15    permission of the next of kin.


    16                We question whether anyone should be

    17    authorized to do such an invasive test without

    18    the victim's family's permission.  To propose

    19    such a thing as this intrusion at the time


    20    family's grief is unethical and immoral.

    21                Most would agree that testing for

    22    reasonable suspicion is a useful tool.  However,


    23    anybody that works in a mine can have problems

    24    with drugs or alcohol and this includes

    25    supervisors.  Therefore, again, anyone should be

                                                                          27

     1    able to suggest testing for reasonable suspicion,


     2    including the miners.

     3                We would also like to point out that

     4    we think it's extremely important that the

     5    miner's job would be protected.  This proposed


     6    rule only protects the miners after the first

     7    positive test.  Apparently thereafter, for the

     8    miner's lifetime his fate is in the hands of his


     9    employer.  The union would recommend that any

    10    person in recovery for drug or alcohol addiction

    11    be kept out of harm's way in an alternate non-

    12    safety-sensitive position until they are reformed


    13    and ready to come back to their former job.  A

    14    person who is honestly trying to rehabilitate

    15    himself should be encouraged, not punished.  A


    16    person who is in rehabilitation is most likely to

    17    fail in the initial stages of his or her

    18    recovery, therefore they should be provided

    19    adequate time and chances to get their life in


    20    order.

    21                Addiction is a serious social and

    22    medical problem which should be dealt with


    23    compassionately.  If a miner tests positive and

    24    for any reason goes to work for another operator,

    25    any positive tests while working for that second

                                                                          28

     1    operator should be treated as the first positive


     2    test for that operator.  And after the miner's

     3    first positive test, this proposed rule is

     4    unclear about their fate.  Again, it's in the

     5    miner's hands.


     6                We would recommend that the follow-up

     7    testing period be used as a recovery period for

     8    the miner.  He or she should not be faced with


     9    losing their job while on the long road to the

    10    recovery.  Follow-up testing period recommends

    11    six unannounced tests in the first 12 months and

    12    continuing for a maximum 24 months.  The miner


    13    should be placed in a non-safety-sensitive

    14    position and while he or she is on the road to

    15    recovery.


    16                Again, I'd like to point out two

    17    important things and first is that we do need to

    18    return to the idea of holding in the field face-

    19    to-face hearings.  I think it's much more


    20    effective than talking to somebody on the

    21    telephone.  And secondly, I would like to also

    22    point out again that it's important that we use


    23    Government resources and target them at the most

    24    seriously demonstrated problems in the industry. 

    25    We've had a number of tragedies over the past few

                                                                          29

     1    years with no statistical demonstration that


     2    drugs or alcohol contributed.  Let's focus our

     3    resources on those particular problems.  

     4                And I would like to leave you with

     5    the observation that we're seeing a new rise in


     6    black lung in this industry.  It seems like

     7    younger miners coming in now are being subjected

     8    to more dust, finer dust and I don't want to see


     9    another generation suffer from the ravages of

    10    black lung.  Clearly, the law isn't working in

    11    that area as it should be, so either regulations

    12    are not being enforced or they're inadequate. 


    13    I'd like to see you point your efforts at

    14    something like that.

    15                Thank you very much.


    16                MS. SILVEY:  Thank you, Mr. Kane.

    17                MS. RAISOVICH-PARSONS:  Good morning. 

    18    My name is Linda Raisovich-Parsons.  That's R-A-

    19    I-S-O-V-I-C-H hyphen P-A-R-S-O-N-S.  And I serve


    20    as the Deputy Administrator for the UMWA

    21    Department of Occupational Health and Safety.

    22                I should begin by saying that the


    23    UMWA is troubled by the manner in which MSHA has

    24    accelerated the rulemaking pace on this

    25    particular rule.  I have worked in the UMWA

                                                                          30

     1    Department of Occupational Health and Safety off


     2    and on for over 25 years.  Part of the experience

     3    has been in a role which monitored and

     4    participated in MSHA's rulemaking since 1983.  In

     5    that 25 years, I have had no recollection of any


     6    rule that was provided a mere 30-day comment

     7    period with a hasty one-day hearing conducted

     8    from multiple sites as was the case on October


     9    14th.

    10                Today, we are here with a three

    11    working day notice of this hearing which again is

    12    cramming three sites into one hearing.  How could


    13    the Agency expect anyone to adequately prepare

    14    and respond to the three-day notice?

    15                Even with such a ridiculous short


    16    notice, the UMWA was able to rally our members

    17    and respond with a number of participants at each

    18    hearing site.  I just hope their efforts have not

    19    been in vain and today they are not turned away


    20    without the opportunity to have their say.

    21                MSHA generally asks the public to

    22    provide a five-day notice of their desire to


    23    testimony before any public hearing.  In this

    24    case, MSHA only provided the public with a three-

    25    day notice of this hearing, so providing MSHA

                                                                          31

     1    with a five-day notice of our desire to testify


     2    was impossible.

     3                The bottom line is the Agency has

     4    filed to follow their established practice of

     5    providing sufficient time for commenting on this


     6    rule and sufficient advance notice of hearing. 

     7    In addition, they have abandoned their practice

     8    of scheduling multiple days for hearings in


     9    different locations throughout the coal field.

    10                The jamming of different hearing

    11    sites into one single day is illogical,

    12    irresponsible, and has never been done on any


    13    other rulemaking that I can recall. 

    14                I hope it is not the case, but today

    15    we are most likely to see a repeat performance of


    16    October 14th.  

    17                Many of our members have come to

    18    testify today after working the midnight shift at

    19    the mine.  I hope that the Agency shows them the


    20    courtesy to be the first to testify so they can

    21    go home and get some sleep for their next

    22    scheduled shift.  


    23                Since so many of our miners are here

    24    today to testify I will keep my comments short so

    25    MSHA can hear from those who would be most

                                                                          32

     1    directly affected by this new rule.


     2                In reviewing the proposed rule, I

     3    must say that the most frustrating fact is that

     4    MSHA provided no data to substantiate such an

     5    urgent need for this rulemaking.  There is no


     6    evidence that alcohol or drug use has

     7    significantly contributed to mining injuries or

     8    fatalities or is on the rise.


     9                The UMWA does not support the

    10    Agency's actions in proposing this rule.  We do

    11    not want anyone who is under the influence of

    12    drugs or alcohol working in mines, nor do our


    13    members want to work next to them because their

    14    lives are jeopardized.  However, we do not

    15    believe this is as great a problem as has been


    16    portrayed by the Agency.  UMWA has worked with

    17    dozens of our employers to implement drug and

    18    alcohol testing programs we can all live with

    19    because we remain committed to providing the safest


    20    and healthiest environment for our miners.  In

    21    fact, some of those programs have been in place

    22    for over 20 years now.  These programs have been


    23    successful in minimizing this problem, so why has

    24    MSHA chosen to pursue this rule with such

    25    vigilance when other legitimate health and safety

                                                                          33

     1    issues are neglected?  


     2                The Agency's resources would be

     3    better spent on such issues as pursuing better

     4    control of respirable dust at a time when black

     5    lung cases are on the increase among our miners. 


     6                After reviewing the proposed rule, I

     7    guess the one issue that irritated me the most is

     8    that the rule is completely written for the


     9    supervisors' oversight of the miners for

    10    suspected drug or alcohol abuse.  The supervisors

    11    are provided additional training to recognize

    12    signs of alcohol or drug use among the miners.  I


    13    question who will be watching the supervisors. 

    14    This leads you to think that drug and alcohol use

    15    is exclusive to miners?  I think not.


    16                Supervisors are charged with many

    17    responsibilities in the day-to-day operation of

    18    the mine.  Many may have turned to substance

    19    abuse as a means of dealing with those stresses. 


    20    If a miner suspects the supervisor is under the

    21    influence who would he report it to?  Would the

    22    miner have the same right to have a supervisor


    23    tested for reasonable suspicion?  

    24                The manner in which the proposal is

    25    written only subjects miners to random and

                                                                          34

     1    reasonable suspicion testing when in fact


     2    supervisors are often alcohol and drug users.

     3                The proven point is the fact that 40

     4    certified mine foremen in the State of Kentucky

     5    which has a drug and alcohol law in place has


     6    been reported for drug and alcohol abuse

     7    violations.  Of those 40, 4 charges were

     8    rescinded; 36 had their certificates suspended by


     9    the state.  The proposal must be revised so allow

    10    any person to reasonably suspect drug or alcohol

    11    use by any employee, including supervisors and

    12    provide a means to have those persons subjected


    13    to the same testing.  With that, I'll shut up and

    14    let the miners who have come here to testify

    15    today have their say.


    16                MS. SILVEY:  Thank you.  Before we go

    17    to Birmingham, I'd like to make just two

    18    comments, Mr. Kane and Ms. Parsons.  

    19                And the first is with respect to the


    20    scope of the rule, the coverage of who is

    21    included in the rule, in the -- we pointed out

    22    that the rule covers miners who perform safety-


    23    sensitive job duties and the persons who

    24    supervise them.  So we therefore made it very

    25    clear.  Now when you say very clear, you can

                                                                          35

     1    always probably make things clearer, but we made


     2    it very clear that management and that disclosed

     3    to both of the comments that you both made. 

     4    Management and administrative personnel who

     5    supervise persons performing safety-sensitive job


     6    duties are considered to perform safety-sensitive

     7    job duties.  So throughout the rule and the

     8    preamble, the term miner is used to include such


     9    supervisors.  So therefore, supervisors, persons

    10    who supervise miners who perform safety-sensitive

    11    job duties would be covered under the proposal. 

    12    That's one thing I want to make clear.


    13                The second thing I want to say is

    14    that with respect to the training, while we said

    15    that training would be under part 46 or part 48 


    16    -- in the case of the coal industry it would be

    17    under part 48, why we said that the training

    18    would come under either one of those parts.  We

    19    did say that the training required had to be in


    20    addition to the existing training that is

    21    required under part 46 or part 58.  So that one

    22    hour of training, initial training, and 30


    23    minutes of training for miners, retraining, would

    24    have to be added on to the training that's

    25    required under the existing rule because we

                                                                          36

     1    recognize and we've got that comment before that


     2    person tell us so much is put into part 48.  So

     3    we specifically said that that had to be

     4    additional training.  

     5                So those are the only two things that


     6    I just wanted to clarify and we appreciate your

     7    comments.  Does anybody else have anything?

     8                MR. ARRINGTON:  I have a question for


     9    Mr. Kane.  In your comments you said that 80

    10    percent of the miners out there already have

    11    testing programs and 75 percent of the miners

    12    have already been tested?  Question is what


    13    research information did you get that and two,

    14    did you include surface mines with the

    15    underground?


    16                MR. KANE:  I got that from our

    17    Department of Occupational Health and Safety.  We

    18    included all operations.  We've worked with a

    19    number of companies to make sure that when they


    20    implement testing programs that they are

    21    effective and they respect the rights of the

    22    miners.


    23                MR. ARRINGTON:  Surface and

    24    underground?

    25                MR. KANE:  It's my understanding,

                                                                          37

     1    yes.


     2                MR. ARRINGTON:  Thank you.

     3                MS. SILVEY:  Thank you very much.   

     4    We will now, as I stated earlier, we will now go

     5    to Birmingham, Alabama so we will start with our


     6    first witness in Birmingham and when you come to

     7    the mic if you would please state your name and

     8    spell your name for the reporter.


     9                Are we at Birmingham?

    10                BIRMINGHAM:  Yes.

    11                MS. SILVEY:  Okay, thank you.

    12                (Pause.)


    13                First speaker?

    14                BIRMINGHAM:  He's out of the room

    15    right now.  


    16                MS. SILVEY:  Okay.  

    17                (Pause.)

    18                BIRMINGHAM:  Hello, are you ready for

    19    Birmingham?


    20                MS. SILVEY:  I'm ready for

    21    Birmingham.

    22                BIRMINGHAM:  Did you get my list?  


    23                MS. SILVEY:  Bring the first speaker

    24    to the mic, please.

    25                BIRMINGHAM:  Okay.

                                                                          38

     1                MS. SILVEY:  Thank you.


     2                BIRMINGHAM:  If you'll get ready to

     3    come on down.  Jimmy Starns, Randy Wideman, Dale

     4    Byram, Daryl Dewberry.

     5                MS. SILVEY:  I have your list.  Just


     6    bring the first speaker to the phone, please.

     7                BIRMINGHAM:  He's coming and we have

     8    some more that we haven't faxed, so I'll just go


     9    ahead and compile them?

    10                MS. SILVEY:  I'll get them from

    11    there.  Okay, when I run out of the names, then

    12    I'll just call the next speaker, okay?


    13                Will the first speaker come to the

    14    mic, please?

    15                MR. CALLIES:  Good morning.  My name


    16    is Danny Callies, C-A-L-L-I-E-S.  I'm the

    17    Corporate Safety Director for G & R Mineral

    18    Services.  We're a union contractor working on

    19    mine sites.  I'm also the president of the


    20    Central Alabama Joseph A. Holmes Safety

    21    Association and don't have a prepared statement,

    22    but a few things I do want to talk about.


    23                So far this morning I have not heard

    24    anything about contractors.  We do work on mine

    25    sites and the problem, if someone tests positive,

                                                                          39

     1    as far as holding their jobs, most of our jobs


     2    are 7 to 14 to 21 days.  The job would be over

     3    and we'd move on to another site.  We get our

     4    gentleman from the local unions, iron workers and

     5    the operators/engineers.  We also have steel


     6    workers and boilermakers.

     7                My biggest concern is first of all

     8    all the unions that we have dealt with have drug


     9    policies.  All the mine operators we have dealt

    10    with have had drug policies.  Every contractor

    11    that I know of has drug policies and I do not see

    12    the need for the Federal Government to come up


    13    with some more regulations.  That's my biggest

    14    concern. 

    15                I don't think we need more


    16    regulations.  I think the unions themselves need

    17    to police themselves.  Now I am not naive enough

    18    to hear because I know for a fact we've had four

    19    or five injuries of employees that have tested


    20    positive for alcohol or drugs.  So to say that

    21    because no one has died in the depths that no one

    22    has tested positive.  There are thousands and


    23    thousands of people getting hurt on the job that

    24    do test positive.  And so I think there is a

    25    need, but I don't think that should be the

                                                                          40

     1    Federal Government.  I think that should be the


     2    companies themselves that police themselves, the

     3    strong unions.  They're there to protect the

     4    miners.  So I have a  problem.

     5                Also, as far as the businesses are


     6    concerned, I don't have a problem with an

     7    employee comes to us and says hey, I got a

     8    problem with drugs or alcohol.  I need some help. 


     9    And as long as he pays for it himself, I don't

    10    have a problem with it.  If it's in his medical

    11    insurance, that's great.  But a small contractor

    12    or contractor can't afford to pay for rehab for


    13    an individual who's been on the job -- sometimes

    14    we get them out of the hall.  They work a seven-

    15    day job and now we're going to be putting them


    16    through rehab.  I don't think that's the

    17    employer's role.  That's the employee's role.

    18                And once the employee is hurt, once a

    19    miner is hurt, that's his responsibility to take


    20    responsibility for the action that he tested

    21    positive and could have killed fellow workers. 

    22    So I don't have much sympathy when someone tests


    23    positive after an accident.  I just want everyone

    24    to realize that there are a lot of people out

    25    there, there are a lot of rules, there are a lot

                                                                          41

     1    of regulations and I don't think the Federal


     2    Government needs to regulate on drug testing.  

     3                As I said, every site that G & R has

     4    been on, we have had to prove our policy and show

     5    our policy.  And the International Ironworkers


     6    and the Boilermakers and Steel workers and the

     7    miners in the coal industry, we all have

     8    standards and we all have testing.  If one of the


     9    local unions aren't enforcing it, shame on them. 

    10    But I don't think the Federal Government needs to

    11    take any more action than what we already have. 

    12    Protect the miners and that means everyone of


    13    site.  That means everyone on site.  

    14                When we do random testing, it's the

    15    president of the company, it's the secretary. 


    16    Because the number one killer in the workplace,

    17    the number one killer in the workplace is

    18    transportation, going to work, working during the

    19    day, running to the Post Office.  That's the


    20    killer.  It's not mine disasters.  So everyone

    21    should be tested, not just the miner.  Thank you.

    22                MS. SILVEY:  Thank you.  Let me ask


    23    you a few questions for clarification, please. 

    24    You mentioned a couple of things.

    25                MR. CALLIES:  Yes, ma'am.

                                                                          42

     1                MS. SILVEY:  You mentioned we have to


     2    prove our policy when you go on the work site. 

     3    First you mentioned that, that most of your jobs

     4    are 7 to 21 days.  I understand that, but you

     5    said we have to prove our policy, show our


     6    policy.  Now when you say "our policy" what

     7    policy are you talking about?

     8                MR. CALLIES:  G & R's drug and


     9    alcohol policy.

    10                MS. SILVEY:  So you have a policy, G

    11    & R has a policy?

    12                MR. CALLIES:  Yes, ma'am.  I will


    13    tell you that every contractor that I know of and

    14    there's several in our association, but any time

    15    we do work on a mine site, that is part of the


    16    safety prequalification, do you have it?  So it's

    17    being asked of all the contractors.

    18                MS. SILVEY:  Okay, now let me just

    19    ask you another thing then.  So I assume that


    20    your policy has some type of drug testing

    21    component, right?

    22                MR. CALLIES:  Yes, ma'am.


    23                MS. SILVEY:  Okay, who does the drug

    24    testing under your policy?

    25                MR. CALLIES:  We do.

                                                                          43

     1                MS. SILVEY:  G & R does?


     2                MR. CALLIES:  G & R does, except for

     3    when there's an accident or if we have a

     4    nonnegative.  That's a political term for

     5    positive.  If we have a positive test, we will


     6    take that miner, that employee to a special

     7    center and have him tested or her tested so that

     8    we do not -- we are not in the habit of firing


     9    people over a test that could be wrong.  So we've

    10    got to be careful when we give drug tests because

    11    sometimes these tests are not correct.  And so we

    12    take the extra measure of sending a person for


    13    that second test to make sure that that

    14    determination is true, that test result is true.

    15                MS. SILVEY:  Okay, like you said,


    16    when you say "we" you mean G & R?

    17                MR. CALLIES:  I'm talking about G &

    18    R.  I'm not talking about the Joseph A. Holmes

    19    Safety Association.


    20                MS. SILVEY:  I understand.  Okay. 

    21    How -- what kind of experience do you have under

    22    your policy?


    23                How often have you had to -- I don't

    24    know what I want -- how often have you had to --

    25    for an example, test somebody after an accident,

                                                                          44

     1    hypothetically?


     2                MR. CALLIES:  After -- 100 percent

     3    after every accident we've had and in the last

     4    two years we've had four people test positive.

     5                MS. SILVEY:  You have?


     6                MR. CALLIES:  Yes, ma'am.

     7                MS. SILVEY:  And what about do you

     8    have a certain percentage of people who are


     9    randomly tested?

    10                MR. CALLIES:  Yes, ma'am.

    11                MS. SILVEY:  And what's that

    12    percentage?


    13                MR. CALLIES:  Well, ours is a little

    14    bit unique.  If someone comes on our site out of

    15    the local, we test them.  That's our random and


    16    our random for our other employees is once a

    17    month we go out to the jobsite and we test I

    18    would say 20 percent.

    19                MS. SILVEY:  Okay.  I just sort of


    20    wanted to get a little understanding of how your

    21    policy worked.

    22                MR. CALLIES:  Yes, ma'am.  And when


    23    someone tests positive, they are removed from the

    24    site, not just the work site.  They are removed

    25    from G & R's policy for 30 days and then we'll

                                                                          45

     1    take some drug tests and the second time, they're


     2    removed permanently and what we're doing is we're

     3    working with the local unions so that they

     4    enforce it, not that they send them from one

     5    jobsite to another union jobsite.  If he's


     6    positive with G & R.  He's positive for Drummond

     7    Coal, so we don't need anyone positive working on

     8    site.


     9                MS. SILVEY:  Okay.  I appreciate your

    10    providing us that information.

    11                MR. CALLIES:  Thank you, ma'am.

    12                MS. SILVEY:  Okay, thank you.  We


    13    will next hear from on my list I have Jimmy

    14    Starns.

    15                MR. STARNS:  Jimmy Starns.


    16                MS. SILVEY:  Jimmy Starns, right. 

    17    Okay, sir.  You're next.  Local 1926 North River.

    18                MR. STARNS:  Yes, ma'am.  I am Jim

    19    Starns, a safety committeeman from Local Union


    20    1926, District 20.  I have more comments, I

    21    guess, more than questions.

    22                We disagree with the type of forum


    23    that you're holding.  We've been to the last

    24    couple and we disagree with them.  We'd like to

    25    see people sitting in front of us talking to us

                                                                          46

     1    instead of over an intercom.  We get a better 


     2    feel of what's going on in the conference.

     3                We also feel that the contractors

     4    that we have come on to our mines should be

     5    tested immediately prior to them coming on site


     6    instead of having a slip from their employer

     7    saying that they had been drug tested two months

     8    ago or whatever, because as the previous guy


     9    said, they keep them for a short period of time

    10    and they could have a drug test two months ago. 

    11    They could fall off the wagon and get right back

    12    on the drugs and come to our mines and do


    13    something that will hurt some of our individuals

    14    at our local.  We don't like that.

    15                The training of the supervisors, we


    16    feel that -- some of us feel that if you don't

    17    train these people they need to be trained by a

    18    competent person that's already in the field with

    19    several credentials behind themselves to train


    20    and not just train just the supervisors for two

    21    hours.  

    22                I think all individuals in the coal


    23    mine that's working in a coal mine should be sent

    24    to this training.  It should be at least -- no

    25    less than eight hours because there's a lot of

                                                                          47

     1    things out there people can hide drugs with. 


     2    They can do different things.  It really goes

     3    into a lot of detail.  And two hours is not going

     4    to give a man or an individual  much time to

     5    accept what kind of training he's going to have


     6    to have.

     7                We also don't think that it should be

     8    put in part 48 due to the fact that part 48 is


     9    already jammed full of everything and you got

    10    time frames of 15 minutes to 2 hours, you work on

    11    one certain thing.  It's already full and we

    12    don't think it should be pushing part 48.


    13                We do agree with drug testing.  We do

    14    want people drug tested.  Contractors,

    15    supervisors, our own people, our own local


    16    people.  We're all doing a dangerous job.  The

    17    safety-sensitive part, we feel, my company feels

    18    that all jobs underground are safety-sensitive. 

    19    There's not one person on site that shouldn't be


    20    a safety-sensitive job.  If a man or lady has got

    21    a problem with drugs, they ought to be sent to 

    22    rehab and try and get this problem of theirs


    23    resolved.

    24                Ma'am, that's all I've got to say.

    25                MS. SILVEY:  Okay, thank you, sir.  I

                                                                          48

     1    would only add one thing and you've heard me say


     2    it earlier today and that is with respect to the

     3    training you said you don't agree that it should

     4    be in part 48.  And I want to reiterate to

     5    everybody, here and in every location why we put


     6    it in part 48.  

     7                We put the requirement there so that the

     8    amount of time had to be added to what is


     9    required currently in part 48, so it had to be in

    10    addition, not jammed into what's in part 48 right

    11    now.  But there may be some way that we need to

    12    look at that and make it clear because I'm


    13    getting this comment from everybody that this

    14    training that we said that miners have to have in

    15    here, miners and their supervisors, is not


    16    training that has to be jammed into the current

    17    training, but in addition to the current

    18    training.  So I just wanted to say that.

    19                Next -- and thank you very much for


    20    your comments.

    21                Next we'll have Dale Byram with Joe

    22    Weldon.


    23                Dale?  I'm sorry, thank you very

    24    much.  Next is Randy Wideman who is with Local

    25    1948, Shoal Creek.

                                                                          49

     1                Randy Wideman.


     2                MR. WIDEMAN:  Yes, ma'am.

     3                MS. SILVEY:  How are you?

     4                MR. WIDEMAN:  My name is Randy

     5    Wideman, W-I-D-E-M-A-N.  I'm on the Mine


     6    Committee at Drummond Company's Shoal Creek Mine

     7    near Birmingham, Alabama.

     8                I haven't had time to dissect this


     9    document, but I've read through it briefly and I

    10    found three or four areas that concerns me

    11    greatly.

    12                Due to time constraints I'll just


    13    address the one issue.  If you'll be so kind to

    14    turn --

    15                MS. SILVEY:  Hello?


    16                (Pause while teleconference is

    17    reconnected.)

    18                MS. SILVEY:  Do we have Birmingham

    19    again?


    20                MR. BAILEY:  You've got Ken Bailey at

    21    Lehigh Cement who is just joining in on the

    22    conference.  I'm at the location in my office.


    23                MS. SILVEY:  No, okay -- I -- do we

    24    have Birmingham?  

    25                BIRMINGHAM:  We're back on the line.

                                                                          50

     1                MS. SILVEY:  Did you all know that


     2    you -- did you recognize that you had

     3    disconnected the phone?

     4                BIRMINGHAM:  No, we didn't.

     5                MS. SILVEY:  You didn't.  So can I


     6    please ask and please just indulge with me,

     7    please.  If you pay attention to the phone

     8    wherever you are, I don't know where the phone is


     9    in location to the speaker, and I'll say this for

    10    everybody who can hear in Virginia, Minnesota, as

    11    well as Beckley, West Virginia, if you would

    12    please pay attention to where you are with


    13    respect to the phone and do the best you can in

    14    terms of the disconnection.

    15                We disconnected with Mr. Wideman, I


    16    believe.  And I think we disconnected Mr. Wideman

    17    right at the beginning of your testimony.  

    18                Did you continue?

    19                MR. WIDEMAN:  Yes, ma'am.  I'll start


    20    from the beginning.

    21                MS. SILVEY:  I think you need to

    22    start from the beginning.


    23                Thank you.  So we will continue with

    24    Mr. Wideman.

    25                MR. WIDEMAN:  I didn't have time to

                                                                          51

     1    study this document, but I did go over it briefly


     2    and found several things of concern.  Due to time

     3    constraints, I'll get right to it. 

     4                The first part that concerns me is if

     5    you'll turn to page 52146, section 66.300,


     6    purpose and scope.  I'll be reading from the

     7    third column, top of the page.

     8                "MSHA is offering mine operators the


     9    option to use service agents to perform the

    10    functions required by this subpart including

    11    services for collection of urine specimens, a

    12    certified breath alcohol technician, a


    13    laboratory, a medical review officer, and a

    14    substance abuse professional.  The proposed rule

    15    includes definitions for the various types of


    16    service agents."  

    17                And if you will, please turn to page

    18    52158, subpart A66.3 are definitions.  I'll be

    19    reading from the lefthand column, top of the


    20    page.

    21                The definition of a medical review

    22    officer.  "A medical review officer is a licensed


    23    physician who is responsible for receiving and

    24    reviewing laboratory results generated by mine

    25    operators' drug testing program and evaluating

                                                                          52

     1    medical explanations for certain drug test


     2    results.  An MRO can be an employee of the mine

     3    operator or a service agent."  I'd like you to

     4    keep that in mind as we go on.  

     5                If you will, turn back to page 52150,


     6    Section 66.402.  First column, bottom of the

     7    page.  "Substantiating legitimate use of

     8    otherwise prohibited substances."  This section


     9    states that "it is up to the mine operator to

    10    make sure that miners have ample opportunity to

    11    demonstrate that any use of a prohibited

    12    substance has been authorized by a physician.  It


    13    further specifies that the possession of a valid

    14    prescription alone is not sufficient proof of

    15    legitimate use.  This provision allows the miner


    16    an opportunity to provide evidence that the

    17    prohibited substance has been legitimately

    18    prescribed and allows the MRO to conduct the

    19    medical interview of each miner following a


    20    confirmed positive test."  Now it looks to me

    21    like you're saying that if I've got a legitimate

    22    prescription, you're now declaring this a


    23    positive test instead of a negative test. 

    24                It also says that the MRO company

    25    employee may review the miner's medical history,

                                                                          53

     1    circumventing the HIPAA law and now consider not


     2    only the possession of a valid prescription, but

     3    any other relevant biomedical factors presented

     4    by the miner.

     5                "The MRO may also direct miners to


     6    undergo further medical evaluation and/or contact

     7    the miner's physician or other relevant personnel

     8    for further information."  They're going to allow


     9    the company employee to overrule my doctor of 20

    10    years and allow further evaluation on account of

    11    him prescribing pain medication, let's say.  This

    12    looks to me like not only are you circumventing


    13    the HIPAA law, but you're opening the door for

    14    age discrimination.  Any miner that's been in the

    15    industry very long has been injured in some


    16    shape, form, or fashion.  I'd say 90 percent. 

    17    What you're doing here is allowing them to -- if

    18    they become a liability to the company's

    19    insurance which our company is self-insured.  If


    20    we become a liability to their insurance, they're

    21    going to put us through this ringer directed by

    22    an MRO who is an employee of the company who can


    23    overrule my personal doctor of 20 years and since

    24    you all have determined this is a positive test

    25    now, I'm not going to get paid through this whole

                                                                          54

     1    process.  


     2                Before, if it was a negative test

     3    which usually a prescribed drug is, if it's being

     4    followed by the prescription, is usually negative

     5    test.  Now you've determined it's a positive


     6    test.  The company don't have to pay us for being

     7    off for a positive test result.  They're going to

     8    be able to drag us around months on account


     9    they're wanting to get rid of somebody who is

    10    determined to be a liability to the company, now

    11    too much of an insurance call.  He had a rock

    12    fall on him and hurt his back.


    13                I'm not going to -- I'll leave this

    14    to some more people, but this really is

    15    disturbing so say the least.  This is giving


    16    them, you all are giving them powers that I don't

    17    think you can and we may can win this in a court

    18    of law.  It's going to cost us tens of thousands

    19    of dollars for each miner that they submit to --


    20    this is really disturbing.  Thank you.

    21                MS. SILVEY:  Thank you, Mr. Wideman.

    22                MR. WIDEMAN:  Yes, ma'am.


    23                MS. SILVEY:  Thank you very much for

    24    your comments.  We will be looking at that.  I

    25    appreciate it very much.

                                                                          55

     1                Our next speaker will be Dale Byram. 


     2    Jim Walter Resources.

     3                Mr. Byram.

     4                MR. BYRUM:  Good morning. 

     5                MS. SILVEY:  Good morning.


     6                MR. BYRAM:  My name is Dale Byram and

     7    I'm with Jim Walter Resources in Brookwood,

     8    Alabama.


     9                Jim Walter Resources supports an

    10    alcohol and drug-free workplace and we appreciate

    11    the opportunity to speak today.  Since the last

    12    comment session, we continue to review the


    13    proposed regulation and identified a concern that

    14    we failed to address on October 14th.

    15                And this is related to the type of


    16    drug test they conducted.  Under 66.3 definitions

    17    prohibitive substance, it lists about ten or so

    18    drugs that will be tested.  And it appears that

    19    this -- the drugs listed would require a ten-


    20    panel drug test to determine if there was a

    21    positive test in a miner's system.

    22                Under 66.300 alcohol and drug testing


    23    requirements, purpose and scope, it references

    24    the fact that the Department of Transportation,

    25    DOT requirements found in 49 CFR part 40,

                                                                          56

     1    procedures for transportation workplace drug


     2    testing programs would be the one that would be

     3    used.

     4                Again, in 56.301, substances subject

     5    to mandatory testing, the tests would be


     6    conducted for the drugs listed there and again

     7    there were about 11 or so drugs that were listed.

     8                If you go back to the 49 CFR part 40,


     9    the DOT test reflects only a five-panel test. 

    10    This conflicts with the proposed regulation if it

    11    intends to test for all the drugs listed under

    12    definitions.


    13                In paraphrasing, in 49 CFR part 40.85

    14    to be specific, states that the DOT test

    15    requirement is isolated to only five drugs to be


    16    tested, and no others.  

    17                Our concern also is that the Alabama

    18    Workman's Compensation drug testing requirement

    19    follows the DOT which is a five-panel test.  And


    20    so if the test that the regulation is proposing

    21    is a ten-panel, this is going to create conflict

    22    with existing regulations that are used today in


    23    Alabama.

    24                And that's all of my comment.

    25                MS. SILVEY:  Okay, all right.  I

                                                                          57

     1    understand.  I appreciate your comment.  I don't


     2    think I have any questions.

     3                I don't -- I don't think -- I don't

     4    want to speak for them.  I don't think any of my

     5    panel has any questions.


     6                I guess I am speaking for them.

     7                Okay.  Well, we appreciate your

     8    comments very much.  Thank you.


     9                Next speaker on the list is Dale

    10    Dewberry.  UMWA, District 20.

    11                BIRMINGHAM:  He has left the room. 

    12    They've gone to see if they can find him.


    13                MS. SILVEY:  Okay, well, I'll go on

    14    to the next one and he can -- I'll go back to him

    15    after the next speaker.


    16                What about Joe Weldon, UMWA District

    17    20.

    18                MR. WELDON:  Good morning.

    19                MS. SILVEY:  Good morning.


    20                MR. WELDON:  My name is Joe Weldon,

    21    that's W-E-L-D-O-N.  Local 1948. Shoal Creek

    22    Mines, Drummond Company.


    23                Safety Committee Member.

    24                First of all, I want to say that we

    25    would like to see you all face-to-face instead of

                                                                          58

     1    sitting here talking to a microphone, but we've


     2    had conflict -- it's already went off one time,

     3    so hopefully that don't happen again.  That's

     4    irrelevant right now.  It's the fact that what

     5    we've got at hand.


     6                We feel like and I feel like as a

     7    safety committee member that's there's too many

     8    vague interpretations and it can go too many


     9    different ways and there's too many unknowns in

    10    this policy which you all are trying to mandate.

    11                I feel like we need to redirect the

    12    funds that is probably renting this building and


    13    all the studies that have been done would do

    14    better in enforcing some other different laws of

    15    which we have a lot more different problems than


    16    this, the way we feel.

    17                We feel like that some of the funds

    18    need to be directed towards several different

    19    areas which would be diesel emissions and


    20    stringent work hours.  We have just got back from

    21    Beckley, West Virginia on some safety committee

    22    training and we talked in depth about diesel


    23    emissions and underground coal mines.  We've had

    24    numerous miners not only here in Alabama, but in

    25    other states that has contacted different types

                                                                          59

     1    of cancer and have been disabled because of


     2    noxious gases and dust.

     3                We feel like these funds could be

     4    directed towards trying to find a solution to

     5    some of those problems.  We feel like the


     6    policies we have at our mines is an adequate

     7    policy, that we as a union can police our own

     8    people and the company has some policies that are


     9    in effect that takes into consideration that a

    10    man can have another chance.

    11                We feel like some of these laws are

    12    very lacking.  According to the diesel regs


    13    compared to West Virginia, Pennsylvania, state

    14    laws, our laws are lacking and I know we'll have

    15    to deal with that on another level, but we feel


    16    like these funds that is for these hearings,

    17    investigations and studies will be better used to

    18    make more stringent laws in dust control and more

    19    stringent laws in diesel regulations and


    20    particulates.

    21                We feel like people need more

    22    training in the industry, not only our operators,


    23    not only our mechanics, but also MSHA as well in

    24    how to look and how to search for dust, diesel

    25    particulates and emissions.  We realize in the

                                                                          60

     1    coal industry that we do have a problem.  We do


     2    have a problem in the drug abuse, but not only

     3    that, we have a drug problem in this country and

     4    we feel like that this policy that you all are

     5    trying to implement is too vague and it has too


     6    many unknowns.

     7                And we feel like we need some more

     8    funds put into studying the effects of people who


     9    work too many hours.  We've had dozens, if not

    10    hundreds of people go to sleep going home and had

    11    automobile accidents.  Several people have been

    12    killed trying to get home after working six,


    13    seven days a week, 10, 12 hours a day.  We feel

    14    like that these funds could be directed in those

    15    areas.   And not only those areas, but some other


    16    areas that are having more problems than this.

    17                I do again say I realize we do have a

    18    problem, but we feel like that some of these

    19    other problems with people dying of different


    20    type of cancers and COPD poisoning and different

    21    lung diseases that we still have a dust problem. 

    22    We still have a black lung problem.  We still


    23    have a diesel problem in this country and we want

    24    to block to you all to make a stand and redirect

    25    some of these funds in those areas.

                                                                          61

     1                I thank you for your time.


     2                MS. SILVEY:  Okay, thank you for your

     3    comments.

     4                If we can now -- can we go to Mr.

     5    Dewberry?  Is he back in the room?


     6                BIRMINGHAM:  Yes, he's coming.

     7                MS. SILVEY:  Okay, thank you.

     8                MR. DEWBERRY:  Good morning.


     9                MS. SILVEY:  Good morning.

    10                MR. DEWBERRY:  My name is Daryl

    11    Dewberry, D-A-R-Y-L D-E-W-B-E-R-R-Y.  I'm

    12    International Vice President of United Mine


    13    Workers of America, District 20.

    14                I rise in opposition of this policy

    15    as others have said before.  We've addressed


    16    these problems some 20 years ago in this

    17    District.  All of our mines, our contractors have

    18    drug policies in effect that are basically

    19    working and as the years have gone on we have


    20    tweaked them.  We've negotiated, come to mutually

    21    agreed to drug programs that are not punitive in

    22    nature.  Run a confirmation test on them to


    23    certify the fact that they are, in fact, a

    24    positive.  There are a lot of problems as the

    25    other speakers spoke to and I won't be

                                                                          62

     1    repetitious that much, but I do want to touch on


     2    a few points.

     3                Let me say first of all that I

     4    appreciate you holding another hearing.  A lot of

     5    our people and I don't know if that was the


     6    intent, gave up last time and I guess they

     7    anticipated that the same thing would occur

     8    today.  We hope we've got a crowd full of people


     9    here today and I wish that you were here to see

    10    them.  The problem being I don't think that's the

    11    intent of a little conference call to address a

    12    public hearing.  You need to see the body


    13    language.  You need to see the response and of

    14    course, that's my opinion, and the majority of

    15    these coal miners here.  But this is a sensitive


    16    area.

