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 + + + + + WEDNESDAY OCTOBER 10, 2001 + + + + + BANQUET ROOMS A & B DAYS INN EVANSVILLE AIRPORT 5701 HIGHWAY 41 NORTH EVANSVILLE, INDIANA + + + + + PANELISTS: MARVIN W. NICHOLS, JR., Administrator, Coal Mine Safety and Health, MSHA MICHELLE SCHAPER, Toxicologist, Educational Policy and Development Group RICHARD FEEHAN, Educational Policy and Development Group ROSCOE BRYANT, Solicitor's Office, MSHA PHUC PHAN, Office of Standards, Variances And Regulations at Headquarters BOB THAXTON, Acting Health Division Chief for Coal Mine Safety and Health I-N-D-E-X SPEAKERS PAGE MARVIN W. NICHOLS, JR., MODERATOR, . . . . . . . . 3 OPENING STATEMENT JIM PAPENHAUSEN, RiverStone Group, Inc . . . . . .22 WALTER E. THARP, Irving Materials, Inc./IMAA . . .25 BRUCE H. MASON, Indiana Mineral Aggregates . . . .35 CHUCK BURGGRAF, RAG American Coal Holding. . . . .45 GREG MAHAN, Freeman (UMWA) . . . . . . . . . . . .55 BRIAN PETERS, Mulzer Crushed Stone, Inc. . . . . .61 BUTCH OLDHAM, UMWA . . . . . . . . . . . . . . . .71 DAN SPINNIE, United Mine Workers, Local 2161 . . .76 ED ELLIOTT, Rogers Group, Inc. . . . . . . . . . .78 JAMES SHARPE, National Stone,. . . . . . . . . . .91 Sand & Gravel Assoc. P-R-O-C-E-E-D-I-N-G-S MODERATOR NICHOLS: Good morning everybody. Can you hear me in the back? Okay. Welcome to MSHA's public hearing on our interim final rule for hazard communication in the mining industry. My name is Marvin Nichols. I am the Administrator for Coal Mine Safety and Health with MSHA. Before we begin the public hearing I would like to ask that we observe a moment of silence for those thirteen miners that lost their lives in Alabama on September the 23rd. (A moment of silence was observed.) MODERATOR NICHOLS: Thank you very much. Let me begin by introducing our Panel. Then I have a fairly lengthy opening statement I need to read in the record, so bear with me. On my right is Michelle SCHAPER. Michelle is a Toxicologist with our Educational Policy and Development Group in Arlington, Virginia. Also on my right is Richard Feehan. Richard is with the Educational Policy and Development Group also. On my far left is Bob Thaxton. Bob is the Acting Health Division Chief for Coal Mine Safety and Health in Arlington, Virginia. Next to Bob is Phuc Phan, who is with the Office of Standards, Variances and Regulations at Headquarters. And to my immediate left is Roscoe Bryant. Roscoe is with the Solicitor's Office with MSHA. Today we are here to listen to your comments on the hazard communication interim final rule which we published on October the 3rd of last year. We are holding this hearing in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977. As is our practice, we will conduct the hearing in an informal manner. During the proceeding, panel members may ask questions of the presenter. Although formal rules of evidence will not apply, we will be taking a verbatim transcript of the hearing and will make it a part of the official rulemaking record. The hearing transcript will be available for review by the public, along with all of the comments and data that MSHA has received to date. The entire rulemaking record is available at our office in Arlington, Virginia. If you wish a personal copy of the hearing transcript, please make your own arrangements with our court reporter. Now, let me briefly give you some background on the interim final rule and highlight some of its major provisions. Following that, I will share with you our reaction to some of the comments we have received thus far. The Background: On November the 2nd, 1987, the United Mineworkers of America and the United Steelworkers of America jointly petitioned MSHA to adapt OSHA's hazard communication standard to both coal and metal and nonmetal mines and propose it for the entire mining industry. They based their petition on the need for miners to be better informed about chemical hazards and that miners working at both surface and underground coal and metal and nonmetal mines are exposed to a variety of hazardous chemicals. On March the 30th, 1988, in response to this petition, MSHA published an advanced notice of proposed rulemaking on hazard communication for the mining industry. In this notice, we indicated that we would use the OSHA hazard communication standard as the basis for our standard and requested specific comments on a number of related issues. We published a notice of proposed rulemaking on hazard communication on November the 2nd, 1990, and held three public hearings in October of 1991. The record closed January 31st, 1992. In their comments on our advanced notice of proposed rulemaking and proposed rule, commenters represented both small and large mining companies, individual miners, a variety of trade associations, state mining associations, chemical and equipment manufacturers, national and local unions, members of Congress, and federal agencies. We re-opened the rulemaking record on March the 30th, 1999, requesting comments on the impact of the proposed rule on: (1), the environment; (2), small mines; (3), state, local and tribal governments; and, (4) the health and safety of children. The National Environmental Policy Act and more recent statutes and executive orders included requirements for us to evaluate the impact of a regulatory action in these areas. At that time, we also requested comments on the information collection and paperwork requirements of certain provisions of the proposal now considered as an information collection burden under the expanded definition of "information" under the Paperwork Reduction Act of 1995. We received seven comments to the limited re-opening of the rulemaking record, primarily from trade associations and labor organizations. The rulemaking record closed June 1st, 1999. On October the 3rd, 2000, we published an interim final rule on hazard communication with an affective date of October the 3rd, 2001. We gave commenters until November the 17th, 2000, to submit comments. The interim final rule specifically requested comments on: (1), the plain language format and the content of the interim final rule; (2), mine operators' experience under the Occupational Safety and Health Administration's Hazard Communication Standard; and, (3), any change in the mining industry since the publication of the proposed rule. On December the 7th, 2000, we personally spoke with or e-mailed all commenters and other interested persons, telling them of our decision to hold a public hearing in Washington, DC on December the 14th, 2000. The public notice of the hearing appeared in the Federal Register on December the 11th, 2000. We received twenty-two (22) written comments on the interim final rule and heard testimony from six persons at the public hearing of December the 14th, 2000. Commenters objected to what they considered to be an inadequate comment period and an inadequate notice of the hearing. These commenters stated that they did not have sufficient time to fully analyze the impact of the interim final rule which affected their ability to develop and submit meaningful comments. They also stated that many operators were unable to testify at the hearing because they did not have enough time to prepare testimony and make plans to attend the hearing. Member of the mining community have also stated that, because this is the first MSHA promulgated an interim final rule, there is some confusion about their compliance obligations. The National Mining Association and the National Stone, Sand and Gravel Association have asked for a delay in the effective date of the interim final rule until we respond to their previous comments on it. A number of mine operators and trade associations challenged the hazard communication interim final rule in the U.S. Court of Appeals and the United Mine Workers of American and the United Steelworkers of America have intervened in the litigation. Now let me cover the major provisions of the rule. There are six major provisions to it. 1. HAZARD DETERMINATION: The hazard communication interim final rule requires mine operators to identify the chemicals at their mine and determine if they present a physical or health hazard to miners based on the chemical's label and the material safety data sheets, or MSDS, or on a review of the scientific evidence. Under the interim final rule, for the purposes of hazard communication, MSHA considers a chemical hazardous and subject to the hazard communication rule if it is listed in any one of the following four recognized authorities or sources: 1. Title 30 of the Code of Federal Regulations (30 CFR) Chapter I. 2. American Conference of Governmental Industrial Hygienists, the ACGIH, Threshold Limit Values (TLV's) and Biological Exposure Indices (latest edition). 3. National Toxicology Program, the NTP, Annual Report on Carcinogens, the last edition -- latest edition. 