UNITED STATES OF AMERICA + + + + + DEPARTMENT OF LABOR + + + + + MINE SAFETY AND HEALTH ADMINISTRATION + + + + + PUBLIC HEARING RE: INTERIM FINAL RULE FOR HAZARD COMMUNICATION IN THE MINING INDUSTRY + + + + + THURSDAY, SEPTEMBER 27, 2001 + + + + + The Public Hearing was held at the National Mine Health and Safety Academy Auditorium, 1301 Airport Road, Beaver, West Virginia, at 9:00 a.m., Ernest Teaster, Moderator, presiding. PANELISTS: ERNIE TEASTER, MODERATOR, Administrator, Metal and Nonmetal Mine Safety and Health RICHARD FEEHAN, Educational Policy Development DEBORAH GREEN, Solicitor's Office CAROL JONES, Metal and Nonmetal Mine Safety and Health ROBERT SNASHALL, Solicitor's Office CHERIE HUTCHISON, Office of Standards, Regulations, and Variances PHAN PHUC, Office of Standards, Regulations, and Variances I-N-D-E-X Opening Statements - Moderator Teaster . . . . . . 4 Testimony of Gary Trout. . . . . . . . . . . . . .22 United Mine Workers Testimony of Timothy Miller . . . . . . . . . . .28 United Mine Workers Testimony of Larry Lee . . . . . . . . . . . . . .32 United Mine Workers Testimony of Donald Keith. . . . . . . . . . . . .40 United Mine Workers Testimony of Larry Huestis . . . . . . . . . . . .50 United Mine Workers Testimony of Andrew Laferty. . . . . . . . . . . .73 United Mine Workers Testimony of Wayne Conaway . . . . . . . . . . . .83 United Mine Workers Testimony of Terry Richardson. . . . . . . . . . .89 United Mine Workers Testimony of Bob Morris. . . . . . . . . . . . . .91 United Mine Workers Testimony of Charles Miller. . . . . . . . . . . 113 United Mine Workers Testimony of Scott Irwin . . . . . . . . . . . . 122 United Mine Workers Testimony of John Ely. . . . . . . . . . . . . . 131 United Mine Workers Testimony of Dwayne Barton . . . . . . . . . . . 142 Testimony of Danny Smith . . . . . . . . . . . . 145 United Mine Workers Testimony of David Bradley . . . . . . . . . . . 149 United Mine Workers I-N-D-E-X (Cont.) Testimony of Samuel Johnson. . . . . . . . . . . 151 United Mine Workers Testimony of Tom Baker . . . . . . . . . . . . . 162 United Mine Workers Testimony of Mike Browning . . . . . . . . . . . 168 United Mine Workers Testimony of Edward Yevincy. . . . . . . . . . . 178 United Mine Workers Testimony of Tim Baker . . . . . . . . . . . . . 181 United Mine Workers Testimony of Stan Stemkowski . . . . . . . . . . 205 United Mine Workers P-R-O-C-E-E-D-I-N-G-S (8:44 a.m.) MODERATOR TEASTER: Good morning, and welcome to MSHA's public hearing on the Interim Final Rule for hazard communications in the mining industry. I'm Ernie Teaster, administrator for metal and non-metal, and I will be your moderator here today. The members of today's panel are Bob Snashall from the Solicitor's Office, Richard Feehan, from our office of standards, regulations, and variances, Cherie Hutchison, who is from our office of standards, regulations, and variances; Carol Jones from metal, non-metal, and Phan Phuc, from the office of standards, regulations, and variances. We are here to listen to your comments on the hazard communications Interim Final Rule, which we published on October 3rd last year. We are holding this Hearing in accordance with section 101 of the Federal Mine Safety and Health Act of 1977. As is our practice, we will conduct the Hearing in an informal manner. During the proceeding panel members may ask questions of the presenters. Although formal rules of evidence will not apply, we will be taking a verbatim transcript of the Hearing, and we will make it a part of the official rulemaking record. The Hearing transcript will be made available for public, review by the public, along with all comments and data that MSHA has received to date. The entire rulemaking record, of course, is available at our office in Arlington, Virginia. If you wish a personal copy of the Hearing transcript, please make your own arrangements with the Court Reporter. Now let me briefly give you some of the background on the Interim Final Rule, and highlight its major provisions. Following that I will share with you some of our reaction to some of the comments received thus far. On November 2nd, 1987, the United Mine Workers of America, and the United Steel Workers of America jointly petitioned MSHA to adapt OSHA's health communication standard, hazard communication standard to both coal and metal, and non-metal mines, and propose it for the mining industry. They based their petition on the need for miners to be better informed about chemical hazards, and that miners working at both surface and underground coal and metal, and non-metal mines, are exposed to a variety of hazardous chemicals. On March 30, 1988, in response to this petition, MSHA published an advance notice to proposed rulemaking on hazard communication for the mining industry. In this notice we indicated that we would use the OSHA hazard communication standard as a basis for our standard, and requested specific comments on a number of related issues. We published a notice of proposed rulemaking on hazard communication on November 2nd, 1990, and held three public Hearings in October 1991. The record closed January 31st, 1992. Interim comments on our advance notice of proposed rulemaking and proposed rule, commenters represented both small and large mining companies, individual miners, a variety of trade associations, state mining associations, chemical and equipment manufacturers, national and local unions, members of Congress, and other federal agencies. We reopened the rulemaking record on March 30th, 1999, requesting comments on the impact of the proposed rule on the environment, small mines, state, local, and tribal governments, and health and safety of children. The National Environmental Policy Act, and most recent statutes, and Executive Orders, included requirements for us to evaluate the impact of a regulatory action in these areas. At that time we also requested comments on the information collection, and paperwork requirements of certain provisions of the proposal, now considered as an informational collection burden under the expanded definition of information under the Paperwork Reduction Act of 1995. We received seven comments to the limited reopening of the rulemaking record, primarily from trade associations, and labor organizations. The rulemaking record closed June 1, 1999. On June 3rd, 2000, we published an Interim Final Rule on hazard communication, with an effective date of October 3, 2001. October 3rd, 2001. We gave commenters until November the 17th, 2000, to submit comments. The Interim Final Rule specifically requested comments on the plain language format, and the content of the Interim Final Rule. Non-operators experience under OSHA's hazard communications standards, and any changes in the mining industry since the publication of the proposed rule. On December 7th, 2000, we personally spoke with, or emailed all commenters, and other interested persons, telling them of our decision to hold a public Hearing in Washington, D.C., on December 14th, 2000. The Public Notice of the Hearing appeared in the Federal Register on December 11th, 2000. We received 22 written comments on the Interim Final Rule and heard testimony from six persons at the Public Hearing on December 14th, 2000. Commenters objected to what they considered to be an inadequate comment period, and an inadequate notice of a Hearing. These commenters stated that they did not have sufficient time to fully analyze the impact of the Interim Final Rule, which affected their ability to develop and submit meaningful comments. They also stated that many operators were unable to testify at the Hearing, because they did not have enough time to prepare testimony, and make plans to attend the Hearing. Members of the mining community have also stated that because this is the first time MSHA promulgated an Interim Final Rule, there is some confusion about their compliance obligations. The National Miners Association, and the National Stone, Sand, and Gravel Association, have asked for a delay in the effective date of the Interim Final Rule until we respond to their previous comments submitted on it. A number of mine operators and trade associations challenged the hazard communication Interim Final Rule in the US Court of Appeals, and the United Mine Workers of America, and the United Steel Workers of America have intervened in that litigation. Now I will briefly highlight the six major provisions of the Rule. Hazard determination. The hazard communication Interim Final Rule requires mine operators to identify the chemicals at their mines, and determine if they present a physical, or a health hazard to the miners, based on the chemical's label and material safety data sheet referred to as MSDS sheet, or on a review of the scientific evidence. Under the Interim Final Rule for the purpose of hazard communication, MSHA considers a chemical hazard, and subject to the hazard communication rule, if it is listed at any one of the following four recognized authorities or sources. Title 30, Code of Federal Regulations, chapter 1. The American Conference on Government and Industrial Hygienist, threshold limit values, and biological exposure indices. The National Toxicology program annual report on carcinogens, and both of those would have been the latest edition under the Interim Final Rule. The International Agency for Research on Cancer, mammograms, or supplements. The hazard communications program. The hazard communication Interim Final Rule requires mine operators to develop, implement, and maintain a written program to establish a hazard communication program. The program must include procedures for implementing hazard communication through labeling, MSDSs, and training of miners. A list of hazardous chemicals known to be present at the mine, and a description of how mine operators will inform miners of the chemical hazards present in non-routine tasks, or of chemicals in unlabeled pipes and containers. If the mine has more than one operator, or has an independent contractor on-site, the hazard communication program also would have to describe how the mine operator would inform other operators about the chemical hazards and protective measures needed. Container labeling. A label is an immediate warning about a chemical's most serious hazards. The hazard communication Interim Final Rule requires mine operators to ensure that containers of hazardous chemicals are marked, tagged, or labeled with the identity of the hazardous chemical, and appropriate hazard warning. The label must be in english and prominently displayed. I would like to clarify one point about the labeling requirements. Practically speaking very little labeling is required. You only have to label stationery process containers, and temporary portable containers, and then only under some circumstances. Chemicals coming onto mine property are almost always labeled. They would not have to relabel them unless the existing label becomes unreadable. You would not have to label containers of raw material being mined or milled by their own mine property. You would not have to label mine products that go off a mine property. You would have to provide the labeling information to downstream users upon request. Material safety data sheets. A chemical's material safety data sheet provides comprehensive technical and emergency information. It is a reference document for mine operators, exposed miners, health professionals, and firefighters, or other public safety workers. The Hazard Communication Interim Final Rule requires mine operators to have an MSDS for each hazardous chemical at the mine. Mine operators should already have MSDSs provided by the supplier for those chemicals brought to the mine. The MSDSs must be accessible in the work area where the chemical is present or in a central location immediately accessible to miners in an emergency. HAZCOM training. The Hazard Communication Interim Final Rule requires mine operators to establish a training program to ensure that miners