    17                Most of our coal miners are of the

    18    age of around, average age from 55 to 58 years of

    19    age.  Most of them have 25 to going on 30 years


    20    of service in the industry.  Most of them are

    21    wore out and broke down.  As they've said and as

    22    I've said before, we've worked them to the point


    23    of fatigue.  The practices are that if they get

    24    injured and I had testimony in an arbitration

    25    last week, wherein the doctor testified and said

                                                                          63

     1    that he would give the individual a lower tab,


     2    but he couldn't take it eight hours before he 

     3    returned to work.  Now my opinion there is the

     4    doctor is in error for allowing someone, if he's

     5    in so much pain that he's prescribed that


     6    medication, but he can keep him off of workman's

     7    comp. until he is completely off of it and then

     8    return him.  But in an effort to get him back to


     9    work so that he won't be on workman's comp.,

    10    won't have a loss time injury that's accountable,

    11    they release him to return to work with pain

    12    under ibuprofen, causing a danger to themselves


    13    and others while in the workplace because as you

    14    know a coal miner needs to be sharp.  He needs to

    15    have his attention span directed on what he's


    16    doing and not worried about my leg is killing me

    17    or whatever the injury may be and I've got to go

    18    to work because if I don't, if I miss two

    19    consecutive days I will be terminated.


    20                So that's one of the problems.

    21                The other problem is that we've

    22    addressed this issue.  I'll use Jim Walter


    23    Resources for an example.  That is a negotiated,

    24    mutually-agreed program that's been in effect

    25    for 20 years.  It basically allows a second shot. 

                                                                          64

     1    Most of the other miners I'd say Drummond's P&M,


     2    has a random drug testing policy that's very

     3    effective.  We do not.  We do not.  Let me

     4    reiterate that.  We do not want drugs in this

     5    industry. 


     6                I'm a strong advocate to tell

     7    everybody that there's two things that we can't

     8    defend you on.  That's absenteeism and drug


     9    abuse.  If you intend on doing one of those then

    10    we will not be able to help you when the time

    11    comes.  And we've arbitrated a lot of cases that

    12    we've -- if there were specific issues, but


    13    that's been I guess shortened up over the last I

    14    guess 15 years simply because we truly believe

    15    that we've got a handle on it.


    16                In addition to that, the State of

    17    Alabama Workman's Comp., if you have an injury,

    18    you've got a zero tolerance drug test that they

    19    take at the hospital.  I mean if you're found


    20    with drugs in your system, then they don't have

    21    to pay your doctor bill, basically.  So there are

    22    a lot of deterrents.


    23                We feel like that this money could be

    24    well spent and well served curtailing black lung. 

    25    Let me just bring to your attention here in

                                                                          65

     1    Alabama alone 1979, '78, '79, we had 18,500


     2    miners working.  That includes construction.  We

     3    mined around 12 million ton of coal, 12 to 12.5

     4    million.  Now we have some 3200 miners working

     5    here in Alabama and we'll mine over 26 million


     6    ton of coal with that amount of people.  The

     7    exposure to dust levels, respirable dust levels

     8    are just unbelievable.  I believe that the


     9    standards are proper.  This is my opinion. 

    10    However, we need to put more emphasis on

    11    controlling the dust, respirable dust.

    12                In addition, we need to put more


    13    emphasis on diesel equipment.  We feel and see a

    14    great rise in cancer and I know that it's been

    15    touched on, but our people are succoming, they're


    16    not getting to enjoy their retirement.  They're

    17    not getting to enjoy the fruits of their labor

    18    that they worked for simply because they have

    19    succomed to disease and injury.  But this is a


    20    problem that we're dealing with and have dealt

    21    with for the last 20 years.

    22                Now I wouldn't have a problem if you


    23    decided that what we need to do is allow anyone

    24    that has a drug policy in effect that we don't

    25    put these proposed regs on them that they've

                                                                          66

     1    already taken care of their own business.  Non-


     2    union entities that don't have them, I believe

     3    that you should possibly put this program in on

     4    them.  But if you've already got collective

     5    bargaining agreement in place, we feel like it's


     6    a mandatory subject to bargaining, as long as

     7    it's reasonable, we sit down and discuss it and

     8    come to some agreeable resolution.  


     9                I've been in discussions with Jim

    10    Walters doing some additional probing on their

    11    drug policy and we're receptive to that.  But let

    12    me say that I think that at this time it's


    13    completely misplaced, that we need to put more

    14    emphasis in other areas such as respirable dust

    15    and the chemicals that are in these mines that


    16    are causing great harm to our miners in the

    17    longer interim.  

    18                I feel like we have had a problem

    19    with drug abuse, and I think it's a national


    20    crisis.  I think one thing that needs to take

    21    place is if you'll look around in the State of

    22    Alabama, we don't have that much assistance


    23    programs to deter this.  And if you do, it costs

    24    an arm and a leg and I think MSHA not only --

    25    this proposed reg would put such an undue

                                                                          67

     1    hardship on the operator and run the price of


     2    coal on up, but I think it should be some federal

     3    mandated drug assistance programs that the

     4    federal puts money in that wouldn't be a cost to

     5    these operators because it is a national problem


     6    that needs to be addressed by the Government.  In

     7    my opinion, it's a disease that needs to be

     8    addressed in its infancy when people first


     9    contract it.

    10                I'll answer any questions you may

    11    have.

    12                MS. SILVEY:  Thank you.  Thank you


    13    very much.  I really don't -- I appreciate your

    14    comments very much.  I don't have any questions.

    15                MR. DEWBERRY:  Thank you.


    16                MS. SILVEY:  Our next speaker is Jim

    17    Yates, UMWA, Local 2245.

    18                MR. YATES:  Good morning, ma'am.

    19                MS. SILVEY:  Good morning.


    20                MR. YATES:  Jimmy, J-I-M-M-Y, Yates,

    21    Y-A-T-E-S. 

    22                I have just three points I wanted to


    23    hit on, but first of all, we have a great many of

    24    folks who is here today who are wanting to speak,

    25    so I'm going to make my comments fairly brief.

                                                                          68

     1                I am -- the first point I want to


     2    make is I am adamantly opposed to this

     3    teleconference.  This should have been an on-site

     4    hearing with eye-to-eye contact would have been

     5    much better to get your point across.


     6                I want to turn my pages.  These are

     7    three points I want to talk to you about.  

     8                The proposal would exclude


     9    administrative and clerical personnel from drug

    10    testing requirements.  These workers do drive on

    11    mine property, often go underground to deliver

    12    supplies and newly purchased supplies.  We have


    13    seen the disastrous effects of incompatible

    14    fittings on fire hoses.  Why should they be

    15    exempt?  Miners would be subject to their comings


    16    and goings on the mine site property.  A good

    17    example would be a person under the influence of

    18    some type of drug coming in and while the coal

    19    miner is going over to pick up his pay check on


    20    Friday morning, he gets run over.  That would be

    21    an excellent example.  So I'm saying anyone that

    22    comes on the property they've got to be drug


    23    tested at some point.

    24                Next point, the proposal does not

    25    make clear who will be responsible for testing

                                                                          69

     1    contract workers on my property or even that the


     2    contract worker must be tested.  Mine operators

     3    have historically taken a hands off approach to

     4    the contractors, accepting no responsibility for

     5    the employees.  This rule must make clear that


     6    the miner operator is responsible for those

     7    employees if they hire to perform work on the

     8    property.  Eight of the 20 fatal accidents to


     9    date have been employees of contractors.

    10                My last point is this, ma'am, the

    11    proposal is not clear on which supervisor will be

    12    included in the testing or how they will be


    13    supervised.  If a miner suspects his supervisor

    14    is under the influence of alcohol or drugs, who

    15    would he report it to?  Would the miner have the


    16    same rights to require that a supervisor be

    17    tested for reasonable suspicion? 

    18                The manner in which the proposal is

    19    written on subjects miners to random and


    20    reasonable suspicion testing when in fact the

    21    supervisors are often alcohol and drug users.  In

    22    the State of Kentucky, 40 certified mine foremen


    23    were reported for drug and alcohol policy

    24    violations.  Of those 40, 4 were rescinded and 36

    25    had their certifications suspended.  The proposal

                                                                          70

     1    must be revised to allow any person to reasonably


     2    inspect drug or alcohol use by any employee on

     3    the properly.  That's including the supervisors. 

     4    We want every supervisor subject to drug testing

     5    from the top to the bottom.  We're talking about


     6    the mine manager all the way down.  And provide

     7    for the oversight in the form of a second

     8    opinion.  As proposed, the miners would have no


     9    recourse if they are suspected of drug or alcohol

    10    abuse.  

    11                That's all I have, ma'am.  Thank you.

    12                MS. SILVEY:  Thank you, sir.  I


    13    appreciate your comments.  We will take them into

    14    consideration.

    15                Our next speaker is Charles Carden


    16    with UMWA Local 1948.

    17                MR. CARDEN:  Good morning.

    18                MS. SILVEY:  Good morning.

    19                MR. CARDEN:  Charles Carden, UMWA


    20    Local 1948.  

    21                As I was reading the proposal, the

    22    commentary that it presents it says there's an


    23    urgent need about this, but you know, from

    24    everything that I've read about the last major

    25    disasters, I don't believe drugs or alcohol or

                                                                          71

     1    either one of them was involved.  If it was, it


     2    wasn't listed.  Without you all testing the mine

     3    owner and he tested positive -- and we don't

     4    understand why the Agency is trying to deflect

     5    their focus away from the death of these miners


     6    without their trying to propose that it's the

     7    miners' fault for getting killed.

     8                Most of the mines, just to reiterate


     9    a little bit, are the working mining force,

    10    already are random drug tested.  We don't have a

    11    problem with that.  But we feel that it should be

    12    focused on different areas and myself, I'm a


    13    diesel mechanic.  I've seen inspectors come in

    14    and really just overlook the diesel equipment

    15    altogether because they're not educated enough to


    16    really go through the process of what actually

    17    needs to be done to the equipment.

    18                Now we feel that the Department

    19    should go back and look at this and spend more


    20    money on that and time instead of putting more

    21    emphasis on drugs and not only that, but it

    22    leaves the administrative end completely out of


    23    the picture for drug testing and just over the

    24    past two or three years, we've had two or three

    25    supervisors that were dismissed on account of

                                                                          72

     1    drugs. 


     2                That's all I've got to say.

     3                MS. SILVEY:  Thank you very much, Mr.

     4    Carden.  Let me ask you a question.  When you say

     5    you've seen inspectors come in and overlook


     6    diesel equipment, I guess as you say apparently

     7    because they were not trained to --

     8                MR. CARDEN:  That's correct.


     9                MS. SILVEY:  Where was this?

    10                MR. CARDEN:  Where was this, in the

    11    mines.

    12                MS. SILVEY:  I understand that.


    13                MR. CARDEN:  Shoal Creek Mine.

    14                MS. SILVEY:  At Shoal Creek.  And so

    15    when the inspector came and overlooked something,


    16    whatever, did you say anything about it to

    17    anybody?

    18                MR. CARDEN:  Did I what?

    19                MS. SILVEY:  Did you report that to


    20    anybody that --

    21                MR. CARDEN:  I sure did.

    22                MS. SILVEY:  You did not?


    23                MR. CARDEN:  I sure did.

    24                MS. SILVEY:  You did, okay.  All

    25    right.  Okay.  Thank you.

                                                                          73

     1                Okay, thank you very much.  The next


     2    speaker will be -- Mr. Carden, before I leave

     3    you, I'm sorry, let me just ask you one more

     4    question.  You said you reported it to somebody. 

     5    Who did you report it to?


     6                MR. CARDEN:  Resident inspector.

     7                MS. SILVEY:  You reported it to the

     8    resident inspector?


     9                MR. CARDEN:  Yes, ma'am.

    10                MS. SILVEY:  Okay, all right.  Thank

    11    you.  

    12                Our next speaker will be Patrick


    13    Watson, Local 2397.

    14                MR. WATSON:  My name is Patrick

    15    Watson, P-A-T-R-I-C-K W-A-T-S-O-N.


    16                Local 2397, Jim Walter Resources. 

    17    First off, we don't get disconnected.  It turns

    18    out we're having to talk over a speaker through a

    19    microphone instead of in person. 


    20                First off, this is ridiculous,

    21    absolutely ridiculous.  Just about anybody that

    22    works in the mines, the contractor or as a miner,


    23    you know, people who have come just to visit,

    24    whatever, if anybody in that mine thinks or

    25    suspects that someone doing a job that would put

                                                                          74

     1    someone else in danger that even looks like


     2    they're on drugs, they're going to be reported

     3    eventually instead of sitting there.  I'm not

     4    going to work beside somebody that makes stupid

     5    decisions as if they're on drugs.  But most


     6    people that are on prescription that's not an

     7    illegal drug by no means.  

     8                Over probably 80 percent of anybody


     9    that works and uses their physical body the way

    10    we do are on some type of prescription drug,

    11    whether it be blood pressure, pain reliever,

    12    antidepressants, anything.  What do you all call


    13    it that is something that would put anybody in

    14    danger?  Nobody really knows.  You've got a list

    15    of some here, but that don't mean you can't use


    16    something all together different and there's

    17    another thing in here that I think someone else

    18    has already covered earlier about the medical

    19    history, about the employer being able to look


    20    over your entire medical history.

    21                Would you want somebody looking over

    22    your entire medical history for something in your


    23    medical history that did not pertain to your job

    24    at all?  That was a question, ma'am.

    25                MS. SILVEY:  Well, I know that in

                                                                          75

     1    certain situations the employer, and it depends


     2    on the situation, the employer does have the

     3    right to look over an employee's medical history

     4    and I think it just depends on the situation.

     5                Now whenever the employer does that,


     6    there are a lot of other requirements that come

     7    into play, like confidentiality.  For example, if

     8    the employer in the course of doing that looks at


     9    or sees some other things there, I mean these

    10    things would -- whether they are related to the

    11    job or unrelated to the job, if there's a

    12    requirement for confidentiality, that has to be


    13    maintained and so all other existing regulations

    14    and requirements, health requirements.  I know

    15    now that you asked me that question.  I've heard


    16    several people talk about the HIPAA regulations. 

    17    And all the other requirements related to

    18    privacy, related to confidentiality, those would

    19    pertain and would have to be complied with.


    20                MR. WATSON:  How do we know that will

    21    be done?  We don't know that.  I mean you've got

    22    a group of company people sitting in a room with


    23    someone's medical history, that's not

    24    confidentiality.  Anyone in that room can go to

    25    anyone in that mine and say something about their

                                                                          76

     1    medical history that does not pertain to drugs


     2    and alcohol-related business.

     3                If there's anything that they need to

     4    look it's just drug and alcohol-related business. 

     5    It's not their entire medical history at all.  


     6                Is that not right?

     7                (Pause.)

     8                Are you still there?


     9                MS. SILVEY:  I'm here.  I'll just

    10    reiterate what I said.  You said how do I know

    11    they would do that, maintain a confidentiality,

    12    but the requirement is that they have to do it


    13    and so that's what I'm saying to you, stating to

    14    you, that there is the requirement that privacy

    15    and confidentiality, those are legal requirements


    16    and they have to be complied with.

    17                MR. WATSON:  I understand that.  And

    18    also, you know, where I'm at we have a drug and

    19    alcohol program and if you're going to work there


    20    you have to comply by it.  You're not to do any

    21    illegal drugs and now you all are wanting to do

    22    this, to test us, saying that you all don't trust


    23    us.  So how are we supposed to trust you all with

    24    a medical history?

    25                MS. SILVEY:  I'm here.  I'm

                                                                          77

     1    listening.


     2                MR. WATSON:  Drug and alcohol

     3    technician, it says here page 62157, top right,

     4    rug and alcohol technician, a person who assists

     5    the miner in alcohol detection process and


     6    operates an individual breath testing device.  A

     7    DAT can be an employee of the mine operator, must

     8    have received qualification training that


     9    includes training and alcohol testing procedures

    10    and operation of alcohol test devices.  

    11                Confirmed drug test.  Confirmed drug

    12    test results received by medical review officers,


    13    MRO, from a laboratory.  If I'm not mistaken back

    14    earlier there was a gentleman talking about the

    15    MRO.  And it didn't say anything about being from


    16    a laboratory, an officer from a laboratory.  It

    17    said that it could be anyone of the company.  I

    18    don't know exactly where it was at.  I can

    19    probably find it if I sit here and look for it.


    20                (Pause.)

    21                MS. SILVEY:  Were you talking about

    22    the medical review officer?


    23                MR. WATSON:  Yes, I've got it here

    24    now.  Medical review officer, MRO, a licensed

    25    physician who is responsible for receiving and

                                                                          78

     1    reviewing laboratory results generated by a mine


     2    operator's drug testing program and evaluation of

     3    medical explanations for certain drug test

     4    results.  An MRO can be an employee of the mine

     5    operator and service agent.


     6                And then back here, if I can find it

     7    again, on 52157 it says that a confirmed test

     8    result received by a medical officer from a


     9    laboratory.  Last I checked, we don't have a

    10    laboratory on my site.

    11                (Pause.)

    12                While you all are thinking about that


    13    I'll mention something else and I'm going to be

    14    done for now.  

    15                MS. SILVEY:  Before you go from that,


    16    I know you probably don't have a laboratory on

    17    your site.  This just is talking about in terms

    18    of whatever testing provision that the operator

    19    would have set up there and the laboratory might


    20    be on site, it might not be on the site.

    21                MR. WATSON:  Well, it says on site. 

    22    And in this one it says on site. 


    23                Another thing it talks about -- well,

    24    the alcohol.  In the law, you all are using a .04

    25    as a legal limit.  And the state law is .08. 

                                                                          79

     1    Meaning if you get pulled over by a state trooper


     2    and do a breathalyzer and you have .08 in your

     3    system changes are they'll let you go and won't

     4    say nothing to you, but you all are telling us if

     5    we have .04 in our system, pretty much we're not


     6    going to get paid for the rest of that day, be

     7    sent home, and the next year be drawn out for six

     8    more tests.  


     9                MS. SILVEY:  Okay, the .04, as I

    10    stated in my opening statement, you were using

    11    the alcohol level as consistent with the

    12    Department of Transportation regulation.


    13                MR. WATSON:  You can take anybody

    14    that you want to and if they've had -- if they've

    15    been to a bar and they get slap drunk and they


    16    are due to be at work in the next eight hours,

    17    when they come to work that next eight hours,

    18    there's nothing wrong with them, they're fine,

    19    but if get off the elevator and take steps and


    20    they trip over something and twist their ankle

    21    and the company sends them, makes them do this

    22    drug test and they still got .04 in their system,


    23    but there's no way that they're by no means

    24    drunk, maybe hung over or feeling pretty rough,

    25    but they're not drunk.

                                                                          80

     1                (Pause.)


     2                MS. SILVEY:  Okay, thank you.

     3                MR. WATSON:  I've got another

     4    question here.  Under this here law in this

     5    statement, if we have a federal inspector come


     6    into our site and they step through our line or

     7    rail work out in the washer and they just walk by

     8    stuff and don't make any comment about it, don't


     9    write it up, don't see it, how do we know that

    10    they're not impaired by drugs?  Do they need to

    11    be tested or are we allowed to say hey, I think

    12    that federal inspector there needs to be tested.


    13                MS. SILVEY:  I think in that

    14    situation you probably would say something either

    15    to your supervisor or as the other gentleman


    16    said, if you had a resident inspector there or to

    17    the inspector's supervisor about what the

    18    inspector passed up, at least what you thought

    19    the inspector passed up in that situation.


    20                MR. WATSON:  I don't know if you've

    21    ever been down there where we are, you do that

    22    you're pretty much going to be going through your


    23    next drug test anyway.

    24                (Laughter.)

    25                They're going to send you right on

                                                                          81

     1    out, you go stepping in front of them and telling


     2    them they ain't doing their job, they need to go

     3    back and look at something.  That just won't fly.

     4                But how do we know that an inspector

     5    can come down there and make our life-threatening


     6    decisions on whether something looks the way it

     7    needs to be or operates the way it needs to be

     8    without us knowing whether he's in his right


     9    state of mind to make that decision?  That's all

    10    I've got to say.  If you have any questions, go

    11    ahead.

    12                MS. SILVEY:  No, thank you very much. 


    13    Thank you.

    14                Our next speaker will be Steven

    15    Miller, Local 1949.


    16                MR. MILLER:  My name is Steven

    17    Miller, Local 1949.  

    18                Regarding this, I'm just wondering

    19    why we're even trying to have such a thing


    20    passed, due to the drug testing.  Unfortunately,

    21    mining is dangerous and people do get injured and

    22    drug testing does not determine if you're


    23    impaired, you know.  When you take a drug test,

    24    it doesn't determine if you're impaired.  It will

    25    tell you if you have any type of drugs in your

                                                                          82

     1    system.  It doesn't tell that you're impaired at


     2    the time or not.

     3                The extent of alcohol and drug

     4    problems in the mining field has not been

     5    directly measured.  Data collected suggests that


     6    mines' pre-employment tests and random testing

     7    has been doing fine.  Every mine that I've worked

     8    at before has been doing fine with the random


     9    testing and pre-testing.  Every mine that I've

    10    worked at has done it and has been doing it. 

    11    I've never seen anything wrong with any company

    12    that I've ever worked at.


    13                The cost of this, like the first year

    14    alone, $16 million that could go for other

    15    problems.  It could go towards drug testing for


    16    advancement -- I got lost track here.  It can go

    17    for noise control, diesel control and dust

    18    control.  

    19                Also, drug testing for advancement


    20    for another job, for bidding for other jobs makes

    21    no sense.  All the jobs down there, it says for

    22    advancement for other jobs that are more


    23    dangerous, makes no sense because every job down

    24    there is a dangerous job.

    25                Also, anyone on the mine site should

                                                                          83

     1    be subject to drug test and that's even upper


     2    management, secretaries, vendors, contractors,

     3    especially contractors.  We're up for random drug

     4    testing.  I don't know how the contractor do it,

     5    if they just give one drug testing when their


     6    company hires them, if they do any drug testing

     7    at all.  They should be subject to because

     8    they're down there with us underground, above


     9    ground, whatever they're doing, but they're right

    10    along with us, subject to get injured just like

    11    us, to injure us.

    12                It is proven that alcohol and drug,


    13    it is a proven fact that alcohol and drugs

    14    impairs judgment, you know.  With upper

    15    management, planning for the employees, it is


    16    their responsibility to keep their minds clear.  

    17                (Pause.)

    18                Upper management and contractors that

    19    come on the job site to oversee and work, they


    20    come upon the same risks as its employees and

    21    supervisors that are underground working.  

    22                I also have a question about these


    23    prescription pills and stuff.  Some people have

    24    to take sleeping pills at night and stuff and

    25    antidepressants that they take at home.  Taking

                                                                          84

     1    them at home and stuff, were they to take a drug


     2    test.  You take them at home, but you don't take

     3    them at work, your sleeping pills and you take a

     4    drug test, will that make you fail your drug test

     5    and how would that work?  I don't understand


     6    that.

     7                (Pause.)

     8                Ma'am?


     9                MS. SILVEY:  Well, if the sleeping

    10    pills are one of the ten listed categories that I

    11    read in my opening statement, they would be

    12    covered by the rule, but they would be -- if the


    13    person taking them had a valid prescription for

    14    them, they would come under that provision of the

    15    rule and they were taking them in accordance with


    16    a valid prescription.

    17                MR. MILLER:  Okay.  Also, this

    18    confidentiality you guys speak about.  They say

    19    you'll be removed and put on a different task and


    20    keep your same grade pay, how would that be

    21    keeping your confidentiality -- you know what I'm

    22    saying, sorry, I can't speak today.


    23                How would you keep your

    24    confidentiality?

    25                MS. SILVEY:  Are you saying how can

                                                                          85

     1    it remain confidential if you're being


     2    transferred?

     3                MR. MILLER:  Yes, when somebody sees

     4    that you've been removed from your task and put

     5    on a different task, everybody is going to know


     6    that something is up there.  You wouldn't be able

     7    to keep it, that's for sure.  That would not make

     8    no sense whatsoever.


     9                With that going on, I agree that drug

    10    testing is appropriate in the industry and I

    11    believe that companies are doing a good job and

    12    the money could be spent on other problems in the


    13    industry and that's about all I have to say about

    14    that.

    15                MS. SILVEY:  Okay, thank you.  Mr.


    16    Miller, I do have one thing, just for

    17    clarification.  When you started off, you said

    18    drug testing for advancement.  I didn't quite

    19    understand what you meant then.


    20                MR. MILLER:  In here it says for -- I

    21    had it highlighted here, hold on just a second

    22    while I find it.


    23                (Pause.)

    24                MS. SILVEY:  Were you talking about

    25    any time you were transferred or anybody having

                                                                          86

     1    to have preemployment testing?


     2                MR. MILLER:  No.  Hold on just a

     3    second.  Let me find it just right quick.

     4                (Pause.)

     5                It is 52160 first paragraph at the


     6    very bottom of the page.  "Any miner who is to be

     7    transferred to a position involving the

     8    performance of a safety-sensitive job duty must


     9    be tested for the presence of alcohol or drugs

    10    prior to beginning the performance of safety-

    11    sensitive job duty."

    12                MS. SILVEY:  Okay.  That's sort of


    13    basically the preemployment type.  Okay, I

    14    understand.  Thank you.  I understand.

    15                All right, thank you very much.


    16                MR. MILLER:  Thank you.

    17                MS. SILVEY:  Okay.  The next person I

    18    have on the list from Birmingham is Grady

    19    Robertson.


    20                BIRMINGHAM:  I'd ask if Sandy

    21    Blackston can go next because she has to leave.

    22                MS. SILVEY:  That's fine.


    23                BIRMINGHAM:  Thank you.

    24                MS. BLACKSTON:  Hello.

    25                MS. SILVEY:  Hello.

                                                                          87

     1                MS. BLACKSTON:  Hi, I'm a


     2    laboratorian, I'm not a coal miner.

     3                MS. SILVEY:  Excuse me, would you

     4    state your name again, please?

     5                MS. BLACKSTON:  Sandra Blackston, B-


     6    L-A-C-K-S-T-O-N.

     7                MS. SILVEY:  Okay.

     8                MS. BLACKSTON:  All right, first of


     9    all, I'm a laboratorian.  I have my associate's,

    10    my bachelor's and a specialty in laboratory

    11    medicine.  I have a question.  There's no federal

    12    law as far as CLIA 88 Joint Commission or any


    13    other federal regulation that you all put on me

    14    as a laboratorian for these company men to abide

    15    by.  There's nothing.  CLIA 88 is federal and you


    16    all put that on me especially with drug testing

    17    all because these men are company and they think

    18    they can get away with doing it privately that's

    19    a complete federal regulation of what you all


    20    have already implemented.

    21                MS. SILVEY:  You said there's no

    22    federal law for what now?  I didn't understand


    23    what you said.

    24                MS. BLACKSTON:  CLIA 88 is a federal

    25    law set by the Government to make sure

                                                                          88

     1    laboratorians do their job.  If this is going to


     2    be testing, why are they not having to go by the

     3    same regulations that I do?

     4                MS. SILVEY:  Give me that --

     5                MS. BLACKSTON:  You can google it. 


     6    It's on the internet.

     7                MS. SILVEY:  Just tell me what you

     8    said again, CLIA 88, what did you say?


     9                MS. BLACKSTON:  You should know it's

    10    a federal regulation.  I should not have to go

    11    over that.  It's CLIA 88.

    12                MS. SILVEY:  CLIA 88, okay, but I'm


    13    asking --

    14                MS. BLACKSTON:  It is CLIA 88 and it

    15    was implemented in '93.  There are all the


    16    regulations there for drug testing.

    17                MS. SILVEY:  Okay, all right, thank

    18    you.

    19                MS. BLACKSTON:  My question is where


    20    the chain of command on these people?  If they're

    21    going to draw the specimens we have to do chain

    22    of command just like evidence in a police thing. 


    23    We have to sign in and sign out whoever takes a

    24    specimen.  What if somebody falsely contaminates

    25    it because they don't want an employee to work

                                                                          89

     1    there any more?


     2                MS. SILVEY:  There is a chain of

     3    command requirement in there.

     4                MS. BLACKSTON:  You forgot to put

     5    that in there.


     6                MS. SILVEY:  No, the chain of command

     7    requirement is incorporated.  They have to follow

     8    all the DOT procedures and that includes the


     9    chain of command requirement, that is in there.

    10                MS. BLACKSTON:  Where at?

    11                MS. SILVEY:  Yes, that's in there.  I

    12    talked about that in my opening statement this


    13    morning, that you have to follow, yes.

    14                MS. BLACKSTON:  My question is too

    15    I've had almost eight years' experience and I'm


    16    considered almost still incompetent to do these

    17    tests.  How can you tell a man all because he can

    18    take a two-hour course to determine positive or

    19    negative that he can do this?


    20                MS. SILVEY:  Well, you mean the

    21    supervisor?

    22                MS. BLACKSTON:  No, a man.  He's not


    23    -- he don't have no degree on this.  He's a man. 

    24    He's a civilian. 

    25                MS. SILVEY:  Okay, that was a two-

                                                                          90

     1    hour course he can do what?


     2                MS. BLACKSTON:  He can test those

     3    men.

     4                MS. SILVEY:  I think what you are

     5    talking about when I said a man, and basically


     6    that requirement is for supervisors who to make a

     7    determination that people -- if somebody is to be

     8    -- if somebody is to be tested due to reasonable


     9    suspicion, there's a two-hour training on that. 

    10    That must what you're talking about.  But that's

    11    two hours of training to determine --

    12                MS. BLACKSTON:  I've had eight years


    13    and I'm still considered not able to do some of

    14    these specialty testing.

    15                MS. SILVEY:  They wouldn't be doing


    16    testing.  That requirement does not have anything

    17    to do with testing.  That's why you confused me. 

    18    And when you said it's for a supervisor, whether

    19    that supervisor is a man or a woman, it's a


    20    supervisor where the supervisor feels that there

    21    is a determination of reasonable suspicion that

    22    the person should be tested, but that supervisor


    23    is not then doing the testing.

    24                MS. BLACKSTON:  So the company man is

    25    not going to do the testing?

                                                                          91

     1                MS. SILVEY:  No, ma'am.


     2                MS. BLACKSTON:  Is that what they're

     3    saving?

     4                MS. SILVEY:  That's what I'm saying. 

     5    That's exactly what I'm saying.


     6                MS. BLACKSTON:  All right.  I just

     7    wanted to make sure you're clear on that.

     8                MS. SILVEY:  I am clear on that.


     9                MS. BLACKSTON:  Next question, record

    10    keeping and reporting, we're all humans.  We're

    11    all going to make error.  Whoever is doing the

    12    drug testing is going to make error.  Okay, you


    13    have no CLIA 88 regulation in this, so who is to

    14    hold them responsible for the mistakes they make

    15    when these men lose their job and no pay?  The


    16    company will be liable and then there will be

    17    lawsuits.

    18                MS. SILVEY:  We have a lot -- a

    19    number of provisions in there about the testing


    20    and about the verification of the testing and

    21    those types of things.  Those are all covered in

    22    the Department of Transportation regulations for


    23    testing and they have to follow this -- what is

    24    this, the SAMHSA guidelines.

    25                MS. CARR:  The testing requirements

                                                                          92

     1    of the Department of Transportation that also


     2    includes the mandatory substance abuse and mental

     3    health services guidelines are incorporated by

     4    reference so that chain of custody and the

     5    laboratory process and the collections processes


     6    are all dictated by the same requirements.

     7                MS. BLACKSTON:  Okay, my question

     8    here is they said they can do on-site testing. 


     9    Am I correct?

    10                MS. CARR:  They can do it as per DOT. 

    11    They can collect the test on site, as long as

    12    they use trained collectors.


    13                MS. BLACKSTON:  What's going to be

    14    their requirement to the trained collector?  That

    15    goes back to CLIA 88 again.


    16                MS. CARR:  They would be the same as

    17    required under the Department of Transportation.

    18                MS. BLACKSTON:  But it technically

    19    could be  a company man, correct?


    20                MS. CARR:  If he is, a company man or

    21    woman, if he goes to the same requirements to be

    22    --


    23                MS. BLACKSTON:  It's a two-hour

    24    course.

    25                MS. CARR:  No, it's not a two-hour

                                                                          93

     1    course.


     2                MS. BLACKSTON:  The testing

     3    requirements are separate from what you've done

     4    is you've confused the testing requirements with

     5    the requirements for a supervisor who makes a


     6    determination that a person should be tested due

     7    to a reasonable suspicion.  That's all that two-

     8    hour training is for and that's the end of the


     9    inquiry.  The testing is then done in another

    10    manner and the testing has to be done in

    11    accordance with Department of Transportation and 

    12    Department of Health and Human Services,


    13    certified laboratory requirements.  

    14                And so hypothetically, if Jim Walters

    15    wanted to do it on site they have to do it in


    16    accordance with all the -- which are probably the

    17    requirements that you use today and they include

    18    chain of custody and everything else.

    19                MS. BLACKSTON:  My question is is


    20    this going to be available for the miners, you

    21    know the fact that as a laboratorian, you know,

    22    we're held competent to what we do.  The Federal


    23    Government sends me specimens multiple times a

    24    year to test me on my ability.  Well, considering

    25    there's nobody for these people to regulate back

                                                                          94

     1    to, where is the corrective action on human


     2    error?  Where is all this documentation where

     3    these people are doing the tests, are technically

     4    considered competent in doing their testing?

     5                Anybody can look at a positive or


     6    negative, but there's too many false positives,

     7    there's too many diseases.  There's other things

     8    that can consider these men false positives and


     9    then they lose pay just because they have to

    10    prove they have a liver disease?

    11                MS. SILVEY:  This regulation doesn't

    12    change any drug testing requirements.  The drug


    13    testing requirements have to be in accordance

    14    with established and verified drug testing

    15    requirements as they are today.  This rule


    16    doesn't change any of that.

    17                MS. BLACKSTON:  I agree, we all need

    18    drug testing.  Nobody in here is probably arguing

    19    that statement.  The statement is the way it's


    20    going about -- you know it was talked prior about

    21    HIPAA.  Would you want your bosses sitting around

    22    a table if you're working in a job that requires


    23    manual labor discussing your drug test when they

    24    might find out you have a back problem?  They're

    25    not going to keep that a secret.  And that's why

                                                                          95

     1    HIPAA is where it's at to protect these people


     2    from the company.  That's what HIPAA, one of the

     3    goals of HIPAA.  

     4                You're separating company from men

     5    when these men hire on Jim Walters, they're


     6    saying the company does not have drug testing? 

     7    Well, if I hire on, whether I'm put in an office

     8    or whether I'm put underground, that's almost job


     9    discrimination.  I can't help where you all put

    10    me, so I get drug tested based on where you put

    11    me?

    12                Do you have additional comment?


    13                MS. BLACKSTON:  I mean I would really

    14    like you all, you know, advise the CLIA 88 in

    15    here because that holds everybody accountable and


    16    that holds the Federal Government.  That's you

    17    all's law.  You all made that.  You all made it

    18    in '88.  You all started enforcing it in '93. 

    19    There's nothing in here on that.


    20                MS. SILVEY:  I just want to reiterate

    21    that the drug testing requirements are in

    22    accordance with the Department of Transportation


    23    rules and the HHS requirements for certified

    24    testing laboratories.  And I'm sure if you are a

    25    laboratorian as you said and I know you are, I'm

                                                                          96

     1    sure these are the same requirements that you


     2    indeed follow when you do your drug testing

     3    analysis.

     4                MS. BLACKSTON:  They are under one

     5    consideration.  When we do drug testing, we have


     6    to be either CAP or JACHO which is Joint

     7    Commission which is another federal agency to be

     8    required to do drug testing.


     9                MS. SILVEY:  Okay, I understand.

    10                MS. BLACKSTON:  You know, it's

    11    contradicting what I've been taught all through

    12    school when I see things like this.  But yet ever


    13    law that I've been taught has been left out of

    14    this little pamphlet we give to these men.   

    15                MS. SILVEY:  All of those


    16    requirements are in here.  I can guarantee you

    17    that.  Some of them we incorporated them by

    18    reference and maybe you did not see them, but --

    19                MS. BLACKSTON:  Okay, if I can't see


    20    them how do you expect --

    21                MS. SILVEY:  That's something that we

    22    need to look at and we will do that, but as you


    23    just said earlier, using CAP, only laboratories

    24    certified by CAP as well as -- and we talked -- I

    25    talked about earlier HHS Substance Abuse Mental

                                                                          97

     1    Health Services Administration shall be used to


     2    test collected samples.  And I want to reiterate

     3    to everybody who can hear me, every one of these

     4    locations, only laboratories certified by CAP as

     5    well as HHS/SAMHSA, Substance Abuse Mental Health


     6    Services Administration, shall be used to test,

     7    collect the samples.  And that means nobody at

     8    one of these locations, this is how we started


     9    this, will be testing these who have not -- who

    10    is not qualified to do the testing.

    11                MS. BLACKSTON:  And this should be

    12    made publicly available which if everything like


    13    you said, there's only things I understand as a

    14    laboratorian, these men should have a paper with

    15    what these acronyms mean where they can go


    16    themselves on the internet and understand what's

    17    happening to them.

    18                MS. SILVEY:  Okay, thank you.  I

    19    appreciate your comments.  Thank you.


    20                MS. BLACKSTON:  I appreciate you too. 

    21    Thank you.

    22                (Applause.)


    23                MS. SILVEY:  Mr. Grady Robertson, are

    24    you there?

    25                MR. ROBERTSON:  Yes, ma'am.  I'm

                                                                          98

     1    Grady Robertson, District 20, Local 2133.


     2                I think we have a drug policy between

     3    the union and the company that's good enough.  If

     4    prescription drugs that your doctor gives you to

     5    maintain your health is took from you, then you


     6    ain't going to be able to go on to work.  So if

     7    you ain't able to go on to work, and no money,

     8    disability rate is going to climb sky high,


     9    especially in the coal industry.