4. International Agency for Research on Cancer (IARC) Monographs or Supplements. 2. THE HAZARD COMMUNICATION PROGRAM: The hazard communication interim final rule requires mine operators to develop, implement, and maintain a written plan to establish a hazard communication program. The program must include: 1. Procedures for implementing hazard communication through labeling, MSDSs, and training of miners; 2. A list of the hazardous chemicals known to be present at the mine; and, 3. A description of how mine operators will inform miners of the chemical hazards present in non-routine tasks and of chemicals in unlabeled pipes and containers. If the mine has more than one operator, or has an independent contractor on-site, the hazard communication program would also have to describe how the mine operator will inform the other operators about the chemical hazards and protective measures needed. 3. CONTAINER LABELING: A label is an immediate warning about a chemical's most serious hazards. The hazard communication interim final rule requires mine operators to ensure that containers of hazardous chemicals are marked, tagged, or labeled with the identity of the hazardous chemical and appropriate hazard warnings. The label must be in English and prominently displayed. I would like to briefly clarify one point about labeling requirements. Practically speaking, very little labeling is required. You only have to label stationary process containers and temporary portable containers, and then only under some circumstances. Chemicals coming onto mine property are almost always labeled. You would not have to re-label them unless the existing label becomes unreadable. You would not have to label containers of raw material being mined or milled while they are on mine property. You would not have to label mine products that go off mine property. You would have to provide the labeling information to downstream users upon request. 4. MATERIAL SAFETY DATA SHEET: A chemical's material safety data sheet, or the MSDS, provides comprehensive technical and emergency information. It is a reference document for mine operators, exposed miners, health professionals, and firefighters or other public safety workers. The hazard communication interim final rule requires mine operators to have an MSDS for each hazardous chemical at the mine. Mine operators should already have MSDSs provided by the supplier for those chemicals brought to the mine. The MSDS must be accessible in the work area where the chemical is present or in a central location immediately accessible to miners in an emergency. 5. HAZCOM TRAINING: The hazard communication interim final rule requires mine operators to establish a training program to ensure that miners understand the hazards of each chemical in their work area, the information on the MSDSs and labels, how to access this information when needed, and what measures they can take to protect themselves from harmful exposure. Under the interim final rule, mine operators have the flexibility of combining the training requirements for hazard communication with existing Part 46 and Part 58 training. The interim final rule does not require mine operators to have an independent training program separate from Part 46 and Part 48 training. Many operators already cover some of the above information in the above information in their current training program. If so, they DO NOT have to re-train miners about the same information. We designed the hazard communication training requirements to be integrated into existing training programs for miners. 6. MAKING HAZCOM INFORMATION AVAILABLE: The hazard communication interim final rule requires mine operators to provide miners, their designated representatives, MSHA, and NIOSH with access to materials that are part of the hazard communication program. These include the program itself, the list of hazardous chemicals, labeling information, MSDSs, training materials, and any other material associated with the program. Mine operators DO NOT have to provide copies of training materials purchased for use in training sessions, such as videos. Also, mine operators DO NOT have to disclose the identity of a trade secret chemical except when there is a compelling medical or occupational health need. Okay. Let me cover some of the previous comments and our thoughts and reactions to those. Commenters representing the aggregates industry argued strenuously that the hazard communication rule is unnecessary and that the aggregates industry should be exempt from the rule. The HazCom rule does not duplicate other MSHA standards, as claimed by some commenters representing the aggregates industry. It augments, supplements, and complements these existing standards. The rule specifically deals with chemicals and chemical exposures. Chemicals may be used in any mine, including those in the aggregates industry. There have been hundreds of chemical burns in the aggregates industry. Chemical burns can occur on any part of the body. Skin burns may require multiple skin grafts and require repeated hospitalization. Eye burns can be serious and result in permanent loss of eyesight. We believe the burden on small mines is less than some commenters have stated. First, small mines typically use far fewer chemicals than large mines, and in many cases, no new chemicals. Second, small mines typically use chemicals in small quantities and for shorter periods of time, similar to household us. Third, many of the chemicals used at small mines are not covered by the rule. For example, soaps used for washing hands are "cosmetic" and are exempt. A can of spray paint is a "consumer product" and is exempt when used in small quantities intermittently. The length of exposure, as well as the amount, is really the determining factor -- a can of paint only lasts a short time. Glue or adhesives, when used intermittently in small quantities, are exempt. Again, the length of exposure, as well as the amount, is the determining factor in whether or not a consumer product is exempt. We recognize, however, that not all mines are likely to use a wide range of chemicals. Although we cannot exempt the aggregates industry from hazard communication, there are steps we can take to minimize the burden of the rule. For example, we intend to make extensive Compliance Assistance Visits and conduct extensive outreach. We also will be publishing a compliance guide to help operators and miners understand the application of the HazCom rule. We are developing a wide variety of compliance aids, such as model HazCom programs, a training video for mine operators about determining chemical hazards, and a training video for miners about chemical hazards and reading MSDSs. A draft of the MSHA compliance guide has been on the MSHA web site for months. If you refer to the compliance guide, many of these issues are explained. If you have any questions in these areas, send them by e-mail to comments@MSHA.gov or to the Office of Standards at the address listed in the public hearing notice. We will use these questions to clarify your responsibilities and include additional or better examples in the compliance guide. In the same vein, mine operators may obtain help from organizations that have developed generic guides to meet OSHA's hazard communication standard because HazCom contains the same basic requirements. We will provide links on our website to some organizations which have developed a variety of generic HazCom materials. While it will remain the responsibility of each mine operator to develop and implement a HazCom program and to have MSDSs, to the extent possible, we will help you establish a hazard communication program if requested. We have already taken other steps in revising our interim final rule to make it easier for mine operators to comply, without reducing the protections offered by the rule. We are considering the following substantive changes to the interim final rule in response to commenters' concerns. We also are considering several non-substantive changes to clarify our intent and correct errors based on commenters perspectives and questions. Under a HazCom determination, we may revise the reference to ACGIH, NTP, and IARC from those considered in determining if a chemical is a hazard and if the chemical is carcinogenic. One option we are considering in determining whether a chemical is a hazard is to refer to the 2001 editions of the ACGIH TLV booklet, IARC, and NTP. In determining whether a chemical is a carcinogen, we are considering referring only to the 2001 editions of NPT and IARC. We had expected the use of the ACGIH, NTP, and IARC lists to reduce the burden on mine operators because mines use relatively few hazardous chemicals for which they would have to develop an MSDS and label. Commenters objected to the use of these listings, stating that the