understand the hazards of each chemical in their work area, the information on MSDSs, and labels, and how to access this information when needed, and what measures they can take to protect themselves from harmful exposure. Under the Interim Final Rule mine operators have the flexibility of combining the training requirements for the hazard communication with existing part 46 and part 48 training. The Interim Final Rule does not require mine operators to have an independent training program separate from part 46 and part 48 training. Mine operators already cover some of the above information in their current training program. If so they do not have to retrain miners about the same information. We designed the hazard communication training requirements to be integrated into the existing training program for miners. Making HAZCOM information available. The HAZCOM, the Hazard Communication Interim Final Rule requires mine operators to provide miners, their designated representative, MSHA, and NIOSH, with access to the materials that are part of the hazard communication program. These include the program itself, the list of hazardous chemicals, labeling information, MSDSs, training materials, and any other material associated with the program. Mine operators do not have to provide copies of the training materials purchased for use in training sessions, such as videos. Also mine operators do not have to disclose the identity of a trade secret chemical, except where there is a compelling medical or occupational health need. I will now share with you our thoughts on some of the comments we've received on the Interim Final Rule. Commenters representing the aggregate industry argued strenuously that the Hazard Communication Rule is unnecessary, and that the aggregate industry should be exempt from the Rule. The HAZCOM Rule does not duplicate other MSHA standards, it augments, supplements, and complements these existing standards. The Rule specifically deals with chemicals and chemical exposure. Chemicals may be used in any mine, including those in the aggregate industry. There have been hundreds of chemical burns in the aggregate industry. Chemical burns can occur on any part of the body. Skin burns may require multiple skin grafts, and require repeated hospitalization. Eye burns can be serious and result in permanent loss of eyesight. We believe the burden of small mines is less than some commenters stated. First, small mines typically use far fewer chemicals than large mines. And in many cases no new chemicals. Second, small mines typically use chemicals in small quantities, and for shorter periods of time, similar to household use. Third, many of the chemicals used at small mines are not covered by the Rule. For example, soaps used for washing hands are cosmetic, and are exempt. A can of spray paint is a consumer product, and exempt when used in small quantities, intermittently. The length of exposure, as well as the amount, is really the determining factor. A can of spray paint only lasts a short time. Glue, or adhesive, when used intermittently in small quantities, are exempt. Again, the length of exposure, as well as the amount, is the determining factor in whether or not a consumer product is exempt. We recognize, however, that not all mines are likely to use a wide range of chemicals. Although we cannot exempt the aggregate industry from hazard communication, as we said, there are steps we can take to minimize the burden of the Rule. For example, we intend to make extensive compliance assistance visits, and conduct extensive outreach. We also will be finalizing a compliance guide to help operators and miners understand the application of the HAZCOM final rule. We are developing a variety of compliance aides, such as a model HAZCOM program, a training video for mine operators about determining chemical hazards, and a training video for miners about chemical hazards reading the MSDS. A draft of MSHA's Compliance Guide has been on the MSHA website for months. If you refer to the Compliance Guide, many of these issues are explained. If you have any question in these areas, send them by email to comments@msha.gov, or the Office of Standards at the address listed in the Hearing Notice. We will use these questions to clarify your responsibilities and include additional or better examples in the compliance guide. As a rule of thumb, however, if you are in compliance with OSHA's Rule, you will be in compliance with MSHA's Rule. In the same vein, mine operators may obtain help from organizations that have developed generic guides to help OSHA's health communication standard, because HAZCOM contains the same basic requirements. We will provide links, on our website, to some organizations which have developed a variety of generic HAZCOM material. While it will remain the responsibility of each operator to develop and implement a HAZCOM program, and to have MSDSs, to the extent possible we will help you establish a hazard communication program, if requested. We have already taken other steps in revising our Interim Final Rule to make it easier for mine operators to comply, without reducing the projections afforded by the Rule. We are considering the final substantive changes to the Interim Final Rule in response to commenters concerns. We are also considering several non-substantive changes to clarify our intent and correct errors based on the commenters perspectives and questions. Under hazard determination we may revise a reference to the American Conference of Government/Industrial Hygienist, the National Toxicology Program, and the International Agency of Research on Cancer, from those considered in determining if a chemical is a hazard, and if a chemical is carcinogenic. One option we are considering, in determining whether a chemical is a hazard, is to refer to the 2001 editions of the American Conference of Governmental/Industrial Hygienists, TLV booklet, and the International Agency for Research of Cancer, and the National Toxicology Program. In determining whether a chemical is carcinogenic, we are considering referring only to the 2001 editions of the National Toxicology Program and the International Agency for Research of Cancer. We had expected the use of the American Conference of Government/Industrial Hygienist, the National Toxicology Program, and the International Agency for Research on Cancer list, to reduce the burden on the mine operator, because the miners use relatively few hazardous chemicals for which they would have to develop an MSDS and label. Commenters objected to the use of these listings, stating that the organizations which compiled them, offer no opportunity for public comment. They impose unknown future requirements by citing the latest edition, and they violate regulations governing incorporation by reference. We are hoping to consider alternatives, where the impact of the alternative would not reduce protection afforded miners by the Interim Final Rule. Concerning labels and MSDSs, commenters requested additional language to clarify that the designated responsible person mentioned on the labels and MSDSs, can be the mine operator. Accordingly we are considering changing these provisions to read the name, address, and telephone number of the operator, or a responsible person who can provide that information. Concerning the availability of the MSDSs, commenters asked that we increase compliance flexibility, and recognize that MSDSs may be stored in a computer. In response we are considering modifying the requirement to have MSDSs available for each hazardous chemical before using it, requiring the operator have an MSDS available for each hazardous chemical which they use. MSHA is also considering accepting a list of OSHA PELs on MSDS as an alternative to listing the MSHA PEL. This would facilitate the use of widespread existing MSDSs, and reduce costs by eliminating the need to develop additional MSDSs. In response to comments concerning hazard communication training, we are considering changing the language from requiring the operator to train the miner whenever introducing a new hazardous chemical into the miner's work area, to requiring training when the operator introduces a new chemical hazard into the miner's work area. This change would clarify MSHA's intent that when a new chemical is introduced, additional training is required, only if the hazards change. This is the intent, as discussed in the preamble of the Interim Final Rule. Also, in response to comments, we are considering revising the definition of health hazards. The Interim Final Rule defines health hazard to include chemicals that damage the nervous system, including psychological, or behavioral problems. We are considering deleting the phrase psychological or behavioral problems. We are also considering adding the criteria toxic, or highly toxic, to more closely conform to the language to that in OSHA's hazard communication standard. The Hazard Communication Interim Final Rule is an information and training standard that requires mine operators to know about the chemicals at their mines, and to inform miners about the risk associated with exposure to hazardous chemicals, the safety measures implemented at the mine to control exposures, and safe work practice. The Hazard Communication Interim Final Rule does not restrict chemical use, require control, or set exposure limits. We will publish our response to the written comments, including those comments received today at this Hearing, in the preamble to the Hazard Communication Final Rule. We will consider all comments contained in the rulemaking record from the publication of the advanced notice of proposed rulemaking on March 30th, 1998, through the close of the record on October 17th, 2001, in a development of this final rule. You may submit written comments to me during the Hearing, or send them to the address listed in the Hearing Notice. We will also accept additional written comments, and other appropriate data, on this Final Rulemaking from any interested parties, including those who do not present oral statements. All comments and data submitted to MSHA, including that submitted to me, today, will be included in the rulemaking record. The record will remain open until October 17th, 2001, for the submission of post-hearing comments. We ask that you please sign the attendance sheet at the back, where you enter the room. If you have not done so, we ask you to do that during the first break. And if there is anyone that wants to speak we have our sign-up sheet at the back of the room, we would ask you to please sign up. We will begin with the folks that have signed up in advance, to speak. If there is time, and we will make time, at the end of that any one in the audience who wants to come up and make a statement will be able to do so. We will ask that anyone that has a statement, or a comment, that they come to the podium to speak. We will continue the Hearing until all speakers have the opportunity to address the panel. Should it be necessary to be extended beyond 5 o'clock we will stay as long as we need to, so that all that choose to do so, will have an opportunity to speak. This concludes my opening statement. We will now start with the speakers. Our first speaker of the day is Gary Trout, from the United Mine Workers District 29. MR. TROUT: Good morning. My name is Gary Trout, I'm from the United Mine Workers of America Local Union 1335. On October 3rd of 2000, after years of delay, MSHA finally issued an Interim Final Rule, which would provide safeguards for miners against harmful chemicals in the workplace. This rule would have went into effect October of 2001. On August 28th, 2001 MSHA stopped this HAZCOM rule from going into effect. By doing this MSHA has thrown the entire HAZCOM Rule wide open for comments, and to date, soliciting comments on any issue relevant to the rulemaking. In our opinion, or in my opinion I should say, this severely weakens the rule that was out there for adoption, that should have