    10                HIPAA law is between -- it's a policy

    11    set between you and your doctor.  I've sent my

    12    wife to do some business since I work 6 days a


    13    week, 10 hours a day.  I sent my wife to some

    14    business at the doctor's office and she come back

    15    with nothing.  And why she did is because of the


    16    HIPAA.  I had to go up there and sign papers for

    17    my wife to get my history or to get what I needed

    18    to get that day.  So if my wife, that's the one

    19    that's me and her against the world, ain't able


    20    to get it, if she ain't able to get it, why

    21    should you be able to get it.  I ain't speaking

    22    of you.  I know who you are.  I'm speaking of the


    23    company.

    24                That's the law that will protect you

    25    from any riffraff that wants to detour you or

                                                                          99

     1    something or to get you.  It ain't no secret. 


     2    There's some issues that can out of this if we

     3    don't watch and protect the HIPAA law.  

     4                And on the drug testing part, the

     5    drug testing part of it, in my case, would be the


     6    one that looks over the drug testing of the UMWA

     7    men.  So if Danny Sergeant is looking over the

     8    drug testing of UMWA men, the Daryl Dewberry


     9    should look over them or Daryl Dewberry's

    10    assistants.

    11                I mean -- if the doctor says when I

    12    prescribe medicine to you, if the doctor said


    13    take off a day, see how it acts with you and see

    14    what the medicine does, see if it will help you,

    15    see if you're able to go to work.  After that's


    16    said, that should be -- I mean you've got to go

    17    on to work.  If you got a twisted knee at 35, it

    18    ain't time for surgery.  You got to put that off

    19    as long as you can, so your career can go on as


    20    far as you can, hopefully to retire.  That's what

    21    prescription drugs are.  And as prescription

    22    drugs getting out of hand or something like that


    23    or come to the job messed up or whatever, I think

    24    as a union, as men ourselves we can take care of

    25    our own between the company's policy and the UMWA

                                                                         100

     1    itself.  We've got a policy, let's stick with the


     2    policy and the money we spend on this we could

     3    have spent it with research of black lung.

     4                You don't even hear of black lung no

     5    more.  It disappeared.  We call it cancer or


     6    something else.  But we could have spent this

     7    money and other money that's going to be spent on

     8    this for research on black lung and other things


     9    of that nature.

    10                I just don't agree with the

    11    Government coming in to drug test you.  About the

    12    HIPAA law, if my wife ain't got rights to it, I


    13    be dag gum if somebody else -- if I want somebody

    14    else to have rights to it.  

    15                The lady that spoke before me, I


    16    forgot her name, but she brought up some good

    17    points.  It can be contaminated.  Just because

    18    they want to get rid of a man.  And if you don't

    19    think that will happen, you're living in a


    20    fantasy land because I've been through some stuff

    21    like that.  And thanks to Dewberry and his

    22    assistants, I'm able to support my four kids and


    23    my wife.  This does upset me.  You all are

    24    getting into my rights and how I support my

    25    family.

                                                                         101

     1                If I abuse that, we done got lost in


     2    regulations to take care of it.  But other than

     3    that, that's about all I got to say.

     4                MS. SILVEY:  Okay.  Thank you.

     5                MR. ROBERTSON:  Thank you.


     6                MS. SILVEY:  Okay.  Is there anybody

     7    else in Birmingham who wishes to speak?

     8                Anybody else in Birmingham who wishes


     9    to speak?

    10                BIRMINGHAM:  Yes.  I didn't get these

    11    faxed in, but I did leave a message --

    12                MS. SILVEY:  Let me stop you, please? 


    13    Would you just let them come to the phone in the

    14    order that they are signed up.

    15                BIRMINGHAM:  Okay.


    16                MS. SILVEY:  Just come to the phone,

    17    okay?

    18                BIRMINGHAM:  The next speaker is

    19    Wendell Rigsby.


    20                MS. SILVEY:  Just let them come to

    21    the phone and state their name and spell their

    22    name.  You don't need to do that.


    23                MR. RIGSBY:  Good morning.

    24                MS. SILVEY:  Good morning.

    25                MR. RIGSBY:  My name is Wendell

                                                                         102

     1    Rigsby, W-E-N-D-E-L-L R-I-G-S-B-Y.  I am an


     2    International Field Representative for the UMWA

     3    at District 20.

     4                I thank you for letting me speak. 

     5    I'm here today to express my concerns over this


     6    policy.  I would rather it be in person, so I

     7    could see you, but anyway --

     8                MS. SILVEY:  I appreciate that all of


     9    these people want to see me.  That really makes

    10    me feel good.

    11                (Laughter.)

    12                MR. RIGSBY:  You sound like an


    13    attractive woman.

    14                (Laughter.)

    15                MS. SILVEY:  I'm sure you mean that.


    16                (Laughter.)

    17                MS. SILVEY:  Okay, a little humor

    18    everybody.

    19                MR. RIGSBY:  Anyway, I'm a District


    20    Representative and I represent four mines in this

    21    area that have some form of a drug policy already

    22    in place, has been for several years.  Seems to


    23    be what we have is working.  None of us, being

    24    union people or any miner that I know of are

    25    either a coal operator, I don't believe none of

                                                                         103

     1    us condone any kind of illegal drugs.  We're dead


     2    set against it, hate them.  

     3                But I'm here with concerns about some

     4    of our miners that take legal prescription drugs

     5    that have been give to them because of their time


     6    in the mines and the job injuries they've had

     7    trying to work toward retirement, to get a chance

     8    to set back and maybe retire and draw a


     9    retirement.

    10                The part that Mr. Wideman related in

    11    this policy about the MRO is exactly correct. 

    12    I'm dealing with it now.  There won't be a


    13    substance abuse professional.  It will be nothing

    14    more than a company doctor and this policy will

    15    give them the right to review your medical


    16    history.  If he's off of a job injury before he

    17    goes back to work, if he's taking certain

    18    medications that will give him a right to either

    19    -- I'm dealing with three people right now that


    20    the company wants him to sign over their medical

    21    records and let them review their medical records

    22    and two of them they want to take physical


    23    agility tests and they're over 50 something years

    24    old with 25 years service.

    25                My concern is if this policy is

                                                                         104

     1    passed that basically will give them the right to


     2    have this.  It will become law and probably will

     3    be administered by MSHA.  And that's one of the

     4    main problems that I've got with this.  When you

     5    have people that's been in the mines 25 years,


     6    we've got some severe medical problems that they

     7    deal with every day in order to come to work and

     8    work and having to work with a hot seat change


     9    out, 9, 10 hours or more, 6 days a week, it puts

    10    a burden on them and their family.

    11                That's, like I say, if this is

    12    implemented and enforced, it's going to be


    13    detrimental to our miners, I think, instead of

    14    helping the industry as far as the drugs.  We

    15    seem to be working well with what we're doing. 


    16    If we can get past the part about turning over

    17    our medical records, I've got a good chance under

    18    our contract through collective bargaining to

    19    have a chance to get these three people back to


    20    work right now, but if this MSHA law is

    21    implemented, then I probably have no chance at

    22    all.  They'll tell you right quick that they


    23    won't give them no Social Security disability. 

    24    They'll tell them they're able to go out there to

    25    work at Wal-Mart or something like that.  So

                                                                         105

     1    their quality of life is -- it will really go


     2    downhill.  But that's basically my concern and

     3    would look forward to MSHA maybe going back.  

     4                I worked in the mines 34 years before

     5    I took this job.  I would favor MSHA going back


     6    to these public hearings being what they're

     7    supposed to be, a public hearing and I appreciate

     8    your time and letting me speak.


     9                MS. SILVEY:  Okay, thank you.  I

    10    appreciate your speaking.  Thank you very much.

    11                Would the next speaker in Birmingham

    12    come to the mic and state your name and spell it


    13    for the reporter, please, the next speaker.

    14                MR. GREEN:  My name is Randall Green,

    15    R-A-N-D-A-L-L G-R-E-E-N.  I'm with the UMWA.  I'm


    16    a safety committeeman and president with Local

    17    1948 and also president of the local.

    18                I've got a few comments I wanted to

    19    make on some of the past testimony and some of


    20    the questions you all had this morning.  First

    21    thing I'd like to say that the drug testing

    22    policy that we have in our mines is a very


    23    stringent one and over the past 15 years it's

    24    done a good job in policing the mines.  And of

    25    course, we don't want people in the mines, it's a

                                                                         106

     1    hazard to themselves and the people around them. 


     2    So think a lot of funds has been put to that.

     3                But going back to the question on

     4    diesel in the mines and dust and also a question

     5    to the testimony a gentleman had this morning, we


     6    don't have the funding in areas particularly in

     7    diesel with the hazards that are occurring in the

     8    mines.  In our mines we're having a lot of


     9    serious diseases that's linked to the mine

    10    environment.  We've also learned that diesel

    11    particulates enter the person's body even further

    12    than coal dust and can cause a lot of serious


    13    diseases.

    14                A question came this morning about

    15    training and I think about MSHA here in District


    16    11.  The first thing I want to say is we've got a

    17    lot of good inspectors at District 11 that have

    18    always been very courteous and helpful in their

    19    inspection of the mines here at District 11 and


    20    to the miners' representatives, but they have

    21    expressed to me and of course I'm a safety

    22    committeeman and a president of local that the


    23    problems we have with diesel entering the

    24    industry, they do need more training and I think

    25    that was the question the diesel mechanic put

                                                                         107

     1    forth this morning.  But they have expressed


     2    that, numerous ones of needing additional

     3    training.  And of course, we realize this takes

     4    additional funding.  

     5                And we believe that the problems we


     6    have particularly there that MSHA ought to look

     7    at funding these areas today, addressing these

     8    today first before we try to address the drug


     9    policy that's already heavily funded in the

    10    industry.

    11                We also expressed that we need better

    12    training in the industry with diesel.  And I will


    13    say this that we have had some training and

    14    engine personnel has had some training, but it's

    15    very limited -- in talking to MSHA personnel it's


    16    because of limited resources.  It's limited

    17    personnel to look at the diesel and of course,

    18    the training.  That's just some of the comments

    19    that I wanted to make to you that we feel that


    20    MSHA should be going in this direction and I

    21    think as far as again, we'd like to have you all

    22    in Birmingham, as usual, where we can stand face


    23    to face and  you can see the people here and see

    24    the interest that we have.  

    25                And of course, we want a safe

                                                                         108

     1    industry, but I'd just like to make that comment


     2    on to the other brother who brought up about

     3    diesel that MSHA theirself has expressed the need

     4    for better training in this area.

     5                Thank you.


     6                MS. SILVEY:  Thank you, Mr. Green,

     7    and I have to say I'm sorry I'm missing seeing

     8    you today.  I appreciate your comments here today


     9    and as usual I appreciate your participation in

    10    all of our hearings.

    11                MR. GREEN:  All I can say is roll

    12    tide to that.


    13                (Laughter.)

    14                MS. SILVEY:  And I agree with you,

    15    they are doing quite well, you know.


    16                I would like to say though that with

    17    respect to your comment on the MSHA inspectors

    18    needing more training, I will pass that

    19    information on to our Coal Mine Safety and Health


    20    Office and make sure we look into that.

    21                The next speaker in Alabama,

    22    Birmingham, please.


    23                MR. SICKLES:  My name is Harold

    24    Sickles.  I'm from Local 1948.  And I'm going to

    25    go ahead and bring up something that's important

                                                                         109

     1    to me.  We have in here persons performing


     2    safety-sensitive job duties.  Down here towards

     3    where the last paragraph it says "general

     4    administration and clerical personnel are not

     5    considered to perform safety-sensitive job


     6    duties."

     7                Up in the next column it says

     8    "safety-sensitive job duties, any type of work


     9    activity where a momentary lapse of critical

    10    concentration could result in an accident,

    11    injury, or death."  The CO men, I would really

    12    like to know where he's going to fall in.  Is he


    13    going to fall in under general administrative or

    14    the clerical part?  Because if this man has a

    15    lapse in concentration, if something happens on


    16    the coal mines, you're talking about eery man in

    17    the coal mine is going to be in jeopardy because

    18    they have no outside communication except for the

    19    CO man.


    20                MS. SILVEY:  Okay, I appreciate what

    21    you're saying.  

    22                MR. SICKLES:  You appreciate what I'm


    23    saying?

    24                MS. SILVEY:  I understand your

    25    comment with respect to the CO man as you said. 

                                                                         110

     1    The CO, the person, the AMS operator, that person


     2    has to go underground sometimes, doesn't he?

     3                MR. SICKLES:  No, ma'am.

     4                MS. SILVEY:  Not at all?

     5                MR. SICKLES:  No.  


     6                MS. SILVEY:  Okay, he doesn't have to

     7    go underground, but he's required to take

     8    comprehensive training under 48, isn't he?


     9                He would be --

    10                MR. SICKLES:  I'm looking around for

    11    an answer.  Yes.

    12                MS. SILVEY:  He would be.  I'm sure


    13    he would be, so if he's required to take part 48

    14    training, then he's considered to perform safety-

    15    sensitive job duties.


    16                MR. SICKLES:  Okay.

    17                MS. SILVEY:  You helped me figure out

    18    the answer to that question.

    19                MR. SICKLES:  Okay.  I want to go to


    20    Section 66402.  And it's about the MRO.  I want

    21    to pick this paragraph out.  It says "it is not

    22    the intent of this provision to have the MRO


    23    determine whether the use of a given substance is

    24    compatible with the performance of a safety-

    25    sensitive job duty as this is a determination

                                                                         111

     1    that is best made by the miner's position."


     2                What I'm trying to figure out is what

     3    would be the MRO's job to conduct an interview of

     4    me if my doctor has prescribed or a workman's

     5    comp doctor, either one, has prescribed a


     6    medication for me to take.

     7                MS. CARR:  I believe you're reading

     8    from the preamble and I think it does go on to


     9    describe in the rule text that the job of the

    10    medical review officer is to substantiate that

    11    you are, in fact, taking the medication as your

    12    physician has prescribed.  If you are taking it


    13    accordingly, it is not the job of the MRO to

    14    disqualify you.  He would report that back as a

    15    negative test result and you would continue


    16    performing your job functions and there would be

    17    no adverse action.  That's the role of the

    18    medical review officer.

    19                MR. SICKLES:  The other part of this


    20    that worries me, it says "it is not the intent" -

    21    - well, it wasn't the intent of these

    22    pharmaceutical companies to make drugs that


    23    people abuse.  It wasn't the intent of Budweiser

    24    to make a bunch of drunks.  But some of these

    25    companies, it will be their intent to use this to

                                                                         112

     1    get rid of hurt miners.  And I say hurt miner --


     2    I'm not an old miner.  I'm 35 years old with a

     3    back problem.  Sometimes I have to take drugs to

     4    be able to make it through a shift of work.  Not

     5    all the time, but there are some miners down


     6    there that could not work and they'd be sent to

     7    the house with no pay, not way to support their

     8    families.  I believe Mr. Grady touched on that a


     9    while ago.

    10                And then that's what the intent part

    11    of it means.  Well, they don't a lot of things

    12    intend to happen, but I would like to see


    13    something that says it will not happen.  You

    14    can't let a company or anybody else say that

    15    well, you're taking this prescription and


    16    whatever level it is, because I mean when you go

    17    in the levels, I see back here where -- it's go

    18    standards like 300 and 200 and 100 and all that. 

    19    Well, up in the paragraph it said it's going to


    20    be each individual case required.  It will be

    21    individual analysis.  Well, you got a man that's

    22    150 man.  You got a man like me who's 270 pounds. 


    23    Yes, stuff is going to affect differently.  Who

    24    is going to pay this man or me if they send me to

    25    the house and say well, you got 310 in your

                                                                         113

     1    system.  Who's going to pay for that? 


     2                Being lost time, lost work time for

     3    the employee?

     4                (Pause.)

     5                I couldn't find anything in there


     6    where there would be any pay for you.  You'd just

     7    be sitting at the house until somebody makes a

     8    decision.


     9                MS. SILVEY:  I think under the rule

    10    that's all determining -- a determination of the

    11    -- of the situation of the particular operator. 

    12    That's what I'm trying to say.  Whatever is in


    13    place at your mine, what is governed by

    14    collective bargaining or not, whether you're

    15    under collective bargaining.  I know that some


    16    operations are.  I mean you all said -- I know

    17    that.  You spoke about it this morning.  Some

    18    mine operations are not.  But it would be

    19    governed by the requirements at the mine.


    20                MR. SICKLES:  Okay, this is leading

    21    into this.  If this does go through and pass,

    22    like it stands, well then what you're talking


    23    about it will be going to arbitration.  And I

    24    know some people at our mines that was off three,

    25    four, five months.  I know one man he won his

                                                                         114

     1    case and he got a big chunk of money, but who was


     2    his light bills and buying him groceries for them

     3    kids up until that point?  That's what I'm

     4    getting at.  Whether it's right or wrong, I

     5    believe in drug testing.  I honestly do.  Every


     6    industry needs it, but the word "intent" or

     7    "intended" -- a lot of this is not intended to

     8    hurt anybody.  It's to help make everybody safer,


     9    but you've got companies and other things that

    10    are -- they're finding that there's a way to get

    11    rid of people.  That's what I'm saying . So the

    12    drug policy at Drummond Coal Company right now,


    13    it's pretty much zero tolerance.  If you're

    14    caught with illicit drug and you haven't come to

    15    them with help and you need help beforehand,


    16    you're gone.  You're terminated.

    17                I feel like we've got a good policy

    18    down here.  I just really feel in my heart if

    19    this right here is implemented on us down there


    20    it's going to be -- it'll be used as misintent

    21    for us, rather than help us and that's all I got

    22    to say.


    23                MS. SILVEY:  Okay.  Thank you very

    24    much.

    25                MR. SICKLES:  Thank you.

                                                                         115

     1                MS. SILVEY:  Our next speaker -- will


     2    the next speaker in Birmingham come to the mic

     3    please and state your name and spell it for the

     4    reporter?

     5                MR. TURNER:  It's Larry Turner, L-A-


     6    R-R-Y T-U-R-N-E-R.  Local 2245.  Safety Committee

     7    Chairman.

     8                Ms. Silvey, first of all I want to


     9    say that we all do love you here in Birmingham.

    10                MS. SILVEY:  Thank you.  I love you

    11    too.

    12                MR. TURNER:  I'd like you to give Mr.


    13    Stickler a notice for us that we would like for

    14    these meetings to resume on a face-to-face basis

    15    because we think we're important enough to be


    16    heard on a face-to-face basis where I can express

    17    my concerns to you and your panel instead of

    18    doing it over a teleconference.  And I have

    19    written that to Mr. Stickler and you can give him


    20    that message personally.

    21                MS. SILVEY:  Okay.

    22                MR. TURNER:  I'm looking across the


    23    room and I see a lot of my union brothers.  I see

    24    several company officials here.  People are

    25    concerned about drugs in the workforce, but I'm

                                                                         116

     1    going to tell you something personally.  What I


     2    don't want is the U.S. Government in my life any

     3    more than they already are.  You take more of my

     4    money, not you personally, but your Government

     5    and your Agency rule my life and take more from


     6    me than I'm willing to give you.  I think I'm

     7    speaking for a lot of people here.

     8                What I don't see, Ms. Silvey, is I


     9    don't see any nonunion brothers here.  It is my

    10    right as a union official and a union-paying

    11    official to come to this microphone, but eery

    12    time that I am allowed to come and testify before


    13    you and other committees about other issues that

    14    we have, belt air and escape ways and things like

    15    that, one thing that I'm reminded of that I don't


    16    see my union, nonunion brothers come to the

    17    microphone.  That's because if they come to this

    18    microphone they probably will not have a job when

    19    they return tomorrow.  But I do as a United Mine


    20    Worker have the right to come and speak to you

    21    and go and face my employer tomorrow and still

    22    have my job.  I'm proud of that.  I'm proud of


    23    that heritage and I'm proud that I do pay my

    24    union dues and it does give me the right to speak

    25    before you and an audience.

                                                                         117

     1                You are the contact person right now


     2    so we are laying a lot of this on you.  I think

     3    that the Government is opening a can of worms, as

     4    my grandfather used to say, that you cannot

     5    control.  This can of worms that you're about to


     6    open and try to implement on me as a miner and my

     7    brothers that I represent has so many holes and

     8    so many avenues that the salary people that


     9    control our mines that can implement programs on

    10    me and my brothers that I cannot fight against. 

    11    So you have to be considerate of my wages and my

    12    family and my brothers and sisters that I


    13    represent to make sure even though we do not want

    14    drugs or alcohol in our mines.  The United Mine

    15    Workers stands firm on that.


    16                If any of my nonunion brothers could

    17    come to the microphone they would feel the same

    18    way.  I don't believe that you have proved as an

    19    Agency that drugs and alcohol are a contributor


    20    to most accidents in the mines.  I do not feel

    21    that your Agency has proved that drugs and

    22    alcohol is a driven contributor to any problem,


    23    to any disaster, in coal mines.  The disasters

    24    recently that we've had in our mines and in our

    25    country, I have not seen any documentation that

                                                                         118

     1    has been proven that drugs and alcohol has been


     2    the problem in those disasters.

     3                We have some of the best mine

     4    inspectors I think in the nation in Birmingham or

     5    in the Alabama area, but they are very limited to


     6    the resources and to the things that they can do

     7    in our underground coal mines.  We have problems

     8    that some of our brothers have already brought


     9    forth to you, diesel and dust.  The dust problems

    10    in our mines, if you look at some of your own

    11    Agency's results that are black lung is on the

    12    uprise.  Nobody wants to talk about black lung


    13    anymore.  Our black lung registrations and

    14    regulatory rules are out of date.  The dust now

    15    generated in our mines is much smaller and much


    16    finer than when those rules were implemented

    17    years ago.  So that's why I think and feel that

    18    things like this money that you're trying to

    19    spend on trying to rule the way that my doctor


    20    prescribes my medicines and my doctor prescribes

    21    the way I can work under any kind of influence

    22    that he gives me or any drug that he gives me, I


    23    think this money can be implemented to do other

    24    training to some of your local inspectors on

    25    diesel regs and dust regs and things like that

                                                                         119

     1    that control and affect my life directly.


     2                I am very much opposed to you and

     3    your Agency trying to implement a drug program

     4    that's going to drive me out of the mines and

     5    give the company people, whether it be a woman or


     6    a man, give them the ability to look at my

     7    records and to achieve what they want because in

     8    my job as a safety committeeman I'm not very well


     9    liked sometimes.  I don't have the likability of

    10    some upper officials.  So you can take this

    11    format that you have written out and you can

    12    allow the people, the higher powers that may be


    13    to rule over me and to my doctor and I'm very

    14    much opposed to that. 

    15                So in closing, I would like to say


    16    please tell Mr. Stickler to spend this money in

    17    another area and in another place that affects me

    18    directly, immediately now.   Diesel regs, dust

    19    regs, and especially diesel regs in the State of


    20    Alabama are backwoodish and we're not backwood

    21    people any more.  We're United Mine Workers and

    22    we're proud to say we're United Mine Workers and


    23    those that have not yet joined the United Mine

    24    Workers I'm speaking for you as well.

    25                (Applause.)

                                                                         120

     1                MS. SILVEY:  Thank you, Mr. Turner. 


     2    We will -- hello?

     3                (Phone disconnected.)

     4                MS. SILVEY:  Okay, while we're

     5    getting Alabama back on the line, can we take a


     6    five minute break.  But five minutes.  That's it. 

     7    Just so the other locations know, we are going on

     8    a five-minute break.


     9                Is Alabama back?

    10                BIRMINGHAM:  It is.

    11                MS. SILVEY:  We won't take a break. 

    12    We were going to take a five-minute break.  If


    13    Alabama is back on the line, so we will continue

    14    with the hearing.

    15                Mr. Turner, thank you very much. 


    16    Just as you were going off and we were listening

    17    to all the clapping, we were disconnected.  So

    18    thanks for your comments.

    19                I will pass on your information to


    20    Mr. Stickler.

    21                Can the next speaker in Alabama come

    22    to the mic, please?


    23                (Pause.)

    24                Is the next speaker in Alabama.

    25                BIRMINGHAM:  There's one more to

                                                                         121

     1    come.  They've gone to get him.


     2                (Pause.)

     3                MS. SILVEY:  Do we have one more

     4    speaker in Alabama?

     5                BIRMINGHAM:  Yes, he's coming.


     6                MR. LEE:  Yes, I'm here.

     7                MS. SILVEY:  Okay, thank you.

     8                MR. LEE:  Are you ready?


     9                MS. SILVEY:  I'm ready.

    10                MR. LEE:  My name is Ray Lee.  I'm

    11    the president of Local 2397, Jim Walters No. 7

    12    mines in Brookwood, Alabama.


    13                MS. SILVEY:  Okay.

    14                MR. LEE:  I was just waiting.  I want

    15    to speak on behalf of my local myself and I know


    16    what kind of dealings we've had with the new drug

    17    policy that you all were trying to implement.  We

    18    already have a drug policy at our mines. 

    19    Preemployment is screened for drug usage.  If we


    20    have an accident or injured on the job we are

    21    scrutinized and taken to the hospital and are

    22    drug tested.  Plus if we have an excessive amount


    23    of absenteeism, we are also drug tested.  So in

    24    my view we have already got a system that is

    25    working well with us.  

                                                                         122

     1                The things that bother me right now


     2    with our new employees is coming in we've had an

     3    increase of black lung.  I think it needs to be

     4    more emphasis put on controlling dust in the

     5    mines.  We've also been having problems with --


     6    we've had cases of cancer in the mines now that I

     7    think it contributed to the dust particulates in

     8    the mines.  I think that we need -- MSHA needs to


     9    put more emphasis on dealing with these

    10    situations. 

    11                And another thing also that I'd like

    12    to make a comment on is the amount of hours.  I


    13    know that we signed a contract to work a certain

    14    amount of hours, but we're under a mandatory

    15    overtime which is about 60 to 70 hours a week.  A


    16    lot of our older miners are having to take --

    17    I've had 33 years myself in the mines and out of

    18    the 33 years, 30 years of that has been six days

    19    a week, 10 hours a day a lot of it, and 12 hours


    20    a day.  And a lot of the older miners have to

    21    take medication to be able to even work.  They're

    22    wore out.  And the U.S. Government regulates


    23    truck drivers to drive a certain amount of hours

    24    and they get rest.  There's no regulations for

    25    coal miners.

                                                                         123

     1                That's about all I've got.


     2                MS. SILVEY:  Okay, all right.  Thank

     3    you very much, Mr. Lee.

     4                MR. LEE:  Thank you.

     5                MS. SILVEY:  The next speaker in


     6    Alabama, can you come to the mic?  Or is that it?

     7                Anybody else in Alabama who wishes to

     8    testify?


     9                BIRMINGHAM:  Just a moment.

    10                MR. WILSON:  Thomas Wilson with UMWA

    11    International.

    12                MS. SILVEY:  How are you today?


    13                MR. WILSON:  I'm doing well.  And

    14    you?

    15                MS. SILVEY:  Doing pretty good too.


    16                MR. WILSON:  I'll start off by

    17    addressing the mannerism in which you're trying

    18    to hold public hearings.  

    19                We have previously commented on the


    20    mannerism and this still is a very ineffective

    21    way to have public hearings.  We've already

    22    experienced being disconnected twice today and


    23    we've also encountered miners showing up here and

    24    not being afforded written materials as to copies

    25    of the proposed rule.

                                                                         124

     1                If you look under the proposed rule


     2    66201, written policy, it clearly stats that mine

     3    operators are not required to distribute the

     4    policy to the miners.  As I just stated this is

     5    similar to how MSHA has treated in the miners in


     6    Birmingham this morning in that no copies of the

     7    proposed rule was provided.

     8                I don't agree with that in either


     9    situation.  Under the proposed rule miners should

    10    definitely be afforded a copy of the written

    11    policy.  That is the policy that's going to

    12    govern his work and possibility maintaining his


    13    employment and denying him a copy of it is just 

    14    -- makes no sense under this situation.

    15                I've listened to numerous miners


    16    testify this morning and I still believe there's

    17    a large lack of understanding of how deficient

    18    this proposal is on the miner's ability to

    19    identify a supervisor who is under the influence


    20    and needs to be tested.  There was some exchange

    21    earlier today and the record can speak for

    22    itself, but as I understood it, the expectation


    23    of those on the panel that it's quite a simple

    24    matter to, for the miner to just go and request

    25    that a supervisor be tested.  

                                                                         125

     1                What disturbs me is it sounds like


     2    the panel fails to understand what Congress

     3    understood in 1969 and again in 1977 in the

     4    formation of the Mine Health and Safety Act. 

     5    Congress clearly understood that miners were


     6    often being discriminated against for their acts

     7    for health and safety.  And it alarms me

     8    tremendously that this panel and this proposed


     9    rule seems to indicate that all that

    10    discrimination has simply gone away.  I submit to

    11    you that any miner under this proposal that

    12    identifies a supervisor that needs to be drug


    13    tested will cease to be a coal miner.

    14                The discrimination -- this proposal

    15    has done nothing to protect that miner in how he


    16    identifies a supervisor.  I believe that serious

    17    consideration needs to be placed on this and MSHA

    18    needs to rewrite this, not just training

    19    supervisors to identify and send miners off to be


    20    tested, but more importantly, give the miners an

    21    avenue for identifying a supervisor that not only

    22    causes that supervisor to be tested, but also in


    23    the same and equal sense protects that miner for

    24    reporting that supervisor out.

    25                I also believe that the proposal

                                                                         126

     1    falls short in that it doesn't address


     2    supervisors who distribute drugs and alcohol to

     3    their workers.  If MSHA is as serious about this

     4    problem as they claim to be, then we need a ban

     5    on any supervisor from working in the industry


     6    who distributes drugs or alcohol to his workers.

     7                I believe that is completely missing

     8    from your proposal.


     9                This proposal needs to address that

    10    within 24 hours of any mine disaster, all

    11    supervisory personnel starting with the CEO and

    12    extending down must be tested for drugs and


    13    alcohol.  

    14                I find that this proposal's

    15    suggestion that substance abuse professionals,


    16    SAP, is completely inappropriate and inadequate. 

    17    The proposal needs to be revised to include only

    18    mental health professionals.  

    19                I'm disturbed by the and you're


    20    welcome to correct me if I've overlooked it, but

    21    a very important term "under the influence" is

    22    not listed.  There's no definition of it.  It's


    23    totally missing from the proposal.

    24                On page 52145, Section 66202, I've

    25    just got a few things under 202 marked, but the

                                                                         127

     1    proposed required amount of time for this


     2    training would be 60 minutes for new hires and 30

     3    minutes annually for all nonsupervisor miners. 

     4    It goes on to state "MSHA is proposing" and this

     5    is in the third column, "MSHA is proposing that a


     6    minimum of two hours of initial training be

     7    provided to each supervisor with an additional

     8    one hour of training annually thereafter."


     9                Based on the amount of time that

    10    you're suggesting to train supervisors for

    11    identifying drug problems, that's not consistent

    12    with the preamble statement that there's a


    13    serious problem in the industry.

    14                Section 66202, education and

    15    awareness program for a nonsupervisory miner,


    16    both proposed amount of time for training, 60

    17    minutes for new hires and 30 minutes for all

    18    nonsupervisory miners is not adequate. 

    19    Additionally, this training should not be


    20    incorporated with MSHA existing training.  The

    21    UMWA has commented for years, proposed rule after

    22    proposed rule, that existing training sessions


    23    are full and that operators can not effectively

    24    cover the require topic.

    25                MSHA has never listened to and/or

                                                                         128

     1    addressed these comments.  If it is truly MSHA's


     2    goal to achieve zero accidents, then they must

     3    expand existing time dedicated to training.  

     4                Section 66203, training program for

     5    supervisors.  Both proposed amount of time for


     6    training, two hours for initial training and one

     7    hour for training annually is not adequate.  It

     8    is my belief that the initial should be no less


     9    than eight hours, followed by at least two hours

    10    of training annually.  In language under proposed

    11    Section 66203 demonstrate that MSHA is not

    12    interested in identifying problems that exist


    13    with supervisors.  Miners and miners'

    14    representatives must be properly trained by the

    15    operator to identify abuse among supervisors.


    16                Additionally, this rule needs to be

    17    revised and must address the termination from the

    18    industry of any supervisor who distributes

    19    alcohol or drugs to employees.  


    20                (Pause.)

    21                With that I'll take any questions.

    22                MS. SILVEY:  Okay, thank you.  I just


    23    have a couple of comments.

    24                The first comment is and some of

    25    these are reiteration of some of my earlier

                                                                         129

     1    comments is that first of all on your comment


     2    about the miners being provided a copy of the

     3    written policy, first of all, before I get to it,

     4    I think the rule specifically says that the mine

     5    operator must ensure that every miner who is


     6    informed of the policy and is provided a written

     7    copy of the policy to the miner's representative

     8    and posted on the mine bulletin board, if the


     9    miner does not have a representative.  So the

    10    rule provides that.

    11                We agree with you that the miners

    12    should be provided on the written policy.


    13                MR. WILSON:  Okay.

    14                MS. SILVEY:  The second point is --

    15                MR. WILSON:  Ms. Silvey?


    16                MS. SILVEY:  Yes, sir.

    17                MR. WILSON:  That doesn't address my

    18    first point.  My point was that the miner himself

    19    or herself deserves a copy of the policy.


    20                MS. SILVEY:  Okay, the miner --

    21                MR. WILSON:  Not the miner's

    22    representative or posted on a bulletin board.


    23                MS. SILVEY:  Okay, all right, duly

    24    noted.  Thank you.

    25                The next point is and I'm reiterating

                                                                         130

     1    this.  With respect to the training and I think


     2    the only thing that we could do to make it

     3    clearer, I have continuously said that this

     4    training was not to be -- I'm using your term

     5    now, I may not be using yours, Mr. Wilson, I'm


     6    using somebody else's.  This training is not to

     7    be crammed into part 48.  This training is to be

     8    in addition to part 48, but we said it could be


     9    integrated into the part 48 training, but it had

    10    to be on top, in addition, had to be additional 

    11    time.

    12                I think the only thing we can do to


    13    make it clearer would be to put it in to make it

    14    part of 66295 and I just made up 295.  I don't

    15    know if something here is 295 or not.  But what


    16    I'm saying is the only thing that we could do to

    17    make it clearer that we are talking about

    18    additional time, not time within what the

    19    existing part 48 is now which would be consistent


    20    with exactly what you are saying would be to

    21    include it in this part so that you could see

    22    that is separate because we do say that it has to


    23    be additional time.

    24                Now with respect to your comment on

    25    impairment, your comment is that we have no

                                                                         131

     1    definition for impairment.  I'm sorry, I said


     2    impairment because that's in mind.  "Under the

     3    influence."

     4                We used "under the influence" -- we

     5    talked about being under the influence or


     6    impaired.  For an example, with respect to

     7    alcohol and we talked about that by talking about

     8    having a verifiable blood alcohol concentration


     9    of .04.  We talked about it as being under the

    10    influence of another -- of a prohibited substance

    11    as defined and there we incorporated the

    12    Department of Transportation.  But with respect


    13    to a specific definition, we will take into

    14    consideration your comment on a specific

    15    definition.


    16                And your comments on training, we

    17    heard those before and we appreciate what you

    18    said.  I don't think I have any other comments.

    19                Thank you.  


    20                I take it then that with Mr. Wilson,

    21    that's it from Birmingham, at least at this time?

    22                BIRMINGHAM:  No, there's more.


    23                MS. SILVEY:  Oh, okay.  The next

    24    speaker from Birmingham?

    25                MS. FARR:  My name is Chastity Farr. 

                                                                         132

     1    I'm from 4522, Jim Walter.  I would like to ask


     2    you one question.

     3                MS. SILVEY:  Would you state your

     4    name again, please?

     5                MS. FARR:  Chastity Farr, C-H-A-S-I-


     6    T-Y F-A-R-R.

     7                MS. SILVEY:  Okay, thank you.

     8                MS. FARR:  Anybody over there


     9    listening to us on the intercom would any of you

    10    be willing to hand your medical records over to

    11    your boss?

    12                MS. SILVEY:  Okay, thank you.


    13                MS. FARR:  That was a question.  That

    14    wasn't a statement.

    15                MS. SILVEY:  That question was asked


    16    earlier and I answered it to the best of my

    17    ability, that sometimes --

    18                MS. FARR:  Can you say it for me

    19    again because I must have missed it.


    20                MS. SILVEY:  Sometimes medical

    21    records are required in the course of employment

    22    in a variety of situations.  It's a case-by-case


    23    basis and you can't answer that without a proper

    24    context --

    25                MS. FARR:  Put it in a context like

                                                                         133

     1    this.  All of us are already employed by the


     2    mines.  We were not asked for our medical jobs to

     3    get these jobs.  Why should we have to give them

     4    our medical records to keep our jobs?

     5                MS. SILVEY:  I didn't -- what did you


     6    just say?

     7                MS. FARR:  When we were hired on at

     8    these mines, we were not asked for our medical


     9    records, so why should we have to give them our

    10    medical records to keep our jobs?

    11                MS. SILVEY:  It depends.  That's why

    12    I said it depends on the context.  So this is --


    13    we're talking about here if in the context of

    14    whether the employee has to take a drug test. 

    15    Sometimes certain medical information is


    16    necessary, but whenever, as I stated when I was

    17    talking to the gentleman this morning, whenever

    18    medical records are required by the employer

    19    there are a number of existing requirements with


    20    respect to privacy and confidentiality.  And the

    21    employer has to comply, must comply with those.

    22                MS. FARR:  Okay, apparently you don't


    23    know too much about UMWA and the company.  The

    24    company has a way to manipulate the system, to

    25    manipulate the laws to where they want to get rid

                                                                         134

     1    of anybody that might cause a little bit of


     2    trouble that they don't agree with in that mine. 

     3    Now what is going to protect us from losing our

     4    jobs because we're speaking out against our

     5    rights?


     6                MS. SILVEY:  The only thing I can say

     7    to that is I will restate the fact that the

     8    companies must comply with the existing


     9    requirements related to privacy and

    10    confidentiality.  In all cases, companies must

    11    comply with that.