organizations which compile them offer no opportunity for public comment; they impose unknown future requirements by citing the "latest edition;" and they violate regulations governing incorporation-by-reference. We are open to considering alternatives where the impact of the alternative would not reduce protection afforded miners by the interim final rule. Concerning labels and MSDSs, commenters requested additional language to clarify that the designated "responsible person" mentioned on the labels and MSDSs can be the mine operator. Accordingly, we are considering changing these provisions to read "...the name, address, and telephone number of the operator or a responsible party who can provide the information." Concerning the availability of MSDSs, commenters asked that we increase compliance flexibility and recognize that MSDSs may be stored in a computer. In response, we are considering modifying the requirement to have an MSDS available "for each hazardous chemical before using it" to one requiring the operator to have an MSDS available "for each hazardous chemical which they use." MSHA is also considering accepting a listing of the OSHA PEL on MSDSs as an alternative to a listing of the MSHA PEL. This would facilitate the use of widespread existing MSDSs and reduce costs by eliminating the need to develop additional MSDSs. In response to comments concerning hazard communication training, we are considering changing the language from requiring the operator to train the miner whenever introducing "... a new hazardous chemical into the miner's work area ..." to requiring training when the operator "... introduces a new chemical hazard into the miner's work area..." This change would clarify MSHA's intent that when a new chemical is introduced additional training is required only if the hazard changes. This is the intent as discussed in the preamble of the interim final rule. Also, in response to comments, we are considering revising the definition of health hazard. The interim final rule defines health hazard to include chemicals that "damage the nervous system including psychological or behavioral problems." We are considering deleting the phrase "psychological or behavioral problems." We are also considering adding the criteria "toxic or highly toxic" to more closely conform the language to that in OSHA's Hazard Communication Standard. The hazard communication interim final rule is an information and training standard that requires mine operators to know about the chemicals at their mines and to inform miners about: 1. The risks associated with exposure to hazardous chemicals; 2. The safety measures implemented at the mine to control exposures; and, 3. Safe work practices. The hazard communication interim final rule DOES NOT restrict chemical use, require controls, or set exposure limits. We will publish our response to the written comments, including those comments received today at this hearing, in the preamble to the hazard communication final rule. We will consider all comments contained in the rulemaking record, from the publication of the advanced notice of proposed rulemaking on March 30th, 1988, through the close of the record on October the 17th, 2001, in the development of the final rule. You may submit written comments to me during the hearing or send them to the address listed in the public hearing notice. We will also accept additional written comments and other appropriate data on this final rulemaking from any interested party, including those who do not present oral statements. All comments and data submitted to MSHA, including that submitted to me today, will be included in the rulemaking record. The record will remain open until October 17th, 2001, for the submission of post-hearing comments. We need you to sign the sign-up sheet and also, if you wish to speak, the sign-up separate sheet. And we plan to be here until five o'clock today. We could go longer if we needed to. By the size of the crowd, I don't think we will need to do that. So why don't we go ahead and get started with your presentations. The first person we have signed up, I believe is Jim Sharpe. Is Jim here? UNIDENTIFIED FROM THE FLOOR: Jim is not here. His plane was delayed in Pittsburgh. MODERATOR NICHOLS: Okay. UNIDENTIFIED FROM THE FLOOR: He is coming. He is just not here. MODERATOR NICHOLS: Okay. Well, we are -- UNIDENTIFIED FROM THE FLOOR: He is going to contact me when he gets a little bit closer. MODERATOR NICHOLS: Okay. We will work him in later today then. Ed Elliott, with the Rogers Group. MR. ELLIOTT: My apologies. I should have asked sooner. Could I wait until a later time? MODERATOR NICHOLS: Yes. MR. ELLIOTT: Thank you. MODERATOR NICHOLS: Jim Papenhausen, with RiverStone Group. MR. PAPENHAUSEN: I would like to thank you for the opportunity to comment on the HazCom. My name is Jim Papenhausen. I am the Corporate Safety Director for the RiverStone Group. We are a small business. We operate about two dozen mines in Iowa and Illinois and Missouri. We employ approximately two hundred and fifty people. We feel that this piece of legislation or regulation is unnecessary for our industry. We feel that all of the elements that are in the HazCom are covered both in Part 56 and in Part 46. We have the standards in Part 56 that cover labeling, the training of new miners. And again in Part 46 it requires that each -- all of our new miners, and current miners in the off-areas, annual refreshers on all of the changes that the inspectors thinks about are already there. The people that are responsible are already there in the training program, training plan. Ultimately, this reverts back to the operator and the people that are responsible on the plant. We are not in the business to hurt people. We feel that a safe workplace is a good workplace. It costs money when employees are injured, in lost time and lost wages, and lost production. The burden of this standard, we feel, is great. We are still trying to climb out from under Part 46, and now Part 52 also we are familiar with. We feel that this detracts from our goals of providing a safe workplace. We are trying to focus on items where miners are getting injured, which typically are unsafe acts and practices. We have been involved in state board's meetings that are being held around in this effort to reduce accidents and fatalities. We all want to do that. We don't want to see anybody hurt. But we feel that more legislation along these lines, with basically more paperwork that duplicates what we are already doing will not be in our best interests nor in the best interests of the miners in our group. I would note that (inaudible) is now in a letter that was sent to the Office of Management of Labor, December 4, 2000, with like several of the state aggregate associations and (inaudible) joint metal associations. We feel this is worthy of comment to our cause. I guess to wrap up, we do not feel that this regulation will reduce any injuries to our aggregate miners that aren't already covered. I think we should let Part 46 take its turn to work a while, and everything that you do has balance if you accomplish here Part 46. We would like to see it go that route than more regulations. We feel that this ain't nothing but more citations being written. That is all I have to say. MODERATOR NICHOLS: Okay. Do you include HazCom training in your current Part 46 training? MR. PAPENHAUSEN: Yes, we do. MODERATOR NICHOLS: And do you provide the MSDSs to your miners? MR. PAPENHAUSEN: Yes, we do. Every mine has a book of MSDS sheets, and it is all included under new miner training and the annual refresher training. That is part of the Part 46. You know, the miners are also eligible to request other copies. I mean, this is one of the recommended copies for the health and safety standards. MODERATOR NICHOLS: Have you had any chemical burns in the last two or three years? MR. PAPENHAUSEN: We have not. I have served on the state association for the Illinois Aggregate Association and the Iowa non-metal producers, on the state committee there, and I have been on it for fourteen years and I have not been aware of any accidents (inaudible) at the mines (inaudible). MODERATOR NICHOLS: Okay. Anybody else? (Panel members indicated no further questions.) MODERATOR NICHOLS: Thanks, Jim. MR. PAPENHAUSEN: Thank you. MODERATOR NICHOLS: Walt Tharp, also with the RiverStone Group. MR. THARP: Good morning. My name is Walt Tharp. I work for Irving Materials, Incorporated. I am the Safety Director for the corporation, and I am also the Chairman for the Safety Committee of the Indiana Mineral Aggregates Association, so I guess I am speaking here relaying some of my personal thoughts, but I am also here speaking for the Indiana Mineral Aggregates Association that represents a hundred and sixty-plus locations in Indiana mining operations and in excess