went into effect. You know, as I looked at the Rule, and looked at what OSHA already has, and OSHA has had a HAZCOM Rule for years, I think it is a shame that our miners, myself, my brothers and sisters, have to work in chemicals, or around chemicals that could cause various health effects. Joe Carter and I just recently was asked to come down to a doctor's office and visit some of our miners that are his patients. And those folks had worked at preparation plants, and those folks had severe health, damage to their health. They had anything from Parkinson's-like disease, to various other nerve disorders. And it was real -- an awakening experience for myself, and Joe, to see these folks in that condition. And, you know, some folks would make the argument that these folks might have gotten these diseases from elsewhere, but two of those folks, one individual had worked at a preparation plant handling various chemicals. And when he got disabled to where he couldn't work any more, another individual took his place, and both of those individuals have the same symptoms now, after working at the same job occupation. And, you know, it is just a shame that we can't provide the miners, I should say our miners, with the same protection that OSHA has for their workers. It is my understanding that MSHA, in their opening statement, announced that they were going to look really hard at a lot of the objections posed by the mine operators. Myself, my brothers and my sisters, you know, we have objections too. And those objections are that every day we are exposed to various types of chemicals. And some of those chemicals could cause cancer. And, ladies and gentlemen of the panel, I don't know whether any of you all have ever seen anyone who has died from cancer, but it is not a real pretty sight. My father in law, who has over 35 years' experience around the mines, and around preparation plants, just recently, about a year and a half ago, died of cancer. And that was very long suffering, and it just wasn't a very pretty sight. And, you know, we've got a lot of miners up there that are exposed to these chemicals. And, you know, I would just ask that each one of you look around and consider some of these individuals who have had serious injuries, and some who have possibly even died from chemical exposures. And here today you are going to hear other testimony from individuals who has actually gotten burnt by chemicals working around preparation plants. And if you could just put yourself in their place, would you like to give up the job that you have and trade places with those folks, and be exposed to those chemicals that you know, that there is data out there, that some of these chemicals can cause cancer, and would expose your own self to cancer. You know, it is my opinion that the HAZCOM rule should be put into effect, should have been put into effect on October 3rd of 2001, and I think that this rule, even though it is not perfect, it might very well have protected, and give our members protection from various types of chemicals. You know, I think that the access, that MSHA is there to protect miners, I think that MSHA should be enforcing the laws, and not delaying the implementation of these rules so that it could protect our miners. In closing I would just ask each one of you, I would like to leave you with this question in mind. As you contemplate this rule, how many miners must be injured or die before we can get a chemical exposure, of chemical exposure, before we can get a HAZMAT rule implemented. Thank you. MODERATOR TEASTER: Gary, if I might, when you and Mr. Carter visited the doctor, do you know what chemicals that these miners were supposedly exposed to? MR. TROUT: I can have Dr. Kasincko probably get that information to you, Ernie. MODERATOR TEASTER: Okay. MR. TROUT: It was flocculent, but I don't know the specific chemicals. MODERATOR TEASTER: Gary you, I know, get around to a lot of different mines. Are you familiar with to what extent Part 48 training is provided to the miners under the annual refresher training that deal specifically with hazards, chemical hazards at their operations? MR. TROUT: I know the retraining that I attend at various operations, you know, normally there is very little, if any, given. At the ones that I have attended. You know, it is kind of a hush hush situation that, you know, nobody wants to get into. The only way that any of our members can get any information is basically trying to force the issue to get any type of MSDS sheets, or anything of that nature. It is real hard to do, Ernie, real hard. MODERATOR TEASTER: Okay, thanks. Some of the mine operators currently get MSDSs. Are you aware of that? MR. TROUT: Yes. MODERATOR TEASTER: And do you know if there is a request, do the miners normally request to see those, and whether or not those are made available to the miners? MR. TROUT: I don't think it is made available to the miners, straightforward. I think that normally they have to make a request. And my experience has been, when they make a request, a lot of times they don't get a sufficient MSDS sheet. A lot of times they will have like maybe half of it there, and some of it be gone, it doesn't go into any details toward the chemicals that might be involved in there, about the reactions that may occur if you are overexposed to it. Any type of treatment that might be necessary if you are overexposed, it doesn't go into any of that kind of detail. MODERATOR TEASTER: Okay, thank you. Our next speaker will be Timothy Miller, United Mine Workers Local 9177. MR. MILLER: Good morning, Panel. I am Timothy Miller, I have worked in the mines for 26 years, I'm presently employed with Peabody Coal at their Rocklake preparation plant. And at our plant alone there is probably in excess of 12 chemicals that not everyone comes in contact, but is used on the job site, each and every day. Sheets are available on some, but they are not very extensive into what we can do after we've been exposed, or anything of that nature. I would like to read some notes, or something I wrote down. We need to have the right to know what we are working with, at all times. We need to be able to force our employers to use a chemical that is after if it is available, even if our employer has to pay more for it. We need more training on each chemical, and all dangers involved with using it. I would like to see a law put into effect that would force employers to have a data sheet that would be sent with an employee to the emergency room, or doctor's office, in the event one comes in contact with the hazardous chemical. We need some training for our employees to be able to administer proper first aid to coworkers who have been exposed to hazardous chemicals before being sent for medical assistance. MODERATOR TEASTER: Tim, are the chemicals, you said there are probably 12 used at your operation? MR. MILLER: Yes, sir. MODERATOR TEASTER: Has the company made the miners aware of what those 12 chemicals are? MR. MILLER: Only if you ask, and then what we are given out is like the chemical makeup, not exactly what it is, what the long-term effect is, to look out for signs, like if a skin irritation starts, that it is an exposure, and that you need medical attention, or something. And even our employers, I don't really feel that they are aware of what dangers are involved with each of the chemicals. MODERATOR TEASTER: The information that you get related to the hazards associated with these chemicals, and the type of chemicals, does that come as part of your part 48 training, or is that something that is passed on to you as you perform various tasks? MR. MILLER: It is passed on to you, if you ask. It is not automatically, before you start a new task, or a new job, you are not enlightened as to, you know, they just say this is what you use this for, they don't inform you, unless you ask, or you research it yourself, as to what that it can do to you, and what that it can do if it is mixed with something else incorrectly. Or what the long term effect is if you are exposed to it on a daily basis. Or when we change from one chemical company to the other, you know, you might be getting basically the same thing, but they make it up in a different process, and use some other chemical in making that. And that if we change our data sheets, are sort of slow about getting revitalized, and stuff. MODERATOR TEASTER: Do you have any knowledge of any injuries that has occurred at the preparation plant where you work? MR. MILLER: Yes, sir. I've seen chemical burns on skin, I've seen people suffer with watery eyes, or burn in their throat from being around different things, and cleaning. MODERATOR TEASTER: Do you think these injuries were a result of the lack of knowledge of what exposures they were -- MR. MILLER: Yes, sir. And I think that the employers have a lack of knowledge, too. I feel that they really need to research what they are bringing on the job, prior to bringing it. And if there is something out there, better and cheaper, for the employer, even though that it is not as available as what they are getting, or maybe not from the supplier they have a contract with, we need to try to get a hold of that, and put that into effect. MR. SNASHALL: In your experience do miners commonly use MSDSs? MR. MILLER: Yes, sir. Some do, some don't. Where I'm at we have quite a bit of people that have worked underground, went into the preparation plant, they are not familiar with a lot of things. And a lot of people are proud and are ashamed to ask. And, you know, unless someone forces the employer to sort of school them in this, even though they might not come in contact with it but once a week, or something, at least give them some knowledge and be more informative about what they are using. I've got a buddy that is a doctor. A lot of times he gets people in, they tell him, I've been exposed to this. Well, he doesn't know what that is. And then it is a big bunch of red tape to try to find out what exactly that is, that he was exposed to. MODERATOR TEASTER: Thank you, Tim. MR. MILLER: Thank you. MODERATOR TEASTER: Our next speaker is Larry Lee of United Mine Workers Local 1332. MR. LEE: Hello, good morning. My name is Larry Lee, I work for Pittsburgh and Midway, out in New Mexico and Arizona, we are on the Navajo reservation, and we are a surface mine. Out there we deal with a lot of dust, we have haul roads, and we have dump trucks and haul trucks that haul coal, and there is a lot of dust out there, and that is what we deal with every day. And our Local is 1332, and the reason I came up before you guys, is we should make this HAZCOM a rule, a policy, let's make it a policy for the mines, either underground, surface, or aggregate. And after all these years I think it should be made a policy. So miners will know what they are dealing with, and mine operators, they will give us information on what we use out there, as HAZCOM. And I know we deal with a lot of hazmat products out there, and some of these products we don't know what it is, but we use them every day, and we ask the management what it is, but they don't tell us, because it is not a rule, and we don't go through training for that. We go through training but they just give us a little overview of what it is, and I would like them to make it a full training process, that way we know what is in there, what the contents are in the MSDS sheets, and all that stuff. Because the other places where I worked before they have a training program that they give these chemicals about, and all that, because they have a rule. But in the mining area they don't have that rule. So I guess it is up to you guys to make it a rule, and all that. That is why we came up here testifying before here, and giving an overview of what we think it is, and what we think should be done. And over there at the mine, where I work, we have a chemical that is called penzzupress, we use it to mix it with water, and spray it on the haul road. And we don't know what is in there, they