    12                MS. FARR:  Thank you.


    13                MS. SILVEY:  Thank you.  The next

    14    speaker in Birmingham, would you please come to

    15    the mic and state your name and spell your name


    16    for the reporter?

    17                BIRMINGHAM:  He's coming.

    18                MR. BRUCE:  Yes, the name is Patton

    19    Bruce, like General Patton from Local 2397.


    20                My question pretty much the same as

    21    what she said, you're saying that you're going to

    22    classify that you can bag this up.  Is there any


    23    way you're going to put down a written thing to

    24    guarantee us that the company will follow the

    25    rules?

                                                                         135

     1                MS. SILVEY:  You are asking me am I


     2    going to guarantee.  I'm going to tell you what

     3    the companies must do.  I mean --

     4                MR. BRUCE:  What I'm saying is there

     5    a way just like you're telling us that we have to


     6    follow it, can you guarantee that the company has

     7    to follow what you're saying?

     8                If you want us to do it, then you've


     9    got make sure that the companies do their part.

    10                MS. SILVEY:  The companies -- there

    11    are rules that the companies must follow if

    12    they're going to do drug testing.  When it comes


    13    to -- first of all, when it comes to the drug

    14    test itself, the results, if it's any other

    15    medical information, the companies must maintain,


    16    as I said earlier and I'll say it right now,

    17    privacy and confidentiality and that's my answer

    18    to you.

    19                MR. BRUCE:  I understand that, but


    20    that still doesn't tell me if you're guaranteeing

    21    it that they're going to do their part.  I mean

    22    it's buddy-buddy under the table thinking also


    23    affected.

    24                MS. SILVEY:  I can only -- what I can

    25    tell you today is what the companies have to do

                                                                         136

     1    in accordance with the law.


     2                MR. BRUCE:  So you're still saying

     3    that you can't guarantee that they're going to

     4    abide by and make them enforce what they're

     5    saying?  You've got to be somebody who's got to


     6    be accountable for what they're doing.  So now

     7    you're making us accountable to follow the rules,

     8    but you still telling me that you can't make the


     9    company accountable to follow the rules?

    10                MS. SILVEY:  We're all accountable

    11    for what we have to do.

    12                MR. BRUCE:  But you're not telling me


    13    the company is going to abide by the rules.

    14                MS. SILVEY:  You're asking me could I

    15    guarantee, didn't you?


    16                MR. BRUCE:  Can't you guarantee this?

    17                MS. SILVEY:  If you had asked me can

    18    I state to you that the companies will follow the

    19    rules I can answer yes to that.  You asked me


    20    could I guarantee.  I mean I've lived in this

    21    world long enough that there are no guarantees to

    22    anything.  And you probably know that yourself.


    23                So you put it in the terms of can I

    24    guarantee, but I'm telling you that the companies

    25    have to follow the requirements and

                                                                         137

     1    hypothetically, whatever requirements are in this


     2    rule, whatever requirements are in the Department

     3    of Transportation rules, whatever requirements

     4    related to drug testing are in the Department of 

     5    Health and Human Services rules, they have to --


     6    because we use the context of those three rules

     7    in our proposal.  They have to follow those

     8    requirements.  And that's what I can say to you


     9    with a given certainty.

    10                MR. BRUCE:  We will see.

    11                MS. SILVEY:  Okay, thank you.  Next

    12    speaker in Birmingham?


    13                BIRMINGHAM:  Is there anybody else? 

    14    Yes, we have one coming up.

    15                MS. SILVEY:  Yes ,sir.


    16                MR. BLANKENSHIP:  Good morning.

    17                MS. SILVEY:  Good morning. 

    18    Afternoon.

    19                MR. BLANKENSHIP:  It's morning in


    20    Alabama.

    21                MS. SILVEY:  That's right, it's

    22    morning in Alabama.


    23                MR. BLANKENSHIP:  Yes, ma'am.  James

    24    Blankenship, B-L-A-N-K-E-N-S-H-I-P.

    25                MS. SILVEY:  How are you doing?

                                                                         138

     1                MR. BLANKENSHIP:  Just fine.  How are


     2    you doling?  Local 2245, United Mine Workers.

     3                On page 52145, on the bottom it talks

     4    about -- they left up with a company who they

     5    were trained to observe and direct the work force


     6    of activities, opportunities to discover reasons

     7    to suspect the miners misusing substances.

     8                Nowhere could I find in there that


     9    allowed me, as a miner to take any action when I

    10    felt that supervisor also was misusing

    11    substances.  And I think that's one-sided.  I

    12    think if you really did the research of who does


    13    drugs in the coal mines, and who does alcohol,

    14    you'll find that supervisors are probably a

    15    higher number than the miners are.


    16                And there needs to be some avenue for

    17    me, as a minor to have to go to someone and say

    18    this gentleman or this lady is I suspect misusing

    19    drugs or alcohol, but without any recourse to


    20    come back on me from management or that

    21    supervisor.

    22                I also in reading this, I don't find


    23    where the upper echelon management is going to be

    24    tested.  I know Jim Walter Resources, George

    25    Richmond is our vice president in charge of

                                                                         139

     1    resources department.  Every decision he makes


     2    affects No. 4 mines.  Our mine manager, Keith

     3    Shelby, every decision he makes affects the

     4    minors on the ground.

     5                We don't have any say so in the


     6    equipment they buy.  We don't have any say so in

     7    the parts or supplies they buy, whether inferior

     8    and they fail and cause us to get hurt and then


     9    we want to be drug tested because they think it's

    10    our fault. 

    11                I'll give you a good example.  They

    12    bought a dual headed roof bolter at No. 4 mines. 


    13    Had more pinch points in it than you could shake

    14    a stick at.  Keith Shelby, my manager, has three

    15    fingers right now he can't use because he was


    16    watching the bolted work and got his hand in a

    17    pinch point and got it mashed.  That wasn't the

    18    miners' fault.  We don't buy that equipment.  We

    19    have no say so in that equipment.


    20                So I suggest that in this proposal

    21    you test everybody from the headquarters in

    22    Tampa, Florida, to the CMO office in Brookwood,


    23    to the secretaries to the vendors, to the guy

    24    that fills up the Coca-Cola machine.  If they

    25    bring in vendors, test them.  If they bring in

                                                                         140

     1    salesmen, test them.  If they bring in service


     2    reps, test them.  If they bring in these high

     3    fallutin' visitors, test them, because going on

     4    that property they've got access to the minors

     5    and they could possibly cause an injury.


     6                So if you're going to test me as a

     7    miner, you need to test everybody.  I think it's

     8    one-sided.  I think there's things that MSHA


     9    could be doing that's more safety-wise for the

    10    miners. We've got people working 10 hours a day,

    11    6 days a week.  Some days 12 hours before they

    12    can get out of the mines.  I think fatigue is a


    13    lot of the problems of accidents, not drugs and

    14    alcohol.

    15                Diesel emissions, there are studies


    16    done that diesel emissions and truck drivers have

    17    a higher rate of cancer than the normal every day

    18    public.  They did that study and found out it was

    19    diesel emissions. Now they're in the open, out in


    20    the atmosphere driving.  We're in a captive area

    21    underground where our breathable air is brought

    22    in to us and the oxygen goes out.  So I think


    23    money would be well more served in doing more

    24    testing on emissions.  I know at No. 4 mines

    25    we've got a lot of people that's come up with

                                                                         141

     1    cancer, a higher number than normal community. 


     2    My personal opinion is the diesel emissions.

     3                MSHA standards are diesel emissions

     4    is ridiculous.  I mean there's a lot better

     5    emissions.  State of West Virginia has a lot


     6    better program and they do stuff that they more

     7    serve the miners underground it's more safety. 

     8    And with that I'll answer any question you've


     9    got.

    10                MS. SILVEY:  Okay.  I don't have

    11    anything.  Thank you very much for your comments.

    12                MR. BLANKENSHIP:  Thank you.


    13                MS. SILVEY:  Thank you.  Any other

    14    speaker in Alabama?

    15                BIRMINGHAM:  Yes, there's one


    16    gentleman approaching the microphone.

    17                MS. SILVEY:  Okay, thank you.

    18                (Pause.)

    19                MR. STEVENS:  Good morning.  My name


    20    is Terrell Stevens, S-T-E-V-E-N-S, Local 1867,

    21    construction.

    22                In regards to also what Mr.


    23    Blankenship just said about having supervisors

    24    tested, I've worked under several supervisors

    25    that was drug abusers, alcohol abusers, and we

                                                                         142

     1    had to follow the rules.  We talked about it. 


     2    Nothing ever came down unless they really, really

     3    messed up.  And as you said this is a one-sided

     4    testing program that should cover everybody, not

     5    just -- we're all for a drug and alcohol-free


     6    environment.  But we also wish that all people,

     7    supervisors included, would be covered in any

     8    kind of drug testing that happens.


     9                Thank you.

    10                MS. SILVEY:  Okay, thank you. 

    11    Anybody else in Alabama?

    12                BIRMINGHAM:  That looks like it's it


    13    for Alabama right now.

    14                MS. SILVEY:  Okay, you all hold on

    15    because I'll be back to each location that I


    16    leave, I'll be back there.  So right now we'll go

    17    to Virginia, Minnesota.

    18                Is Virginia Minnesota on the line?

    19                VIRGINIA:  Yes, we are.


    20                MS. SILVEY:  Okay, would the speakers

    21    in Virginia, Minnesota, the first speaker I have

    22    is Ron Lovel.  So I'm asking you just let the


    23    speakers in Virginia, Minnesota come to the mic

    24    and state their name, spell the name for the

    25    reporter and we're going to go like that.  Nobody

                                                                         143

     1    needs to do anything else.


     2                Mr. Lovel, are you there?

     3                VIRGINIA:  He's here.

     4                MR. LOVEL:  Good morning, Ron

     5    Lovel.


     6                MS. SILVEY:  How are you?

     7                MR. LOVEL:  I'm fine this morning.

     8                MS. SILVEY:  Good.


     9                MR. LOVEL:  I'm representing United

    10    Steel Workers 4950.  We have the iron mines of

    11    Upper Michigan and I want to spend my best

    12    regards to my brothers in the UMWA working coal


    13    down south.

    14                I want to speak to this issue on the

    15    policy today that I feel very strongly that there


    16    really isn't a good reason for this regulation to

    17    be issued.

    18                Just as many of the other speakers

    19    have mentioned, we have had a long term


    20    established drug policy in our mines and although

    21    it's not a policy that the union was involved in

    22    negotiating with the company, it was a unilateral


    23    implementation of a policy.  Nonetheless, it

    24    seems to be doing the job and I'm not aware of

    25    any problems that we're having.

                                                                         144

     1                At the outset of the implementation


     2    of this drug policy some years back, there was

     3    very limited reasons that a person wouldn't get

     4    tested.  If you sneezed the wrong way, you would

     5    find yourself getting a drug test and when the


     6    company exhausted all of this excessive testing

     7    and finally realized that they were spending a

     8    lot of money on useless testing and we're finding


     9    that we had a whole workforce full of abusers

    10    that slowly kind of backed up to the point where

    11    we're at today where there's very limited drug

    12    testing done.  No random testing other than for


    13    persons who may have been identified with an

    14    abuse problem previously.

    15                All I can see is what this proposal


    16    change does is just provide for mandated random

    17    testing and frankly, it appears that the policy

    18    really was written more than company CEOs.  We

    19    had had a federal given to us and we're going


    20    back to the 1930s called the National Labor

    21    Relations Act and that allowed us to kind of get

    22    an even keel with organized labor to negotiate


    23    contractual bargaining agreements with companies

    24    and give us a little bit of a level playing

    25    field.

                                                                         145

     1                This policy right here, although it


     2    talks periodically throughout the policy about

     3    the company and/or labor groups negotiating

     4    things through a contractual bargaining

     5    agreement, if you read it closely the companies


     6    are given total license to do whatever they want

     7    to do with this policy.

     8                We will be in no position to be able


     9    to bargain anything.  We just completed

    10    bargaining here in Pittsburgh in late August. 

    11    That would have been an opportunity for us to

    12    bargain a meaningful drug policy that protected


    13    our membership, protected the rights to continue

    14    working in the event of false tests and other

    15    tests in the states that had been made.  So we


    16    will have no capability of negotiating anything

    17    meaningful in the bargaining area to help us out

    18    over this proposed rule.

    19                I don't want to belabor this whole


    20    thing.  Many people have gone on very good

    21    subjects and I don't really want to rehash them. 

    22    I know there's a lot of people that still want to


    23    talk.  But when you look at reasonable suspicion

    24    testing, I mean there are medical personnel,

    25    highly trained out there, police officers, EMTs,

                                                                         146

     1    and even they would have difficulty determining


     2    someone's specific problem when they're looking

     3    at them at a scene of an accident or whatever. 

     4    Is this person have an insulin reaction?  Are

     5    they diabetic?  Are they under the influence of


     6    drugs, narcotics?  And these are people that are

     7    highly trained.  They're not getting a two-hour

     8    training period subsequently followed by one hour


     9    annual to recognize.

    10                This rule has too many areas that

    11    open this whole are up to mischief on the part of

    12    an employer.  Frankly, my employer, although I


    13    don't have any of them present, I would think

    14    that they're not very excited about this.  They

    15    feel they probably have a workable drug program


    16    in place.  They don't need MSHA to come up with a

    17    specific rule that would actually take and make

    18    our program probably not work as well as it does

    19    now.


    20                With that, I want to conclude my

    21    comments and thank you.

    22                MS. SILVEY:  Thank you.  


    23                (Applause.)

    24                MS. SILVEY:  Thank you very much for

    25    your comments, Mr. LOVEL.  Is there anybody else

                                                                         147

     1    in Virginia, Minnesota, who wishes to present


     2    testimony?

     3                MR. MLAKAR: Yes.  This is David

     4    Mlakar with USWM.

     5                MS. SILVEY: Would you spell that?


     6                MR. MLAKAR: David Mlakar, spelled M-

     7    l-a-k-a-r.

     8                I'm with the USWM District Health an


     9    environmental adviser for the District.  First of

    10    all I want to thank you for allowing us to speak,

    11    but I really do oppose the way this is set up.  I

    12    prefer to have faces here that I could face and


    13    speak to directly.

    14                Secondly I vehemently oppose this

    15    drug and alcohol policy.  There are too many


    16    loopholes that give an employer too much power to

    17    harass the membership.  There were many good

    18    points that were made along the way by a lot of

    19    other people.  I'm not going to rehash all of it


    20    either. 

    21                The other thing is, there are fatigue

    22    factors that limit someone being on drugs.  We've


    23    had testimony already that people are working six

    24    hours, 16 hours, 10 hour, 12 hour shifts six days

    25    a week. 

                                                                         148

     1                If MSHA up to put their money into 


     2    something, I think they should be looking at

     3    regulation to regulate how long people can work. 

     4    I'm not saying that's the way, you know, to put a

     5    number on it, because people are different. 


     6                The thing is, what you're doing here

     7    is just regulation.  It's putting us at a great

     8    disadvantage. 


     9                Another place to look at, if you want

    10    to put your money where your mouth is and really

    11    do something for workers, people have brought up

    12    black lung and that, well, why don't we put the -


    13    go back in 1973, under 1973 threshold limit

    14    value.  Let's bring those up to standard, because

    15    there is a lot of information out there that


    16    could bring those up to where they're actually

    17    functioning to where they should be.  

    18                And we have asbestos standards that

    19    are way behind the times, and OSHA had an


    20    asbestos standard that was definitely over the

    21    limit. 

    22                So in conclusion I'd like to say that


    23    again I really oppose this policy, and I'd hope

    24    you'd reconsider, because we do have negotiating

    25    agreements.  We don't need the federal government

                                                                         149

     1    in this part. 


     2                Thank you. 

     3                MS. SILVEY: Thank you. 

     4                The next speaker, Mister - is there

     5    another speaker in Virginia, Minnesota?


     6                MR. TASSON: Yes, I'm here. 

     7                MS. SILVEY: Okay. 

     8                MR. TASSON: My name is John Tasson,


     9    T-a-s-s-o-n.  I'm a union safety representative

    10    for Local 4974 in upper Michigan. 

    11                And I have somewhat of a unique

    12    perspective to safety in the workplace because


    13    I'm also part of the safety department.  I'm

    14    involved with many aspects from corporate teams

    15    on down to right in the workplace.


    16                And my focus is solely to provide and

    17    safe and healthy workplace for our workers and

    18    keep them from being injured on the job. 

    19                We do have preemployment testing, and


    20    we do have a policy in place where people are

    21    evaluated using our checklist administered by two

    22    people.  I believe two people are betting than


    23    one to rule out some of the subjective in it. 

    24                That may or may not, depending on how

    25    that checklist plays out, send someone in for

                                                                         150

     1    random testing. 


     2                Our alcohol standard is already at

     3    0.02, twice as stringent as the UMSHA proposal. 

     4    This fits in with the policy we've had, tested

     5    upwards of 100 people and have had zero positive


     6    results. 

     7                Additionally I'm involved in weekly

     8    conference calls where all of our reportable all-


     9    serious-incidents-in-North-America are discussed,

    10    and never have drugs or alcohol been a factor. 

    11                Personally I find it to be

    12    substandard conditions, fatigue, equipment not


    13    being maintained properly, corporate procedures

    14    or training that turns out to be a root cause. 

    15    It has never been impaired employees. 


    16                So we do also have a successful EAP

    17    program that I happen to be a committee member of

    18    that does provide support for people that do have

    19    these issues. 


    20                Our established policies are working

    21    well.  There ha never been a demonstrated need

    22    for further government oversight in this area.  I


    23    find it hard to believe that my company would

    24    welcome this further oversight. 

    25                I'm concerned that these report

                                                                         151

     1    standards will drive reporting underground. 


     2    United mine operators, safety department and MSHA

     3    show relevant information that we need to address

     4    real safety issues.  

     5                Without a doubt that would be


     6    detrimental to our safety efforts overall.  I do

     7    believe that UMSHA should focus its resources on

     8    enforcing standards already in place - dust,


     9    noise, as reported black lung, all those things -

    10    and if you do have the resources to spend more

    11    inspectors in the field would give us a real

    12    benefit and immediate payback.


    13                That's all I have.

    14                MS. SILVEY: Okay, thank you very

    15    much.  Let me ask you just something for


    16    clarification.

    17                MR. TASSON: Could you repeat that?

    18                MS. SILVEY: Let me ask you something

    19    for clarification.  When you talked about your


    20    preemployment testing, and then you said

    21    something about using a checklist that is

    22    reviewed by two people.  Could you explain to me


    23    - I just didn't fully follow you there.

    24                MR. TASSON: Sure.  

    25                MS. SILVEY: Okay. 

                                                                         152

     1                MR. TASSON: Preemployment testing is


     2    a historical test before anybody gets hired.

     3                MS. SILVEY: Right. 

     4                MR. TASSON: The checklist, should

     5    there be an accident, and it doesn't have to be a


     6    serious accident virtually any accident.

     7                MS. SILVEY: Right.

     8                MR. TASSON: We have a checklist that


     9    two people from management go through.  And all

    10    the obvious things that would be on there.  They

    11    go through it as their checklist dictates.  If

    12    there is a cause for further evaluation then


    13    those people would be transported to a local

    14    hospital for testing. 

    15                MS. SILVEY: Okay, I got you now.  I


    16    understand. 

    17                MR. TASSON: Okay, all right. 

    18                MS. SILVEY: Thank you very much. 

    19                MR. TASSON: Thank you. 


    20                MS. SILVEY: Okay.  The next person in

    21    Minnesota?

    22                MR. NARHI: Hi.


    23                Ms. SILVEY: Hi.

    24                MR. NARHI: My name is Steve Narhi. 

    25    I'm a member of 4974.

                                                                         153

     1                MS. SILVEY: Your last name is what


     2    now?

     3                MR. NARHI: Steve Narhi, N-a-r-h-I.

     4                MS. SILVEY: Okay.

     5                MR. NARHI: I'm a member of 4974 out


     6    of Michigan. 

     7                I guess I kind of go along with what

     8    Ron and John have both just stated pretty much as


     9    far as the policies that we have in place right

    10    now I believe are more than enough.  They've

    11    shown that they produce good results, as far as

    12    our record at Michigan mines.  Everything has


    13    come out to be zero. 

    14                I also have a different perspective

    15    as far as anything that I've heard so far today


    16    as I was the first person to be drug tested in

    17    the Michigan mines between the Tilden and Empire

    18    mines. 

    19                A lot of these policies weren't in


    20    place at the time between the mines.  It was

    21    handled poorly to say the least.  There were a

    22    lot of the - I guess the confidentiality rules


    23    weren't followed.  I would hope to say that like

    24    you said earlier how it would be governed by MSHA

    25    that the company must follow these policies. 

                                                                         154

     1                It hurt my family, it hurt me, it


     2    hurt my career, to have this information let out

     3    ahead of time, and afterwards to people that had

     4    no business to this information. 

     5                I believe that this is not something


     6    that MSHA should be involved in period, other

     7    than the fact that these HIPPA laws and all these

     8    other privacy laws are being violated.


     9                I'm a trained EMT.  I've been one now

    10    for almost six years.  We have to go through

    11    extensive training to learn to define how people

    12    act, how people look, for alcohol abuse, or just


    13    behavioral problems. 

    14                We also are required by law, by the

    15    State of Michigan, to continue our education in


    16    this to learn to determine, you know, what

    17    requires a behavioral problem I guess. 

    18                I have my serious doubts that you are

    19    going to be able to train a supervisor in a short


    20    period of time to make an educated guess is what

    21    it's going to be as to whether this person has

    22    been drinking or if they have a serious medical


    23    problem. 

    24                This should all be confidential.  It

    25    shouldn't be the right of our supervisors to make

                                                                         155

     1    determinations as to whether or not we have a


     2    problem. 

     3                With our company we have a checklist. 

     4    If there is an accident, and it doesn't matter if

     5    it's minor or major, gallery personnel have to


     6    follow this checklist to try to make an informed

     7    decision as to whether or not we need to see a

     8    proper medical professional.


     9                I believe that MSHA - and here I'm

    10    outdated again - the drug policies should be left

    11    between the employers and the union; that this

    12    has been working fine.  I don't believe that the


    13    federal government needs to step in and do

    14    anything else. 

    15                That would be it.  Thank you. 


    16                MS. SILVEY: Okay, thank you very

    17    much. 

    18                MR. MALESKA: Good morning.  My name

    19    is Mike Maleska, M-a-l-e-s-k-a.  And I represent


    20    about 440 iron ore minors and their families.  

    21                And on their behalf we stand in

    22    opposition to the changes in MSHA drug and


    23    alcohol standards. 

    24                I take my position with the belief

    25    that these changes would worsen the abuses of

                                                                         156

     1    existing practices and procedures. 


     2                I'll be brief, but I brought two

     3    examples.  We had an equipment operator that was

     4    directed to operate his bulldozer in the area of

     5    a fire suppression systems building.  He asked


     6    the boss to locate to see if there was anything

     7    underground there and was told to go ahead and

     8    dig.  


     9                The dozer struck the underground

    10    electrical feeder supplying power to the building

    11    leaving the plant without fire protection for an

    12    extended period of time. 


    13                The operator was subjected to a drug

    14    and alcohol assessment nad the supervisor wasn't.

    15                A second example was, our local union


    16    president was in a telephone argument with a

    17    human resources manager.  A manager had diagnosed

    18    him over the telephone, and he too was subjected

    19    to a drug and alcohol testing. 


    20                Both of these tests returned non-

    21    positive.  These issues have been grieved, but

    22    there is no recognizable remedy for these types


    23    of abuses.  And yet they do serve to insult and

    24    intimidate our workers, our committee persons and

    25    union officers. 

                                                                         157

     1                I ask you why would we support an


     2    expansion of management tools to abuse workers? 

     3    What hurts and kills miners is poor work

     4    conditions, equipment failures, and lots of other

     5    things including bad judgments on the parts of


     6    management and supervision. 

     7                Thanks for the opportunity.

     8                MS. SILVEY: Thank you, sir.  And what


     9    did you say your last name was, please?

    10                MR. MALESKA: Maleska.

    11                MS. SILVEY: Could you spell that,

    12    please?


    13                MR. MALESKA: Yes, M-a-l-e-s-k-a.

    14                MS. SILVEY: Okay, thank you very

    15    much, and thank you for your comment.


    16                MR. SAARINEN: Good morning. 

    17                MS. SILVEY: Good morning. 

    18                MR. SAARINEN: My name is Glenn

    19    Saarinen, G-l-e-n-n S-a-a-r-i-n-e-n.


    20                I'm a member of Local 2705 union of

    21    steelworkers.  I'm union training coordinator. 

    22                One comment and one question.  The


    23    comment I really am concerned about is the lack

    24    of detail on how mine operators would deal with

    25    contractors. 

                                                                         158

     1                Our facilities right now, a large


     2    percentage of our people working in our mines are

     3    contractors, and I really don't feel that it

     4    deals with them and their obligation for drug and

     5    alcohol testing.  


     6                That's my comment. 

     7                My question is, and I'm sure you've

     8    heard this many times, there is definitely


     9    concern about our workers' fears of the testing

    10    being abused and used for harassment. 

    11                My question is, will MSHA respond to

    12    complaints by miners as to abuses and


    13    discrimination that will result from the

    14    implementation of this policy?

    15                I guess I'm asking is MSHA prepared


    16    to punish a mine operator for improper

    17    application of reasonable suspicion?

    18                That is my question.

    19                MS. SILVEY: Okay.  Well, the - all of


    20    the existing rules and regulations applicable

    21    under the Mine Act would pertain under this rule

    22    if - under the proposed rule.  And so if a miner


    23    felt discriminated against, the miner would file

    24    a discrimination complaint.  And then MSHA would

    25    investigate the complaint. 

                                                                         159

     1                So that would follow that


     2    discrimination complaint procedure.

     3                MR. SAARINEN: Okay, thank you. 

     4                MS. SILVEY: Okay, thank you. 

     5                Next speaker?


     6                MR. WOODS: Hello, my name is Mike

     7    Woods, W-o-o-d-s. 

     8                I'm a member of Local 1938, and an


     9    employee of U.S. Steel. 

    10                I'm also here to oppose the proposed

    11    legislation and change it.  We have currently

    12    with our company, between the union and the


    13    company we bargained a drug-and-alcohol policy. 

    14    It's a for-cause policy. 

    15                And even at that the company has


    16    tried to use it as a random testing policy. 

    17    There goal has been to intimidate the people for

    18    speaking their opinion.  They've had people sent

    19    out for voicing their opinion in a grievance


    20    hearing, for being upset because a manager

    21    instructed somebody to remove a safety lock. 

    22                Somebody reporting an accident, it


    23    could be something minor like a scratch, and the

    24    end result is, we've got people up here that tell

    25    us constantly that they will not report another

                                                                         160

     1    accident unless you are hauling them out in an


     2    ambulance.  That is completely counterproductive

     3    to I think any of the goals that we as

     4    steelworkers or any other union member, as

     5    employees of a union, it's totally against - we


     6    can't improve anything if we don't know what's

     7    happened.  And if people aren't going to put

     8    forth the effort to let us know, how are we going


     9    to address the hazard?

    10                Trust is, we learn every time there

    11    is an accident there is something that can be

    12    learned from it, no matter how minor it is. 


    13                I don't believe that we need the

    14    federal government to address an alcohol and drug

    15    problem.  I don't believe that we have an alcohol


    16    and drug problem in our plants.  Out of probably

    17    60 tests that we had over a four-month period,

    18    there was one positive test which was a for-cause

    19    test.  It was determined to have a for-cause test


    20    because the manager did his job, he showed up in

    21    the morning, he spoke to the employees and he

    22    made sure that they were all fit for work. 


    23                I guess I'm a firm believer, if it's

    24    not broke don't try to fix it.  We have lots of

    25    known hazards already in the plant, that you

                                                                         161

     1    could talk to a lot of their inspectors and see


     2    from their reports, there's a lot of things. 

     3    There is dust exposure.  There is housekeeping

     4    problems.  There are things that the company

     5    doesn't ever try to address.  They will just time


     6    and again pay the fine. 

     7                At our plant alone we - U.S. Steel

     8    will pay probably between $1.5 and 2 million in


     9    fines a year just because they figure it into

    10    their budget; that's easier than correcting the

    11    problem. 

    12                I think that if there was an effort -


    13    if this effort was put forth and directed in the

    14    right way to make our plant safer, maybe in

    15    adding some more inspectors and providing these


    16    inspectors with the means to enforce the

    17    standards that are already in place, so that

    18    companies can't just pay the fine and let things

    19    go on. 


    20                The accidents that we have in our

    21    plants aren't because of drugs or alcohol. 

    22    They're because there are hazards there. 


    23                And I guess that's really all that I

    24    have. 

    25                MS. SILVEY: Okay, thank you, Mr.

                                                                         162

     1    Woods.  I guess the only thing I would say is


     2    that I think we agree with you that something can

     3    be learned from all accidents. 

     4                But thank you for your comment. 

     5                The next speaker, please.


     6                MR. JOHNSON: Yes, hello.  My name is

     7    Phillip Johnson, Local 2705.  And I'd like to

     8    thank you for giving us this opportunity to


     9    respond to this proposal. 

    10                And I guess no different than anybody

    11    else I've heard today, we are adamantly opposed

    12    to the MSHA getting involved in something that we


    13    have been involved in for the last 20-some years

    14    here. 

    15                I'm chairman of the Local 2705 used


    16    to be called human services, now it's the

    17    employee assistance program.  And also district

    18    chairman up at the mine.  And we have been

    19    working for many years, since about 1985, with


    20    problems with alcohol and drugs in the mines. 

    21                And we have established a really good

    22    relationship with the company and with the union


    23    people.  That's taken a lot of work.  And my

    24    feeling is, MSHA getting involved in this is

    25    going to probably do great harm to that program. 

                                                                         163

     1                And I think it's just going to create


     2    a lot of suspicion and hard feelings, and I

     3    really don't understand why MSHA is getting

     4    involved in it to tell the truth.  The company

     5    has spent a lot of time, money and effort getting


     6    the drug and alcohol policy established, and

     7    although it's not perfect, it is working quite

     8    well, and it's taken a lot of work on their part


     9    and on our part to get it to work well. 

    10                So that's my feelings anyway.  But I

    11    do appreciate you giving us an opportunity to

    12    speak to this. 


    13                MS. SILVEY: Okay, thank you. 

    14                Next speaker, please.

    15                MR. TOOLE: I'm David Toole, T-o-o-l-


    16    e.  I'm a member of Local 1938. 

    17                I'd like to start out by thanking you

    18    for the opportunity this morning.  I work with

    19    about 1,000 people at U.S. Steel Minntac, and I


    20    don't know of anybody in that plant that doesn't

    21    want an drug-and-alcohol-free work environment. 

    22                As a steelworker I have rights and


    23    privileges that I'm allowed because of that, and

    24    because of that we have a drug-and-alcohol policy

    25    at our plants already.  We don't need a new

                                                                         164

     1    policy; we just need to fix the policy we have.  


     2                There are problems with it that we

     3    have used here and there at times.  But it's the

     4    policy we have that we can work with. 

     5                And listening to everybody else here


     6    today they have policies at their plants already,

     7    so they don't need another one. 

     8                I also realized that not everybody


     9    has policies, and maybe there is a need for them. 

    10    But we have a policy, and we don't need another

    11    one. 

    12                I also agree with a lot of the other


    13    speakers earlier that maybe you need to take

    14    these resources that you putting into this policy

    15    and put them into other places to have more


    16    inspectors around to take care of the problems

    17    and fix the problems that we have in other areas,

    18    or also to fix - these long hours that people are

    19    being forced to work, and being threatened with


    20    discipline if they don't work these long hours. 

    21    I think MSHA needs to come up with a policy to

    22    fix those areas, and also the dust problems and


    23    guarding issues and housekeeping issues we have. 

    24                The company I work for already has a

    25    doctor on property, and he is bought and paid for

                                                                         165

     1    by that company.  He quotes the company line all


     2    the time.  He tries to downplay the issues that

     3    we bring in and talk to him about.  In an issue

     4    lately that I brought up to them, and they

     5    basically downplayed the whole issue.  Oh, it's


     6    not a big deal.  We've done testing on it.  You

     7    weren't exposed, this, that, the other thing.  I

     8    asked him to prove it, and he couldn't quote it,


     9    but he's quoting the company line.  And people

    10    don't tell that doctor lots of information

    11    because it's not any of his damn business what I

    12    have and what I do outside of their property. 


    13                The one question I have for you is,

    14    how is the random testing going to be done?

    15                MS. SILVEY: If I remember correctly


    16    the rule said that about - that there should be a

    17    minimum of 10 percent of the population at the

    18    mine selected for random testing, so a policy has

    19    to make sure that it has the program at the mine


    20    has to have at least 10 percent of the employees

    21    tested annually under the random testing policy.

    22                MR. TOOLE: So they - I'm sorry. 


    23                MS. SILVEY: So they would be

    24    designated every year.

    25                MR. TOOLE: So basically they could

                                                                         166

     1    come up and say, Dave Poole, you're a union


     2    member, you're a radical because you are a safety

     3    committee man, you are a grievance man, we are

     4    going to test you today just because of that?  Or

     5    is it going to be a policy where they're going to


     6    pick them out through their Social Security

     7    number, test those people, or a number, the last

     8    number of your employee number, do it that way? 


     9    Or is it not set up yet?  Or is it something that

    10    the union could have some say in if this comes

    11    into play?  

    12                MS. SILVEY: Well, the proposal


    13    requires that it be a random method, that it

    14    cover 10 percent.  Like I said, it has to be  a

    15    scientifically valid method.  So there probably


    16    could be a variety of ways, but it has to be

    17    under the proposal scientifically valid method

    18    such as random number table or computer-based

    19    random number generated.


    20                MR. TOOLE: Okay, that's all I have. 

    21    I don't think we need another policy.  But thank

    22    you for your time. 


    23                MS. SILVEY: Okay, thank you. 

    24                MR. TOOLE: That's all of our speakers

    25    from Virginia, Minnesota.

                                                                         167

     1                MS. SILVEY: That's all your speakers? 


     2    Well, I'll be back to you all before we close the

     3    hearing, if you all are going to continue to stay

     4    on the line.  

     5                Thank you all very much for your


     6    participation.

     7                We will now go to Beckley.  Is

     8    Beckley on the line?


     9                Okay, we are ready for Beckley.  It's

    10    Pat Brady, Murray Energy.  Are you there, Pat?

    11                MR. BRADY: Can you hear me?

    12                MS. SILVEY: I'm sorry, what did you


    13    say?

    14                MR. BRADY: Can you hear me now?

    15                MS. SILVEY: I can hear you.  I can


    16    hear you now. 

    17                MR. BRADY: First of all let me thank

    18    you for the opportunity to speak with you, Pat. 

    19    And listening to everybody's opinions on this has


    20    helped me to understand the urgency and the

    21    difficulty of proposing a rule such as you are

    22    proposing right now. 


    23                And my name is Pat Brady, B-r-a-d-y. 

    24    And I'm the manager of employee development for

    25    Murray Energy Corporation. And I likewise would

                                                                         168

     1    like to see all of you and your panel, certainly


     2    at least for other reasons, to say hi to you. 

     3                Murray Energy Corporation strongly

     4    objects to the initiative that the Mine Safety

     5    and Health Administration has taken on the


     6    proposed rule on alcohol and drug testing in

     7    mines. 

     8                We believe that the adoption of the


     9    proposed rule would diminish the level of

    10    workplace safety currently provided by Murray

    11    Energy's policy on drug and alcohol abuse. 

    12                The level of protection from the


    13    adverse effects of drug and alcohol in the

    14    workplace which is provided to miners employed in

    15    our coal mines and processing facilities by our


    16    policy exceeds the level of protection provided

    17    by MSHA's proposed regulation. 

    18                We find it irresponsible to propose a

    19    rule that would condone unlawful activity and


    20    diminish miner safety by prohibiting mine

    21    operators from terminating employment of a miner

    22    or an employee who tests positive for being under


    23    the influence of illegal drugs or alcohol while

    24    on mine property. 

    25                MSHA's proposal to dictate the

                                                                         169

     1    appropriate discipline for miners who violate


     2    mine operator drug drug-and-alcohol free

     3    workplace policy in our opinion runs contrary to

     4    federal statutes such as the Americans with

     5    Disabilities Act which does not prohibit the


     6    termination of illegal drug users; other federal

     7    regulations such as the Department of

     8    Transportation Safety and Health Administration


     9    regulations, which do not prohibit an employer

    10    from terminating workers who report for duty

    11    under the influence of alcohol or illegal drugs

    12    in many other state statutes. 


    13                We also find it irresponsible to

    14    propose a rule that only applies to safety-

    15    sensitive jobs.  At Murray Energy we believe that


    16    all jobs are safety sensitive, and to divide our

    17    employees into sensitive and non-sensitive groups

    18    would be detrimental to our policies and the

    19    standards that we expect all employees to adhere


    20    to. 

    21                Murray Energy Corporation's current

    22    drug and alcohol abuse policies have proven to be


    23    effective, and all employees of Murray Energy are

    24    required to pass a preemployment drug screen, and

    25    are subject to post-accident random and reasonable

                                                                         170

     1    suspicion drug-and-alcohol testing.  Miners who


     2    either refuse to submit to testing as required

     3    under the policy, alter or attempt to alter a

     4    test result, or produce a positive test result,

     5    are subject to termination. 


     6                Murray Energy encourages any employee

     7    who has a drug or alcohol abuse or dependence

     8    problem to seek professional assistance before


     9    the employee is required to submit to testing

    10    under the policy. 

    11                Treatment and counseling are

    12    available for employees who voluntarily seek


    13    treatment or counseling.  However if an employee

    14    does not seek professional assistance before

    15    being tested under the policy they can not avoid


    16    disciplinary action for the violation of the

    17    policy, or requesting professional assistance. 

    18                The risk of termination of employment

    19    on a first violation is the best deterrent in our


    20    opinion to violation of the drug-free and

    21    alcohol-free workplace policy. 