of three thousand miners. Let me start by saying that I don't think there is anything that we do in the mining industry that is worth somebody getting injured over. And I speak not only for my company, but I think for the Indiana Mineral Aggregates Association members. At the mines that I am familiar with, the people that work there are not just employees, they are family, not only figuratively, but actually. So if there is an injury, or heaven forbid a fatality, it is not just an economic loss, it is actually a personal loss. Having reviewed part of the testimony in some of these hearings in the past, it appears to me that the answer to some of our differences may rest on the issue of separating the aggregates industry from other types of mining. Let me see if I can't address that. We in the aggregates mining industry do not use hazardous chemicals -- do not use a lot of hazardous chemicals. And if you would come back and say, `Well, you don't use a lot and this is not going to affect you particularly,' I guess I would respond, `Why do I have to spend time and money on something that is not really a concern to the health and safety of my employees?' I would like to ask what has changed in the last ten years that now makes HazCom so vital. We are not using hazardous chemicals now any more than we were ten years ago. Although, I do believe we have somewhat better knowledge about actually occurring minerals that are present in our mines and even about some of the products that we use at our mines. But that knowledge is passed along through existing channels, and particularly within Part 46 training. I feel that it could be argued that the OSHA Hazard Communication Standard has been carried far beyond its original intent. Many of the mining companies are involved in not only mining operations but non-mining operations that fall under the OSHA regulations. And they have been dealing with this compliance issue for as long as the OSHA standards have had the HazCom Standard. I believe anyone falling into this category could honestly tell you that "reduction in paperwork" does not apply here. And for all of the efforts that have been made over this length of time that the OSHA HazCom Standard has been in place and all that has been involved there, various parts of the OSHA Hazard Communication Standard, in particular the paperwork maintenance parts of that standard still continue to be one of the most frequently cited violations by OSHA inspectors. I would ask, has the result been a significant reduction in OSHA reportable injuries as related to Hazard Communication? I don't have that answer. Maybe you could address that, whether that has made a difference in the reduction of injuries. Talking from my own experience with our company and the other members of the Indiana Mineral Aggregates Association, I have not seen anything obvious in the way of a reduction of injuries as related to Hazard Communication. We had very few injuries before OSHA Hazard Communication that related, and we still have very few injuries related to hazard communication issues. Being the safety director of our company, I have occasion to visit all of our facilities from time to time, including OSHA plants, OSHA regulated plants, and we have our "Policies Manual" that is a bright-colored yellow folder that has HazCom Material Safety Data Sheets, and this manual is conspicuously displayed for the benefit of our employees, but also for the benefit of compliance personnel that would visit the site. Whenever I am visiting a location I try to make it a point to check this manual. Without exception, it is covered with a layer of dust that has accumulated since the last time I was there and dusted it off. The point is, our employees do not perceive that the workplace is dangerous because of the hazardous chemicals that are present. I guess I would like to think that that is because we are doing a good job in training our employees about the true hazards of their job. Incidentally, it could be argued that the majority of the products used in our operations are not hazardous, but we have been forced into having MSDSs by OSHA enforcement. The ferocity with which OSHA enforced Hazard Communication mandated that the business community take a shotgun approach to supplying Material Safety Data Sheets. I was involved in the National Stone, Sand and Gravel review of the employee injuries that MSHA has used as a database for an indication that a HazCom rule is needed, so I think I can tell you firsthand that many of these incidents were not -- were only mildly related to chemicals, handling chemicals. Many were for suffering lime dust in the eyes. I believe Joy Wilson made the comment that fifty percent of the injuries could be put into this category. I was wondering if you could tell me how the proposed HazCom Regulation is going to prevent this. You may think that since many companies have been involved with the OSHA Hazard Communication Standard for so long that it is no big deal to implement a similar rule for our mining operations. And to a certain extent that may be true. But I can tell you, and I think that most any other company can that has been involved with OSHA's Hazard Communication Standard, that honestly maintaining the program is a paperwork and time burden. We feel that we ought to be spending our time on safety and health issues that are of a greater concern. My fear is that the HazCom rule will on be an opportunity for compliance personnel to write more paper. And I use OSHA as a basis for this. If you don't have the "program" where it is and in the manner that the inspector thinks is appropriate, a citation may be written. If the MSDS are not located where and in the manner that the inspector thinks is appropriate, a citation may be written. If the training has not been documented in the manner that the inspector thinks is appropriate, a citation may be written. If an employee cannot answer the questions that the inspector poses about the "program", at a minimum additional questions will have to be answered about the shortcomings of the "program", and a citation may be written. If a container of something is found on the premises and the MSDS is not available, a citation may be written. These statements have all been made from my experience with OSHA. Are our OSHA regulated locations better off for these citations? I don't think so. And are our employees better informed as a result of these citations? I don't think so. If you could assure me that the MSHA inspectors will be thoroughly trained in the nuances of the proposed HazCom Standard and they will uniformly enforce the standard, a new standard would be easier to swallow, so to speak. But the years of dealing with MSHA inspectors has shown that you cannot assure this. You cannot assure consistency in one inspection to the next on the rules that have been in place for years. I, for one, fear any new regulation for this very reason. I am not convinced that the aggregates industry needs a HazCom standard. I don't see that it will make an impact on the health and safety of our miners, because we don't have a problem in this area. That concludes my comments. I thank you for your attention and this honored high opportunity to make my thoughts a part of this public hearing. MODERATOR NICHOLS: Thank you, Walt. Our records indicate that since 1983 to the year 2000 there have been fourteen thousand, five hundred injuries or ill -- or injuries. PANEL MEMBER FEEHAN: It is all injuries. MODERATOR NICHOLS: Say that again? PANEL MEMBER FEEHAN: It is all injuries. MODERATOR NICHOLS: It is all injuries? Okay. Forty-six hundred of them are chemical burns, and nine hundred and eighty-eight of those with the aggregates industry. I think we could both agree that that ought to be zero. Are you saying that this HazCom rule, as written, would do nothing to reduce or eliminate those? MR. THARP: No, I wouldn't say that. But at that, what margin was caused by chemicals? We have, since 1983 -- MODERATOR NICHOLS: Well, what number is acceptable to you? MR. THARP: Zero. MODERATOR NICHOLS: Well, that is what I am talking about, too. Are you saying you can do it through Part 46? MR. THARP: Yes. MODERATOR NICHOLS: Are you saying the biggest problem the aggregates industry has with this rule is inspector consistency? Did you say that at the end of your -- MR. THARP: Well, that is one of my biggest concerns. MODERATOR NICHOLS: If we could improve that, then you would have less problem with the rule? MR. THARP: I don't have any problem with the intent of the regulation; although, I think you are accomplishing it without a reasonable layer of regulations. MODERATOR NICHOLS: We have indicated we are going to do a lot of outreach with a compliance guide, compliance assistance visits. Would that do anything to lessen your concerns about consistency? MR. THARP: No. MODERATOR NICHOLS: Okay. Anybody else? PANEL MEMBER FEEHAN: I guess I have a question, Marvin. You are doing Part 46 training now, Walt? MR. THARP: Yes. PANEL MEMBER FEEHAN: And you think -- did I hear you correctly that you are covering hazard communication as a part of that already at your company? MR. THARP: Yes. PANEL MEMBER FEEHAN: What exactly does that training amount to; what are you doing to make people aware of chemical hazards? MR. THARP: Trying to review the data on the data sheets and the labels, make them aware of what they are working with, make them aware of what safety precautions they need to be taking, providing appropriate protective equipment for handling whatever they might be using. PANEL MEMBER FEEHAN: All right. Well, take a fairly common maintenance chore around aggregate operations, like changing the oil in the equipment. If you look at the MSDS on motor oil, you know, for Exxon motor oil, for example, it will tell you that there are animal studies indicating that there are -- that there is a high risk of getting cancer as a result of exposure to used motor oil. Do you train your mechanics, the people who do the lube work on your equipment, about that? MR. THARP: Yes. PANEL MEMBER FEEHAN: You do. Okay. PANEL MEMBER SCHAPER: In the training that you conduct, how much time would you say or estimate is spent on discussion of chemicals and chemical specific exposures? MR. THARP: In the scope of our training it would be very little. Again, we don't, you know, perceive that as one of our biggest concerns. PANEL MEMBER SCHAPER: Thank you. PANEL MEMBER PHAN: Could we get a copy of the HazCom Training Program that you have in practice? MR. THARP: Sure. PANEL MEMBER PHAN: Okay. That would be great. MR. THARP: I don't have it with me today. PANEL MEMBER PHAN: Yeah. If you can please send one in, that would be great. Thanks. MODERATOR NICHOLS: Okay, Walt. Thanks. Bruce Mason? I have you down as RiverStone Group. That may or may not be right. MR. MASON: That is all right. MODERATOR NICHOLS: Okay. MR. MASON: The RiverStone Group must be rather widening. MODERATOR NICHOLS: I guess. MR. MASON: I am Bruce Mason, the Executive Director -- is there a problem? MODERATOR NICHOLS: We can hear you okay. MR. MASON: I am Bruce Mason, Executive Director of the Indiana Mineral Aggregates Association, which is a great association that represents, by your records, about ninety-two percent of the man-hours reported annually. It is my intention as administration in Indiana, I want to expand upon Walt's remarks from a couple of aspects. We have a membership that represents fifty-four companies and a number of aggregate (inaudible) plants, around a hundred and seventy-four. A number of those do not come under the purview of the regulatory aspects of MSHA. They are slight producing plants and those plants are under the auspices of OSHA, so we have kind of an intervenor base. Our industry is also integrated so that the number of our member companies are also integrated into construction activities, pavers or suppliers of ready-mix concrete, so we have, you might say, an ongoing relationship with OSHA Standards. Also, I want to point out that I am a member of the board of directors of ACE, the Aggregate Concrete Executives, which are a formal group composed of state aggregates association directors. And I am not here necessarily to represent their point of view, but to represent the view of the Indiana Mineral Aggregates Association with a number of companies. Of the fifty-four companies, four of those could be characterized as large, multi-national companies. The bulk of our membership are close family operated companies. A few of those are large, large in the scope of our membership in Indiana, but the bulk of them represent family-owned companies with five to ten employees. Our approach to safety, we think, is probably better than most because for over twelve years we have had a recognition program, recognizing those plants and plant managers who go through a year -- not a calendar year, but a fiscal year -- with zero reports. So I stand here, I think, better informed as to this issue and how it affects our industry in Indiana than the average presenter. And we have annually that recognition program, and it is in partnership with IMAA. And we are always able to have a district manager, in this case Felix, where in the past employ we didn't have this, district secretary to present these awards annually. So reviewing your records as the approach, as they concern Indiana, we find practically no incidents of chemical burns in our industry in the last eleven years. A lot of (inaudible) say the records aren't always available. We have a significant number of companies annually, eighty-five to ninety, who receive an annual plaque for zero reports. So I want to focus on the fact that we are for safety. But on the other hand, we represent a lot of companies who are burdened with paper requirements that don't really contribute to safety. And we are also burdened with paper requirements, paper-people requirements, on other regulatory issues. And it is probably one of the number one items facing the small aggregate producer, `How do we cope with that?' Safety is not in issue. We believe there is nothing that this industry does that justifies putting our worker at risk. But I would echo what Walt has said, is we think that what you are asking us to do is already covered and that we can handle it under the present rules. I don't want to hand fight the care crisis. It is like saying you mean anti-safety. We think we are ahead of the curve on promoting safety. We work annually with our members, direct members on the work sites to work at zero. That is acceptable. But having reviewed what we think are records that are viable as they come to you, we don't see that this is a problem in Indiana. Now as an ACE director, we meet periodically and gather and talk about subjects and problems that are of a concern to MSHA. I can tell you, based on past meetings I have attended with my fellow executives, hazard communication is viewed by most aggregates organizations -- I speak only for them -- as being another layer of paper for them to produce on safety. We are not against safety. We will work, and you can check with your own people to know that we try to be ahead of the curve and not behind it. We are concerned about the paperwork requirements for this and the inconsistency on it. We don't believe that writing citations really gets to the meat of the problem. We feel like we need to educate the workers. We need to educate our members and those who are exposed to the hazards, and we work hard to do that. But we really feel like what you are asking us to do is already covered and we would just rather maybe improve some of those aspects rather than look at another layer of paperwork. Those are all of my comments. MODERATOR NICHOLS: Okay. Thanks, Bruce. Anybody have a question of Bruce? PANEL MEMBER PHAN: I do. MODERATOR NICHOLS: Go ahead. PANEL MEMBER PHAN: Can you please define what you call a large entity? MR. MASON: Well, I would say we have one or two companies that have eleven or twelve plants. In Indiana, that is significant. PANEL MEMBER PHAN: You don't label them according to the number of employees? MR. MASON: We track the number of employees from the records just so we have that information available when we deal with agencies. We think within our membership there are probably right around between twenty-eight hundred and three thousand employees. The industry as a whole, based upon real (inaudible), our records are about a year old, it would probably run about thirty-eight hundred, and we get that from your sheets. We just -- when we put this in our data we just total it. And now not all of those are members, because we do have twenty to thirty smaller companies in there, something like the dimension stone industry, that are not really members of our industry, so that number kind of pops out. But if you are interested I could probably get it. I don't have it here today, but I can provide those numbers to you. PANEL MEMBER PHAN: That would be great. Thanks. PANEL MEMBER FEEHAN: I have a question. How about the concrete people? You work with the aggregates and concrete executives. Are the concrete people having chemical burns at all? MR. MASON: Nothing in our discussions I have had come to the surface. Now some of those associations represent both industries. In Indiana we just represent aggregates. But the ACE organization represents those aggregate industries that have both sides in there for their base history. PANEL MEMBER FEEHAN: In the preamble we kind of -- for the interim final rule we provided information about chemical hazards, primarily chemical burns, because they were the most easy to identify. They are acute injuries, you know. But there is