don't tell us, there is no MSDS sheet about what the chemical is. We tried talking to the management for the full page on there, or a full chart, but they don't do that, because they say it is not harmful, they won't do anything. But we use it anyway. Our people are exposed to it, our truck drivers. They get it on their skin, and their clothes, and they come up to me and say, how come you are not doing anything about that? Because over there I'm the safety chairman, so I try to work with the management. I ask them and it seems like they don't know, either, it is not a rule, and they don't have to worry about it. And we use that stuff like three times a night for our haul roads. We spray it on the haul road, and we mix it with water like 20 to 1, or whatever they tell us. They might say 5 to 1 or 10 to 1. We try to mix it that way, and that stuff is dirty, it is sticky, it looks like tar. And these guys are exposed to it almost daily. And we don't know what is in that stuff. All they tell us is that it is safe, and unharmful, and all that. But then we put it on the road and the dust comes around, it blows it off, and we have people around the area, and they don't know what it is. And we have people that have livestock around the area, and I think they should be made aware of what we use out there, what kind of harmful or harm that that stuff we use out there, I think they should be made aware of. Because we have had people around there that live, that have animals, and livestock. So I think this should be made a rule, and I think the mine operators should be aware of what they use out there, and let their miners know what is harmful, and what can kill them, or what can -- all the stuff that goes on. I've heard miners that are commenting about that, and I think it should be made into a policy, and all that. That is why we are up here, in front of you guys, trying to testify and after all these years, and also the chemicals we use, solvents, whatever we use out there, hazmat, that they should all be labeled, instead of just saying chemical distillants. We don't know what it is. It can be anything. I think it should be labeled, this is what it can do to you, or if you get it on yourself, or on your clothes. So I guess all I'm saying is let's make it a rule and go from there. MODERATOR TEASTER: Larry, you said that you asked for the information on this chemical that you used to spray the water, and the company wouldn't share any information with you, or they didn't have any information? MR. LEE: They had the information, but they don't want to go deep into it and say, this is what it will do to you, or what -- MODERATOR TEASTER: So they do have the information, but don't share it with you. Do you know if there is any other incidents where that type of chemical, or other types of chemicals that they had the information, and the miners requested it, and were not allowed to get that information? MR. LEE: I tried to talk to the management, put MSDS sheets out there where people can read it, they don't do it. And all they say is it is down in the warehouse, but we don't have time to go down there and read it. MODERATOR TEASTER: You also mentioned some other close by workers that maybe were covered under OSHA, where they had this information. Do you know if the miners regularly requested to review that information? MR. LEE: I don't think so, not to my knowledge. MODERATOR TEASTER: Okay. MR. LEE: And that penzzupress, we will use that on the haul roads, and then there is another chemical, mat chloride, we use that too. And that stuff we don't have information on it too. All they have is MSDS sheets, and that is all they can tell us. MS. HUTCHISON: The dust suppressant that you mix with water, to use on the haul roads, does it come from a container that is labeled? MR. LEE: No, that stuff is like a big water tank, the truck comes in and just pumps it in there. There is no label or anything on it. The only thing it says on there is penzzupress, that is all. MS. HUTCHISON: It says what? MR. LEE: Penzzupress, P-E-N-Z-Z-U-P-R-E- S-S. MS. HUTCHISON: And so there is no -- you have no information as to what this stuff contains? MR. LEE: No, as miners working there, we don't have any information. MS. HUTCHISON: It is brought in, in bulk, pumped -- just verifying. It is brought in, in bulk, pumped into a tank. The only thing the tank says is the name of the product? MR. LEE: Uh hum. MS. HUTCHISON: And you use the suppressant out at the tank, and mix it with water, and -- MR. LEE: Yes. MS. HUTCHISON: -- spray it -- MR. LEE: Spray it on the haul roads. MS. HUTCHISON: -- on the roads? MR. SNASHALL: Larry, you said that you don't get much training except a little review of what it is. That little review you get, could you say something more about that, what little do they give you? MR. LEE: We have an annual retraining, we call that. That is the only place they give it to us. MR. SNASHALL: Not on task, when you are assigned a new job? MR. LEE: During that retraining we might not even have that stuff, and we don't know it, because the retraining is usually in the winter, and we don't use that in the winter. MR. SNASHALL: And in your retraining what is the nature of the training, what is the information that they give you? MR. LEE: It is like first aid, then annual retraining, like haul roads, and equipment operation. MR. SNASHALL: On the chemicals, on your annual retraining, do they get into chemical hazards in your annual retraining? MR. LEE: Not that much. MR. SNASHALL: Okay, thank you. MODERATOR TEASTER: Larry, could you come back? We have one other question. MR. PHUC: How much time do the operator take to do annual refresher training? MR. LEE: Usually it is a full shift. MR. PHUC: Full shift is 8 hours? MR. LEE: Yes. MR. PHUC: And HAZCOM is not part of the training? MR. LEE: It is part of the training, but it is just a little bit. MS. HUTCHISON: About how much? MR. LEE: Maybe half an hour. MODERATOR TEASTER: Sorry, Larry, thanks. Our next speaker is Donald Keith, from United Mine Workers Local 1620. MR. KEITH: Hello. My name is Donald Keith, and I'm from the Arizona Navajo Reservation, and as you can see I'm a Native American, just like Larry is. And there is four or five of us that is here today, and we are all gone into mining business, and I work for Peabody Coal Energy, Local 1620, in Arizona. The way I'm concerned about this is if I may elaborate a little bit into the things that my Native American people are experiencing out there in the West. As we all know that Native American people has been neglected quite a bit, going into anything that has been brought into the United States, what we consider United States, and we call it our Native American States. Going back to the time of the wars, of the big wars, World War II in that sense, you know, people were -- a lot of my people were in need of jobs, so they went underground to become uranium miners. And we all found out about, what, 20, 30 years how harmful, how dangerous this is to human body, and because the nature that these people were illiterate in english, and not knowing what was all in those chemicals at the time, now people are out there suffering with cancer, and the dangerous amount of things that they've experienced. And a lot of my people are, again, without medical facilities, or diagnosed with cancer. And to continue with that, during the Vietnam War a lot of us had gone into Vietnam, and exposed to Agent Orange. Here, again, no knowledge of what was we were involved in. I have a brother in law, my nieces, they have been exposed to this, because their father was in contact with agent orange. Now my niece, I see her hands and they are all swollen up, sores, because people that supposed to have this knowledge, they are not bringing out to the people the amount of dangers they are being exposed to. I've seen some of my people, again, like Larry and me, safety committee chairman, and I have some rank and file members come up to me and ask me the things that they are exposed to. You know, I have some people that are doing blastings, and shootings, and we call them shooters, and they have been in contact with different type of chemicals, and you can see that their hands have gotten sores, and they have been given time out to have their hands heal. They have been to, again, bad medical facilities, and they don't know what is causing it. But they say they have handled those shooters, and things that they use to explode, for explosive. They have been in contact, they are given a different type of gloves. But here, again, we don't know that the gloves is doing them any good. But I know of three or four different cases now that a lot of these old miners because, here again, they didn't have the opportunity to have gone to school, and they don't know what they were in contact with, with management bringing all these type of different types of chemicals onto the mine property, and people are getting into it, being exposed to it. And now they are suffering from hands they can hardly use any more. And without the knowledge, you know, had this chemical that is being brought on to the mine site, had they been labeled, and having a history of what it could cause, what it could do further down the road, and had these guys been taught, even if the management, I don't think the management -- I don't think they even have the knowledge of what these things are, when they bring these chemicals on to the mine site. So that the management doesn't have the knowledge, how are they going to relate to their, to us miners about what dangerous effect it can cause us. Yes, we do have these training courses, but all it is, is just numbers, statistics about things, and an 8 hour annual retraining, you don't have the time to get these out to people. You have so many other things that is involved in your 8 hour annual retraining, so that stuff usually doesn't come up to surface. So, you know, I'm thinking about, my mouth is getting dry. But I don't know why these people are giving these type of things, and it is not required to have these people given the knowledge to -- thank you, I appreciate that. But we should be informed of these things, and you know, we have a history where we have to get our people educated and into a society. Back then, a long time ago, our people were taken off the reservation to be educated into a society where we all could speak a common language. And now that some of us have been educated, now there is this type of chemicals that has been brought out, and they don't even have it labeled to let us know what it can do to us. I don't know where the problem is, but had MSHA brought this on long before, I think we could have been, us educated people could have in turn told -- we would have had the knowledge to tell our people what is going on, and they would have a different point of view about things right now. Things are just so much into just making production, making more money for everybody, and the Native Americans are getting kicked around and without knowledge of these type of things, I don't know how it is going to affect us down the road. I spent, all these excuses, we have heard all different kinds of excuses, just to procrastinate things, instead of preventing of these types of things, which has been prolonged. And the economic factor there, that is the total loss, and so to be trained, and to have the knowledge, and also the management to have the knowledge to make these things available to us to help us with our health more effective. I don't understand why this is being brought up and then shut down, and continue to let it sit there without any kind of effort being made to a law. I think that we really do need to bring these concerns out to the people. And not only am I talk about the miners, I'm also talking about people, like Larry said, we use these different types of chemicals on our roads. And when we have all these different types of miners being exposed to, say on these big drag lines machines, the