    22                Most of Murray Energy's concern


    23    regarding the proposed regulation can be

    24    addressed by MSHA's deletion of the requirement

    25    that employees who violate the drug-and-alcohol-

                                                                         171

     1    free-workplace program be referred for assistance


     2    by the addition of a provision stating that these

     3    regulations shall not be construed to or preclude

     4    an employer from developing or maintaining their

     5    current drug and alcohol abuse policy; their


     6    substance abuse policy that exceeds a minimum

     7    requirement set forth in the regulation. 

     8                And again that's a prepared statement


     9    from Murray Energy, and I'd be welcome to answer

    10    any questions. 

    11                MS. SILVEY: Okay, thank you, Pat. 

    12                Let me just ask you a couple of


    13    things, that's all.  The current Murray policy

    14    applies to all employees, you said.  But under

    15    the program treatment and counseling is available


    16    to people who seek the counseling; is that

    17    correct?

    18                MR. BRADY: All employees at Murray

    19    Energy are expected to be fit for duty and in a


    20    condition to safely and productively carry out

    21    their assignments.  And all employees have

    22    available to them counseling under their medical


    23    benefits programs. 

    24                MS. SILVEY: Okay, I guess what I'm

    25    saying though is, I guess I'm a little bit

                                                                         172

     1    confused.  If under the Murray policy if an


     2    employee voluntarily sought counseling for drugs

     3    or alcohol, then that person does have the - how

     4    should I say - that person under the Murray

     5    policy can seek counseling, can voluntarily seek


     6    counseling and get it, right?  Or is that what I

     7    understood you to say?

     8                MR. BRADY: That is correct.  If they


     9    have a dependence problem, and they voluntarily

    10    recognize that problem and seek professional

    11    assistance, they can submit to do that.  But if

    12    they are selected for a random drug test, and


    13    they haven't done that first, then they have to

    14    abide by the policy.

    15                MS. SILVEY: Then they what?


    16                MR. BRADY: They have to abide by the

    17    policy. 

    18                MS. SILVEY: Okay, so that's when you

    19    said - then you can terminate them if they are


    20    found to have a positive test?

    21                MR. BRADY: That's correct. 

    22                MS. SILVEY: Okay, I just wanted to


    23    make sure.  And then the current policy covers

    24    post-accident reasonable suspicion and random?

    25                MR. BRADY: Yes, the drug test - the

                                                                         173

     1    drug and alcohol testing is done for


     2    preemployment. 

     3                MS. SILVEY: Okay. 

     4                MR. BRADY: For return to work, for

     5    reasonable cause, and the policy outlines in


     6    writing what reasonable cause is; post-accident

     7    testing; and any employee involved in a serious

     8    incident. 


     9                MS. SILVEY: Okay. 

    10                MR. BRADY: The term, employee, it's

    11    any employee, not just a miner. 

    12                MS. SILVEY: Okay.  Okay, I think


    13    that's all.  I don't have any more comments,

    14    clarifying comments. 

    15                Anybody?  I think that's it.  Thank


    16    you very much, Pat. 

    17                MR. BRADY: Thank you, Pat. 

    18                MS. SILVEY: The next I have on the

    19    list from Beckley, Roger Horton with the UMWA. 


    20    Are you there?

    21                MR. HORTON: Yes, I am. 

    22                MS. SILVEY: Okay, can you come to the


    23    mike, please.

    24                MR. HORTON: Thank you for the

    25    opportunity to be here.  Although I don't like

                                                                         174

     1    this type of hearing.  I prefer the standard


     2    hearing that is allowed in the act.  I will

     3    participate, although I prefer the hands-on.  You

     4    know I have five senses, and I like to be able to

     5    use all of them, and I cannot hear. 


     6                I believe this is a deviation from

     7    the intent of the act.  The act clearly allows a

     8    much longer comment period.  


     9                And when we plan a visual

    10    presentation such as PowerPoint, I actually could

    11    not do that in this type of setting. 

    12                Now to the policy that you want to


    13    enact itself, I don't think you should interfere

    14    in what is already working well, and I mean that

    15    in my operation and many others, 80-probably plus


    16    percent, there are already standard drug and

    17    alcohol procedures in effect.  Many of them are

    18    negotiated by United Mine Workers and their local

    19    unions which in essence allows both sides to


    20    present the good, the bad and the ugly of any

    21    procedure or policy that they want to implement. 

    22                And it allows us also the opportunity


    23    to bring about some sort of compassionate

    24    dealings with people who have problems.  You know

    25    for an outside entity to come in and say you have

                                                                         175

     1    to do this and you have to do that, it takes away


     2    the human side of it.  And for that I object to

     3    it as well. 

     4                We spent a lot of time in discussions

     5    in our meetings that as I said allowed us to


     6    raise our concerns, and since the implementation

     7    years ago of our drug and alcohol policy we have

     8    had both management and salaried and support


     9    people to come forward for counseling, and some

    10    who refused not, and also were terminated. 

    11                Everyone is tested, and that's the

    12    way it ought to be in all facets of the mining


    13    industry, whether it's clerical or whether it's

    14    someone who is working as a roof bolter or a

    15    truck driver or a foreman or a parts person, they


    16    all should be tested.  Their jobs are important,

    17    and we're relying on every one of them to be

    18    straight and clean.  So every one who is involved

    19    in mining if there is going to be a policy they


    20    should be tested. 

    21                I think you should spend your time

    22    promulgating rules that would clearly - and I


    23    don't mean to be redundant here, but I don't

    24    think it can be said enough as well - to

    25    eliminate black lung, silicosis, diesel

                                                                         176

     1    particulates from entering the lungs of the


     2    miners.  I think the money would be better spent

     3    in those arenas. 

     4                Again I want to - I oppose this type

     5    of format.  I prefer the longer period of time


     6    one-on-one discussions that I think we should

     7    have. 

     8                And with that I'll answer any


     9    questions you may have. 

    10                MS. SILVEY: Thank you very much.  I

    11    don't have any questions. 

    12                Next person on the list is Michael


    13    Paulie.

    14                MR. PAULIE: I'm here. 

    15                MS. SILVEY: Okay. 


    16                MR. PAULIE: Mrs. Chairperson and

    17    panel, I would like to take this part to go on

    18    record to say that I also oppose the way this has

    19    been handled.  I understand that logistics is a


    20    problem and travel is also an expensive thing

    21    that everybody has to deal with.  But yet the act

    22    and a policy of this magnitude, as opposed to


    23    pushing it down our throats, I would have

    24    preferred you to come and face us and look us in

    25    the eye whether you think this is more important

                                                                         177

     1    than the policies we already have in hand. 


     2                And having said that, I want my parts

     3    of my statement.  First of all we have no real

     4    proof in the industry that drugs and alcohol have

     5    been a high percentage of accidents. 


     6                Without that proof positive I think

     7    you may have gone off a little half-cocked on

     8    this because of a few issues in another state. 


     9                I think you know what we are

    10    referring to in the drug-related problems in some

    11    states. 

    12                Virginia has taken over a new policy,


    13    but the thing we have in West Virginia mostly are

    14    company-related policies, and they are good

    15    policies.  The company I work for is a service


    16    kind of operation.  We have zero tolerance.  Our

    17    policy is also just like the gentleman who was

    18    representing the coal company.  You are given the

    19    opportunity to address the company that you have


    20    a problem.  They in return will take you under

    21    their wing: they will give you help, they will

    22    give you psychiatric help, they will give you


    23    medical help and evaluate you for a year.  But if

    24    you fail to do so and are tested, it is zero

    25    tolerance, exactly what was said. 

                                                                         178

     1                As a member of the working force


     2    there and of the union, the first I found that a

     3    little hard to deal with, but then as I thought

     4    more about it I had zero tolerance too.  I want

     5    nobody around me who is under the influence of


     6    any drug or alcohol, because it is my life that's

     7    put in their hands.  I don't want any brother or

     8    sister to go home mangled or worse not go home


     9    that day because somebody had a problem.  I want

    10    zero tolerance. 

    11                The one thing I do find in our

    12    industry, and your act does not cover it, is


    13    contractors.  Those are a higher percentage of

    14    accidents from contractors than actually working

    15    miners, and UMWA miners.  I would like to see


    16    that, if this comes into effect, I'd like to see

    17    that as mandatory that everybody is tested - the

    18    clerical, administrative, contractors.  I don't

    19    care if you come there just to park a car on our


    20    property, especially surface mines.  Everybody

    21    interacts in traffic, and with the engineers, and

    22    individuals who come and go to the mine sites,


    23    they need to be tested too. 

    24                Training the supervisors under this

    25    medical two-hour class is - that's almost a joke. 

                                                                         179

     1    There is no way that a person could be trained in


     2    two hours to evaluate an individual with a drug

     3    problem or alcohol problem, to evaluate his

     4    problem or what he needs to be doing at the time. 

     5                I think that what you have done is,


     6    you have taken an act that you are proposing to

     7    put on a blanket that this industry already has a

     8    good blanket over it, and a working blanket, and


     9    you are wanting to put a blanket over the top of

    10    it that has holes over top of it. 

    11                We prefer the blanket we have, not

    12    the ones with holes in it.  You can better spend


    13    that money on a little black lung, you can better

    14    spend it on hearing protection, and hearing

    15    studies, and even more inspectors for surface


    16    mines.  Our inspectors of surface mines are just

    17    absolutely worked to death.  They can't even

    18    cover the mines they have, and yet we still need

    19    more, yet no more are trained. 


    20                That money, I wish you'd leave this

    21    alone and put in those areas. 

    22                That's all I have to say, but if you


    23    have any questions of me I'd be glad to answer

    24    them.

    25                MS. SILVEY: No, I don't have any

                                                                         180

     1    questions of you.  And as you mentioned about


     2    contractors, we have heard the fact that

     3    contractors are a problem from a number of

     4    earlier speakers, both at today's hearing, and

     5    also at the hearing on October the 14th.  But


     6    thank you very much for your comments. 

     7                MR. PAULIE: Thank you.

     8                MS. SILVEY: Is there anybody else in


     9    Beckley who wishes to testify?  

    10                Thank you, come on to the mike.  I'm

    11    sorry, I have one more person on the list, I'm

    12    sorry, Mr. George Hill. 


    13                Are you there?

    14                MR. HILL: Yes, I am.  

    15                MS. SILVEY: Okay, George Hill, UMWA.


    16                MR. HILL: Good afternoon. 

    17                MS. SILVEY: Good afternoon. 

    18                MR. HILL: My name is George Hill. 

    19    Spelling of the last name is H-i-l-l.  


    20                Can you hear me now?

    21                MS. SILVEY: Yes, I can hear you,

    22    thank you. 


    23                MR. HILL: Good afternoon, ma'am, and

    24    members of your committee. I want to thank you

    25    for allowing me and others to speak. 

                                                                         181

     1                I'm speaking on behalf of UMWA Local


     2    Union 6426.  I'm safety committee chairman and

     3    the recording secretary. 

     4                My voice should be heard not only for

     5    all the miners in the industry, but especially


     6    for the 25 that have died in the industry in `08

     7    as of today. 

     8                The first thing I'd like to bring to


     9    your attention is the fact that West Virginia is

    10    one of the nation's leading coal producers, and

    11    most of your rules and laws in effect today were

    12    the result of the blood that was shed from the


    13    good people in the state of West Virginia. 

    14                I think it's a slap in the face of

    15    the miners in this state that you could not be


    16    present at the wonderful facility in Beckley,

    17    West Virginia. 

    18                As I said before 25 men have lost

    19    their lives in the industry this year, eight in


    20    the state of West Virginia, two of them being

    21    apprentice miners.  I resent the part of your

    22    rule that includes additional training under the


    23    Part 48, alcohol and substance abuse. 

    24                I want to make it clear that the

    25    union does not object to a miner being tested for

                                                                         182

     1    drugs or alcohol, only the manner you are doing


     2    so in your proposal.  Your agency has more issues

     3    that needs dealt with concerning miners health

     4    and safety and testing that has already been done

     5    by operators anyway. 


     6                If you are going to add additional

     7    training to Part 48 it needs to be pertaining to

     8    coal miner health and safety, and aimed at


     9    reducing miner disabilities and unnecessary

    10    deaths, not training on substance and alcohol

    11    abuse and testing. 

    12                Your agency has lost touch with its


    13    true purpose, which is to protect the health and

    14    safety of miners in the United States. 

    15                With respect to the 25 men that have


    16    perished this year, get your agency on track and

    17    reverse this trend. 

    18                I will close my comments by saying

    19    thanks again, and with saying, remember our


    20    organization, the United Mine Workers, because we

    21    are tired of miners dying a senseless death

    22    around the country, and we will be heard. 


    23                Thank you, ma'am. 

    24                MS. SILVEY: Thank you.  And as you

    25    brought up the point that we've lost our 25

                                                                         183

     1    miners, 25 coal miners so far this year, which


     2    unfortunately we have suffered 25 coal mine

     3    fatalities.  Twenty, and if we have the people

     4    from Virginia, Minnesota, still on the line, 20

     5    from the non-metal mining community have lost


     6    their lives so far this year. 

     7                And so at this time we would as an

     8    agency like to take a moment and reflect in


     9    memory of those 45 miners so far this year who

    10    have lost their lives, and to say with you that

    11    every life is one too many, and we pause to

    12    remember them, and so let's do that for a moment


    13    right now, if you all don't mind, wherever you

    14    all are, let's take a moment of silence in memory

    15    of the 45.


    16                (Moment of silence.)

    17                MS. SILVEY: Thank you very much. 

    18                MR. HILL: Thank you, ma'am.  And

    19    again, we welcome you to the state of West


    20    Virginia and this wonderful facility here in

    21    Beckley.  I'd like to also make mention the

    22    traffic is not so hard here.  We do have an


    23    Interstate system and an airport here, and we'd

    24    like to see you in person from time to time. 

    25                MS. SILVEY: Yes, sir.  Thank you. 

                                                                         184

     1                MR. HILL: This is our business here


     2    in the state of West Virgina.  We'd be glad to

     3    have you. 

     4                MS. SILVEY: Yes, thank you very much. 

     5    I appreciate it.  


     6                If there is nobody else at - is there

     7    anybody else at Beckley?  Okay, next speaker in

     8    Beckley, come to the phone, please. 


     9                MS. JAMES: Good afternoon. 

    10                MS. SILVEY: Good afternoon. 

    11                MS. JAMES: My name is Tanya James, T-

    12    a-n-y-a J-a-m-e-s.  I'm a United Mines Workers


    13    Local 9909 out of the district 31.  And as you

    14    can tell by all the comments that have been made

    15    today, none of us here wants drugs or alcohol


    16    anywhere in the workplace. 

    17                But I'm afraid we're kind of losing

    18    sight of a lot of the problems that affect more

    19    of us than drugs and alcohol does. 


    20                After 20 years the mining industry 

    21    has just recently started hiring younger miners,

    22    so the majority of us in the workforce are in the


    23    age range of anywhere from 45 to 50 years old. 

    24    And at our mines we rotate shifts every four

    25    weeks.  Most of us work on a mandatory six-day-a-

                                                                         185

     1    week 10 hours plus a day.  Although it has an


     2    adverse effect on our safety awareness, most of

     3    us are on scheduled medication.  We have to

     4    change the times when we take them and our

     5    systems just start getting used to the new


     6    schedule, it's time to rotating again, and

     7    everything starts all over again.  Your body has

     8    to adjust again, and a lot of times you have to


     9    start again. 

    10                Also as you have heard several times

    11    today black lung is on the rise, and that's to do

    12    with coal being ground up finer nowadays than it


    13    used to be.  We have more advanced equipment and

    14    the coal that comes out of the mine doesn't come

    15    out in as big as lumps as what used to.  There is


    16    a lot of finer coal out there now, a lot more

    17    respirable dust in the air. 

    18                We have several brothers and sisters

    19    with several years in the industry being denied


    20    benefits everyday for black lung, and I think

    21    this is a terrible terrible shame. 

    22                And I have myself 20 years in the


    23    mining industry.  I have two grandchildren along

    24    the way, and I would like to be able to play with

    25    those children when I finally retire from this

                                                                         186

     1    mining industry, and not have to have to sit with


     2    an oxygen mask around  my face all the time. 

     3                We need some way to reinforce our

     4    older seals in the mine that don't meet the

     5    requirement any more, that aren't 20 psi.  But we


     6    are ready to bring diesel equipment into our

     7    mines, and no one really knows the full effect of

     8    diesel emissions on a human body when they are


     9    inhaled on a daily basis. 

    10                I understand there have been studies

    11    done, but I don't anybody can say the full

    12    spectrum of what diesel can do to a person.  They


    13    say you can't smell it or nothing like that, but

    14    I've talked to many people that have diesel in

    15    their mines, and they say you can smell it.  I


    16    think there needs to be further detailed studies

    17    on that. 

    18                I still don't agree with the fact

    19    that a person with two hours training is making


    20    the call whether someone is under the influence. 

    21    I was a certified EMT for 12 years now, and I've

    22    had extensive training, and there are times when


    23    I still can't tell if someone is under - having a

    24    diabetic episode  or is under the influence of

    25    alcohol. 

                                                                         187

     1                And if you have this in a workplace,


     2    especially four or five miles under the ground,

     3    and the supervisor says, hey, I think you are

     4    under the influence, I'll take you out and have

     5    you tested, he better be calling an ambulance


     6    instead of a bottle for this person to urinate

     7    in. 

     8                It's a very serious situation. 


     9    Diabetics, they act, when they have a diabetic

    10    episode they act like they are intoxicated. 

    11    Their speech is slurred.  They even have the odor

    12    to their breath like a sweet whiskey smell that


    13    is very hard to determine what they are having,

    14    and I don't think two hours training and one hour

    15    every year after that qualifies anyone to make


    16    that judgment. 

    17                And I'll close with the fact that the

    18    company would like to see the medical records,

    19    and I'll tell you this: the day the company shows


    20    me their medical records is the day I'll think

    21    about showing them mine.  And I don't think

    22    that's any of their business.  If I have an


    23    illness I think they need to be aware of such as

    24    diabetes, I'll be sure to tell them about it. 

    25                And with that I would like to thank

                                                                         188

     1    you for your time.  And I would also like to have


     2    seen the faces today other than the ones sitting

     3    here with me.  A lot of us have traveled a lot of

     4    miles, myself have traveled a few miles to be

     5    here.  


     6                Appreciate your time, and I thank you

     7    very much.

     8                MS. SILVEY: Thank you, and thank you


     9    very much for coming, and thank you for your

    10    participation. 

    11                Next speaker in Beckley.

    12                MR. CLARK: Hi.


    13                MS. SILVEY: Hello.

    14                MR. CLARK: My name is Ricky Clark. 

    15    I'm a UMWA Local 5958, and I'm a safety


    16    committeeman, also a third generation UMWA miner.

    17                I don't like MSHA involved in the

    18    drug policies when we need more black lung bills

    19    passed.  I have had both grandfathers and father


    20    died because of black lung.  Why can't we spend

    21    money for black lung bills, because most all

    22    mines have a drug test for their employees, and


    23    it's working very well. 

    24                And I want to thank you for the

    25    opportunity for allowing me to talk at this time.

                                                                         189

     1                MS. SILVEY: Okay, thank you Mr.


     2    Clark. 

     3                MR. CLARK: Clark, C-l-a-r-k.

     4                MS. SILVEY: Okay, Clark, I'm glad you

     5    spelled it, I didn't quite get it.  Thank you. 


     6    Clark, okay I wrote the wrong thing down.  Thank

     7    you very much. 

     8                MR. CLARK: Thank you. 


     9                MS. SILVEY: Next speaker in Beckley.

    10                MR. WARD: My name is Barbara Ward,

    11    that is W-a-r-d.  I am from 1713 of Pine Hill,

    12    West Virginia.  I am the mine committee safety


    13    committee reporting secretary of my local, first

    14    generation coal miner. 

    15                First of all we did have an employee


    16    assistance program in place at our mine, and this

    17    program is for employees that were having drug

    18    problems, alcohol problems, any other personal

    19    problem.  And they could get assistance there. 


    20                That, and they can do random testing,

    21    and they're starting to do some of the first in

    22    2008, they were in with their own random drug


    23    test policy. 

    24                I feel like that we - that the

    25    company should be able to manage this problem and

                                                                         190

     1    not MSHA.  MSHA should spend more time inspecting


     2    the mines as they are trained to do, and enforce

     3    the MSHA laws.  Because they are protecting

     4    miners and our rights. 

     5                We have two freshmen inspectors at


     6    our mines, and working for the overtime that they

     7    are working, they couldn't get our mines made

     8    without help and help with overtime. 


     9                That's - we feel that overtime now

    10    has been cut out for our - with respect to our

    11    mines, and we are worried about the quality of

    12    the inspection that we are going to get, not the


    13    quantity, because they really need the mines made

    14    regardless of how they do it.  But we worry about

    15    the quality of the inspection that are going to


    16    come along since they have cut out the overtime. 

    17                We also feel that this money that you

    18    all are going to waste on this drug testing for

    19    MSHA should go to helping to protecting our


    20    miners from black lung and any other lung disease

    21    that come from the diesel they put into our

    22    mines. 


    23                Thirdly, therefore I would like to

    24    see the companies enforce their own random drug

    25    policy if they have one, and if they don't, they

                                                                         191

     1    need to adopt one for their own mine. 


     2                Thank you. 

     3                MS. SILVEY: Thank you very much. 

     4    What mine is your mine?

     5                MR. WARD: I'm from Cleveland Cliffs,


     6    Pine Hill, West Virginia.

     7                MS. SILVEY: Okay, all righty, gotcha. 

     8    Okay, thank you very much. 


     9                Next speaker from Beckley?

    10                MR. VANCE: Yes, ma'am, my name is

    11    Adam Vance, from District 17, Local 1713. 

    12    Spelling of my last name is V-a-n-c-e.


    13                On your drug laws that you have

    14    proposed here, on what basis I'd like to ask that

    15    prompted the federal government to want to


    16    propose this law?

    17                MS. SILVEY: We did it on two bases:

    18    the fact that mining is - and we think we all

    19    said that and we all agree - that mining is a


    20    dangerous occupation; that the use of drugs and

    21    alcohol is present in the mining industry, and we

    22    all agree with that today, that it's present in


    23    the mining industry as well as in the entire, and

    24    you all have said that to us, and I think we

    25    agree to that too, in the entire American

                                                                         192

     1    society. 


     2                And that to any use, impairment, any

     3    workers being impaired, could adversely affect

     4    safety and health in the mines.  And our overall

     5    purpose is to improve safety of mines and mining. 


     6    So with that in mind we proposed this rule to

     7    improve mine safety and health.  And that's why

     8    we are here today.  We proposed the rule, but as


     9    the - as we do with all of our proposals, we

    10    provide an opportunity for the public to comment. 

    11    And so we are here taking your comment and

    12    testimony on the proposal, and we are doing just


    13    what the public participation phase of the

    14    process allows.

    15                MR. VANCE: Okay, you said that one of


    16    the purposes was for the safety of the miner,

    17    right?

    18                MS. SILVEY: That's correct.

    19                MR. VANCE: Okay, then how come there


    20    are still regulations that are being overlooked

    21    for instance black lung or improper road

    22    support or stuff that like that are causing


    23    fatalities and stuff like that that people are

    24    coming in and overlooking.  Instead of putting

    25    money towards this drug law I think that we

                                                                         193

     1    should put it towards black lung, bare


     2    identification of failures of the way a coal

     3    company can mine coal, as well as get it out

     4    safely. 

     5                Anyway I'm a third generation coal


     6    miner.  My grandfather died from black lung at

     7    the age of 55; I never got to meet the man.  My

     8    father is 54 years old now; he has black lung. 


     9    All my uncles was coal miners, and they had black

    10    lung.  But they cannot get their black lung

    11    benefits because they say that they don't have

    12    it, that their lung problems come from their


    13    heart problems, where in fact their heart

    14    problems come from their lung problems. 

    15                I think it is a shame that people who


    16    make a standard of living in this state in West

    17    Virginia and in this country make them go through

    18    what they go through, and when something happens

    19    to them, the federal government turns a blind eye


    20    and turns their back to them, and will not get

    21    them the benefits that they deserve. 

    22                My father now as well as my uncles


    23    cannot do - they are disabled from the coal mine. 

    24    They are retired.  But they cannot do the things

    25    that they like to do and used to do such as hunt,

                                                                         194

     1    fish and stuff like that, their hobbies, because


     2    they can't walk more than 10 feet without having

     3    to take a deep breath.  And it's all because the

     4    federal government has overlooked certain places

     5    in their own regulations of ventilation and stuff


     6    like that. 

     7                I think you should put more money

     8    toward that, train better and more intubators,


     9    and I think you'd be a whole lot better that way.

    10                That's all I have to say. 

    11                MS. SILVEY: Okay, thank you.  Thank

    12    you, Mr. Vance.  


    13                Next speaker, please. 

    14                MR. COLEMAN:   My name is Albert

    15    Coleman, A-l-b-e-r-t Coleman C-o-l-e-m-a-n.  I am


    16    president of UMWA Local 8783.  

    17                First I'd like to ask a question: 

    18    Under this regulation of testing, would a company

    19    person be allowed to do the testing? 


    20                MS. SILVEY: If the company person met

    21    the requirements, the requirements for testing,

    22    the company person would.  But as I mentioned


    23    earlier today there are specified requirements

    24    for doing the testing, and a person would have to

    25    meet those requirements to be qualified to do the

                                                                         195

     1    testing. 


     2                MR. COLEMAN: Okay.  Just from

     3    listening here today and talking to some of the

     4    people I've got a - I've formed an opinion. 

     5    First, I don't think there is any data to support


     6    the regulation, for if there is a significant

     7    problem in the industry.  And if we had this

     8    regulation I think it should include all


     9    employees working on mine property, not just

    10    safety sensitive jobs. 

    11                If you have a positive test that

    12    indicates that you were impaired or in some way


    13    influenced by drugs, not just that there was a

    14    trace in your system, I don't think the

    15    regulation has enough training incorporated into


    16    it, and any records generated from these tests I

    17    think should be completely confidential, and

    18    should only be accessible under the HIPPA rules. 

    19                There are many shortcomings in this


    20    regulation the way it is today.  I believe it

    21    should be reconsidered, because once any

    22    regulation is implemented, no matter how bad it


    23    is, it'd be hard to change it. 

    24                So if you are going to do it, do it

    25    right the first time, and make it something that

                                                                         196

     1    we can all live with. 


     2                And I appreciate the opportunity to

     3    speak here today.  Thank you. 

     4                MS. SILVEY: Thank you.  Your comments

     5    are well taken, and thank you very much. 


     6                We talked earlier about the

     7    requirement for confidentiality.  And I don't

     8    think that I'm like some of you said, I'm not


     9    going to belabor the point there, because I have

    10    already stated that operators must comply with

    11    all privacy and confidentiality requirements. 

    12                Thank you for your comments. 


    13                Next speaker, please.

    14                MR. KENNEDY: Good afternoon.  This is

    15    Max Kennedy.


    16                MS. SILVEY: How are you doing?

    17                MR. KENNEDY: Fine.  

    18                MS. SILVEY: Good. 

    19                MR. KENNEDY: First I'd like to say


    20    that today we appreciate the second chance to

    21    give comments on the proposal.  However, the

    22    testimony given in Minnesota, we couldn't hear


    23    it.  The speaker or whatever was muffled, and

    24    some of the questions asked by your panel first

    25    of all this morning, we couldn't hear those

                                                                         197

     1    questions either. 


     2                But anyway I'll go with additional

     3    comments that I'd like to place on the record

     4    with those that I gave you a couple of weeks ago.

     5                This whole problem started in East


     6    Kentucky about five years ago, and during that

     7    time there was a rash of miners that were taking

     8    illegal drugs.  It ran rampant until finally the


     9    state of Kentucky - until finally the state of

    10    Kentucky took action through its legislator. 

    11                As far as Virginia, from Virginia's

    12    Coal Mine and Safety Board, which is a regulatory


    13    board group for the Department of Mines, Metals

    14    and Energy.  The chief state mine inspector

    15    anticipated that those mines that were tested


    16    positive in the state of Kentucky would cross the

    17    border into Virginia and seek employment in the

    18    coalfields. 

    19                So therefore there is no data to back


    20    up the promulgation of regulations.  However he

    21    was insistent, and also the department was

    22    insistent, because of that anticipation of those


    23    miners seeking employment in Virginia. 

    24                So that prompted the state

    25    legislature to promulgate the statue.  And that

                                                                         198

     1    brings us to today. Which West Virginia itself is


     2    starting to do the same process as Virginia. 

     3                And personally in 1979 I was employed

     4    at Tyson Mine Construction in Wise County,

     5    Virginia.  And the company was in the process of


     6    sinking the shafts in a slope for Lynchfield coal

     7    company, later it would be McClure Number 1 Mine.

     8                This was - metal mining and


     9    construction is a harsh environment with that

    10    type of work.  The company and this was 1979 had

    11    a refrigerator in the back house, and it had

    12    beer, wine, and liquor.  There was a statement


    13    over the top of the refrigerator that said, after

    14    hours only. 

    15                So we policed ourselves from that


    16    point in 1979 to today.  And most responsible

    17    employers and individuals that work in the

    18    industry know that you don't go into a coal mine

    19    in a working environment without all your senses


    20    about you. 

    21                There has not been and the same

    22    situation in Virginia where they were developing


    23    their statute, there is no data that drives this

    24    promulgation for regulation.  It's only

    25    speculation.  

                                                                         199

     1                And with that I would request that


     2    MSHA place the data it has on record for

     3    promulgation of this regulation.  

     4                And finally I would like to read a

     5    letter that was submitted to the assistant


     6    secretary that pretty much sums up this whole

     7    event and proposal. 

     8                And I'll start with the letter: Dear


     9    Mr. Stickler, I am very concerned about the

    10    timing of the Mine Health and Safety

    11    Administration's proposed rule on substance

    12    abuse.  


    13                It troubles me that this proposal was

    14    pursued at a time when MSHA could be making more

    15    appreciable progress on its many other pressing


    16    priorities.  Such as addressing coal miners

    17    exposure to coal dust and silicate. 

    18                It further troubles me that this

    19    proposal was withheld from the public until the


    20    final months of the administration; that is now

    21    perfected through a comment period that is

    22    unusually restrictive. 


    23                Given the concerns raised by mine

    24    operators and miners, who will have to abide by

    25    this rule, I strongly urge you to extend the

                                                                         200

     1    current comment period and to hold a series of


     2    public hearings before this rule takes effect. 

     3                Further, as we look ahead to a new

     4    administration, and inevitable personnel changes,

     5    I cannot help but feel that MSHA is entering a


     6    potentially dangerous period.  Your agency

     7    continues to implement significant changes in the

     8    wake of Sago, Alma, Crandall Canyon, and as a


     9    result the passage by Congress of the first major

    10    mine safety and health legislation in a

    11    generation. 

    12                As well the agency continues to grow


    13    into the Congress significantly increasing your

    14    budget for coal enforcement. 

    15                With so many changes still underway I


    16    encourage you to do all you can to prepare for

    17    the upcoming transition to ensure that ongoing

    18    enhancements suffer no unnecessary and that the

    19    federal inspectors have the leadership and


    20    resources they need to protect our nation's coal

    21    miners. 

    22                Sincerely yours, Senator Robert Byrd.


    23                With that I conclude my comments. 

    24                Thank you. 

    25                MS. SILVEY: Okay, thank you very

                                                                         201

     1    much, Mr. Kennedy.  And we appreciate your


     2    comments. 

     3                But one thing that I must say is that

     4    this is probably the first time that anybody has

     5    ever said that they couldn't hear me, couldn't


     6    hear my voice. 

     7                So you said some of the things that

     8    the panel said you couldn't hear.  I generally


     9    speak so loud that people can hear my voice

    10    anywhere.  But anyway. 

    11                MR. KENNEDY: There was a question

    12    from one of the panels members to Secretary-


    13    Treasurer Kane this morning.  We couldn't hear

    14    the question. 

    15                MS. SILVEY: Okay, from one of the


    16    panel members.  Okay.  I think I know what the

    17    question was, then, let me just say that right

    18    now.  I think one of the secretary-treasury Kane

    19    mentioned in this testimony that 80 percent of


    20    the mines had drug programs, and the panel member

    21    asked him did he have research on that or where

    22    did he get that data, and he responded where he


    23    got that data.  And that's what the question was,

    24    I believe. 

    25                Okay, next speaker in Beckley?  

                                                                         202

     1                MR. KENNEDY: I believe that's it. 


     2                MS. SILVEY: Is that it?  Okay. 

     3                Is Alabama still on the line? 

     4    Alabama?   Is there anybody else in Alabama who

     5    wishes to testify?  Nobody else in Alabama who


     6    wishes to testify?

     7                If there is nobody else in Alabama

     8    who wishes to testify I'm going to go to


     9    Virginia, Minnesota.  Is Virginia, Minnesota on

    10    the line?

    11                MR. SEEVA: No, we have one more

    12    person. 


    13                MS. SILVEY: Virginia, Minnesota?

    14                MR. SEEVA: No, this is Walter Seeva,

    15    S-e-e-v-a.  I'm from Local 2705.  I'm a safety


    16    representative up here, and part of the EAP. 

    17                I got a couple of questions for you. 

    18    I guess I like a lot of what was being said as

    19    far as I think you should stay out of it. 


    20                A couple of questions I do have today

    21    I hadn't had a chance to read the whole thing,

    22    but I just wondered if you'd take into


    23    consideration the false positives that could come

    24    up?  And I know that was somewhat talked about,

    25    but I didn't really hear how those would be

                                                                         203

     1    handled. 


     2                Also, relapse is part of the disease,

     3    and my understanding was that it looked like you

     4    were going to give the individual one chance, and

     5    I think that was unrealistic. 


     6                I'd like to know who was on the

     7    panel.  I'd like names and qualifications, and

     8    maybe we'll get that before November 10th. 


     9                In a bulletin sent out about a year

    10    and a half ago, maybe two years, Joseph A.

    11    Holmes, he had talked about in several places in

    12    that bulletin, a special bulletin on workplace


    13    substance abuse about how the company and the

    14    employees should work together, try to put

    15    together a program, and it didn't mention that


    16    MSHA should be involved. 

    17                And I guess that's about it.  Thank

    18    you. 

    19                MS. SILVEY: Okay.  Mr. Seeva, let me


    20    ask you something.  Were you here at the

    21    beginning of the hearing this morning?

    22                MR. SEEVA: Hello?


    23                MS. SILVEY: Were you here at the

    24    beginning of the hearing this morning?

    25                MR. SEEVA: Yes. 

                                                                         204

     1                MS. SILVEY: So did you hear me when I


     2    gave the members on the panel?

     3                MR. SEEVA: No, I didn't hear that. 

     4                MS. SILVEY: Oh, you didn't?  You

     5    missed that part?


     6                MR. SEEVA: Must have. 

     7                MS. SILVEY: Okay, because I gave the

     8    members of the panel. 


     9                MR. SEEVA: And their qualifications?

    10                MS. SILVEY: Yes, I did. 

    11                MR. SEEVA: I didn't hear that. 

    12                MS. SILVEY: Okay. 


    13                MR. SEEVA: Are we going to be given

    14    copies of this?

    15                MS. SILVEY: The transcript will be on


    16    the agency's website. 

    17                MS. SILVEY: How soon?

    18                MS. SILVEY: I beg your pardon?

    19                MR. SEEVA: When?


    20                MS. SILVEY: Within a week.  Let me go

    21    over the names of the members of the panel

    22    anyway, because it'll only take a few minutes.


    23                MR. SEEVA: And their qualifications?

    24                MS. SILVEY: I'm going to give you

    25    their names and their titles.  The fact is that

                                                                         205

     1    they are Department of Labor employees.  I'm


     2    going to give you their names and their - and

     3    where they work, okay?

     4                MR. SEEVA: Okay. 

     5                MS. SILVEY: All right, and I'll start


     6    with myself.  I'm Patricia W. Silvey, and I'm the

     7    director of MSHA's Office of Standards,

     8    Regulations and Variances. 


     9                To my right is Elena Carr.  She is

    10    the policy - drug policy coordinator for the

    11    Department of Labor.  And she is with the

    12    Department of Labor's Working Partners program. 


    13    And I gave the - in my opening statement I gave

    14    the - the experience and the purpose of the

    15    Working Partners program.  And instead of me


    16    belaboring the point on that now, you can read

    17    all of what the Working Partners program when you

    18    look at the transcript. 

    19                Next to Ms. Carr is Kevin Burns. 


    20    Kevin Burns is with the Office of Educational

    21    Policy Development, and he is the director of the

    22    Office of Small Mines. 


    23                And to the right of him is John

    24    Arrington, and he is with the Office of Coal Mine

    25    Safety and Health in the division of safety.

                                                                         206

     1                To my left is Jennifer Honor.  I


     2    referred to her this morning as our learned

     3    counsel.  In other words, she is our attorney on

     4    the project.  She is with MSHA's - she is with

     5    the Labor Department's Office of the Solicitor,


     6    and the division in the solicitor's office that

     7    provides counsel on mine safety activity. 

     8                And to her left is Gene Autio, and he


     9    is with metal-nonmetal mine safety and health,

    10    and with the Office of Safety and Health in metal

    11    and nonmetal mine safety. 

    12                There is another person on the panel


    13    who is Linda Zeiler, and she is with the Office

    14    of Technical Support, and she is - has also

    15    worked on MSHA's drug activities in the past. 


    16                So those are the members on the

    17    panel, and I figured since it would only take a

    18    couple of minutes of time I'd state that to you. 

    19                MR. SEEVA: Okay, thank you. 


    20                MS. SILVEY: Okay, thank you. 

    21                Next speaker, please.  Anybody else?

    22                MR. SEEVA: No, I don't think so. 


    23                MS. SILVEY: No other speaker?  Okay. 

    24    And I just want to make sure.  I think I must

    25    have a fondness for Birmingham, Alabama.  I want

                                                                         207

     1    to make sure that there is nobody else in


     2    Birmingham who wishes to speak. 

     3                BIRMINGHAM VOICE: There is no. 

     4                MS. SILVEY: There is nobody? 

     5                BIRMINGHAM VOICE: There is not. 


     6                MS. SILVEY: There is not?  Thank you

     7    very much.  I don't think this will make any -

     8    will upset the record any.  I think a lot of


     9    people know I am from Alabama. 