still a, I think, a certain amount of concern about long- term effects, which, you know, which are more difficult to associate because of all of the different factors that have to be considered. Do you have concerns about long-term exposures also, or are you -- you know, are your members doing training to deal with the long-term, or analyzing the injuries for long term injuries? MR. MASON: Well, I think from my point of view, and I can't talk about specific companies. I can only really relate what takes place when I am like on a safety committee. I need them to explain how that is composed of. We have no limit on membership of our committee, so any person who is an employee of one of our member companies says I want to serve on a safety committee, that is kind of automatic. About the only thing we are rigid about is that you want a company, you can only have one vote if it comes to a vote. But we meet periodically to discuss issues of interest and to design workshops and to cover this reg a little bit here. We have actually worked with MSHA to take workshops out to some of our customers that enter on our property, focus on a hazard rate committee, making sure that those who enter onto our property are aware of what they need be. And I think we are probably one of the first organizations to do that. We have developed subject matter for workshops based upon what is the overall problem need? If it is colleagues, then we focus on the -- ask for proper speakers from MSHA, and that is a good partnership, because we feel like we are informing people where they need to be informed, how to address issues. Hazard communication just doesn't fit the rate in any way, shape or form, and I think that is because we don't see it as something that is really flagging our industry. Now if we have to do more to educate people to prevent things, we are more than willing to do that. I mean, we are probably one of the biggest distributors of your materials. What I want to reiterate is that because of the high number of small companies, their struggle is this: is how do they handle the paperwork. And another thing is the consistency in inspectors. If there is a pressure point between our industry and your agency is that yesterday somebody comes in and examined something, the next day somebody else comes in, it is a different person and you get a different opinion, and those opinions lead to citations. They don't lead to safety. They really don't. So we are not so much interested in citations. We are interested in focusing on how we get at zero, because we are with you on that. There is nothing we do that justifies hurting our workers. PANEL MEMBER FEEHAN: One part of the justification of the -- in our preamble, for the paperwork, because we recognize that this is a -- this is in -- it is an information and training standard, and that translates into paper in a lot of respects. But a lot of the costs for developing the rule, for having the rule, we relied on -- and we have heard recent testimony just in these public hearings that people already are in compliance and they are doing, you know, they are sharing the information with employees, and that is because they have labels and they have MSDSs. And how is it that this is more of a burden to you? It sounds like people are doing it already. MR. MASON: Well, we think -- we think we are, so that is why we are paving the same roads. Really it is nothing that affects us, but we are -- I won't say that our record coast-to-coast and border- to-border is stellar. But in the Midwest, which I am more familiar with because of my interaction with the ACE Group and with the members who have plans in other states, we just don't really see it as an issue. I guess if there is, and I kind of look at the bottom line, if there is going to be HazCom communications, we think that maybe the way to approach it is to get more people -- not another load of paper, not another regulatory requirement, and let's not provide another friction point with your inspectors. We don't argue the fact that they keep coming in and pointing out deficiencies, and we need to address them. But we really don't need them providing another friction point if it is not going to address our goal and your goal, which is zero. PANEL MEMBER FEEHAN: Yes. Thank you. MODERATOR NICHOLS: Thanks, Bruce. MODERATOR NICHOLS: Okay. The next presenter will be Chuck Burggraf, RAG American Coal Holding. MR. BURGGRAF: Good morning. I am Chuck Burggraf, and I am the Safety Director of RAG American Coal, Incorporated. Talk a little bit about MSDS sheets. I would recommend that MSHA maintain the MSDS sheets. I have several reasons for that. In some of the other hearings it was stated that miners are reluctant to request MSDS sheets. They feel intimidated or threatened by that. I don't know if this is a fact, but if it is a concern then let's take a different approach. MSHA could maintain the MSDS database. Miners could us a designated phone or a designated phone number to call in to MSHA, to a central location. They could get information on MSDS sheets. They could request MSDS sheets. Or there could be a computer setup where miners could access the MSHA home page, which is already available, and go into a section of that and access the MSDS sheets there. And then if they have questions they could call this number that would have to be maintained seven days a week, twenty-four hours a day, so these people could get their questions answered. They could call in from their work location. If they didn't want to do that, they could call in from home. People have computers in a lot of homes now. They have fax machines in a lot of homes, or they could use a fax machine at their work location. I think the companies would be responsible to maintain a computer, a phone and a fax machine that they could use at their disposal to get this, the MSDS sheets from. Labor has expressed that the MSDS sheets should be maintained for a longer period of time, and if MSHA would maintain the database that would make it easier to do that. The people maintaining the MSDS sheets, like I just said, they could answer questions, a miner's questions. The cost to do this should be acceptable to MSHA, since that is an expectation you have for hundreds of mine companies. This method would also help the concern that smaller mining companies would not be able to maintain MSDS files. Let's make this a process to provide the information to the miner and not a law that results in multiple violations. Concerning hazard analysis, we may determine that a chemical is non-hazardous and an inspector may determine that it is hazardous. What is the process in place to make a determination? Then that leads to training concerns. MSHA is asking miners to remember many things about many chemicals, and this is not realistic. If an inspector asks someone for details on a chemical they are using and they don't remember, even though they have been trained, what happens then? According to the draft compliance guide, miners can be trained by categories of hazards from chemicals. Is this compliance guide still a draft and is that still a true statement, and would you give more explanation of what you mean? In Table 47.91, MSHA defines the health professional, has a definition for a health professional. I think the definition should only include the professionals that can legally diagnose and treat illnesses and injuries, because it refers to this in some sections in a case of emergency, a health professional. Well, people don't need to be confused about who they should go to to get treatment. We will all need compliance assistance and extensive outreach programs that you speak of. I am anxious to see the model of the HazCom program, compliance aids, the final compliance guide. Will MSHA help us establish a hazard communication program? Do you have a model of that, is what I am asking. I am concerned that the rule will result in a huge paperwork burden, result in many citations, and do little to protect the health and safety of the miner, and that is what we are all after in the end thing. I thank you for the opportunity to comment. MODERATOR NICHOLS: Thank you, Chuck. The answer is yes on outreach and model programs. As Strom Thurmond would say, speak into the machine. PANEL MEMBER FEEHAN: You can take a look at the model HazCom Program in our website, MSHA.gov. There is a -- right on the web page there is a button for HazCom and you can go in there. It is in the compliance guide. You can also see the draft of the compliance guide for the standard in there. MR. BURGGRAF: Yeah. Right. I looked at that. That is why I said is that still a draft or is that -- PANEL MEMBER FEEHAN: That is still a draft. MR. BURGGRAF: That is still a draft. PANEL MEMBER FEEHAN: Yes. And it will be until there is a -- until this is finalized. MR. BURGGRAF: You do