welders are -- when they heat up different type of toxic, and they are being exposed to different types of toxins, and they don't know what that is. Some of these people get nauseated so they have to be relieved of their job for three or four hours before they can continue again. And, here again, there is no knowledge of what we are all involved in, here. So I've always -- I went up to my management and asked them what they are going to do about that? Again, they don't have the knowledge either. And the people that are building these different type of chemicals and bringing them on the mine sites, I think they should be made aware to what they are doing, what they are bringing out. So in terms, they, my management can have the knowledge to where they can let us know what we are involved in. So basically I guess what we are saying is, why is it taking this long of a time to put a label on a barrel. You know, it is simple, people make these things, they know what they are putting in all that stuff. All they've got to do is write down what is in there, what the long-term effects are going to be, how it is going to hurt you. You know, us Native Americans, we don't have the very thing -- we don't have the basic things, like running waters, stuff like that. And so all these chemicals that are left on-site, you know, we have a rain, and it gets on to different atmospheric, it is airborne, some of them are run into different type of water that is being where our livestocks are using up, drinking this water, eating these plants. So in an essence what I'm saying here is that whether it is the miners, or the people that are living around there, that are exposed to it. Because they use their livestocks for food, and those livestocks drink out of that same water that is contaminated from these different type of chemicals, you know? And we have no knowledge of what is all out there. A long time ago we were -- you know, people took our land and our water away from us, and they took our mountains away. Now they are coming back and taking our rocks, and using all this kind of different type of chemicals. I don't know whether there is an excuse for it, not label these things, or why we have to go through this type of course again. And, you know, I'm very concerned about it, and my people are concerned about it. And I think that this stuff needs to be labeled, it needs to be brought up, and it needs to be informed all the people what it is about. And I think as long as we are -- have an excuse to procrastinate, and to prolong these type of accidents, it needs to be stopped, simple as that. You know, all you have to do is people that make these things, they just need to put it in writing and say, these are the dangerous effects. It could help a lot of people's lives later on down the road. And I am concerned about this thing. And, again, I say that yes, we do need to have these things labeled so we have an understanding of what we are all doing. And I thank you. MODERATOR TEASTER: One thing, Donald, on the -- you mentioned the miners that were exposed to the chemicals associated with the explosives. Did you say that the operator did not have the knowledge as to what chemicals were in there that may -- MR. KEITH: No, they do not have the knowledge, because we did ask what is in that. The guys that have these sores in their hands, are asking me to talk to them, and I ask why are these people getting those sores on their hand? And they had no knowledge. And with poor medical facilities out there, and these people are, they don't have the education, so they are just living with it now. MODERATOR TEASTER: So prior to this occurring, did the company require gloves to be worn? MR. KEITH: No, no. MODERATOR TEASTER: Just after this? MR. KEITH: Yes, people started getting sores, so then they started providing different type of gloves. But we don't know if that glove is going to protect their hands, because they already got sores in their hands, it is probably entered their immune system, and it is probably too late, you know? So whether you provide them with gloves after the fact, what good is it, you know? MODERATOR TEASTER: Did they, did the company -- do you have knowledge of whether the company had changed types of explosives that they used? MR. KEITH: The company is always trying to change different things to make it more efficient for their means of production. It is not -- they are not looking at the health and the welfare of the people, they are looking at production. MODERATOR TEASTER: The OSHA rule which applies to most of the, other than mining, and they are required to provide labels. So we have anticipated, under the drafting of our rule, that most of the labeling will be done by the manufacturer, and it will be there, in place, when it arrives on mine property. Are you telling me that this is coming to the property with no labels, most of this stuff? MR. KEITH: Probably, because we have no knowledge of, and the mine managers don't even know what they are bringing in. But my problem here, my -- I don't understand why it is taking this long. I mean, if OSHA had this into law 12 years ago, and here we are still trying to implement something that has been out there for years and years, and here we are just having prolonging. I don't know what type of excuse it is, but it is not on the law yet. MODERATOR TEASTER: Thank you, Donald. MR. KEITH: I think you guys. MODERATOR TEASTER: Our next speaker is Larry Huestis, the United Mine Workers. MR. HUESTIS: Good morning panel. I'm Larry Huestis, I do the surface inspections for the United Mine Workers International in the western United States. I'm also a past member, or current member of Local 1972 out of Sheridan, Wyoming, that is my home. I have some personal experiences with some different chemicals that I was going to talk to you about. But I have heard quite a few different questions, and I guess I would like to get into some of your questions you've asked some of the other speakers, from my experience going down to the Navajo Nation, for instance, doing safety inspections. Also, I guess maybe the Panel, I would ask them to really try to put themselves in a miner's shoes. And I'm going to ask you to think about, for instance, I was hired at Decker Coal as a mechanic in 1978. And about 1983, '84, in that time frame, as a mechanic I was asked to, you know, repair things like brakes on Euclid 170s. so I would take the wheel motors off the 170s. And it became a very common practice. The electricians, we seen they had some chemicals that really worked good for electrical cleaning. Boy, that took the grease off, it evaporated, so they didn't have dirt, grease, and stuff on their contacts. Well, the mechanics, and with the knowledge and the blessing of management, we started getting this stuff in, in 55 gallon barrels. So if you were working on a brake system, you would go get a five gallon bucket, you would get your air hose hooked up, you had to basically a suction device set up in -- and it wasn't good enough, the ones you could buy, you had to use the three quarter inch pipe, so you could suck that five gallon bucket out in about three minutes, and you could put a lot of this chemical to get the grease off the brakes if you had a bad wheel seal, or if you were trying to get to even the nuts and the bolts to take something apart. And there was enough of this chemical in the air that if you used it for a minute and a half, you wouldn't be able to see the other end of this auditorium. And we didn't know what this stuff was. It was nice and cool, you could put your hands in it, but boy it would clean things. And I guess my point being, there is a chemical, and if that chemical is produced, or brought on to the mine site for a situation, that may not be what it is only used for. That, if I remember right, was carbon tetrachloride. I have used that in six by six areas, contained area, in the back of these trucks, that today if I had to try to even get in that hole I couldn't make it. But to get in there, and then take a five gallon bucket of this stuff and clean the contacts, clean out the brake areas, to get those wheel motors off so that you could get in and take the pinion and the sun gear out of there, so you could take the rest of the wheel motor apart, that was a common practice. I rolled out of that hole too many times and getting sick to my stomach, light-headed, and I just decided, myself, I have to find out more about it. So I went and started asking the electricians, what really is this stuff? It is good stuff, but what the heck is it? Well, we start digging. And yes, it is a cancer causer. They no longer have it out there. But what my point being is, again, it was not put out on that mine site to be used to the type of a situation we were using it. So when there is a chemical brought out to a property, there is going to be, and I'm sure in a lot of cases it is definitely abused. So the warnings, and the labels for a can of what we would call, and you could probably go to Wal-Mart and buy contact cleaner. Well, that is a little spray can, but I have seen it being used and put in the air over 20 gallons of it, in probably less than 15, 20 minutes. And not just exposing the person that was using it, but 25 other people working in the area. It was a very big-time practice. I don't know the long term effects of this. I know it is -- it wasn't very smart on my part, and it definitely wasn't very smart on Decker Coal's management part to see this practice and to continue to let it go. So there are a couple of points here. Is there going to be abuse, or a possibility of abuse of chemicals? Yes. If somebody can find some chemical that will do something, and they don't really have the knowledge of how harmful this can be. At the same time we, as workers, a lot of time depend on our management people to know what is good or bad for us, or they should have been told from their supervisor, or whoever purchased this, that it should be safe. So there is a sort of a blind trust put in here to the system. Now, I guess since I grew up a little bit, and hopefully got a little smarter, I find out from digging into this, there is sometimes people out there, that are in management, that do know these things. But then it becomes a portion of what is best for the bottom line, do they always look out for the betterment and the health and safety of their employees? (Whereupon, the above-entitled matter went off the record at 10:20 a.m. and went back on the record at 11:40 a.m.) MODERATOR TEASTER: We are now set up to continue the Hearing on HAZCOM. For those that are here, who would like to sit in on it, we would like to start back. We have everything set up on a temporary basis. We will go back on the record now. We have had a power failure, we will try to get through with the speaker that was speaking at the time of the power failure. And if that works we will continue to take testimony, if not we will delay, after this speaker, we will return to the auditorium. But we do want to try this and see how it works. Larry Huestis will continue on with his testimony. He was testifying at the time of the power failure. MR. HUESTIS: I was testifying on using the carbon tetrachloride as a solvent degreaser. One of the points I wanted to make sure that the Panel understood is that once the company, or once somebody came to have the knowledge that this isn't good stuff, that we had been abusing it, and to even take it out in a bulk form, you know, there is no more MSDS sheets left at Decker Coal. Once the chemical is gone, the MSDS sheets are gone. And another thing on the use of, and I guess I would say some possibilities of abuse of, these different chemicals, is that the management people at Decker Coal, the foremen, and even the safety people that, and purchasing agents, I think it was very well known what kind of abuse was being used with this chemical. And, you know, they didn't have the training to recognize that hazard. I don't blame them, I believe they