    10                Okay, so if - so there is nobody else

    11    in Virginia, Minnesota who wishes to speak,

    12    nobody else in Birmingham, Alabama. 


    13                Let's go back to Beckley just to make

    14    doubly sure.  Anybody else in Beckley who wishes

    15    to speak?


    16                BECKLEY VOICE: No, there is no one in

    17    Beckley.

    18                MS. SILVEY: Nobody in Beckley?  So is

    19    there anybody else in Washington who wishes to


    20    speak?  Mr. O'Dell, I thought so.

    21                MR. O'DELL: My name is Dennis O'Dell,

    22    D-e-n-n-i-s, O apostrophe capital D-e-l-l.  I'm


    23    the administrator of Occupational Health and

    24    Safety for the United Mineworkers of America. 

    25                And I have about 31 years of

                                                                         208

     1    experience in the coal industry, 20 years of that


     2    working in the ground. 

     3                There's been a couple of problems I'd

     4    like to point in respect to what we've heard from

     5    miners today, concerns that I think either need


     6    to be clarified or cleared up, and I'd like to

     7    take the opportunity to do that now with the

     8    panel. 


     9                And while some of the folks who are

    10    out there may feel like they didn't get their

    11    questions answered or not clarified. 

    12                One of the things I'd like to clear


    13    up was a question that you had for Danny  Kane. 

    14    That information did come from my department. 

    15    The part of the information, the 80 percent that


    16    shows that the mines out there that already have

    17    programs in place was provided from MSHA.  So we

    18    actually got that information from MSHA with the

    19    drug and alcohol - what do you call them when


    20    they did the field a couple of years ago and they

    21    have mine operators come in and they testified

    22    and they spoke about the program. 


    23                MS. SILVEY: They had the meeting, the

    24    public meeting. 

    25                MR. O'DELL: Yes, thank you.  It was

                                                                         209

     1    reported, and that was part of the information,


     2    where we got the 80 percent. 

     3                And it may be even more than 80

     4    percent have their own policies in place now. 

     5    That information is a little bit old. 


     6                I'd like to address if I could first

     7    under 66.304 the preemployment, and it's listed

     8    on page 52148 of the Federal Register. 


     9                And this is something that was

    10    brought up today, and I don't think the answer

    11    was clarified.  Because I understood what the

    12    brother was asking when he asked you, where it


    13    says, under Section 66.304, preemployment

    14    testing, if you go down to where the sentence

    15    starts out, preemployment testing includes


    16    testing new applicants for safety-sensitive

    17    positions as well as incumbment miners if they

    18    are switching from positions that do not involve

    19    safety-sensitive job duties to positions that


    20    involve safety-sensitive job duties. 

    21                And the way I read this is that if

    22    I'm a block mason at the mine, and in UMWA mines


    23    you can bid from one job to the other, and if I'm

    24    a block mason, which isn't really considered a

    25    safety sensitive - or belt shoveler or something

                                                                         210

     1    to that nature, and I bid on a job such as a


     2    boulder operator or miner operator, when you read

     3    this you could take that that the operator could

     4    give me another preemployment testing. 

     5                Is that what you are saying?


     6                MS. SILVEY: No, I follow what you're

     7    saying there.  So now when you tell me I want

     8    everybody here that the scope of this rule covers


     9    miners who are subject to Part 48 who have to

    10    take Part 48 training. 

    11                So you are giving me an example of a

    12    miner who doesn't have to take Part 48 training,


    13    and is therefore going from that job to a job

    14    where he has to take Part 48 training. 

    15                MR. O'DELL: No, you get retrained


    16    every year, right?

    17                MS. SILVEY: Right. 

    18                MR. O'DELL: So say for example me.  I

    19    worked in the mine for 20 years.  And I started


    20    out as a general inside laborer.  Okay?  That's

    21    how they actually restricted me.  So then they

    22    classified me general inside labor, and I bid on


    23    a job. 

    24                MS. SILVEY: But you have to take Part

    25    48 training after general.  So see, you would be

                                                                         211

     1    under the rule. 


     2                MR. O'DELL: So they could test me

     3    every time that I bid on a different job

     4    according to this.  If I bid from a mine operator

     5    back to a belt cleaner, and then a belt cleaner


     6    back to a roof bolter operator, the way I read this

     7    is that they could test me every time I bid on a

     8    new job. 


     9                MS. SILVEY: I wouldn't think so. 

    10                MR. O'DELL: That's where the

    11    confusion comes in. 

    12                MS. SILVEY: There might be some


    13    confusion.  So I understand what you are saying. 

    14                MR. O'DELL: It says - read it - it

    15    says preemployment testing includes testing new


    16    applicants for safety-sensitive positions as well

    17    as incumbent miners if they are switching from

    18    positions that do not involve safety-sensitive

    19    job duties to positions that involve safety-


    20    sensitive job duties. 

    21                MS. SILVEY: Okay, but that's but -

    22    even assuming that that is how we wanted it, that


    23    is talking about hypothetically.  I'm just making

    24    this - saying this now.  That's talking about if

    25    the miner was in an administrative or clerical

                                                                         212

     1    job going to a job that requires Part 48


     2    training; that's basically what it's talking

     3    about. 

     4                MR. O'DELL: Well, that's not what it

     5    says. 


     6                MS. SILVEY: Okay, but I'm just

     7    telling you.  So it wouldn't require this testing

     8    every time the miner switched a job where the


     9    miner was already covered under the rule, no.  We

    10    can clarify that. 

    11                MR. O'DELL: Clear that up, because I

    12    can see that being used. 


    13                MS. SILVEY: Okay, I understand.  Our

    14    learned counsel has that for me.  No, it wouldn't

    15    require that.  I can say that right now I think. 


    16                MR. O'DELL: Thank you.  I hope that

    17    clears it up for our members. 

    18                There is also a concern about

    19    privacy, and I think this is a valid concern. 


    20    You've heard a lot of our brothers and sisters

    21    speak about this today.  It's not only a concern

    22    of ours, but it must be a concern of our whole


    23    country.  And I think that's why the HIPPA laws

    24    were provided to protect all workers. 

    25                So I hope that this rules falls, and

                                                                         213

     1    mines are still protected under the rules and the


     2    laws of HIPPA.  I guess down the road if this

     3    proposal were to move forward, I guess we'll find

     4    out down the road whether those protections will

     5    exist or not. 


     6                I can see that it may be challenge,

     7    and I'm just putting it on the record that it

     8    possibly could be a problem for some folks that


     9    want to take advantage of that. 

    10                And let me say, some of the problems

    11    that we've seen take place already in respect to

    12    what we call impairment versus a test positive,


    13    because there is a big difference between

    14    impairment and a positive test that comes out. 

    15    We've seen this with a spiking of a prescribed


    16    drug, or somebody that may be - well, let's take

    17    an example, a beer on somebody's Super Bowl

    18    Sunday, and a lot of people have Super Bowl

    19    Sunday parties.  And they may drink six cans of


    20    beer or a 12-pack, whatever, I don't know.  I'm

    21    not a drinker.  But the rule of thumb they tell

    22    us is for every can of beer you drink you should


    23    let one hour of time go between you.  It's just a

    24    rule of thumb; it doesn't mean it's a positive

    25    science. 

                                                                         214

     1                But say I'm watching the Super Bowl


     2    with a bunch of my friends, and I drink a 12-

     3    pack, that means there has to be 12 hours before

     4    the time I stop drinking and go to work.  Well,

     5    there are not going to be 12 hours for a lot of


     6    guys that have to go to work.  But let me tell

     7    you, when they go to work there may be eight

     8    hours in between time, but they are not going to


     9    be impaired. 

    10                And that's where the problem with

    11    this positive testing comes into play.  I think

    12    we have to make sure people understand there has


    13    to be a difference between test positive and

    14    somebody actually being impaired.  And I think

    15    that has to be somehow squared out to where we


    16    don't get people into trouble - in Pennsylvania -

    17    let's talk about prescription drugs for example. 

    18    We've already seen this happen.  We had a miner

    19    who was on a prescribed drug.  And their policy


    20    allows monitors to take prescription drugs. 

    21                But what happened was that this

    22    individual took a prescribed drug at the


    23    beginning of the shift - that's when the doctor

    24    prescribed him to take it - he happened to be

    25    randomly tested.  Well, he tested positive, as

                                                                         215

     1    being - and because he was tested positive they


     2    fired him.  No way to fight to get his job back. 

     3                Now here is a case of where these

     4    kinds of things need to be fixed so that that

     5    miner should not have been fired. 


     6                What happened was - they said what

     7    happened was, I guess - I'm not a doctor - but

     8    they say when you initially take a medicine it


     9    will spike I guess until it gets through your

    10    bloodstream.  And that initial spike was when

    11    they took this test.  So it actually showed that

    12    this guy was under the influence, and he wasn't. 


    13                So I think it's another reason that

    14    we need to be able to look at whether impairment

    15    versus test positive, we have to address those


    16    kinds of things if we decide to move forward. 

    17                We heard a silent but a strong

    18    message from a friend of mine, Pat Brady, who

    19    went to work for the dark side.  He used to be an


    20    MSHA employee, but now he works on the dark side. 

    21    But it reflects - 

    22                MS. SILVEY: You're on the record. 


    23                MR. O'DELL: I know I'm on the record. 

    24    I won't say anything that I wouldn't say to his

    25    face. 

                                                                         216

     1                But let me tell you, this is a


     2    message that is out there with most of industry. 

     3    A first offense is - and if it's not self

     4    reported, they are fired.  And we have a lot of

     5    plans out there with our brothers and sisters


     6    that that's what they have to live with. 

     7                See, that's one of the things that we

     8    did agree with on your proposal is that it


     9    actually gives a miner second chance, versus

    10    these operators playing on zero tolerance and

    11    self reporting. 

    12                As I told you last time I spoke,


    13    addiction in many cases you also have a state of

    14    denial.  I told you about my grandfather, loved

    15    him to death, and I know other people I've worked


    16    with in the past, and other people out there,

    17    they've got problems, but let me tell you they

    18    don't realize they have a problem. 

    19                So the rules are not completely bad. 


    20    There is one part that I liked about that, and I

    21    wish that a lot of operators would take that into

    22    consideration and give people the opportunity to


    23    actually - so that they could contribute to

    24    society. 

    25                But the failure with the proposal,

                                                                         217

     1    even though it gives a person a second chance, is


     2    that it leaves the final decision up to the

     3    operator.  It's gray.  I mean you can give a

     4    person a chance, and then it's up to the operator

     5    whether they put them back in a safe and


     6    sensitive job.

     7                And you heard Pat also say that if

     8    they are not able to step in and perform that


     9    job, you know that's part of the criteria that

    10    they use, and chances are they are going to be

    11    fired. 

    12                So if we're going to do something, I


    13    think those are the kind of things that we need

    14    to address and talk about.  I mean even a DUI

    15    person that comes clean and completes rehab, they


    16    get their driver's license back.  In many cases -

    17    and they end up being great contributors to

    18    society. 

    19                So if we really and truly - and if


    20    these operators out there are listening - if we

    21    are really and truly wanting to do something in a

    22    positive manner that is going to help these


    23    people out, you need to get away from zero

    24    tolerance and self reporting, you need to do

    25    something that is actually going to reach out and

                                                                         218

     1    help miners to where they can get the proper


     2    help that they need. 

     3                Many chances a miner - like I said,

     4    you know, a mine operator or other safety-

     5    sensitive job holder may not get his


     6    classification back under this rule, which could

     7    lead to discharge, because miners have to have

     8    the ability to step in and perform their job or


     9    they could be discharged. 

    10                You heard a lot of concerns about the

    11    supervisor with two-hour training to be able to

    12    identify problems.  Let me tell you, I worked


    13    underground for 20 years, and sometimes miners -

    14    I did it - you get goofy.  You're tired.  You get

    15    disconnected.  Or whatever.  There are a number


    16    of times that because of horseplay or just acting

    17    crazy I was accused of being on drugs or drunk or

    18    whatever.  And I don't do any of that.  But

    19    because of the manner in which I was acting, if


    20    you look at some of the ways that people - I mean

    21    I tell you right now, if you look around even at

    22    the panel, a lot of us could be accused of being


    23    on drugs and alcohol because we are tried, you

    24    know what I'm saying.  And I don't think that

    25    this two-hour training is adequate enough to be

                                                                         219

     1    able to qualify somebody to be able to identify


     2    if somebody is under drugs or alcohol. 

     3                I don't drink; I don't do drugs.  But

     4    like I said, under the description of possible

     5    signs of impairment, and the fact that I was a


     6    union activist, they would have to run a

     7    continuous bus in and out of the coal mine for

     8    me.  They'd have taken me outside everyday just


     9    because that's the nature of it.  But we have to

    10    be able to address that. 

    11                The breath alcohol technician, and

    12    the MRO, the medical review officer, where it


    13    does say it can be an employee of the operator,

    14    this does risk a monitor's confidentiality.  And

    15    it almost reminds of the days of the company


    16    doctors and the company stores. 

    17                I think you need to go back and

    18    remove that language; that of an employee of the

    19    operator; and make those persons a third party


    20    impartial group that has no conflict of interest

    21    with either the company or the workers.  I don't

    22    think that they should be allowed to be employed


    23    by the operator, because people are people, and

    24    if they are employees, and they get to be buddy-

    25    buddy with folks at work, they are going to say,

                                                                         220

     1    hey, did you hear about such and such and this


     2    and that, and I think we're just opening up a can

     3    of worms that shouldn't be. 

     4                And it'd just make it a lot cleaner

     5    if you make it somebody who is a non-employee if


     6    we move forward. 

     7                I question again because of the lack

     8    of data who is pushing this proposal.  I mean


     9    you've heard miner operators and miners alike

    10    voice their opinions that there is no real need

    11    for this, for different reasons you've heard. 

    12                I'm curious who is behind this rule


    13    and who really benefits.  The proposal suggests

    14    that the first year costs would be over $16

    15    million, and the reoccurring costs would be over


    16    $13 million, and half of that cost I guess goes

    17    to testing. 

    18                So it almost makes me feel like it

    19    may be the firms who would be contracted out to


    20    do the testing who is behind this rule, because

    21    it seems like that's where the largest chunk of

    22    money goes, to those firms who are pushing it. 


    23    I'm just wondering if that is an outside of

    24    influence of those contractors. 

    25                Which leads me to say this: that if

                                                                         221

     1    this rule does go forward, these firms, these


     2    contractors that do this testing, they should be

     3    chosen like arbitrators and jurors: give a list. 

     4    Make that list provided to us and the operators,

     5    and let us use the strike and select process that


     6    COB chosen to do the test.  I mean I think that

     7    is fair and impartial; don't let the operators

     8    decide, let the miners have a voice like we


     9    choose arbitrators, and like jurors are chosen. 

    10    If everybody thinks this guy wouldn't be

    11    impartial we'll strike them, and this one

    12    strikes, and strike until we get a list that


    13    everybody thinks is fair and impartial. 

    14                We have already seen cases of

    15    contractors that don't follow the guidelines of


    16    things like split testing - I'm talking about the

    17    operators out there now that have drug policies

    18    in place.  We've found problems already with

    19    these contractors.  They don't follow the


    20    guidelines of split testing.  They don't use a

    21    proper chain of custody.  And we've even

    22    witnessed collectors not using sanitary measures


    23    to make sure everything is clean and not

    24    contaminated during testing at the mine. 

    25                These are problems.  And it's bad

                                                                         222

     1    because miners lose their jobs over things


     2    aren't followed properly.  

     3                So my point is that we just have to -

     4    I mean these little fine details that people

     5    don't really think about sometimes are details


     6    that we should be concentrating on if the rule

     7    moves forward.  No one wants someone working that

     8    would be a danger to themselves and others. 


     9    You've heard that said today.  We have been

    10    advocates of mine safety since 1890; that's how

    11    long we've been around.  And we don't want our

    12    members or anybody else endangered, to


    13    themselves, or a danger to others. 

    14                But honestly, Pat, we feel that

    15    MSHA's time could be spent better on enforcing


    16    those laws that we have on the books today. 

    17                There are other health-related issues

    18    we should be looking at that are actually

    19    supported by data that show a need to be


    20    addressed, things such as black lung, you've

    21    heard that said today; things like diesel

    22    emissions that cause cancer; the hearing loss


    23    that we are still fighting today; job stress;

    24    chemical exposure; extended work hours as well as

    25    safety issues such as the use of proximity

                                                                         223

     1    devices to prevent accidents such as the ones


     2    we've seen this year. 

     3                We need to work on equipment so that

     4    it is more quiet and produces less dust. 

     5                A lot of those things I think we need


     6    to focus on more so than the drugs and alcohol. 

     7    I don't know who is behind it; I don't know who

     8    is pushing it.  But I would like to see MSHA


     9    table this, provide data that shows that there's

    10    a real need.  I've asked for data; haven't really

    11    seen it yet.  And I think that this is something

    12    that should be table; it should be removed.  We


    13    should move forward with those problems that we

    14    know are killing miners today, put this one on

    15    the back burner, let's concentrate on the hazards


    16    that are killing miners today as I previously

    17    mentioned, and I thank you for your time. 

    18                MS. SILVEY: Thank you.  I don't have

    19    any comments.  Thank you very much. 


    20                Does anybody else wish to testify?  

    21    Anybody else?

    22                If nobody else here or in the three


    23    locations that we have - did anybody else wish to

    24    testify?

    25                BIRMINGHAM VOICE: We have three more

                                                                         224

     1    in Alabama. 


     2                MS. SILVEY: Okay, Alabama, would you

     3    just come to the phone and state your name and

     4    spell your last name for the reporter, and we'll

     5    just take them in the order that you come to the


     6    phone.  Would you please come to the phone. 

     7                MR. MAYNOR: Yes, ma'am.  My name is

     8    Michael Maynor, last name M-a-y-n-o-r.


     9                MS. SILVEY: Okay. 

    10                MR. MAYNOR: Yes, ma'am, I was in this

    11    case, MSHA, I believe this ain't nothing but

    12    another battering ram for the coal companies to


    13    push up on the union. 

    14                If you want to find drug dealers and

    15    everything go to the toast lines, not blue collar


    16    workers like us. 

    17                This just gives a company a way to

    18    harass us, and single us out, in some way, and

    19    like I said it's just a battering ram for the


    20    union, knock the way into the union and single

    21    people out. 

    22                And I feel like this is a waste of


    23    time, and the government should spend money on

    24    other things like the pushed work hours - that's

    25    what's causing accidents to go up.  And when

                                                                         225

     1    somebody is down under ground with the rest of


     2    us, and they are on something, the rest of us

     3    know it, and it's dealt with, because we don't

     4    want nobody like that down there around us. 

     5                And that's pretty much as short and


     6    sweet as I can put it. 

     7                MS. SILVEY: Okay, I understand. 

     8    Thank you very much. 


     9                Next speaker in Alabama.

    10                MR. GRAHAM: Yes, ma'am.  My name is

    11    Charles Graham, G-r-a-h-a-m.  

    12                I'm a miner operator on No. 7 mine. 


    13    I'd like to give - I noticed that these miners

    14    that did a drug test and all that, those who deal

    15    with about the process and MSHA folks, and


    16    contractors and everything like that, are they

    17    going to be drug tested as well as us?

    18                MS. SILVEY: The MSHA employees are

    19    subject to drug testing right now, all the Labor


    20    Department employees are subject to drug testing,

    21    all inspectors, and the people here in

    22    headquarters are subject to drug testing. 


    23                MR. GRAHAM: Okay, now where a union

    24    man suspects a company man being on drugs, and

    25    rat him out, and let's say he does go for that -

                                                                         226

     1    did not pass a drug test, and the next day that


     2    employee will be taunted and all that, might lose

     3    his job.  Is there any way, anything in there for

     4    that to be stopped?

     5                MS. SILVEY: No, I appreciate the fact


     6    - I've heard the testimony on that. 

     7                MR. GRAHAM: I guess that's about it

     8    from me. 


     9                MS. SILVEY: You know, earlier I

    10    talked about the fact that the existing

    11    protections under the Mine Act remain in place,

    12    so if a miner felt like - to Mr. Graham, if a


    13    miner felt like - and this goes to the other

    14    gentleman I spoke to - that he was discriminated

    15    against wrongly discriminated against, they could


    16    file a complaint under the Mine Act, which MSHA

    17    has to investigate.

    18                Okay next speaker in Birmingham.

    19                MR. PRUITT: Jay Pruitt, P-r-u-i-t-t. 


    20    So if you - you are saying that if a doctor

    21    prescribes someone with heart medication, blood

    22    pressure medication, you are saying that that


    23    person is unable to work and they take a drug

    24    test and test positive for that, that they are

    25    unable to do their job and unfit to do their job?

                                                                         227

     1                MS. SILVEY: Give me your - what did


     2    you just say again?

     3                MR. PRUITT: Are they disabled to do

     4    their job?

     5                MS. SILVEY: No, the proposed rule


     6    doesn't say that. 

     7                MR. PRUITT: So anything like Lortabs

     8    or blood pressure medication that a doctor


     9    prescribes, and you test positively randomly, you

    10    will not - that person will not be disabled to

    11    work?

    12                MS. SILVEY: No, the person won't be


    13    disabled to work; not at all.

    14                MR. PRUITT: Well, I think in my

    15    opinion, like I've heard a lot of people say


    16    before me, I think that y'all need to focus your

    17    minds on something else other than this random

    18    drug testing, since we already have drug testing

    19    procedures, and focus on more things like safety,


    20    dust control, silicosis, and things of that

    21    nature.

    22                This is kind of redundant, and it


    23    really don't make much sense.  Y'all need to

    24    focus on safety, and if y'all can focus on safety

    25    then I think the drug - the whole accidents and

                                                                         228

     1    all that which y'all really worry about more than


     2    anything will fall in place.  Because working six

     3    days a week, and some guys working seven days a

     4    week, you get tired, and when you are tired you

     5    make mistakes.  And that all falls into play;


     6    it's nothing drug related. 

     7                That's pretty much all I've got to

     8    say. 


     9                MS. SILVEY: Okay, all right, thank

    10    you.  Anybody else in Birmingham?

    11                MR. STEWART: Yes, ma'am, I'm John

    12    Stewart, STEWART.  I just want to say something. 


    13    I think it's kind of ridiculous particularly

    14    worrying about things like - I work at No. 7 mine

    15    at Jim Walters.  We stay on a section for about 4


    16    hours without an emergency bus, the overtime guy

    17    brings the bus in.  I think you guys need to

    18    worry about getting the bus in there for us just

    19    in case something happens, a man gets cut or


    20    bleeds, it's going to take us two hours - it

    21    takes us 45 minutes to get to the section, and

    22    another 45 minutes to get a bus down there, what


    23    if something happens?  Instead of drug testing,

    24    let's worry about getting a bus on the section,

    25    an emergency bus.  What if a man has a heart

                                                                         229

     1    attack, what are we going to do, wait 45 minutes


     2    to get him out, two hours?  

     3                And that's all I got to say. 

     4                (Applause.)

     5                MS. SILVEY: Okay, thank you. 


     6                Back to your comment about emergency,

     7    having an emergency bus on the section, you don't

     8    have any provisions if there is an emergency on


     9    the ground?

    10                MR. STEWART: Well, we've got an

    11    emergency bus.  They sit on the long wall.  Half

    12    the time it don't crank up.  All our buses are


    13    out of date, but y'all need to come down there

    14    and check these buses out instead of worrying

    15    about these drug tests.  Let's check these buses


    16    out and let's get some running buses.  Let's get

    17    some emergency buses, you know. 

    18                MS. SILVEY: Okay.  That was Jim

    19    Walters No. 7.


    20                MR. STEWART: Yes, ma'am.  It takes us

    21    35 minutes to get to a section. 

    22                MS. SILVEY: Okay.  


    23                MR. STEWART: At the time we don't

    24    have a bus - we need an emergency bus on the

    25    section. 

                                                                         230

     1                MS. SILVEY: Okay, we'll look into


     2    that. 

     3                MR. STEWART: And limited work hours. 

     4                MS. SILVEY: Next speaker please.  

     5                (Pause.)


     6                MS. SILVEY: Any other speakers in

     7    Alabama?  Are there any other people in Alabama

     8    who wish to speak.


     9                BIRMINGHAM VOICE:   No one's coming

    10    forward. 

    11                MS. SILVEY: Okay, thank you. 

    12                Is there anybody else who can hear me


    13    at any of the other locations who wish to speak?

    14                (Pause.)

    15                MS. SILVEY: If nobody else wishes to


    16    speak then, I would like to say on behalf of MSHA

    17    that we want to thank everybody for participating

    18    in today's hearing.  We want to thank the people

    19    who attended the hearing here at our


    20    headquarter's location.  We want to thank the

    21    people who attended in Birmingham, Alabama, the

    22    members of the United Steelworkers who attended


    23    in Virginia, Minnesota, and the members who

    24    attended, the persons who attended, in Beckley,

    25    West Virginia. 

                                                                         231

     1                I want to say that we appreciate the


     2    time and effort you took to provide us with your

     3    comment and testimony; that that information you

     4    provided us is a lot of useful information, and

     5    that will be useful to us as we move forward


     6    toward making a decision with respect to the

     7    final rule. 

     8                I would like to encourage persons who


     9    heard the testimony today that if you have

    10    further comment and testimony that you would like

    11    to make, please, or supplement testimony that you

    12    made today, please feel free to do so before the


    13    record closes on November 10th, midnight, Eastern

    14    Daylight Savings Time on November 10th. 

    15                And again, on behalf of our agency,


    16    thank you very much, and this public hearing on

    17    the Agency's proposed rule on drugs - the

    18    Agency's proposed rule on alcohol and drug free

    19    mines policy, prohibition, testing, training and


    20    assistance, the proposed - the public hearing is

    21    concluded. 

    22                Thank you. 


    23                (Whereupon at 2:30 p.m. the 

    24                proceeding in the above-entitled

    25                matter went off the record and

                                                                         232

     1                resumed at 4:10 p.m.)


     2                MS. SILVEY: We will now reconvene the

     3    Mine Safety and Health Administration's public

     4    hearing on the agency's proposed rule of alcohol

     5    and drug-free mines, policy, prohibitions,


     6    testing, training and assistance. 

     7                At this point we will take testimony

     8    from persons who are in our - just to reiterate


     9    we are taking testimony from persons in the

    10    headquarters location, Washington, D.C., in

    11    Birmingham, Alabama, Beckley, West Virginia, and

    12    Virginia, Minnesota.


    13                At this point we will take testimony

    14    from persons in Birmingham, Alabama.  So will the

    15    first speaker in Birmingham, Alabama, come to the


    16    mike, state your name, and spell your last name

    17    for the court reporter, please.

    18                MR. BLANKENSHIP: James Blankenship,

    19    B-l-a-n-k-e-n-s-h-I-p.  


    20                I've got a couple of questions before

    21    we get started.  Are we testifying before a full

    22    committee?


    23                MS. SILVEY: Yes, you are. 

    24                MR. BLANKENSHIP: Okay, second

    25    question is, why didn't MSHA provide copies of

                                                                         233

     1    the proposed rules?  You had about 250 miners


     2    here testifying, and we only got what rules the

     3    miners brought with us to pass around. 

     4                MS. SILVEY: Okay, thank you. 

     5                MR. BLANKENSHIP: I don't get an


     6    answer.

     7                MS. SILVEY: I said thank you for

     8    passing around the rules.  The copies that you


     9    did. 

    10                MR. BLANKENSHIP: But that's not my

    11    job.  MSHA should have had copies here for the

    12    miners to read and study and figure out what's


    13    wrong with them. 

    14                MS. SILVEY: I'm sure you have some

    15    comments for me. 


    16                MR. BLANKENSHIP: I would like to have

    17    an answer before I continue.

    18                MS. SILVEY: As I stated thank you for

    19    passing out the copies that you did.  So if we


    20    can proceed with the testimony we would

    21    appreciate it, we would appreciate it. 

    22                MR. BLANKENSHIP: All right. 


    23                A couple of points.  Like I said

    24    earlier, drugs and alcohol is not the problem

    25    that MSHA is trying to make it out to be. 

                                                                         234

     1    Fatigue is the biggest problem we've got in these


     2    mines here in Alabama.  Ten, 12 hours a day, six

     3    days a week, the miners my age, or older, 52, the

     4    government can regulate truck drivers, how many

     5    hours they work, there is no reason why they


     6    couldn't regulate miners. 

     7                I think if you lessened the hours a

     8    miner had to work, I think you'd see a lot less


     9    accidents because the fatigue factor wouldn't be

    10    in play.

    11                Part 48 training, I understand there

    12    is some training for what the proposed rules is


    13    going to be with the Part 48.  Part 48 has got

    14    enough training.  I mean we get eight hours.  Are

    15    we going to get another eight hours to that and


    16    make it 16 a year?  Question. 

    17                MS. SILVEY: The training is eight

    18    hours under the existing rule.  The way it is

    19    under this proposal is that the miners have to


    20    have an additional hour initial training.  So if

    21    - so let me just give you an example.  That means

    22    that - but it can be integrated into Part 48.  So


    23    if it's a surface miner, that means the miner

    24    will get 25 hours of initial training.  If it's

    25    an underground miner, the underground miner will

                                                                         235

     1    get 41 hours.  It can be integrated into 48, but


     2    it has to be in addition to the numbers of hours

     3    in the existing rule, and then the half an hour

     4    of annual retraining would be 8-1/2 hours a year. 

     5    It would be added onto; it's not to be taken


     6    within the context of the amount of time of the

     7    existing training. 

     8                MR. BLANKENSHIP: Do you actually


     9    think that a half an hour is enough?

    10                MS. SILVEY: Well, your comment to me,

    11    then, is that a half an hour is not enough,

    12    right?


    13                MR. BLANKENSHIP: Right, that's

    14    correct. 

    15                MS. SILVEY: All right, I'll take


    16    that. 

    17                MR. BLANKENSHIP: And like I said

    18    earlier, I want to make sure that you understand

    19    this, there is no avenue that I can find to test


    20    upper echelon management.  They are the ones who

    21    make the decision of where we go, what we mine,

    22    what kind of equipment we use.  You got to put in


    23    there that they can be tested.  You've got to

    24    give me an avenue as a miner if I observe a

    25    foreman or supervisor that I feel is under the

                                                                         236

     1    influence, I've got to have an avenue to have him


     2    tested just like he's got the avenue of having me

     3    tested. 

     4                If you don't test everybody that

     5    comes on that property then this drug policy is a


     6    failure, because everybody that comes on that

     7    property has an opportunity to cause an accident

     8    to someone else.  Like I said, even if it's just


     9    the guy that's filling up the drink machine, he

    10    brings a truck on that property, he backs it into

    11    areas where miners are loading on and off to put

    12    the cages down in the ground.  He can back over


    13    them.  He should be drug tested. 

    14                And this proposal says miners are the

    15    only ones who do drugs.  I just don't think


    16    that's true.  I think if you did an actual drug

    17    policy, you'll see the supervisors are a lot more

    18    apt to have the drugs now caught on their system

    19    than the miners are. 


    20                I appreciate it. 

    21                MS. SILVEY: Okay, thank you.

    22                The next speaker, please.


    23                MS. EARNEST: My name is Melissa

    24    Earnest, E-a-r-n-e-s-t.  

    25                MS. SILVEY: Okay, thank you.

                                                                         237

     1                MS. EARNEST: Yes, ma'am.  I'd like to


     2    just voice my opinion today that I really think

     3    that MSHA trying to pass a law to make drug

     4    testing mandatory, that sort of defeats the

     5    purpose of the companies that they already have


     6    their drug policies.  They have worked fine for

     7    years at our mines, specifically. We don't have a

     8    real problem. 


     9                And I do think that MSHA does do a

    10    wonderful job trying to keep us safe, which is

    11    great.  But I think they need to do a little

    12    better job on finding better solutions for our


    13    roof problems, dust control, black lung, all of

    14    this, that would be money better spent in keeping

    15    us miners safe. 


    16                And if you do want to do something as

    17    far as the drug so-called problem, the only thing

    18    that I would see would be a problem is maybe

    19    regulating workmen's comp and some of their


    20    doctors who send the miners back to work too

    21    soon, who regulates them?  No one.  If somebody

    22    is on painkillers, okay, he's on workmen's comp,


    23    it's okay for him to be down there.  Who

    24    regulates that doctor?  Who regulates workmen's

    25    comp and say, you need to send him back to work. 

                                                                         238

     1    That's not right.  That's puts all of us in


     2    danger, not just illegal drugs and alcohol, it's

     3    prescription stuff too. 

     4                And I don't see where the way this

     5    proposal is going to benefit everyone.  It does


     6    not benefit everyone.  It needs to benefit

     7    everyone.  It doesn't have anything in there for

     8    the supervisors.  The supervisors are coal miners


     9    too.  They need to be drug tested.  Everyone

    10    needs to be drug tested, just like that other man

    11    said.  Anybody who comes on that property needs

    12    to be tested.  There is too much danger just


    13    being there.  It needs to be rethought.  This is

    14    just not a good plan. 

    15                And that's all I have to say. 


    16                MS. SILVEY: Okay, thank you. 

    17                I want to make a comment here

    18    though.  And I understand the comments that you

    19    have stated to us about the fact that the


    20    proposal should have a provision in it that

    21    allows the miners to request the supervisors to

    22    be tested. 


    23                But with respect to your testimony,

    24    Ms. Earnest, that there is nothing in there on

    25    supervisors, the rule does cover, and I stated

                                                                         239

     1    that earlier today, the rule does cover miners


     2    who perform safety-sensitive duties and the

     3    supervisors who supervise them.  So the

     4    supervisors who supervise miners who perform

     5    safety-sensitive duty fall under the definition


     6    of the rule, under the definition.  Every time a

     7    miner is used, you are talking about the

     8    supervisors who supervise them. 


     9                So the rule itself, I don't want

    10    anybody to leave without understanding that.  I

    11    understand the comment, the earlier comment,

    12    about a provision being put in there about a


    13    person can also identify supervisors who may need

    14    to be - miners can do that, who may need to be

    15    tested.  That's a separate issue.  I understand


    16    that. 

    17                But the rule does cover supervisors

    18    of miners in safety-sensitive positions.  And I

    19    don't want people to think that the rule does not


    20    cover supervisors; it does.  And as I say that, I

    21    don't want anybody to say that - I'll say it

    22    before you say it. 


    23                I also understand the comments from

    24    people who said that everybody should be - that

    25    they suggest that everybody be drug tested.  And

                                                                         240

     1    I also understand it from the CEO on down, and


     2    everybody who comes on the mine also.

     3                So but I did want to clarify that;

     4    the rule does cover supervisors.

     5                MS. EARNEST: Okay, well what about


     6    the doctors in workmen's comp?  Would that law be

     7    - would it have a mandate or something to say you

     8    can go behind someone and say, yes, this person


     9    can come back to work or not as far as the drugs.

    10                MS. SILVEY: Well, you are mixing two

    11    - when you say the workmen's comp, this rule

    12    doesn't have anything to do with workmen's comp. 


    13    So I'm not - 

    14                MS. EARNEST: Well, the miners that

    15    come back to work are nine times out of ten on


    16    painkillers or some type of medication.  But who

    17    would regulate that?

    18                MS. CARR: This is Elena Carr.  The

    19    rule - the proposed rule doesn't speak to


    20    regulating worker's comp doctors.  But there is a

    21    provision where someone who is on medication who

    22    returns to work who subsequently tests - has a


    23    confirmed positive, the medical review officer's

    24    role then is to make sure that that prescription

    25    is being taken as the personal physician has

                                                                         241

     1    prescribed, and if so then that person then is


     2    not considered to be tested positive. 

     3                So there is some oversight over that,

     4    but it really remains a matter of the personal

     5    physician. 


     6                MS. EARNEST: Well, what's the

     7    difference between a worker's comp doctor and

     8    somebody else's personal doctor?  Why would there


     9    be a difference?

    10                MS. CARR: As Pat said we are not

    11    speaking to the worker's comp issues.  They are

    12    not addressed in this rule proposal. 


    13                MS. EARNEST: Okay, that's all I have

    14    to say.

    15                MS. SILVEY: Thank you.  


    16                Next speaker, please.

    17                MR. JOHNSON: My name is James

    18    Johnson, J-o-h-n-s-o-n.  My question would be

    19    that a lot of the miners like myself who are older


    20    and on maintenance drugs from their private

    21    doctors. 

    22                How would we be effected as far as


    23    blood pressure medicines and stuff like that

    24    under this new rule?

    25                MS. SILVEY: The new proposal only

                                                                         242

     1    covers the 10 categories of drugs that are listed


     2    in there that I named this morning.  Now I don't

     3    know whether blood pressure medicine - in my gut

     4    I would think that blood pressure medicine

     5    wouldn't fall under one of those categories.


     6                But if someone was taking a

     7    medication that fell under one of the categories,

     8    then if they were taking it, they had a valid


     9    prescription, and they were taking it in

    10    accordance to the valid prescription, then they

    11    would not then be deemed to be in violation of

    12    the regulation.


    13                MR. JOHNSON: And who makes that

    14    determination?

    15                MS. SILVEY: A doctor would make that


    16    determination. 

    17                MR. JOHNSON: My personal doctor?

    18                MS. SILVEY: Your personal doctor.  A

    19    medical review officer, okay. 


    20                MR. JOHNSON: A medical review

    21    officer. 

    22                MS. SILVEY: The medical review


    23    officer would be a licensed physician.  I think

    24    under the proposal it could be an employee of the

    25    mine operator.  But the medical review officer

                                                                         243

     1    could consult with your personal doctor. 


     2                MR. JOHNSON: And what if my doctor

     3    disagrees with the medical review doctor?  Where

     4    would it go from there?

     5                MS. SILVEY: We're here, just a


     6    minute. 