have a -- you have one other thing in there that it is telling to the miners that I think you need to have your people work on that. You know, that is what we are looking for, is guidance like that. I do think we need a model communication plan, too, what is your expectation. PANEL MEMBER FEEHAN: Yeah. MR. BURGGRAF: I think if you put out the model program that gives an expectation for what the inspectors need to be enforcing and what we need to comply with, then that would clear up a lot of argument. PANEL MEMBER FEEHAN: Yeah. Yeah. MODERATOR NICHOLS: Yeah, we had planned on doing an extensive outreach. In fact, when we did the outreach on the coal diesel rule, we had planned on coupling HazCom with that. And we, in coal, had gone and worked up four model programs. And I will let Bob Thaxton mention what those were. There were different sized operations. So, Bob, you want to talk a little about that? PANEL MEMBER THAXTON: In preparation for the HazCom Program that we thought would be in place earlier this year, coal did go through and prepare a draft document that was actually a HazCom Program. We went out to a small surface mine, small underground operation, a preparation plant and a shop area, and we wrote up the plan for the mine operators at those four locations, including going through and doing the chemical inventory, the hazard determination, and then putting that in writing for them and gave them a copy of that program, with the understanding then that we took those programs, cleaned out the identifying information and tried to draw those programs up then into where they were generic so that anybody could take that program and then insert their individual information, their inventories. And, at the same token, as part of our outreach that we were going to go through, coal was going to offer that any coal operator that asked we would send somebody to the mine property to make the hazard determination for you, in concert with the mine operator so that your people then would learn what we were looking for as far as making a hazard determination on the chemicals that were used at the mine properties. Then based on that, we would work with you then to draft out that program to make sure that it was covering all the areas so that there wasn't a disagreement as to what the program at that particular mine site should involve. And then as time went on and you added new things to your listing, if you needed additional help in determining whether that particular chemical resulted in changes in hazards that would need additional training, then we would have specific people in each district that you would be able to go to to ask those types of questions. MR. BURGGRAF: I think one of those things throughout the plant site it talks about is categories of chemicals, or categories of hazards. You can train by categories of hazards. PANEL MEMBER FEEHAN: Right. MR. BURGGRAF: We would like more detail on what you mean. You don't have to train miners that they are exposed to many hazards. PANEL MEMBER FEEHAN: But what we were talking about was how you go about addressing your training so that if, for example, in your shop you can train people -- one of the ways to make your program more understandable to the people affected is to say -- take the mechanics and say, `Well, here are your exposures. You know, you are going to be looking at a lot of the solvents or the things that dissolve gaskets and adhesives that you are using to, you know, when you are doing engine work. Or, you know, you are going to be -- you are going to have certain kinds of exposures.' To me there is a way to break that down and make it sort of integrated so that you can talk to mechanics and do it that way. Their exposures are probably going to -- they are going to have a lot of similarities to them. And where you can you should probably try to work -- MR. BURGGRAF: So you can group them. PANEL MEMBER FEEHAN: -- so you can group them and make it a kind of more efficient way of explaining to people so that you are not having to say chlorinated solvent fourteen thousand times. You know, you want to say it once and explain to people what those problems are. So, you know, yeah, we are looking for -- you know, it makes good training sense as well as good efficiency sense for you to, you know, as an operator, that these -- you know, that there not be a lot of repetition and -- I mean, it could be a boring subject, you know. Now, let's face it. But, you know, I think that also it can -- you know, there should be ways to make it -- it is also an interesting subject. I think that we have had a lot of testimony from people that there is a lot of concern about what people are being exposed to out there in those shops, you know, what goes into those solvents and what the long-term effects are on people. So -- MR. BURGGRAF: And that is part of our concern. We don't know how to train so that they get the people to understand how to react to different situations. We want people that walk into those to be able to react in the proper manner if something does happen so that they get the proper treatment, the proper care. And if we add a lot of paperwork to this and everything, we are going to make -- and we have to train everybody on every chemical, every product, we are going to have a lot of confusion and no one will know how to treat in case of an emergency. And that is one of my big concerns, because we want to give people the right treatment if something does happen. PANEL MEMBER FEEHAN: Sure. MODERATOR NICHOLS: Okay, Chuck. Thanks. Now these model programs could also be developed for the aggregates industry and the rest, the metal and non-metal. The next two presenters will be Greg Mahan and Dave Yard with UMWA. Do you guys need to -- do we need to keep going, or have we got time to take a ten- minute break? Greg and Dave? GREG OR DAVE: Ten-minute break. MODERATOR NICHOLS: Ten-minute break? Okay. Let's come back at ten thirty-five. (Whereupon, a short recess was had until 10:35 a.m.) MODERATOR NICHOLS: Let's get started back. I should have asked you before, but those of you that have written statements, it would help us if you could give the court reporter a copy of that. Any of you that have already presented and have a copy of your statement, if you would, give it to the court reporter. Okay. Greg Mahan. MR. MAHAN: Mahan. MODERATOR NICHOLS: Mahan. Greg is with the United Mine Workers. MR. MAHAN: I am the local union president and also have been a state committeeman for approximately eighteen years in the past. Today I would like to point out that this is not just for miners, but it is for all workers. Well, I believe that all workers have a right to know, in a place with chemicals, material, to know how affect people. But I work for a small company, coal company in Indiana, and everything that we use in that mine is just -- it has got chemicals. A few years ago we used a drying agent. If we got in some water, we would cut the old cast of the bottoms out, put another cast in, and there's no MSDS sheets available to us, and the only reason -- the only way we found out was I opened up a bag. The company did not give us any knowledge of what was in it, and we read the -- I read the package, the bag, and it says "Must wear respirator." And it said that anybody downwind could have respiratory problems, and the ingredients in this drying agent could cause cancer. I believe that, you know, farmers are regulated by the types of chemicals, of gasoline. I believe that not just the coal miners but every worker has the right to know what they are working with. And labeling, it must be regulated by your agencies. I live in a little community of around fifteen thousand people, and I don't know whether you even heard about the Scott Gas, the neuroblastoma, that oil was spewed around, and years later come back and find out that you had about seven children, and we tried to find out where that was -- it is like you bring a chemical into the plant. It is like you go home and use your five gallons of gas to go clean this one fence. You are not to use -- you don't want to carry any secrets to any of that. I believe this has happened, will happen, and will continue to happen, and it must be labeled even when it leaves the property. I mean, we stick -- our company takes stuff and they give it to the miners, and they don't say (inaudible). And nobody knows what it is. We don't know what is in that stuff we use now unless we, ourself, go and nag with the company, and it is like pulling teeth. We just had a fire on the surface of our mine, and I believe it was oscillation, and with the -- some kind of coating on the outside that caused this chemical reaction. And luckily, and like the air goes out our mine now, we are lucky we didn't have anybody hurt or injured, or even worse yet killed. We asked for the data sheet on