were lacking the knowledge that it could be that hazardous and cancerous. But that is my own personal experience with, I guess I would say, the chemicals, the lack of knowledge on them, the abuse of them, and those -- that chemical was used like that. It was mixed with solvents at the same time. So when you get solvents mixed with that, you know, what other kind of forms of hazards have you created? The other things I would like to testify on, and I maybe ask the Panel to ask some of the questions to me that were asked of other members that were up here. Because, again, I work for the Mine Workers, I do safety inspections to the surface mines in the west. And I just wanted to go over a couple of things that I've experienced doing those types of inspections. There was a question asked about how available MSDS sheets are. And I will give you a couple of examples. Peabody Coal, the Big Sky mine, I was doing an inspection there. And as I was inspecting the shop, they had just received a 55 gallon barrel of antifreeze. And it was marked caterpillar. And then it had the, it was called coolant, and then it had the trade, or the numbers, Caterpillar numbers. They just received it in, and they told me that Caterpillar went to their own type coolants, a new coolant. And I said, do you have the MSDS sheets on it? And they said yes. I said, I would like to look at it. So we had to leave the shop, go over to the safety supervisor's office. He had about four books of MSDS sheets, three ring binders, some of them up to six inches thick. And he said, it should be in here somewhere. So we start looking. We can't find it. We can find some antifreeze, but it wasn't, the numbers didn't match, it wasn't Caterpillar antifreeze, it might have been Prestone. So he says, well, let's just forget about looking in the books. I will get on my computer. So he gets on his computer, he gets into the Peabody data base. He can't seem to find it. So we go to a different place on the internet, looking for the information, Caterpillar. Finally he says, well, if we don't have it here, we should have it in the warehouse. We go to the warehouse, we can't find it. So we end up calling a Caterpillar dealership, and they faxed it to us. So I started asking questions and concerns for our members, come on company, this is a little bit ridiculous. If we just had somebody get a bunch of this splashed in their face, their eyes, how are they going to get to your office way over here, another building up two flights of steps? And I said, when we were talking, you mentioned this room gets locked up at 4:30 in the afternoon. And he says, yes, I guess I never thought about the other shifts not being able to get that. But he says, they do have that access, or the information in the warehouse. I says, we didn't find it. And so I said, are they going to be able to get a hold of Caterpillar, run through the same process as we did, and if Caterpillar is closed, what are these people supposed to do? You know, it is -- I think there is a misconception out there that when you say the companies have the MSDS sheets, they do? In probably most cases try to find that information, there is not a company that sets their books up the same, whether it is getting alphabetized by the trade name, the chemical names, that is not the total answer on how these chemicals are being treated at the job site. So once you go out and really ask, and push, you have to push to get this information from the company. You have to be consistent. That we got faxed to us, and it probably took two and a half hours. Another incident was with PNM Coal. We heard, my union brother Larry Lee talking about, and I can't remember the chemical name, but the dust control chemical. He was -- I can't remember on their bulk tank if it just said danger, or if it had the actual chemical in it. But it is, that tank was probably at least a 3,000 gallon tank that they brought in from the bulk trucks, pumped into the tank, put into the water trucks, mixed with the water. Well, as I started asking questions about that, and some of our members, that they had been using these chemicals for a couple of years. They had a favorite little fishing pond. All the fish are dead. And they are telling our members this stuff is safe. So I started pushing again. Well, let's see the MSDS sheets on these different chemicals. We left that place four hours later, I still did not get that information. So when you think, and when you are asking our members, have you asked for MSDS sheet, a lot of times they ask and then they will get it for you, and we went all the way around to four different offices that day at PNM, and still did not receive that information. And I have a lot of papers thrown at me and says, I think this is it. I says, why doesn't it say exactly the chemical? You know, are we talking the same thing, or is it one that you used three weeks ago? Nobody could answer those questions. So it is -- the system that is in place right now, it is not working very well. So don't hinge your decisions on that we've got a good system. You've got a system, to me, that is not enforced. It is a system that does not work. And I think that you hear from industry, as we've got them here, all they have to do is ask. I have been with members when they have asked. And I have heard foremen say, it is around here somewhere, you are just trying to screw around and not go to work, you are trying to use this information, to know if it is safe, so you don't do it. And then at the same time the other response is, damn it, it has been safe, we have been using this stuff for the last two years. Well, you have new people coming in that may be from a truck driver into the shop as a laborer, and then he is being exposed to these chemicals that he doesn't know what has been there for two years, what came in last week, what is good, what is bad, how much stuff, protective clothing he has to use. I mean, I've seen it from battery acid. And then do a safety inspection, seeing the way different people use bulk battery acid to fill batteries. No eye protection, no clothing protection, nothing. And doing the safety inspection, with the safety company people, maybe the shop foreman will come around the corner see this. I say, hey buddy, we've got to have some better protection gear. Don't you understand how you should be handling this stuff? Then right away the foreman will say, we've told them. And I've got the individual and I say, what kind of training you've got? Well, I've just been in here for two weeks, I didn't know that this wasn't anything more than water. So there is the loopholes in the training. When you get hazardous training in your annual refresher course, they show you some films on chemical burns, different things like that, what kind of, what can your lungs look like. But what is taking place here, they are not saying this chemical that we use at this mine can do this. They give the chemical name, people don't connect it. Whether it is this cleaning solvent, or anything. So there is a big gap in the annual refresher. These are the things you've got on the books now. They are not working the way I believe a lot of people in MSHA, I mean, it is different from what you guys are believing in the action, and what is taking place in the field. Everybody knows what starting fluid is, what its purpose is. But I don't know how many cans of starting fluid I found in vehicles in the summertime, in the cab, on the back of a truck, by the cases. Well, it doesn't take a genius to figure out they are not using this starting fluid to start a piece of equipment in July. You ask the foreman, you ask the company safety person, why are you guys even letting this out of the warehouse? You know it is being abused for a cleaner. And I get the response, oh no, it isn't. Well, before I leave there I found two or three mechanics using it for a cleaner. It is things that are, I think, some companies will tell you we are doing our best to get that under control. I tell you what, if a company wants that under control they can control it. They don't need to check that stuff out. They can give training. I go to the mechanics and say, have you ever seen this stuff blow up? Do you know what is going to happen if this is in your cab and it blows? You are going to die. Didn't know that. So there is a -- even now it is training, training, training, and the companies will hide behind that. That true message is not getting out because the company doesn't feel that it is to their best betterment to get it out. So that in the Navajo Nation, Peabody Coal, Black Mesa, not Black Mesa, I'm sorry, the Consol Mine, we talk about these chemicals being used on the roads. Now, if you go to Cante Mine, it is a total different situation because this is the only mine I've ever been out where the haul road is a county road. You can be going down the haul road, following a 200 ton truck, and it is following a one ton pickup with a bunch of hay on it, and four kids riding on top of the haystack. And here is the dust coming off of these trucks. If they just watered it now we've got a liquid mud that is splashing upside the truck, the hay, and the kids. I mean, we don't know what is in all these chemicals. But I know it killed fish over in, and even management said yes, it killed the fish over at PNM, outside of Window Rock, Arizona. So there is chemicals out there that are being abused, the companies are not furnishing the MSDS sheets so that they do what the law is intended it. So if I get some of this stuff in my eyes I can turn around and find a quick remedy of how I'm supposed to take care of it. If I've got to look for three hours, whatever damage is done, is done. And if my co-workers, and this is not -- really, I think you need to talk to some of your agents, and I think they will tell you that when they go to look for the MSDS sheets, look and see how much dust are on the cover of those. They are not being used. The foreman, the company people, and this is who our members rely on, is this stuff safe? And if you push it then you are labeled as a troublemaker. And these are union mines, guys. Now, I know what kind of intimidation is used in the non-union operations. You can just multiply it by a lot of numbers. And this is, again, you are doing laws for union, non-union people. We want the non-union people protected. But I know that the fear and intimidation for standing up for your safety rights, I've talked to too many non-union people. They are told, I open my mouth, I can look for a job. That intimidation, even though there is laws against it, it takes place day, after day, after day. In the big city of Gillette, Wyoming, where there is a lot of them. And a lot of big name companies. These companies know how to run a safe operation. I'm telling you, they have chose not to, in a lot of cases. They will cut the corners. And I guess I will stop my testimony there, and be more than glad to answer any questions. MODERATOR TEASTER: Larry, just to clarify, it is not our intent, and hopefully we are not doing that, that what we have out there in place is acceptable. What we are trying, to get some information from those that have had some experience, some commenters are making the statements that miners would not use these MSDSs, if they were available. And what we are trying to do is to get some information as to whether or not that is the case. It may be accurate in some cases, it may not be in others. But that is why we are asking the question, is that in the fact the way it is, or is it partially right, or never right? That kind of stuff. It is not in any way justify what we are doing as being acceptable. Now, these voluminous MSDSs that you identified, and couldn't locate the one you were looking for, do you know if there was more MSDSs for chemicals that were not at the mine, or was all of those chemicals at that mine? MR. HUESTIS: No, at the particular one that I'm thinking about, the Peabody Mine at Big Sky, in that incident we found, and