     7                MR. JOHNSON: Okay. 

     8                (Pause.)


     9                MR. JOHNSON: I might say while you

    10    are looking, I'm at a disadvantage because I have

    11    not seen the proposal.

    12                (Pause.)


    13                MS. SILVEY: In the final analysis, I

    14    think, if there is a decision about whether you

    15    are taking a prescription, whether you are taking


    16    - you have a valid prescription, you are taking

    17    the medication in accordance with the

    18    prescription, and then how that - whether that is

    19    compatible with your performance of your job


    20    duties, that final decision would be made by your

    21    personal physician, by the miner's personal

    22    physician. 


    23                MR. JOHNSON: Personal physician?

    24                MS. SILVEY: Yes.

    25                MR. JOHNSON: Okay.  One more question

                                                                         244

     1    about the contractors.  Contractors, a lot of


     2    time what they'll do is they'll contract a job

     3    and they'll go out and get somebody from off the

     4    street that's not a miner, no experience or

     5    anything like that, and they'll bring them on the


     6    mine site.  Who is going to regulate these

     7    people?

     8                MS. SILVEY: The contractors are


     9    covered.  And I understand that probably we need

    10    to refine and make sure we provide clarification

    11    of the coverage for contractors. 

    12                But the rule covers any persons who


    13    are required to have 30 CFR Part 46 or in the

    14    case of a coal miner, 30 CFR Part 48 training. 

    15    And I know that there are a lot of contractors


    16    that have to have that training, that they are on

    17    the mine, on a continuous basis, and they have to

    18    have Part 48 training. 

    19                So for those contractors they would


    20    be covered by the rule and subject to the

    21    requirements of the rule. 

    22                MR. JOHNSON: Okay, thank you.  That's


    23    all I have.

    24                MS. SILVEY: Okay. 

    25                The next speaker, please. 

                                                                         245

     1                MR. REACH: Sean Reach, R-e-a-c-h.


     2                I just wondered if MSHA has their

     3    drug and alcohol policy?  Does their employees

     4    get tested like we're going to be random tested?

     5                MS. SILVEY: All Labor Department


     6    programs have drug and alcohol policy, and there

     7    is a drug and alcohol policy for MSHA, yes. 

     8                MR. REACH: Okay.  Well, if you send


     9    the employees to the mines, and they get hurt,

    10    are they to report that and go and get tested?

    11                MS. SILVEY: I didn't - 

    12                MR. REACH: Are you supposed to be


    13    tested right then, or are they going to have time

    14    enough to go to their doctor and get tested at a

    15    later date?


    16                MS. SILVEY: Oh, you mean in case of

    17    an accident?

    18                MR. REACH: Yes.

    19                MS. SILVEY: In case of an accident I


    20    think there is a certain period of time for

    21    testing for alcohol and a certain period of time

    22    for testing for drugs, within a certain period of


    23    time, if I'm not mistaken, within after an

    24    accident within eight hours testing for alcohol,

    25    and within 32 hours testing for drugs, within

                                                                         246

     1    that time period.


     2                MR. REACH: Okay, they've got plenty

     3    of time to leave the mine site and go get their

     4    urine cleaned before they can pass a test.

     5                MS. SILVEY: Well - 


     6                MR. REACH: But we have to be tested

     7    on site?

     8                MS. SILVEY: Okay, I didn't understand


     9    your question.  I thought about that too.  I

    10    started to further clarify, because you started

    11    off asking about MSHA requirements. 

    12                You were talking about an MSHA


    13    inspector?

    14                MR. REACH: Yes, ma'am. 

    15                MS. SILVEY: If am MSHA inspector gets


    16    hurt on the property, you say?

    17                MR. REACH: Have they got to be tested

    18    right there on our property, or have they got to

    19    go to an MSHA doctor.  


    20                And you say within eight hours. 

    21                MS. SILVEY: No, I'm sorry, I was

    22    giving you the eight hours and the 32 hours in


    23    this room.  I wasn't giving you the Department of

    24    Labor rules for MSHA personnel.  I wasn't giving

    25    you the rules there. 

                                                                         247

     1                MR. REACH: But they're on our mine


     2    site, right?

     3                MS. SILVEY: If they got hurt on your

     4    mine site?  They wouldn't be subject to this

     5    rule.  The MSHA inspector or employee would be subject to the


     6    Department of Labor drug testing requirement. 

     7                MR. REACH: But you said earlier

     8    everybody on that mine site would be subject to


     9    this rule.  Now MSHA - 

    10                MS. SILVEY: No, I didn't.  I said -

    11    wait a minute.  I said, I said for this rule

    12    people who have to take 30 CFR Part 46 and 30 CFR


    13    Part 48 training would be subject to this rule. 

    14                I then said, earlier I said I

    15    realized that some people have told us all


    16    persons should be subject to the testing.  But I

    17    basically said that people who have to take 30

    18    CFR Part 46 and 30 CFR Part 48 training and

    19    subject to this rule.


    20                And that wouldn't be the MSHA

    21    employee.

    22                MR. REACH: Sound like discrimination


    23    to me.  I mean UMSA needs to be worried about gas

    24    problems, dust problems, when we've got our own

    25    problems, and our company already has a drug

                                                                         248

     1    policy for us if we get hurt.


     2                And that's all I've got to say.

     3                MS. SILVEY: Okay, thank you. 

     4                The next speaker please.

     5                MR. WESTON: Ryan Weston, W-e-s-t-o-n.


     6                I want to first say that I feel at a

     7    disadvantage because I haven't seen the proposal.

     8                My question is, who is able to


     9    discern the term, under the influence?   Who says

    10    someone is under the influence?  Who discerns

    11    that to say that they are under the influence?

    12                MS. SILVEY: There are a variety of


    13    persons who can make that determination under the

    14    rule.  It could - the operator can make that

    15    determination, the supervisor can make an initial


    16    determination.  But that all has to be verified. 

    17    That is the whole purpose of the drug testing;

    18    that is not done without verification through the

    19    drug testing. 


    20                MR. WESTON: Can you define under the

    21    influence for me?

    22                MS. SILVEY: Well, we have the


    23    required - the definition in here for what is a

    24    positive, what would be determined to be a

    25    positive test result.  And that's what the rule -

                                                                         249

     1    that's what somebody would have to comply with


     2    with respect to the rule. 

     3                MR. WESTON: That doesn't answer my

     4    question.  That's talking about the test that you

     5    have to go take when someone said that you are


     6    under the influence.  I want to know who discerns

     7    and says that I'm under the influence or not,

     8    because to me that leaves a big door open for


     9    discrimination. 

    10                MS. SILVEY: Okay.  You want to answer

    11    that?  Okay, I understand.  

    12                MR. WESTON: Next question would be,


    13    okay let's take for instance I hurt my back at

    14    work. I pull a muscle in my back, and I go to a

    15    workmen's comp doctor who the company has paid. 


    16    The company pays his bills and pays him for me

    17    going. 

    18                He says to go back to work the next

    19    day, he gives me a prescription for say Loritab


    20    for instance.  He says, don't take these at work,

    21    but you need to take these if you're hurting. 

    22    Well, if I'm hurting I have to take the


    23    prescription drugs.  Let's say a supervisor or

    24    someone doesn't like me because of a previous

    25    circumstance or something has happened, who's to

                                                                         250

     1    say he can't come to me and say I'm under the


     2    influence because he knows that I went to the

     3    doctor, and I'm on the medication that the doctor

     4    is prescribing, and then I'm out of a job,

     5    correct?


     6                MS. SILVEY: Okay.  You know as I said

     7    before, if the miner has a valid prescription and

     8    is taking the medication in accordance with the


     9    valid prescription then the rule - that miner

    10    would not be deemed to be in violation of the

    11    rule. 

    12                MR. WESTON: Excuse me, I'm sorry, I'm


    13    at a disadvantage like I said because I haven't

    14    seen the proposal.  Okay if say that if a miner

    15    is on prescription medication and the company


    16    says or somebody says that he is under the

    17    influence, let's say he does lose his job for

    18    taking prescription medication that has been

    19    prescribed for him, are y'all going to go after


    20    that doctor who prescribed that to him and take

    21    his license and his job and his income away from

    22    his family?


    23                MS. SILVEY: If the miner is on a -

    24    has a valid prescription, is taking the

    25    prescription in accordance with the instruction,

                                                                         251

     1    as I said earlier, that's the - that - if that is


     2    what's happening, then that person would not be

     3    deemed to be in violation of the proposal.

     4                MR. WESTON: Okay.  Does the policy go

     5    all the way up to management in the company?


     6                MS. SILVEY: The policy goes to miners

     7    and to supervisors who supervise them.  If a

     8    particular miner happens to be supervised by a


     9    vice president of the company, then the policy

    10    goes to the vice president of the company.  If

    11    the company happens to be supervised by the

    12    general superintendent of the mine, it goes to


    13    the general superintendent, or the mine manager,

    14    it goes to the mine manager.  It just depends on

    15    where the supervisory chain is in the mine. 


    16                MR. WESTON: So would it go to human

    17    resources on the people that decide who comes

    18    into the mine and who they hire into the mine?

    19                MS. SILVEY: I don't know, it depends


    20    on the setup the supervisory setup of the mine. 

    21    Human resources might hire them in, but if - they

    22    could make somebody else to supervise them.  I've


    23    got to know what the setup is and who supervises

    24    the mine. 

    25                MR. WESTON: Well, I personally

                                                                         252

     1    believe that this proposal is a big window for


     2    discrimination for supervisors, whoever, saying

     3    that they don't like one person and can just pull

     4    them out of a crowd and say, I think you are

     5    under the influence.  And I think it's going to


     6    happen, and I do not think this is a good

     7    proposal.  And that's all I have to say. 

     8                MS. SILVEY: Okay, thank you. 


     9                Next speaker please. 

    10                MR. LINDSAY: How are you doing today?

    11                MS. SILVEY: How are you doing.  

    12                MR. LINDSAY: Fine.  My name is John


    13    Lindsay, L-I--d-s-a-y. 

    14                I have a question: are you saying

    15    that the drug test, the supervisor, everybody has


    16    to be tested, what you got here says, the ruling

    17    is not clear on the supervisors which are

    18    included in this test, how they would be

    19    supervisors of the miners or inspectors.  So what


    20    you are telling us there?  Ain't nobody going to

    21    be tested but the miners, and the supervisors are

    22    going to go without being tested? 


    23                MS. SILVEY: I said the rule covers

    24    miners who perform safety-sensitive job duties,

    25    and the persons who supervise them.  The rule

                                                                         253

     1    covers them.  Those people are within the scope


     2    of the rule. 

     3                MR. LINDSAY: But it says here it's

     4    not clear on the supervisor. 

     5                MS. SILVEY: Where does it say it's


     6    not clear on the supervisor. 

     7                MR. LINDSAY: On the second page,

     8    second paragraph. 


     9                MS. SILVEY: Second paragraph of what?

    10                MR. LINDSAY: On the second page of

    11    this - you don't have it?

    12                MS. SILVEY: I don't have it, do I? 


    13    You must be reading from your prepared comments

    14    now.  I don't have them. 

    15                MR. LINDSAY: You don't have them?


    16                MS. SILVEY: No sir.  But it's still

    17    the same thing, if you're going to test anybody

    18    for drugs, a supervisor gets more people killed

    19    than the workers can. 


    20                MS. SILVEY: The rule covers

    21    supervisors.  It covers supervisors of miners

    22    performing - the category of miners that are


    23    covered by the rule, the rule covers the persons

    24    who supervise them.  So miner X is a long wall

    25    operator, and miner B is his supervisor, the rule

                                                                         254

     1    would cover miner X and miner B. 


     2                MR. LINDSAY: But still it ain't - as

     3    it is the miners all of us would be tested

     4    regardless of what they'll be doing for just the

     5    miners?  Like the guy said a few minutes ago, you


     6    get a supervisor you had a run-in before, and he

     7    come back and say you are under the influence,

     8    and get you for sniffing glue or something. Okay,


     9    when they take you off your equipment, or what?  

    10                I mean there are just too many things

    11    that they could do to hurt you with the drug

    12    test, what they're doing, which ain't fair. 


    13                MS. SILVEY: Anything else?

    14                MR. LINDSAY: I'd like another

    15    comment.  You just saying the way we are going to


    16    be testing, okay, some supervisors or management

    17    might not be in it.  If they get hurt are they

    18    going to be covered under the same thing?

    19                MS. SILVEY: The rule covers miners


    20    and their supervisors.  So supervisors are

    21    covered.

    22                MR. LINDSAY: The manager too?


    23                MS. SILVEY: Miners and the people who

    24    supervise minors.

    25                MR. LINDSAY: The management?

                                                                         255

     1                MS. SILVEY: That's management, yes. 


     2                MR. LINDSAY: Okay, you are saying

     3    that, why can't we make it more safe for us as

     4    far as dust and some of the equipment down like

     5    the track, stuff like that, safety that needs to


     6    be taken care of beside the drug.  Because we

     7    have a drug test.  If anyone of us gets hurt

     8    today, the management would come down and say,


     9    everybody in the sector, y'all take a drug test,

    10    we got to take a drug test.  What do we need

    11    another drug test besides the one we already

    12    have?  I was tested before I went to work. 


    13                MS. SILVEY: Let me go back to talk a

    14    little bit about the coverage.  Everybody is

    15    talking about miners and supervisors and


    16    contractors.  The rule actually covers miners,

    17    supervisors, contractors, it exempts - it does

    18    not cover - administrative and clerical

    19    personnel.  For example, a payroll clerk.  That's


    20    the only category that the rule is all-out

    21    exempting, administrative and clerical personnel. 

    22    It covers miners, management, and it covers


    23    contractors. 

    24                MR. LINDSAY: The job I was at before

    25    I came to the mine, even the office personnel

                                                                         256

     1    they was drug tested.  I say everybody. If you go


     2    with a company, the majority of companies, they

     3    have drug testing, and they test everybody in the

     4    company, go through a random drug test, the

     5    secretaries and everybody else.  Anybody who is


     6    on that company's property is subject to testing. 

     7    They had to take their test. 

     8                It would be a random, they would go


     9    by computer, they would pull them up, and

    10    sometime that supervisor would tell you to go two

    11    or three times a month. 

    12                MS. SILVEY: Okay.  Okay, is that it?


    13                MR. LINDSAY: Yes, ma'am.  That's it. 

    14                MS. SILVEY: Okay, thank you. 

    15                MR. LINDSAY: You're welcome. 


    16                MS. SILVEY: Next speaker please.

    17                MR. BAKES: How you doing, ma'am. 

    18                MS. SILVEY: How are you?

    19                MR. BAKES: My name is Randy B. Bakes. 


    20    I've been in a coal mine 29 years.  We used to

    21    drink beer and have parties when we first started

    22    running coal for him.  Most of them got more


    23    problems than we got.  Like this country has been

    24    around drugs and moonshiners to prohibition.  The

    25    government didn't want to legalize marijuana. 

                                                                         257

     1    Now they got 


     2    Quaaludes, and then they cut them out, and they

     3    substitute in with Valiums, and they substituted

     4    with Loritabs. 

     5                We have a contract we work under, and


     6    if this is passed, they'll be able to take on

     7    anybody that they want to from working too long,

     8    fatigued, and everything thing else. 


     9                I didn't come here to ask questions

    10    when I came here, but I just came to speak.  And

    11    I know I've seen more than I could tell.  If I

    12    could tell half of what I know I'd be


    13    assassinated before I left this building.  I've

    14    seen bosses go to the turn and know good and well

    15    what they are doing, they don't turn, they go so


    16    far off that they go and use the bathroom,

    17    knowing good and well what they are doing. 

    18                I've even gone in behind places and

    19    found needles on the roof or anything else.  It's


    20    hard to prove.  If you go speaking up, if this is

    21    passed, then somebody else gets picked off. 

    22                I never tried to do nothing, no drugs


    23    - I was always told any drug you do that's white

    24    you get addicted to it.  If this country would

    25    legalize marijuana it probably wouldn't have all

                                                                         258

     1    these other big drug problems. 


     2                Drugs is big business in this

     3    country.  This country was built on drugs, always

     4    your farmers go out on their contractors with a

     5    shot of moonshine.  


     6                And that's probably why the Indians

     7    lost their land because they smoke so much

     8    marijuana.  


     9                And this - I guess I done said

    10    enough.  You got any questions for me?

    11                MS. SILVEY: No, sir, thank you. 

    12                Next speaker please.


    13                MR. SPENCER: Good afternoon. My name

    14    is Larry Spencer, S-p-e-n-c-e-r.  I'm the - I

    15    work for the United Mineworkers of America.  I'm


    16    district rep for the International.  I've been

    17    sitting here listening all day, and I've listened

    18    to comments about the policy that is out there. 

    19    And one thing we do want to reiterate, the United


    20    Mineworkers stands for a drug-free workplace. 

    21                The thing that concerns me more today

    22    than anything is that out of all the mines that


    23    we represent in Alabama, 100 percent of our union

    24    mines have drug policies.  Not 85 percent, not 75

    25    percent, but 100 percent of our union mines have

                                                                         259

     1    drug policies that are much better than the


     2    policies y'all are trying to put into place

     3    today, because they are also testing all the

     4    personnel people, anybody that comes onto the

     5    property that works for one of these mines now


     6    are subject to be drug tested. 

     7                And now you are wanting to change it

     8    and just allow the miners and the supervisors


     9    that supervise miners to be tested.  The people

    10    that are making the decisions such as the mine

    11    managers, if they are not supervising someone

    12    they don't have to be drug tested, but they still


    13    make the decisions that can cost people's lives. 

    14    And I do not understand why the U.S. government

    15    is trying to make a decision that will still cost


    16    people's lives by not drug testing them too.  Why

    17    can't we leave these policies in effect.  Because

    18    if you put this policy in effect now, all the

    19    companies are going to step back to the lesser


    20    policy than what they've got in effect today, and

    21    I think you need to spend your money on testing -

    22    doing more dose testing, diesel emissions, black


    23    lung.  We've got a lot of other problems.  And

    24    today the inspectors can't even get all their

    25    routes down without getting help into the mines. 

                                                                         260

     1    And you are asking them to do more than what they


     2    are doing today.  And I can't see that happening.

     3                And what that, that's my comments. 

     4    And I will answer any questions. 

     5                MS. SILVEY: Okay, thank you very


     6    much.  I don't have any questions. 

     7                The next speaker, please.

     8                MR. HUGHLETT: Hello.  My name is


     9    Riley Hughlett, H-u-g-h-l-e-t-t.  

    10                I again at a disadvantage.  We don't

    11    have the interest given to us, full writing and

    12    everything.  But I'm in agreeance with the last


    13    speaker that the policy they have is already a

    14    good policy.  Why does the government want to

    15    jump in and change a policy and go backwards when


    16    they already have a good policy.  It doesn't make

    17    any sense. 

    18                I just wanted to know why does the

    19    government want to come in and change the policy


    20    that we already have in place.  Question?

    21                MS. SILVEY: Well, the rule would not

    22    seek to change a policy that is in place.  It


    23    would put in place a rule that all mine operators

    24    would have to comply with. 

    25                MR. HUGHLETT: They already do - I'm

                                                                         261

     1    sorry, I didn't mean to cut you off.


     2                MS. SILVEY: Well, it would put in a

     3    place a policy that all mine operators would

     4    comply with, a standardized drug program. 

     5                MR. HUGHLETT: Now we already have


     6    that program.  Now another thing -

     7                MS. SILVEY: Well, let me finish. 

     8    What it does say is that any operator who has a


     9    program that meets the requirements of this rule,

    10    that program would be held as being - would be

    11    viewed as being in compliance with the rule.  So

    12    in other words it would not seek to undo good


    13    operator programs that are in place.  And I've

    14    heard a lot of testimony from people who say that

    15    a lot of their operators, not from the labor


    16    sector, UMWA, the Steelworkers, as well as

    17    operators who say that they have good programs in

    18    place. 

    19                This proposed rule would not seek to


    20    undo those good programs.

    21                MR. HUGHLETT: Okay, and another

    22    question, who is paying for this policy?  Is this


    23    a government policy, or is the company paying for

    24    it?  Who's paying for it?  Is it taxpayers? 

    25    Who's paying for it?

                                                                         262

     1                MS. SILVEY: It would be a company


     2    policy.  Mine operators would have to pay for 

     3    the requirement. 

     4                MR. HUGHLETT: Okay, so it's coming

     5    out of the company's pocket then. 


     6                MS. SILVEY: Yes. 

     7                MR. HUGHLETT: I was just wondering

     8    why the government wants to impose more rules,


     9    and how much deeper does it go from there?  Are

    10    they next going to come to the house and seeing

    11    what we're doing there?  

    12                MS. SILVEY: I doubt it. 


    13                MR. HUGHLETT: You doubt it, but

    14    possible huh?

    15                MS. SILVEY: No I doubt it very


    16    seriously.  MHSA wouldn't do that.  

    17                Okay, is that - do you have anything

    18    else?

    19                MR. HUGHLETT: No, I don't have


    20    nothing else. 

    21                MS. SILVEY: Okay, thank you. 

    22                Next speaker please.  Is there


    23    another speaker?

    24                MR. WILSON: Yes, Morris Wilson. 

    25                MS. SILVEY: Okay. 

                                                                         263

     1                MR. WILSON: Nickname Stretch. 


     2                I wanted to ask you, did they have

     3    any particular drugs that they were really

     4    targeting on this?

     5                MS. SILVEY: Any particular drugs? 


     6    The drugs that are listed in the proposal.  It's

     7    a 10 panel drug.

     8                MR. WILSON: Oh, 10 panel drug?  I


     9    haven't seen that paperwork.  But this is totally

    10    wrong. 

    11                MS. SILVEY: I called them all this

    12    morning. 


    13                MR. WILSON: Okay.  You have evening

    14    shift in here now.  

    15                MS. SILVEY: I understand that. 


    16                MR. WILSON: Is this one of those Bush

    17    policies?

    18                (Laughter.)

    19                Excuse me?


    20                MS. SILVEY: I'm here. 

    21                MR. WILSON: Is this one of those Bush

    22    policies?


    23                MS. SILVEY: The rule was proposed by

    24    the Mine Safety and Health Administration. 

    25                MR. WILSON: Is that a part of the

                                                                         264

     1    Bush policy?


     2                MS. SILVEY: I don't understand your

     3    question. 

     4                MR. WILSON: MHSA is the federal

     5    government, right?


     6                MS. SILVEY: That is correct. 

     7                MR. WILSON: So this is a part of the

     8    Bush policy then, right?


     9                MS. SILVEY: MHSA is an agency of the

    10    Department of Labor, and MHSA proposed this rule.

    11                MR. WILSON: Send him a message from

    12    us.  We going to give him a treat after this


    13    election.

    14                Thank you. 

    15                MS. SILVEY: Thank you. 


    16                The next speaker please. 

    17                MR. CAGLE: On my way. 

    18                MS. SILVEY: Okay. 

    19                MR. CAGLE: My name is Dwight Cagle,


    20    D-w-I-g-h-t C-a-g-l-e.  I'm with the UMWA. 

    21                I need a definition on safety-

    22    sensitive job duties. 


    23                MS. SILVEY: Okay, we - safety-

    24    sensitive - miners are determined to be in

    25    safety-sensitive job duties.  Any miners who have

                                                                         265

     1    to take 30 CFR Part 46 and 30 CFR Part 48


     2    comprehensive training.  And I know you know who

     3    those are.  I'm sure you know who those are at

     4    your mine.

     5                MR. CAGLE: Everyone that's in the


     6    mine. 

     7                MS. SILVEY: Everyone - most everybody

     8    in the underground mine. 


     9                MR. CAGLE: Okay, say that you have

    10    reasonable suspicion for testing.  You challenge

    11    this man and take him at that time you'll be

    12    taking him to, at our mines, about an hour and


    13    half away to be tested, where he'll be waiting

    14    five hours to be tested, if they get to him

    15    within five hours.  In the past before this


    16    proposal come up, you challenged a man and he

    17    comes back clean, not a positive test, there is

    18    no language in this proposal who is going to pay

    19    this man. 


    20                Could you answer that?

    21                MS. SILVEY: The rule doesn't specify

    22    pay.  That would be a decision made by the mine


    23    operator. 

    24                MR. CAGLE: Well, if you are trying to

    25    implement - ma'am.

                                                                         266

     1                MS. SILVEY: It does say that there is


     2    to be no adverse action against any miner if it

     3    is later determined that the test was not - that

     4    there was no positive test, that there can be no

     5    adverse action taken. 


     6                Mr. CAGLE: And some of the tests, you don't get

     7    results back within two or three days, what does

     8    this miner do?


     9                MS. SILVEY: I think that decision is

    10    left up to the operator.  He can - the operator

    11    can put him in a nonsensitive job duty, during

    12    that period of time.  And no loss of pay.  


    13                MR. CAGLE: There is no job like that

    14    in the mines. 

    15                MS. SILVEY: Well, no loss of pay


    16    anyway. 

    17                MR. CAGLE: Does the proposal state

    18    that?

    19                MS. SILVEY: Yes.  It does.  


    20                MR. CAGLE: But what I'm saying there

    21    is no job like that, safety-sensitive job. 

    22                MS. SILVEY: I understand.  But I'm


    23    saying the miner can't suffer any loss of pay

    24    though. 

    25                MR. CAGLE: Otherwise it's not a good

                                                                         267

     1    plan, leaving all these unanswered questions.


     2                MS. SILVEY: No, I'm saying to you,

     3    I'm answering that one, I'm saying in the

     4    situation you just described the miner can suffer

     5    no loss of pay.  That is in the rule.  So I don't


     6    want you to go away thinking that that is

     7    answered.  So I've answered every question you

     8    asked.


     9                MR. CAGLE: If left up to the

    10    operator. 

    11                MS. SILVEY: No, I said that the miner

    12    must suffer no loss of pay.  I didn't say it's


    13    left up to the operator.  In the event that

    14    Section 66.403 covers operator actions after

    15    receiving a verified test result. 


    16                MR. CAGLE: But at that time they may

    17    not get that - 

    18                MS. SILVEY: In the event that there

    19    is a verified negative test or a test that is


    20    cancelled, the miner will be immediately returned

    21    to the performance of his duty; the miner will

    22    suffer no adverse personnel consequences. 


    23                You gave me the situation where the

    24    test came back later negative.

    25                MR. CAGLE: Right.  But the question

                                                                         268

     1    was about the safety-sensitive jobs.  We do not


     2    have jobs like that. 

     3                MS. SILVEY: But the bottom line is

     4    that the miner suffers no loss of pay.

     5                MR. CAGLE: So if the supervisor


     6    challenged this man with his three hours of

     7    training, two initially and two yearly by this

     8    plan, and this supervisor, which we've got


     9    several that's in their early 20s, and he's going

    10    to be able to challenge these folks with three

    11    hours training to recognize conditions to

    12    challenge these people, giving reasonable


    13    suspicions for testing?

    14                MS. CARR: Your point is simply that

    15    the supervisor doesn't have sufficient training


    16    to make this reasonable suspicion determination;

    17    is that your concern?

    18                MS. CAGLE: That's one of them, yes. 

    19                MS. CARR: Remember, it's reasonable


    20    suspicion.  It's not an absolute determination. 

    21    The drug test itself is the objective

    22    determination as to whether or not there was


    23    prohibited use.  And if it comes back negative

    24    there is no adverse personnel consequences, even

    25    if the miner isn't placed on another job; if he

                                                                         269

     1    has to sit out, be suspended, he would be


     2    returned with no adverse personnel consequences

     3    and no loss in pay, so he would be paid. 

     4                MR. CAGLE: As the people that come in

     5    earlier, they all have the same belief that a


     6    little bit of discrimination here would be if a

     7    supervisor doesn't like that employee, challenge

     8    him, with three hours training, two yearly.  


     9                Also is Part 36, who gives that

    10    training?

    11                MS. SILVEY: What do you mean who gives

    12    Part 46?


    13                MR. CAGLE: A competent person?

    14                MS. SILVEY: Or - 

    15                MR. CAGLE: Or an MHSA trainee?


    16                MS. SILVEY: A competent person. 

    17                MR. CAGLE: So just anybody competent

    18    could give this training?

    19                MS. SILVEY: Part 46 training.  You


    20    wouldn't take Part 46.  You'd take Part 48

    21    training. 

    22                MR. CAGLE: Yes, I'm underground. 


    23    What about the contractors and all that come on

    24    that site, are they Part 36 if they don't go

    25    underground?

                                                                         270

     1                MS. SILVEY: They would be Part 48


     2    too. 

     3                MR. CAGLE: Metal or non-metal, that's

     4    Part 46?

     5                MS. SILVEY: Part 46 is metal, non-


     6    metal, only part of metal, non-metal.  Metal/non-

     7    metal surface, stone, and aggregate.

     8                MR. CAGLE: That would be a competent


     9    person?

    10                MS. SILVEY: What did you say?

    11                MR. CAGLE: And that would be a

    12    competent person?


    13                MS. SILVEY: A competent person could

    14    give the training yes, for that segment of the

    15    training.


    16                MR. CAGLE: On the drug and alcohol

    17    recognition?

    18                MS. SILVEY: For the people who fall

    19    under Part 46.


    20                MR. CAGLE: Okay, thank you. 

    21                On the other one, the lady that

    22    testified about the workmen's comp, about sending


    23    these people back to work with a back injury or a

    24    bruise, whatever, back strain.  And they

    25    prescribe them Loritabs, don't take these at

                                                                         271

     1    work.  It's still in your system. 


     2                And you say that they get challenged,

     3    and as long as the doctor with workmen's comp

     4    prescribed this it's going to be okay?

     5                MS. CARR: As long as it's being taken


     6    according to prescription it would be okay, and

     7    that is the role that the medical review officers

     8    role is to assure, to review the medical


     9    evidence, to talk to that worker's comp doctor

    10    and determine whether or not in his best medical

    11    judgment it is being taken as prescribed. 

    12                So if the prescription was, take it


    13    in the morning or as needed, the medical review

    14    officer, trained licensed physician, would make a

    15    judgment, and in all likelihood in that scenario,


    16    it would come out a negative - be reported as a

    17    negative test result. 

    18                MR. CAGLE: I want to say that this is

    19    the way it works at our - with our company.  They


    20    send you to the hospital with an injury.  They

    21    treat you and then you got to go see the company

    22    doctor before you return to work.  And at that


    23    time you either take away or prescribe and send

    24    you back to work the next day. 

    25                Don't you think this plan would

                                                                         272

     1    either take away the painkillers and he'd tell


     2    you to take two aspirins, what this plan would

     3    lead to? 

     4                MS. CARR: That is your speculation. 

     5    There is nothing specific in this rule that would


     6    require that or even necessitate that. 

     7    Legitimate use of prescription painkillers so

     8    long as they are being used for a particular


     9    medical condition and as prescribed.

    10                MR. CAGLE: As prescribed.

    11                MS. CARR: So if you take twice the

    12    amount and you show up that might be a problem. 


    13    But if you are taking the amount prescribed for

    14    pain, for a medical condition, it is the medical

    15    review officer's job to determine that and report


    16    that as a negative.

    17                MR. CAGLE: Say it's prescribed, take

    18    one every eight hours, we don't have eight-hour

    19    shifts at our mines.  So it would be in your


    20    system and you would be taking your medication at

    21    work. 

    22                MS. CARR: And you'd be taking it as


    23    prescribed. 

    24                MR. CAGLE: Every eight hours. 

    25                MS. CARR: As long as you take it as

                                                                         273

     1    prescribed you are not in jeopardy of being in


     2    violation of the proposed rule. 

     3                MR. CAGLE: That's all I have at this

     4    time. 

     5                MS. SILVEY: Next speaker please. 


     6                MR. WELDON: Hello, how are you doing? 

     7    This is Joe Weldon, United Mineworkers of

     8    America, 1948, that's W-e-l-d-o-n.


     9                MS. SILVEY: How are you doing?

    10                MR. WELDON: I'd be doing better if I

    11    was at home right now, but I'm not.  

    12                I still question the explanation


    13    concerning the supervisors being tested, and when

    14    I finish maybe you can explain to me a little bit

    15    more. 


    16                I personally don't believe that this

    17    panel fully understands what it's really like in

    18    the coal mines.  And I doubt very seriously if

    19    any of y'all have been in the coal mines, but if


    20    you had you would understand more about what we

    21    are trying to portray here, and how we are trying

    22    to tell you about some of the things and issues


    23    that we are trying to describe. 

    24                First of all, discrimination does

    25    still exist in the coal mines.  If you stand up

                                                                         274

     1    for what you believe in and push issues such as


     2    safety issues or grievance issues, you will be

     3    reprimanded in one way or another if not fired. 

     4    They will put you to doing dirty work, and one

     5    prime example that I can give myself personally


     6    is that me and Mr. Wilson was on an inspection of

     7    the mines here a few months ago, and we rode up

     8    about 50 crosscuts of bad cop, broken straps, bad


     9    roof bolts, and such as that. 

    10                Well, guess who got to fix all that? 

    11    It was me.  And believe it or not I done it

    12    smiling the whole time.  And they put me - took


    13    me off my regular job, put me to running a roof

    14    drill, setting pins, putting up straps, timbers,

    15    setting building cribs.  And doing everything


    16    that nobody else wanted to do.  Why?  Because I

    17    stood up for what I believed in.  I stood up and

    18    I took a stand, and tried to make that mine as

    19    safe as possible for my fellow workers to work


    20    in.  But yet I was reprimanded, and I was

    21    discriminated against because I'd done that. 

    22                But I wouldn't let them know that. 


    23    Like I said, I smiled the whole time that I was

    24    doing it. 

    25                But the fact still remains that if

                                                                         275

     1    some of us did have the ability to turn in a


     2    supervisor, and he was under the influence of

     3    drugs or alcohol, and we did turn him in,

     4    absolutely 100 percent we would be reprimanded

     5    one way or another, whether it be fired, whether


     6    it be put off somewhere shoveling mud in a place

     7    that it didn't need to be shoveled, we would be

     8    reprimanded for that, standing up for what we


     9    believed in. 

    10                We believe that this policy that

    11    y'all are putting into effect, we don't agree

    12    with it, none whatsoever.  We believe that the


    13    policies that we have in effect at all of our

    14    union mines are adequate, and they've been

    15    working, and like the old saying goes, and other


    16    brothers have said it before, if it's not broke,

    17    don't fix it. 

    18                We believe that you will either be

    19    fired if you do turn in a supervisor, or they'll


    20    make it so hard on you you will want to quit,

    21    especially if you push safety issues and/or

    22    grievance issues. 


    23                I also want to make a comment: is it

    24    just because that you all are putting this policy

    25    into effect or this policy does go into effect,

                                                                         276

     1    what makes y'all believe that the company is


     2    going to adhere to it?  What makes y'all think

     3    that the company is going to do what y'all say in

     4    these standards?  You can look at the number of

     5    citations at every one of these mines, especially


     6    in Alabama, at the number of citations that

     7    they've got written, and look at the number

     8    they've paid.  They drag them out in court, they


     9    drag them out in court.  Every one of them goes -

    10    we used to have citation conferences every two

    11    weeks.  We don't have them any more.  Why? 

    12    Because they take them all to court. 


    13                So just because this policy goes into

    14    effect doesn't mean that the companies are going

    15    to adhere to it, and they are not going to do


    16    what they are supposed to do. 

    17                That concerns me that just because

    18    y'all say that they have to go along with this

    19    policy doesn't mean that they are going to do it. 


    20    They'd just as soon to pay it and go on to the

    21    next issue, or drag it out until it just goes

    22    away. 


    23                And that's all I had, Ms. Silvey.  If

    24    you have any questions. 

    25                MS. SILVEY: No, I don't have any

                                                                         277

     1    questions per se, except to make a comment that,


     2    and I'm sure you know this too, that in the last

     3    year, year and a half, the civil penalty, we put

     4    in new civil penalty regulations, in addition to

     5    the Miner Act, there was a provision in the Miner


     6    Act if an operator fails to notify MSHA it's a

     7    minimum penalty for that, and also flagrant

     8    violation penalty, and also minimum penalties for


     9    unwarrantable failure. 

    10                You ask me, now why do I say that? 

    11    Because I would suspect that - I know that the

    12    penalties have gone up tremendously.  So a lot of


    13    mine operators are at a different - are dealing

    14    somewhat differently with the penalties today

    15    maybe than they were a little over two years ago.


    16                MR. WELDON: Yes, ma'am, I understand

    17    completely what you're saying.  And our mines is

    18    on D status as I speak; we are still on D status,

    19    have been for awhile.  And of course everything


    20    that they get they take it to court.  And so I

    21    understand that as well. 

    22                But what I want you to understand is


    23    this of course, and my last point being that we

    24    will be discriminated against if there are not

    25    provisions in there if we have the policy, if we

                                                                         278

     1    turn a supervisor in, and we ought to have that


     2    ability to do that, Ms. Silvey, because we feel

     3    like that everyone that comes on that property, I

     4    know it's a broken record and you keep hearing

     5    that, but we believe that everybody that comes on


     6    that property, every job in that mine is a

     7    sensitive job. 

     8                And so I want y'all to please take


     9    that into consideration if you will.

    10                MS. SILVEY: I understand.  I

    11    understand what you're saying.  And I do want to

    12    say one other thing, because I've heard several


    13    people talk about you feel like you would be

    14    discriminated against.  And I just want to

    15    reiterate that there are provisions in the Mine


    16    Act, if a miner feels discriminated against for

    17    filing a discrimination complaint which MSHA must

    18    investigate. 

    19                So but I hear what you are saying. 


    20    Thank you. 

    21                MR. WELDON: Yes, ma'am.  Thank you. 

    22                MS. SILVEY: Next speaker, please. 


    23                MR. BOLDEN: Deandre Bolden, B-o-l-d-

    24    e-n. 

    25                I basically have one question.  As an

                                                                         279

     1    American taxpayer, I just want to know how will


     2    this be funded, this program that you implement?

     3                MS. SILVEY: It will be funded by the

     4    mine operator.