I even asked that question, how many of these MSDS sheets are representing chemicals that are no longer even on the mine site? He said, they are scattered in and out of here. So this particular safety department they said, we will go through this every once in a while and clean them out. But to my knowledge, and from how he answered that question to me is, yes, there were MSDS sheets that were there, that were chemicals that were probably more likely not on the mine site. And I guess my point being, in talking to you about the MSDS sheets, and the members, our members trying to get those MSDS sheets, again you know, I think with the Rule coming, if we can get the Rule in, I think we can finally get some -- a little bit more serious to the coal companies, and treat this better, and the training that will be available, that our members and other miners will turn around and not be intimidated, but to really understand the true dangers of misusing, abusing, or grabbing a spray can of something that they don't know what it is, and spraying it on a piece of hot metal to cool it down, instead of a glass of water. It is -- their training, hopefully the training will raise in quality so that they will bring it to what these chemicals really, and the harm that are being used today, but the training will start to connect the dots, connecting it with this can can produce this. And at the same time, hopefully, we will bring up the knowledge of the safety departments within the coal companies, and their purchasing agents, that they will get safer chemicals, and what their knowledge, it will come down so that everybody starts paying a lot closer attention to it. So I'm hoping that my testimony here pertains to some of the things that are wrong in the past, and where decisions to try to improve things, is that we've got some problems over here that still have, need a lot of improvement. But the Rule, itself, will hopefully cure some of that, and the need for the Rule. You know, it is way past due, way past due. MODERATOR TEASTER: Larry, in your experience and training with Part 48, are you aware of any training that took place where the MSDSs were used as part of the training? MR. HUESTIS: Yes, personally for me I can't remember years ago at Decker they did. And they said you can find them at the warehouse. That is about the training, right there. Here they are, this is what they look like, you can find them in the triple ring binder, and they should be over in the north corner. That is your training. MODERATOR TEASTER: No discussion on the specific hazards? MR. HUESTIS: No, no discussion from this is an MSDS sheet of a can of WD40, her is what you can experience if you abuse it, if you are using it too much. You should not use it for this, this is what it is bought for, intended to use as. That sort of training for this type of chemical, no. It is, here is the MSDS sheet for a can of WD-40. It just happened to be the one the safety guy brought out of a book. But they didn't get into the hazards of it. You know, that particular sheet they probably read it over, said, this is what it can do. MS. JONES: And you feel that they were meeting the requirements of Part 48 by what they were doing? MR. HUESTIS: I think they were meeting the minimum requirements. MS. JONES: And it was too general, is that what you are saying? MR. HUESTIS: Very much too general. And at the same time, like I mentioned, showing a video. That is a generic video. And it didn't tie it to the particular different chemicals that were used at that mine site. So, yes, it is a general meeting the minimum requirement of the law. And at the same time I think part of the problem is, and has been, that the safety people of these companies are not educated about the seriousness of these chemicals. MS. JONES: We heard a number of arguments, primarily earlier this week, that this was just redundant to what was already on the books, as far as regulations. Would you care to comment on that? MR. HUESTIS: I don't think it is redundant at all. It is -- I think it needs to be done. There is, I'm thinking with the HAZCOM Rule, and how to communicate these hazards as a part of itself, will get these coal companies, and the industry as a whole, to understand how serious it is. Until that gets through, they are going to skirt by the minimum, the very bottom minimum, on your training. So part of the whole rulemaking process, the content of the process, you know, and I'm not pleased with everything I read in it, because I don't believe it has enough penalties to it for these companies. They can skate by too easy, yet. But at least by the Rule itself, will bring up the seriousness of the chemicals for everybody. MR. SNASHALL: Larry, you mentioned that, about annual refresher training, and deficiencies, in your view, of annual refresher training. Would those remarks also extend to task training when miners get task training in particular jobs, they are supposed to be trained on the health and safety aspects of those jobs; have the companies included, in relation to the health and safety aspect training, have they included hazard chemical training as well? MR. HUESTIS: From my own personal experience, and again working at Decker Coal for ten years as a mechanic, I have never been given a task training on how to use solvent, or when I'm working on something, how to use starting fluids, what to do with these cans of things that you could probably buy at Wal-Mart at the job site. Any other -- I cannot think of any chemical that we had come in there that I was told this is how you use this chemical. Now, Caterpillar uses a lot of different types of epoxies for seals, and stuff like that. I have never received training on that. And those, you know, all I can say, speaking from my experience, as far as my own personal task training, the answer is if there has been, it has been so very little, I can't remember it. MR. SNASHALL: Thank you. MODERATOR TEASTER: Thank you, Larry. MR. HUESTIS: Thank you. MODERATOR TEASTER: Can we go off for just a minute? (Whereupon, the above-entitled matter went off the record at 12:06 p.m. and went back on the record at 12:07 p.m.) MODERATOR TEASTER: Back on. Our next speaker is going to be Andrew Laferty. MR. LAFERTY: My name is Andrew Laferty, I work for Bluestone Industries at a prep plant in Keystone, West Virginia. I'm a union safety committeeman. I have 33 years of experience of being underground, the rest at the plant. I've been, since I've been at the plant I have worked with every chemical that is around the plant. I was a filter operator for roughly seven years. When I first started, nobody told me these chemicals are going to hurt you. All I was told was how to mix them into the system. I asked one of my foremen one time, I said, well this hurt you if you get it on you? He said, it is not supposed to. We had another chemical there that we used, you mixed with water, it had an odor to it, or it would burn you, burn your eyes if you breathe it very long. He said it was basically potato starch, it shouldn't hurt you. We have absolutely no training on these chemicals, at all. They just -- anybody that goes into these jobs, all you are told is how to mix them. We run different grades of coal, sometimes two or three times each shift. The man that is in charge of this has to go change these chemicals back and forth, add or subtract whatever he needs. They never trained, and the eight hour refresher we have each year, they show you a little bit about chemical burns, but most of it is nothing that we actually work with. They just -- nobody is told what is going to happen if you put too much of this in. They just say if you don't put enough our coal is not going to be right. Don't worry if you put too much, if it spills, because we have -- below our cleaning plant that catch all of our water, our runoff. Sometimes there is a lot of rainwater, and this goes into a stream, a public stream. They don't -- one time we had a -- we had this large coal pile, and the dust went right in this little town. The coal dust was bad, so they brought a chemical in, in a black barrel. It had a corrosive sticker on it, it had some numbers stamped on it. They said put four, put 20 gallons of this into 2,400 gallons of water, and we will spray it on the coal pile. The machine we used was broken, it didn't work right. Nobody said it would hurt you, or wouldn't hurt you. We had to wear, well all we had were rags, we didn't even have a mask, we had to wear this over our face. And when we finished we were all, everybody, anybody that used this machine was soaking wet. You had to go change your clothes. It would dry and it would become very sticky. We had people, right now, that on these jobs, they don't know -- well, they abuse it, I guess would be the word. They put too many chemicals in. Sometimes, I've moved now, I'm a dryer attendant, and supposedly we have been told this is an alcohol diesel fuel mixture that we use to float our coal. Sometimes when I do my dryer checks, we have a heat dryer, I'm afraid to open the little inspection door for fear that there might be an explosion, because there are so many of these chemicals in the system. You can smell them just out walking around anywhere. We definitely need some kind of a law, or something, that would enforce some training. None of us are trained, we have never been trained on any of these. I'm really surprised that somebody hasn't gotten seriously hurt with it. I, one time myself, got something on me at work. I don't know what it was, it caused a rash on the upper part of my body. I was in -- I have been in two different states to three different skin specialists, and they just give me whatever they've got. Sometimes it takes care of it, sometimes it doesn't. It goes away, it comes back. But a couple of years ago we have two large storage containers. Well, we actually have three. But sometimes somebody fails to keep records, and they run out. So the chemical company will bring in two or three barrels, whatever is needed, probably, to do until the next day. We get chemicals in chlorine buckets. They are not chlorine, it is some form of a liquid. The barrels come in and they have a flammable sticker on them, or a corrosive sticker on them. You open the barrel, if it smells like what you used yesterday, go ahead and put some in the system. Another guy and myself had to move a couple of these barrels one evening. And somebody had opened one, and hadn't closed it, which we were at fault for not checking it. But when we moved it some of this liquid came out and got on us. Well, it had a terrible odor, and both of us got it on our hands, and we got rash, and burning. The other guy asked the superintendent for a data sheet, and he says, it is around here somewhere, I will find it for you. Well, the next day he gave me this data sheet, he gave me four papers supposedly on this particular chemical that we got on us. And it was four pages of the same page. And it told us nothing about what to do about it. If we were chemists or something we could have probably understood what that paper read. But we had no idea of what we were even looking at. And if the laws don't pass, they need to be enforced real well. I don't know, but as far as I've been told, you know, you can request these sheets from where we work. But like the one I requested, I got it the next day, and it still didn't tell me anything we needed to know about it. And we need a good law, and we need to get enforcement of that law to keep people, make things a little bit safer for people. Because I, myself, have had chemicals on just about every part of my body. And some of them are okay, some of them cause problems, some of them don't. But we just do our jobs, and I've had comments made to me, personally, that I brought it to the attention of some of our inspectors, and a couple of days later I have had comments made to me, you need to learn to appreciate your job a little more. So most people that we work with don't say much, you