     5                MR. BOLDEN: It's being funded by who?


     6                MS. SILVEY: No, it would be funded,

     7    the costs would be - would go to the  fall on the

     8    mine operator.


     9                MR. BOLDEN: The company?

    10                MS. SILVEY: The company, that's

    11    right. 

    12                MR. BOLDEN: Okay, with that being so,


    13    our company has a pretty good standard on not

    14    using drugs at the workplace.  I mean who is -

    15    excuse me.


    16                MS. SILVEY: That's good then. 

    17                MR. BOLDEN: Yes, yes.  And we stand

    18    fully for that.  We stand at all on our premises. 

    19    With this coming into effect, why should you


    20    regulate what a company already has in place? 

    21    It's like you don't have a trust in a company

    22    that is doing something that is good for America


    23    that is producing coal.  Like you don't have

    24    faith in other Americans, you're taking over. 

    25                MS. SILVEY: No, what we did is, we

                                                                         280

     1    gave - we recognized in the proposal companies


     2    that have - many companies have good existing

     3    programs, and we recognize that companies with

     4    those programs, as long as those programs met the

     5    requirements of the proposal, they would be


     6    deemed to be in compliance with the proposal. 

     7                So we understand that a lot of

     8    companies do have good programs, and programs


     9    that work.

    10                MR. BOLDEN: Okay.  Another question. 

    11    When is the rule on this law that you are trying

    12    to pass, when are you trying to pass this law,


    13    what date?

    14                MS. SILVEY: We don't have a certain

    15    date.  There is a - this is - we are in the


    16    public comment phase.  And then generally you

    17    dealt with me with rulemaking before.  And what

    18    happens then, we'll go back and we'll review and

    19    evaluate the comments and develop a final rule. 


    20    That is the process. 

    21                MR. BOLDEN: Excuse me, do you feel

    22    like this policy is in good review?  Do you think


    23    it needs to be reviewed, you personally?

    24                MS. SILVEY: What do you mean?  We

    25    have to review the comments.  That's part of this

                                                                         281

     1    public rulemaking process. 


     2                MR. BOLDEN: Okay.  One more question. 

     3    Have you ever been discriminated against

     4    personally?  The reason I say that, I don't mean

     5    to put you on the spot, the reason I say that,


     6    this company - not this company, but this United

     7    States of America, we have been discriminated

     8    against through white, black, Hispanic, Africans,


     9    whatever you want to call it.  This policy I

    10    think right now would leave a big window for it. 

    11    Like my other brothers came up here and said

    12    before, you have never worked in a coal mine


    13    before.  I haven't worked in a coal mine February

    14    of this year.  There is nothing like it. 

    15                And what they are trying to explain


    16    to you, I mean you have to be in that coal mine

    17    to understand. This leaves a wide open space for

    18    discrimination, and I think y'all need to review

    19    it.  Thank you. 


    20                MS. SILVEY: Okay, I appreciate it. 

    21    Thank you.

    22                Next speaker, please. 


    23                MR. KIMBRELL: My name is Ned

    24    Kimbrell.   I work for Jim Walter Resources, UMWA

    25    2937.  

                                                                         282

     1                MS. SILVEY: Can you spell your last


     2    name, please?

     3                MR. KIMBRELL: K-I-M-B-R-E-L-L.  

     4                MS. SILVEY: Okay, thank you. 

     5                MR. KIMBRELL: One of the previous


     6    speakers up the drug that you would be testing

     7    for.  I have the proposal in front of me on page

     8    52142, or I guess that maybe page number what


     9    have you. 

    10                MS. SILVEY: That's right.

    11                MR. KIMBRELL: The list of the drugs

    12    that you have in here or that you are proposing


    13    to test for, I think there are a few issues that

    14    a lot of miners have, and one being that you are

    15    willing to test for prescription drugs.  And I


    16    understand that as far as the prescription drugs

    17    it will be up to the licensed medical physician

    18    and that sort of thing to determine whether you

    19    are taking those drugs properly; correct?


    20                MS. SILVEY: That's correct.

    21                MR. KIMBRELL: You also stated that

    22    the drug program is going to be paid for by the


    23    mine operator; correct?

    24                MS. SILVEY: Correct.

    25                MR. KIMBRELL: So the doctor that's

                                                                         283

     1    going to be taking a look at your case is going


     2    to be paid for by the mine operator; correct?

     3                MS. SILVEY: Might not.  Could be.

     4                MR. KIMBRELL: Could be?

     5                MS. SILVEY: Yes. 


     6                MR. KIMBRELL: Who else would be

     7    paying the doctor to take a look a look at your

     8    drug test that the company paid for?


     9                MS. SILVEY: Well, you say paid for. 

    10    Could be an employee of the mine operator or it

    11    could be a personal contract.  It depends on how

    12    the program is set up: directly paid or in some


    13    other manner.

    14                MR. KIMBRELL: So it's being paid for

    15    by the mine operators.  Someone has to take a


    16    look at the test.  Who is footing the bill?  The

    17    mine operator.  

    18                Who is that doctor going to be loyal

    19    to?  The one that's paying his paycheck. 


    20                Second issue is, I was reading this

    21    and it says although the proposed rule requires

    22    mine operators to provide one opportunity for


    23    those violating the rule to get help and retain

    24    their job, it leaves it to the mine operator to

    25    determine the disciplinary consequences for

                                                                         284

     1    violations. 


     2                That's giving too much power to the

     3    mine operator, lay a man off who tests positive

     4    for hydrocodone because he wore his back out

     5    workings 6X12s a week and he is taking his


     6    medicine like he's suppose to, but it's giving

     7    too much power to the mine operator to lay that

     8    miner off for 30 days.  What is that miner


     9    supposed to do when the operator can determine

    10    his consequences for the disciplinary action? 

    11    What is that man going to do for 30 days when

    12    he's laid off?  He was taking his medication


    13    properly, but he still violated the rules, so

    14    therefore he still gets consequences imposed on

    15    him. 


    16                MS. SILVEY: But if he was taking this

    17    medicine properly - you said he was taking it

    18    properly, right?

    19                MR. KIMBRELL: Yes, ma'am. 


    20                MS. SILVEY: Well, then he doesn't

    21    violate the rule. 

    22                MR. KIMBRELL: According to a paid


    23    physician or a physician that is being paid for

    24    by the mine operator, correct?

    25                MS. SILVEY: Well, I wouldn't - if

                                                                         285

     1    he's taking it properly?


     2                MR. KIMBRELL: Ma'am, who pays your

     3    bills?  Who do you work for?   The taxpayer, I

     4    heard somebody say, that's funny. But actually

     5    who writes your check is who, the U.S. government


     6    or MSHA.  You are very loyal to them aren't you? 

     7                UMWA writes my paycheck.  That's who

     8    I belong to.  And believe me, I'm very loyal to


     9    them.  If they are paying my bills I'm loyal to

    10    them. 

    11                Do you understand what I'm saying? 

    12    The simple fact is a lot of people have brought


    13    up the fact of being discriminated against.  And

    14    that's a big problem with this proposal because

    15    it says, testing also be required for any


    16    additional drugs designated by the security of

    17    labor, and nothing in the rule restricts mine

    18    operators from testing for additional drugs

    19    beyond those for which the rule requires testing,


    20    meaning, if I'm being discriminated against

    21    because of whoever I may have pissed off down at

    22    the mine site for whatever reason, bringing up a


    23    safety issue or what have you, they can take drug

    24    testing to the walls for anything. 

    25                Well, I have a heart condition - I'm

                                                                         286

     1    sorry, I have high blood pressure.  I have high


     2    blood pressure medicine in my system.  What if I

     3    done broke the rule, I get laid off for 30 days

     4    even though I take it as I'm supposed to, the

     5    determination comes down from the doctor who is


     6    ultimately going to be loyal to the company

     7    because he's paying for his mansion. 

     8                Do you understand what I'm getting


     9    at?  Do you understand the problems in your

    10    proposal when you start linking illegal drugs and

    11    prescription medication?

    12                Do you understand the problems there?


    13                MS. SILVEY: I appreciate - I hear

    14    your comments. 

    15                MR. KIMBRELL: Okay.  Are you going to


    16    answer any of my questions?  Talking about the

    17    current program, is that correct?

    18                MS. SILVEY: We want to ask you some

    19    questions about your current program. 


    20                MR. KIMBRELL: I'll answer them to the

    21    best of my knowledge. 

    22                MS. SILVEY: I know you will. 


    23                MR. KIMBRELL: But I just want to know

    24    if you are going to answer any of my questions,

    25    because you haven't done that yet.  You didn't

                                                                         287

     1    even tell me who you work for, or who pays your


     2    check.

     3                MS. SILVEY: Well, we work for the

     4    U.S. Department of Labor.  You know that quite

     5    honestly.


     6                MR. KIMBRELL: No, actually, I didn't. 

     7    I'll be honest with you, I was ignorant on that

     8    subject, and I didn't know. 


     9                MS. SILVEY: Okay, well, let me answer

    10    it for you.  

    11                MR. KIMBRELL: Okay. 

    12                MS. SILVEY: We work for the U.S.


    13    Department of Labor, and the taxpayers pay our

    14    pay.  The federal government is funded by the

    15    American taxpayers. 


    16                MR. KIMBRELL: So are you voted into

    17    office, or were you hired by somebody or were you

    18    voted in?  Your company is funded by the American

    19    taxpayer, but you do not take your money from the


    20    taxpayer because you weren't voted in; you were

    21    hired, is that correct? 

    22                So don't try to tell me that you


    23    actually get your paycheck from me.  I can

    24    guarantee you one thing: you are very loyal to

    25    the Department of Labor, aren't you?

                                                                         288

     1                MS. SILVEY: You say I was hired by


     2    what now?

     3                MR. KIMBRELL: Someone, by someone. 

     4    You are not an elected official, are you?

     5                MS. SILVEY: No, I'm not. 


     6                MR. KIMBRELL: So you were hired by a

     7    superior at the Department of Labor.

     8                MS. SILVEY: That's correct.  MSHA.


     9                MR. KIMBRELL: By MSHA, yes, ma'am, so

    10    I understand MSHA.  So you're loyal to them,

    11    correct?

    12                MS. SILVEY: I work for -


    13                MR. KIMBRELL: You are loyal to your

    14    company, is that correct?

    15                MS. SILVEY: I'm a professional.  I'm


    16    a professional to do my job. 

    17                MR. KIMBRELL: That's being loyal.  If

    18    you do your job, that's being loyal.

    19                MS. SILVEY: To the best of my


    20    ability. 

    21                MR. KIMBRELL: Hey, I never said

    22    differently, I promise you that.


    23                MR. BURNS: Just a follow up question.

    24                MR. KIMBRELL: Go ahead. 

    25                MR. BURNS: Do you work for a company

                                                                         289

     1    that has a drug testing program?


     2                MR. KIMBRELL: I'm sure I do.

     3                MR. BURNS: Who makes the

     4    determinations under the current program that the

     5    company and the union have?


     6                MR. KIMBRELL: What was your question

     7    again exactly?

     8                MR. BURNS: I mean any good - 


     9                MR. KIMBRELL: I know when I was hired I

    10    was drug tested in a cup, and I also had a hair

    11    sample done on me.  But I don't believe that was

    12    your exact question.  What was your question


    13    again?

    14                MR. BURNS: Right now under this

    15    proposal the physician makes that determination


    16    in conjunction, if you're talking prescription

    17    drugs, in conjunction with talking with your

    18    treating physician. 

    19                Now under the company programs


    20    certainly there has to be some medical person

    21    that makes these determinations for these tests. 

    22    I was just curious how that was set up, if you


    23    know. 

    24                MR. KIMBRELL: There is one difference

    25    there.  That's a preemployment drug testing that

                                                                         290

     1    was - the one I had.  So I haven't had a chance


     2    to piss anyone off yet for them to have a grudge

     3    against me to send me to a doctor that they pay

     4    for to piss test me for anything and everything

     5    under the sun just to find a way to get me either


     6    out of there or laid off long enough to where I

     7    keep my mouth shut the next time something comes

     8    up. 


     9                It's like somebody said just before

    10    me, you have never worked in a coal mine, and

    11    nine times out of ten you have never worked in

    12    any type of situation that - or I should say any


    13    type of labor-intensive situation, that those

    14    kind of things happen in. 

    15                So until you get somebody on a panel


    16    that understands this type of work, this type of

    17    environment, you have no reason coming up with a

    18    drug - or you actually have no business coming up

    19    with a drug policy that mingles illegal drugs and


    20    prescription pain medication, or prescription

    21    pain medication at all. 

    22                Because in your own proposal you


    23    don't have anything that stops the mine operator

    24    from not testing someone for something like a

    25    Alleve cold and sinus, or Tylenol, or Aspirin. 

                                                                         291

     1    Believe me, those things will get tested - will


     2    be tested for when the right person comes along

     3    making the right notation on the citation or what

     4    have you.

     5                It's going to happen, and you have


     6    nothing in here to protect someone except a

     7    trained medical professional.  Even medical

     8    professionals get bought out day-in and day-out


     9    for enough money.  It happens. 

    10                MS. SILVEY: Let me ask you a

    11    question.  Under the current testing program at

    12    your mine. 


    13                MR. KIMBRELL: Yes, ma'am. 

    14                MS. SILVEY: How many drugs are tested

    15    for, under the program, how many drugs?


    16                MR. KIMBRELL: Nine panel.

    17                MS. SILVEY: A nine-panel test?

    18                MR. KIMBRELL: Yes, ma'am.

    19                MS. SILVEY: Okay, now my question to


    20    you is, are some of the drugs on that panel both

    21    as you put it, and I'm using your phraseology,

    22    illegal drugs and legal prescription drugs?


    23                MR. KIMBRELL: Yes, ma'am, they are. 

    24                MS. SILVEY: They are?  Now let's go

    25    to the next point. 

                                                                         292

     1                MR. KIMBRELL: Okay. 


     2                MS. SILVEY: Then when it gets to a

     3    miner who then is taking legal prescription

     4    medicine, who makes the decision in that

     5    situation?


     6                MR. KIMBRELL: Are you asking who

     7    makes the decision on what?

     8                MS. SILVEY: On whether the taking of


     9    the prescription medication is legal, is - 

    10                MR. KIMBRELL: Oh in other words, are

    11    they taking it properly or are they abusing it?

    12                MS. SILVEY: Yes. 


    13                MR. KIMBRELL: I'll guess a trained

    14    medical person like you said.  

    15                MS. SILVEY: Well, the rule would


    16    operate the same way, the proposed rule would

    17    operate that same way.  Okay?

    18                MR. KIMBRELL: Okay.  But here is the

    19    issue with that.  You have nothing in there that


    20    is protecting the miner himself.  There is

    21    nothing in there that protects him being

    22    discriminated against for whatever reason.  You


    23    are opening the doors on people being

    24    discriminated against and costing untold amounts

    25    of people their livelihood, because you are

                                                                         293

     1    giving this much power to the mine operator. 


     2                MS. SILVEY: And I earlier said any

     3    miner who felt like that person had been

     4    discriminated against can file a discrimination

     5    complaint under the Mine Act. 


     6                MR. KIMBRELL: Yes, ma'am, they can. 

     7                MS. SILVEY: Right. 

     8                MR. KIMBRELL: So are you robbing


     9    Peter to pay Paul here or what?  You want to make

    10    a situation better, all you got to do is make a

    11    situation worse on the other side. 

    12                MS. SILVEY: Okay. 


    13                MR. KIMBRELL: Okay is not an answer.

    14                MS. SILVEY: No, I'm saying, I'm

    15    thanking you for your comment.  I've gotten that


    16    from a number of people, that comment.  It's not

    17    okay - it's - I understand your comment.  That's

    18    what the okay is.  

    19                MR. KIMBRELL: Well, you guys have a


    20    lovely afternoon and thank you very much. 

    21                MS. SILVEY: Thank you. 

    22                The next speaker please.


    23                Next speaker please.  Is there

    24    anybody else there in Birmingham?  Nobody else in

    25    Birmingham?  If there is nobody else in

                                                                         294

     1    Birmingham, Mr. O'Dell, do you have comments? 


     2    Mr. Dennis O'Dell, United Mine Workers,

     3    administrator of Occupational Safety and Health. 

     4                MR. O'DELL: Just real quick if I may,

     5    again, Dennis O'Dell from UMWA. 


     6                You can clearly see some of our

     7    frustrations.  No disrespect to anybody on this

     8    panel. 


     9                It's tough out there.  You can see

    10    our frustrations.  Our guys are frustrated.  You

    11    know coal is in large demand right now.  Our guys

    12    are being overworked.  So you kind of see the


    13    concerns out there as far as us and our concerns.

    14                These guys brought up some key points

    15    listening today, some things that we didn't even


    16    think about in our department, and I'm sure that

    17    they pointed out some things that y'all didn't

    18    think about as well. 

    19                One of the things that I think I kept


    20    hearing our brothers and sisters talking about,

    21    among a number of things, but one of the things I

    22    kept hearing being brought up that I hope you


    23    will consider and try to give us an answer to is

    24    if - part of the frustration is even though we

    25    have come to terms as far as labor and industry

                                                                         295

     1    working together, there is still some distrust


     2    out there.  And part of it is because of what is

     3    going on.  If supervisors are random tested, and

     4    if those results reported, supervisors tested and

     5    the results are reported, how are we to really


     6    know that the supervisors are being treated in

     7    the manner as what the miners are, because they

     8    are going to be privy to that information. 


     9    Because like I heard a brother and sister say,

    10    the operators are paying for this whole thing. 

    11                So there is really no check and

    12    balance in that part of it.  I mean the operator


    13    pays for it.  They are going to know what our

    14    test results are, but we are not really going to know

    15    what their test results are.  You see what I'm


    16    saying?  It's kind of an unlevel playing field. 

    17                And if our brothers and sisters in

    18    the field suspect a supervisor is impaired, I

    19    mean who can they go to that would be impartial


    20    and fair about them reporting? 

    21                I heard you say that there is a means

    22    in there to report if somebody felt like they


    23    were being discriminated against.  But that's not

    24    going to take care of the problem right then and

    25    there.  IF a miner is really concerned about his

                                                                         296

     1    supervisor putting him in harm's way, he may have


     2    to go to another supervisor who is his friend who

     3    may not really take care of the problem like it

     4    should.  I mean that's the reality of the whole

     5    thing. 


     6                In some cases the reputable operators

     7    are going to take care of problems.  But there

     8    are some operators out there that aren't as


     9    reputable, and they are going to turn a blind eye

    10    to it, and it could endanger our brothers and

    11    sisters. 

    12                We're just trying to get some fair


    13    and, as Fox Network would say, fair and balanced. 

    14    I don't know if that's true or not, but that's

    15    how they like to put it. 


    16                So that's all that we're asking. 

    17    That's all we've ever asked is that the laws be

    18    enforced, and that there be a fair treatment to

    19    the miners, and that we know that that is being


    20    carried out. 

    21                Training is provided to supervisors

    22    to recognize problems, but nobody, no place in


    23    this rule does it say that the nonsupervisory

    24    personnel or miners get any kind of training to

    25    where they are going to be able to recognize if

                                                                         297

     1    one of their foremen are under the influence or


     2    if they are impaired. 

     3                So, see, it is unbalanced.  And I

     4    understand that the operators, they operate the

     5    mine, they take care of the mine.  But when it


     6    comes to drugs and alcohol, there should be no

     7    discrimination.  It should be fair, it should be

     8    balanced, it should be - workers are empowered


     9    with the same tools and the same education as

    10    what supervisors will be empowered with.  Because

    11    we are all underground together, and we are all

    12    being subjected to the same work environment. 


    13                So that's why you keep hearing this

    14    time and time again.  There is nothing that

    15    breaks that discrimination In fact 105(c)s, and


    16    we know how the process takes, and discrimination

    17    doesn't - you know sometimes it works, sometimes

    18    it doesn't.  But for that problem, that needs to

    19    be addressed.


    20                The other thing I heard them say that

    21    was pointed out very well, and I was kind of

    22    ignorant to this, because when I testified


    23    earlier I said, Sam, a block mason or a belt

    24    painter or something like that.  I was thinking

    25    in my head that's not a non safety-sensitive

                                                                         298

     1    job.  But it's not.  There are no non-safety-


     2    sensitive jobs.  So I think that is something you

     3    have to go back and look at as far as how you

     4    define - because under Part 48, Part 46, all

     5    jobs, I don't know of any jobs that, with the


     6    exception of maybe a payroll clerk.  Of course

     7    the payroll clerk drives on and off the property,

     8    so are they subject to it too because they use


     9    the access road that could endanger someone if

    10    they come to work drunk, sharing the same parking

    11    lot with the workers. 

    12                I don't know where you cut that line,


    13    if it really is just miners under Part 46 and

    14    Part 48, or should it be anybody who is on mine

    15    property.  Maybe we need to look at it from that


    16    aspect, that anybody on mine property is subject

    17    to drug testing or alcohol testing, because then

    18    everybody has to be on their - you know what I'm

    19    saying, they have to be held accountable for


    20    their actions.  Even a pizza delivery guy if he

    21    comes to the mine, and if he's taking drugs or if

    22    he's drunk, he could hurt one of our guys who's


    23    walking from his car to the other car. 

    24                So maybe MHSA needs to go back and

    25    look at anybody on mine property, not just safety

                                                                         299

     1    sensitive, but anybody and everybody.  I mean I


     2    think that is fair; I think that is something you

     3    should consider. 

     4                Most policies, to try to clear this

     5    up I think, kind of what you said, most policies


     6    - see I think that you asked the question - most

     7    of the policies that have been associated with

     8    our members, they'll have a list of drugs to be


     9    tested under their policies.  But if they decide

    10    that they want to add other drugs to that, they

    11    have to renegotiate that with the union. 

    12                MS. SILVEY: But some of them include


    13    prescription medication, though.  I think that's

    14    what the question was going to.  Some of it would

    15    include medication that could be given according


    16    to a valid prescription, and taken according to a

    17    valid prescription. 

    18                MR. O'DELL: But on the bigger picture

    19    in the proposed rule it leaves it open-ended that


    20    the operator can add more - anything they want

    21    to.  See, right now they are held to - okay,

    22    you've got a list of 10 drugs that they test for. 


    23    If they are going to add 11, 12, 13, they have to

    24    go back to the union and renegotiate that, and

    25    then everyone knows where they're coming from and

                                                                         300

     1    what's going on. 


     2                And I told you earlier today when I

     3    talked about the Pennsylvania miner who got

     4    fired who was on a prescribed drug, that is a

     5    problem.  A guy that is on a prescribed drug can


     6    get tested positively, can be fired, and wait to

     7    get his job back.  That is something that needs

     8    to be addressed. 


     9                Listen, our guys respect the job that

    10    MSHA does, and we appreciate MSHA is out there

    11    doing their job as far as inspecting the coal

    12    mines, take care of business.  But this is


    13    something that affects - different than any other

    14    rule that's been proposed, this affects each

    15    individual personally, and that's why - that's


    16    why you are getting the feedback that you are

    17    getting.  Because a lot of proposed rules that go

    18    out don't necessarily affect each individual like

    19    this one does. 


    20                So with that I thank you. 

    21                MS. SILVEY: Okay. 

    22                MR. BURNS: Dennis, was I just - my


    23    question was - I mean there is a lot of attention

    24    on this medical review officer being paid by the

    25    company.  They are always asking if you guys have

                                                                         301

     1    a better way of coming up with - because it does


     2    take a medical person to make these

     3    determinations.

     4                MS. SILVEY: Actually you were asking

     5    how is it done now.  I assume that it is probably


     6    done now quite the same as it is done under the

     7    proposal.  Because it would be a doctor's

     8    determination.  It might be a doctor employed by


     9    the company.  But as we said earlier, that doctor

    10    then - if the miner had a personal physician who

    11    prescribed the drug, the medical review officer,

    12    if that medical review officer happens to be an


    13    employee of the company, would have to consult

    14    with the miner's own physician. 

    15                MR. O'DELL: That's what I heard


    16    earlier today, for the benefit of these guys that

    17    weren't here earlier today, I said that the

    18    medical review officer for the  - what's the

    19    other - substance abuse professional should not


    20    be employed by the operator. I only deal with

    21    like Oracle 3 under Oracle and Track, which is

    22    safety.  I'm not a grievance procedure guy.  But


    23    I think that there is provisions in our contract

    24    that if a guy gets fired, that they have some

    25    kind of process in place where they can actually

                                                                         302

     1    ask for another doctor's opinion, you know


     2    somebody in some way, if they don't agree what

     3    that doctor came up with, they can go to another

     4    doctor and get another opinion or something. 

     5    Maybe that's something that needs to be looked


     6    at, where a guy if he doesn't believe that the

     7    split sample was done properly, or the chain of

     8    custody wasn't handled correctly, another avenue


     9    for them to go to to get a second opinion. 

    10                I mean it's just like anything else. 

    11    My wife had open heart surgery.  She went to

    12    three doctors before she actually found a doctor


    13    she was comfortable with to go to.  You know to

    14    get open heart surgery.  So maybe that's

    15    something.  


    16                MS. SILVEY: We do, we've got another

    17    comment from Alabama.  I assume everyone is still

    18    there.  

    19                MR. O'DELL: And if you guys that are


    20    out there that can hear me, if you disagree or

    21    you think there is something else that I need to

    22    touch on, please step up to the mike and tell me.


    23                MS. SILVEY: The comment that I have

    24    goes to the additional, any other drugs that can

    25    be added by the operator.  And you were talking,

                                                                         303

     1    Dennis, about how they would have to negotiate


     2    before - through the collective bargaining

     3    agreement before they could add that would be in

     4    addition to it. 

     5                And the rule provides that the


     6    operator could add additional drugs.  But I want

     7    to be clear: it may be that - and I don't want to

     8    say this without - it may be that under the rule


     9    even if the operator wanted to add an additional

    10    one, it might still have to be negotiated through

    11    the collective bargaining agreement. 

    12                MR. O'DELL: Here's what it says:  the


    13    Secretary of Labor and nothing in the rule

    14    restricts mine operators from testing for

    15    additional drugs beyond those for which the rule


    16    testing - 

    17                MS. SILVEY: No, I got that.  But I

    18    want - I'm talking about the effect on the

    19    collective bargaining agreement.  That still


    20    might have to go through the collective

    21    bargaining process in that the rule could not

    22    constrain the collective bargaining process. 


    23                But I'm going to look at that, and

    24    that's what I was looking for before you left. 

    25    No, I understand that.  But I wanted to see

                                                                         304

     1    whether we said something specific - 


     2                MR. O'DELL: I do think that our first and

     3    foremost is that you take this whole thing off

     4    the table, that you remove it.  We don't like it,

     5    we don't want it.  But I'm just saying if you


     6    move forward we think these are things that we

     7    really think you need to consider. 

     8                MS. SILVEY: No, I understand that. 


     9                Okay, thank you.  

    10                MR. O'DELL: Thank you. 

    11                MS. SILVEY: Okay.  Is it anybody in

    12    Birmingham who wishes to make any additional


    13    comments?  Anybody else - 

    14                MR. KIMBRELL: Yes, ma'am, this is

    15    Nick Kimbrell again.  I was taking a look at the


    16    proposal that you guys have.  And in your

    17    proposal I'm trying to rapidly find, so I

    18    wouldn't waste any of your time to find the

    19    regulations that you are putting forward to not


    20    just test the miners but the mine supervisors. 

    21    And I wanted to know a couple of things. 

    22                What is the - is there - who is being


    23    proposed to be tested as far as supervisors,

    24    foremen and that sort of thing?  Anyone that is

    25    in direct - I'm sorry, go ahead. 

                                                                         305

     1                MS. SILVEY: What did you say?  I was


     2    distracted. 

     3                MR. KIMBRELL: As far as management

     4    within the mines, who are you proposing that need

     5    to be tested?  Those that are in a safety-


     6    sensitive, is that correct, area of the mine?

     7                MS. SILVEY: Those are in a safety-

     8    sensitive job and the miners who supervise them -


     9    and the persons who supervise them. 

    10                MR. KIMBRELL: Okay.  I have a quick

    11    question.  It goes back to the drug testing

    12    itself.  Who actually receives the results from


    13    the drug testing?  Who is privy to that

    14    information?

    15                MS. SILVEY: Who is privy to that? 


    16                MR. KIMBRELL: Yes, ma'am, a mine

    17    operator, a third party, the UMWA, MSHA, who is

    18    privy to that information, meaning if I fail a

    19    drug test, who gets the paperwork on it?  I know


    20    the mine operator himself because he's got to

    21    discipline me. 

    22                MS. SILVEY: Right, the mine operator


    23    would get it. 

    24                MR. KIMBRELL: Who else?

    25                MS. SILVEY: The - MSHA doesn't get

                                                                         306

     1    it. 


     2                MR. KIMBRELL: Okay, if a foreman at

     3    the mine site failed a drug test, who gets that

     4    result?

     5                MS. SILVEY: The mine operator.


     6                MR. KIMBRELL: The mine operator?

     7                MS. SILVEY: Yes. 

     8                MR. KIMBRELL: Okay, so basically it


     9    could happen that a foreman failed a drug test,

    10    but because he produces a whole lot of coal for

    11    us we're going to overlook it and send him back

    12    underground; is that correct?


    13                MS. SILVEY: I wouldn't know that.  I

    14    wouldn't say that. 

    15                MR. KIMBRELL: You wouldn't say that?


    16                MS. SILVEY: I would hope not. 

    17                MR. KIMBRELL: You would hope not, but

    18    it could happen, though, correct?

    19                MS. SILVEY: I'm not going to say


    20    correct to that, because I don't know that. 

    21                MR. KIMBRELL: Okay, is there any way

    22    that we could actually have the mine foreman's


    23    test be privy to the UMWA so they can make sure

    24    and ensure safe working environment for their

    25    miners?

                                                                         307

     1                MS. SILVEY: Is that your comment? 


     2    You can make that suggestion.

     3                MR. KIMBRELL: No, I'm asking, I'm

     4    asking a question.  Is there any way that we

     5    could have the information or the results of a


     6    drug testing be known to the UMWA so that they

     7    can assure the UMWA members that are going

     8    underground with that supervisor that hey, even


     9    though he acts like that, he's actually not on

    10    drugs. 

    11                MS. SILVEY: Well, you are asking  me

    12    a question.  I'm saying to you, you can make that


    13    as a comment.  But again I would advise you that

    14    just as you all have told me all day today since

    15    9:00 o'clock this morning, there are privacy


    16    considerations, and confidentiality

    17    considerations that would pertain. 

    18                MR. KIMBRELL: Okay.  But you are

    19    still putting a miner in jeopardy because a


    20    supervisor who can produce a lot of coal is on

    21    drugs.  There is no type of policing of that.  I

    22    mean one thing you have to understand, and please


    23    everyone who is listening understand this, I am

    24    insured from the day I was hired for $1 million. 

    25    If I die at the mine site or anywhere, my family

                                                                         308

     1    might get $160,000.  The rest of that money goes


     2    to the company.  They honestly will probably make

     3    money if I die. 

     4                So if they have a supervisor that is

     5    producing a lot of coal for them, they are not


     6    going to too much give a shit if he is on drugs. 

     7    And you have no policing of that fact. 

     8                But the miner himself, you are almost


     9    willing to crucify him if he takes a Loritab

    10    because his back is hurting him because he's

    11    working six days a week. 

    12                And those are things that you really


    13    need to truly look at with this proposal.

    14                MS. SILVEY: Okay.  Thank you. Thank

    15    you.  


    16                Anybody else?  If nobody - okay, next

    17    speaker. 

    18                MR. McGHEE: Antoine McGhee, Mc-G-h-e-

    19    e.  Local 2397.  I have only one question for you


    20    basically.  When you do a random drug test, how

    21    would it be decided who gets pulled or whatever? 

    22    Will you do it on computer, or how will they be


    23    doing it? 

    24                MS. SILVEY: That question was asked

    25    earlier, and it's a random drug test based on a

                                                                         309

     1    valid statistic sample which could be computer


     2    based or equivalent to a computer based, yes. 

     3                MR. McGHEE: When they do that random

     4    test, will there be a union official there to

     5    make sure that they are not pulling names out of


     6    the hat, or maybe adding one or two here and

     7    there. 

     8                MS. SILVEY: That they are not pulling


     9    what?

    10                MR. McGHEE: Will there be a union

    11    official there to make sure that they are not

    12    pulling names out of a hat or adding one or two


    13    in or picking who they may?

    14                MS. SILVEY: Well, it has to be a

    15    valid - there has to be a valid statistical base


    16    system for doing random system. 

    17                MR. McGHEE: Who decides how that

    18    system is set up, the company?

    19                MS. SILVEY: Well, I mean the company


    20    - it is the company's policy and program. 

    21                MR. McGHEE: So they would basically

    22    set up how they want to pull names however they


    23    choose to do so?

    24                MS. SILVEY: The random program,

    25    testing, has to be done in accordance with the

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     1    rule.  And the rule sets up the minimum


     2    requirements for that.  So it has to be a

     3    statistically valid sampling process. 

     4                MR. McGHEE: Meaning that there will

     5    be a union official there when they do that


     6    process?

     7                MS. SILVEY: I didn't say that, no. 

     8                MR. McGHEE: There will not be a union


     9    official there when they do that process?  So we

    10    don't know if we are doing it fairly or not;

    11    we'll just have to go by what they say?

    12                MS. SILVEY: What was your last


    13    comment?

    14                MR. McGHEE: We would not know if they

    15    were doing it fairly or not, we would just have


    16    to go by what they say?  Because if there is not

    17    a union official there, we'll have to go by

    18    whatever the company says. 

    19                MS. SILVEY: When you say if there is


    20    not a union official there, what do you mean,

    21    there?

    22                MR. McGHEE: When they are getting


    23    ready to give you a random drug test, and they

    24    pull it on a computer, and they say, 590 pop up,

    25    when they come to us and say, well, your name

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     1    popped up, will there be a union official or


     2    somebody there to say, well, we didn't get your

     3    name and put it in the barrel with the rest of

     4    them.

     5                MS. SILVEY: That is not included in


     6    the proposed rule that a union official be there. 

     7    But there is a requirement for how the random

     8    sampling program should be set up. 


     9                MR. McGHEE: And it should be set up

    10    how?

    11                MS. SILVEY: Valid statistically based

    12    program, computer based or other valid; valid,


    13    statistically valid methods such as a random

    14    number table or a computer-based random number

    15    generator. 


    16                MR. McGHEE: Okay, so basically the

    17    computer would just spit the numbers out, or the

    18    names out?

    19                MS. SILVEY: That's right.  Each miner


    20    shall have an equal chance of being tested each

    21    time selections are made.  So the only thing I

    22    would say to you is, whatever random program is


    23    set up has to be set up in accordance with the

    24    provisions of the proposed rule.

    25                MR. McGHEE: Okay, I understand. 

                                                                         312

     1    Thank you. 


     2                MS. SILVEY: Thank you. 

     3                Next speaker please. 

     4                BIRMINGHAM VOICE: There's no more

     5    speakers.


     6                MS. SILVEY: Are you sure?

     7                BIRMINGHAM VOICE: No, I'm not sure. 

     8                MS. SILVEY: Well, let's be sure. 


     9                MR. WELDON: Ms. Silvey, this is Joe

    10    Weldon again.  I was just wanting to make a

    11    comment.  On the random testing.

    12                MS. SILVEY: Yes. 


    13                MR. WELDON: I heard what the

    14    gentleman said, and I heard what you said.  But

    15    again I want to reiterate that sometimes


    16    discrimination does come into play. 

    17                I'd had a pretty heated discussion

    18    with a company official, a few months ago, and so

    19    it came time for drug testing, and I randomly


    20    came up about the next five times that they had

    21    it in a row. 

    22                I questioned them about it, and it


    23    just happened.  They said that somebody was off,

    24    and I just happened to be the next one to take

    25    their place. 

                                                                         313

     1                I don't feel like the random that


     2    they do is fair.  I feel like that if somebody is

     3    there, specifically a union official, who tries to

     4    do his job and do right, sometimes is put ahead

     5    of other people to be randomly checked. 


     6                And I told them they could check me

     7    anytime and they could find orange juice and

     8    oatmeal. And I got tested as many times as they


     9    wanted to.  But I don't feel like it's always

    10    fair in the way that they do it. 

    11                And maybe there should be some

    12    provisions put in the random testing to assure


    13    people that they are not being discriminated

    14    against and that it's done properly, it's done

    15    fair, straight across the board. 


    16                And any of the times that I have been

    17    in there, I've never had a company man in there

    18    any of the times that I have went.  So I don't

    19    feel like their random testing, any of them that


    20    they are doing, is not being done and not being

    21    discriminated against. 

    22                And I thank you for your time, and


    23    maybe y'all will look into that as well. 

    24                Thank you.

    25                MS. SILVEY: Okay, thank you.  I

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     1    appreciate it. 


     2                Anybody else?  Anybody else who

     3    wishes to make testimony?  Anybody else in

     4    Birmingham?   Nobody else in Birmingham? 

     5                Okay, thank you.  If nobody else


     6    wishes to provide testimony, then I want to again

     7    say that MSHA, the Mine Safety and Health

     8    Administration, appreciates your comment and your


     9    testimony, your suggestions to us, your concerns

    10    about the proposal, and we appreciate your

    11    attendance here, and for those of you who have

    12    been here from the beginning, this morning, until


    13    now, we sincerely appreciate that. 

    14                I would like to state to you that we

    15    will take your comments and your concerns, your


    16    testimony, look at that and evaluate that in

    17    terms of making a decision, with respect to the

    18    final rule. 

    19                I encourage everybody if you have


    20    additional comments that you get them to us

    21    before the record closes on November 10th,

    22    midnight Eastern Daylight Savings Time. 


    23                And again on behalf of MSHA we

    24    appreciate everybody's attendance, and at this

    25    time the public hearing on MSHA's proposed rule

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     1    on alcohol and drug-free mine policy,


     2    prohibitions, testing, training, and assistance

     3    is concluded. 

     4                Thank you. 

     5                (Whereupon, at 6:05 p.m., the


     6                proceeding in the above-entitled

     7                matter was adjourned.)

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