just go on and do what you are doing, and not worry about it. There is no enforcement at all with our chemicals at the place that I work, at all. MODERATOR TEASTER: Some of the barrels were identified as flammable. Was there not any label identifying what the -- MR. LAFERTY: It had something stamped on it, but -- MODERATOR TEASTER: But I'm talking about information that would identify what the chemicals were. MR. LAFERTY: When they bring us chemicals they have, I think some of them Saturday, as a matter of fact, they have some ten gallon plastic buckets, and the only thing on the outside of this buckets is chlorine tablets. Well, I took the top off of one of these, and it has this chemical in it. I assume it was what we call flocculent, but as far -- MODERATOR TEASTER: It was different than what was identified on the label? MR. LAFERTY: Oh, yes, it said chlorine tablets, but it was a liquid, a white thick looking liquid. We also -- we use muriatic acid to clean some cables on our aerial tram that we have. Well, when we get ready to do this, if you -- I guess if you wanted a pair of safety glasses they would probably give you those. But nobody says, they just say be careful. We put this acid in a five gallon bucket, we put this cable down in the acid, the end of the cable that we are going to use, and we take a cutting torch and stick down in this acid, and aerate it to clean this steel cable. Well, when we are done with that one we put it in another bucket with vinegar and soda to neutralize the acid. And nobody really says, they just say be careful. I guess that is enough. So far it has been. But we take -- when they finish with them, they carry them back in this one little location that they store, and just stick the lid on them, and they are probably there today. We used them three or four weeks ago. Next time we need them they will still be there. It is just a plain white bucket. And muriatic acid is really dangerous. MODERATOR TEASTER: How many miners -- MR. LAFERTY: There were 31. Two weeks ago they had a small cut-off, laid off six of us, six of the younger men. I had -- when I signed off of that job, and took a new one, the boy that got the floater job was 24 years old. A week or two into the job he came to me one night, in the bathhouse, and he said I got that, he said I got that alcohol on my face and hands tonight, it burnt me. But will it hurt me? And I had to look at him and say, Scott, I don't know. They told me it wouldn't hurt me. That is all I could tell him. MODERATOR TEASTER: You have any idea of how many injuries that have occurred at the mine, say, in the last two or three years, as far as reportable injuries? MR. LAFERTY: Most people it is usually their hands or their face. Most people put something on it, go on about your business. Nothing is ever really said about it. We've -- I can't really -- we have several men that have to wear gloves when they work, latex gloves. As a matter of fact I used to wear them myself when I done this job, because there is so much that we are around, your hands stay irritated. Some of the guys their hands bleed, they peel, and they are just -- they are in really bad shape. But it is just that nobody really says it is an accident on the job, they just don't -- I've got severe dermatitis, or something, you know? Nobody really ever tried to collect any, to my knowledge, the safety committee job, I've only been on it a couple of years. Prior to that I just done my job and don't make waves, do your thing. MR. PHUC: You mentioned intimidation by the mine operators. Can you comment on the number of injuries that went unreported, that people just didn't report it because of the fear of their -- MR. LAFERTY: I would imagine every man that has done that job has had a chemical on his person. And these guys, you just -- you know, you just do your job and go on. I mean, that is it. You might talk about it in the bathhouse to some of your buddies, or something. I got something on me today, my hands are all itchy and burning. We, you know, we are a union job, but we are still really restricted, I guess you would call it, to what we can speak out about. I'm sure I will be in trouble over this when I get home. That is okay, that is fine with me. MODERATOR TEASTER: Okay, Andrew, thank you very much. MR. LAFERTY: You are welcome. MODERATOR TEASTER: Our next speaker is Wayne Conaway, from United Mine Workers. (Whereupon, the above-entitled matter went off the record at 12:22 and went back on the record at 1:00 p.m.) MODERATOR TEASTER: We will now continue with the afternoon session. Our first speaker is Wayne Conaway, with United Mine Workers. MR. CONAWAY: My name is Wayne Conaway, I've been an underground miner for 25 years, local 9909, safety committee person, Consol employee. Half of my working career, so far, has been trying to get something on this hazard communication. And that is a long time. Congress required MSHA that our health and safety be first priority. They said that 25 years ago. So I think 14 years doesn't, in my mind, constitute first priority. I've had a friend pass away, just as recently as six months ago, 46 years old, he told me within a couple weeks of his passing away, he said there is no question in my mind what is killing me. He says, from all the times I had to work on the long wall in that emulsion. He said, of course it is not there now, because they did finally find out it was bad. 46 years old, it is a little bit too late. And I'm kind of glad that I was able to hear a few other testimonies before I was able to speak, because after listening to some of the questions you've been asking, as far as Part 48, and after viewing the video yesterday, it seems to me that you've already pretty much come up with something that all mine operators can do as a minimum is show this video, in your Part 48, and that is going to apply with the law. Gentlemen, ladies, that is not going to be enough. There are way too many things that we have to look at when it comes to hazard communication. You have disposals, clean-up, spill containment, evacuations. The MSDS, first aid handling that type of thing, PPE, and there is just not enough time in the Part 48s. And I don't know if you really know for sure, or not, because I -- ever since I've been in Part 48 classes I've never, ever seen an MSHA inspector monitoring it to see if everything is actually in that criteria, in general. Because I think if you had actually had anyone -- and I've talked to a few people, and no one has ever seen an inspector at a Part 48 course. And that would probably also be changed, you know, if it was really looked at hard, let alone trying to put this in on top of it. The people that are, that you are relying on to feed us information and training, they do not have it. Just to give you a good example, last February we got a new safety supervisor. He was 25 years old, he had worked two years underground with the engineering department as a surveyor. In February they contacted him and said you are the new safety supervisor. He has absolutely no idea about general safety, let alone hazard communication. Just on general safety matters he has to come to me, or to someone else. So I can only imagine what it is going to be like when he has to deal with any type of chemicals. We've talked a lot about MSDS sheets. They are on the mine site, usually inaccessible. Day shift people, you know, if you want to go in and find them yes, they are there, but you are going to have to find them on your own. The door is locked on the other two shifts. The majority, and I strongly say majority of the people, have no idea what an MSDS sheet is, or how to actually obtain the information that is on it. They have to regurgitate it, it is just not there. Luckily I have an education in that, to where I kind of oversee some things, you know, that are top priority. Because this has been kind of a passion with me for quite a few years. Because I actually worked underground for 20 years before I went to get a degree in safety and environmental engineering. So I know that this is a problem. We have people, another very good example that upset me greatly, I was laid off for a period of about a year. I come back, I notice these small containers of foam sealant that they use to seal stoppings, and what not. Well, if you've all read the back of the box, it told you right then and there exactly, you must use a respirator, without question. Because all the cancer causing agents in it. I asked the company, I said, do you have respirators for these people that have been using these things? Well, no. I said, I suggest you get some before anything else has been used. They said, okay, we will get some. About three days later they said we got the respirators, we are going to start using that again. I said, I would like to see the respirator. They brought out charcoal filters for respirable dust, instead of an organic filter for that mask. If they can't handle something that small, and you guys don't enforce it, do the job that they actually required you to do, the companies are going to do just as normal, very minimal. Because what really upsets me is Wal-Mart employees understand HAZCOM much more than coal miners. And it is embarrassing to me, and it should be embarrassing to you. It seems like every year things keep getting easier for the coal companies, by regulations, but it is always at our expense. We need to get back to basics. Treat us as your first priority. And I think if you do that you will find out that we have to get this thing through, because there is too many people dying and we don't need it. Are there any questions? MODERATOR TEASTER: What kind of background and/or training do you think an individual would need to present chemical hazard training at a mine? MR. CONAWAY: As far as overall background, each person, as a rule, will have to work with a specific chemical or maybe chemicals in one area. Because it is usually not that diversified where your chemicals are spread all over. You know, you use one chemical for one application. The people that is using those applicated chemicals for that area, they need to know, like I said, as far as if they spill it how to clean it up, how it should be disposed of. There is going to be first aid which will be accountable for different types of situations. You know, you just can't treat each chemical burn, or whatever, the same way. Putting a fire out with a chemical spill, you cannot put it out the same way. You are going to have a certain way of emergency response, do we have to get fire trucks. You know, just a general program. You need to enforce an actual program, not just say I want you guys to be able to do -- each operator to do this, or do that. They need to come up with a specific program. Because, like I said, just a few odds and ends is not going to work, not going to get it. And we really need to make the coal companies be accountable. Because it seems like, to me, every time we are giving them such a minimal obligation to do anything, that that is exactly what they are sliding by on. And no one is really backing it up, and checking on it, to see if they are actually doing what they say they are doing. MODERATOR TEASTER: Do you have a feel for the number of chemicals that is used at your operation? MR. CONAWAY: Being as I work underground, no. Because the bulk of the chemicals are at the prep plant. But I have a person that will be speaking, that works at my mine, that does work outside, and he may be able to give you more information on that. MODERATOR TEASTER: Do you have a feel for the number of, and kinds of injuries that is occurring at your operation? MR. CONAWAY: Sadly to say more so tumors, cancers, than injuries. A gentleman, probably, could have passed away today, I'm not sure. I spoke to him a week ago, he cannot even get out of his bed now. They all seem to be in a field mechanically, as a rule, where they are around petroleum products. MODERATOR TEASTER: Thank you, Wayne. Our next speaker is Terry Ric