that. We did not get it. They said this was done by an outside contractor. I believe that labeling containers is a must. We must know, no matter how minimal the chemical, whether it is an irritant to the skin. The hydraulic oil that we use now, you have to read it really far in fine print on there, "May cause skin cancer." The plant, the gentleman, the first gentleman said they are a small company. We are a very small company. We treat our water, we treat the plant, treat our pumps, sewer pump, we treat it to treat the water that goes into the ground. We treat with the hole brace with chemicals. We use chemicals on a daily basis there, and we are a small company. And we don't know ninety-nine percent of the stuff that we -- that is used by the company. We have no knowledge of what it is. The first gentleman said that accidents is caused by an unsafe act. I believe maybe the words in that training in the use of chemicals. And we have talked a lot of talk about safety. Safety and health go together on this. We breathe it. It gets on your skin. And I believe that, you know, we have a right to know. We have a right to know what comes into that mine and what goes out of that mine, for our safety of the miners and for the public. You know, we have tried to work with the company on these sheets to tell us what it is, and they refuse to give it to us. And the only reason they looked it up this last time was because we had, you know, we had a fire, and it could have been very serious. You know, I am out here representing the mine workers but also other workers, and I believe we have a right to know that we -- we are breathing the diesel fumes now, the chemical reaction to eliminate smoke and all that on the ground. You know, we are there every day. I mean, I am not trying to make anything like that, that the people here say. You are going to have to breathe this. You are going to have to be around it. We have to be around chemicals almost, you know, at least five days a week. And if we go back in history, your agency has been brought in for, like John L. Lewis, from the ground up. That is why we have got mine representatives here to take care of this. It was a priority back then, and it should be now to protect the miners and to live to make this, and your agency could be a very great help to us. And the only thing I have against chemicals is that they are hazardous. And that is -- they never teach us about those (inaudible), and they do every day. That is all I have. MODERATOR NICHOLS: Okay. Anybody got any question of Greg? You have got to what? (Laughter.) MODERATOR NICHOLS: Anybody have any questions? PANEL MEMBER PHAN: Yes. Were there any chemical injuries? MR. MAHAN: Have I had any at the mine? PANEL MEMBER PHAN: Yes. MR. MAHAN: There has basically been two over the past ten, eleven years. PANEL MEMBER PHAN: And were they reported? MR. MAHAN: I think maybe one was. But a lot of it is that we breathe it. You know, it is not just -- you know, a lot of the gentlemen talked about burns. I mean, it is breathing it, getting it on your skin. It is just not burns. There is a whole rank of stuff in here that is -- it is not just burns. And that is the -- the burns, I think, it is a problem. It can be a problem. But my concern is what we have to breathe, we have to live with it, we have to touch it, we have to -- and there is no protection for what -- they don't tell us anything about it, just like the drying agent. And finally we made -- the safety committee and myself made such a stink about it, they took it out of the mine. You can read it on the sheet, but they should be trained, the people that handle this stuff, and you must wear respirators and goggles, and they were working in -- we -- after I found out that this stuff was in the mine we got it out of the mine. PANEL MEMBER PHAN: Thank you. MR. MAHAN: You are welcome. MODERATOR NICHOLS: Okay, Greg. MR. MAHAN: Thank you. MODERATOR NICHOLS: The next presenter will be Dave Yard with the United Mine Workers. MR. YARD: Well, I am going to decline. My name was inadvertently put on the speaker's list. MODERATOR NICHOLS: Somebody messing with you? (Laughter.) MODERATOR NICHOLS: Okay. Brian Peters with M-u-l-z-e-r Crushed Stone, Incorporated. MR. PETERS: Mulzer. MODERATOR NICHOLS: Mulzer. MR. PETERS: Okay. My name is Brian Peters. I am the Environmental Health and Safety Manager from Mulzer Crushed Stone. We are a family owned, small aggregates industry. We have limestone plants as well sand and gravel, and we employ about five hundred miners, what we call small mines, mostly in the Southern Indiana area. And I am here today I guess in opposition of the rule as it stands. I agree with some parts of the rule. I agree with the intent of the rule. I agree with a lot of the comments the last gentleman made on miners having rights to know, to have information. I feel that is vital. But some of the things in the rule as it stands I am opposed to, as some of the other gentlemen talked already about the OSHA Standard and how this mimics it, and I have had some experience in the plating industry, in the finishing industry. On the environmental side I am an emergency responder to hazardous chemicals and spills; used to do that for the State of Indiana. Had a lot of experience with the EPA definition of RCRA, Resource Conversation Recovery Act, to hazards, you know, things that truly are immediately dangerous to life and health. We talked about the ideal labels for these chemicals. And I can tell you from our concrete plants and our asphalt plants and things that that rule does not work. The intent looks good on that rule on the OSHA side, but in practice, the paperwork burden and doing it on a daily basis is very tough. Of the five hundred miners, I am the safety director. That means I do the safety training. I go out and teach the labeling. I go out and instruct how to read an MSDS sheet. That is my job. And this will significantly add to the workload that I have. And the thought that the mine would add extra resources for me will -- won't happen. You know, the burden of the paperwork driving will go on someone else's plate, and for me to give more effort and more time to that paperwork end of it will mean less time that I can spend training, less time that I can spend auditing facilities, investigating other accidents and actually getting to the root of resolving and lowering the accident rates at our facilities, because it is more time for me to spend on the paperwork end. In addition to that, we do a lot of things already that are required in this standard. I will admit to that. You guys have mentioned that already. Number one on that issue is training, and I think that has been heard on earlier today, Part 46 training in these standards. We came out on that. We do new miner training for every miner. Part of that miner training is training on MSDS sheets, HazCom, labeling. We use the HMIS system of labeling. We have a standardized system for red and yellow codes so that everyone can understand it in English. It meets those requirements of your training standards. And we pass out an MSDS sheet. I do a half-an-hour presentation on how to read parts of an MSDS sheet. And then we do a test on MSDS sheets to make sure you understand the hazards that you are being dealing with and how to read those when you get them. I feel that training is very important. But the burden lies in trying to do this on a daily basis. You mentioned that you don't have a lot of labeling. You shouldn't have a lot of new products. That is not true. You know, even a small mine, like the last gentleman mentioned, there is an endless list of new products that come in that you try, and make a hazard determination on every one of them. Is this inherently household-like, or is it not? Do I need to do a today, go out and do a training for that miner for that new product? That is a tough question. First I have to make the determination. If so, then I have to go out to that remote mine site, which may be an hour drive away or maybe ten minutes away -- it depends on where I am at -- and do a specific training on that particular product, because it may be a little different. And who is going to make that determination? And when the MSHA inspector comes out, is he going to have the same interpretation that I have? In order to be completely safe with this regulation, I have to take it to the inth degree and do the training on every chemical. And that gets very tough. Beyond the new miner training we have task training. Part of the Part 46 was the new task training. Any time a miner is new from one task to another, he must receive training for his new task. Training is new chemicals in your new task. You are going to be performing a new task. When you move from a loader operator to a shop you have to have training on the new chemicals in your workplace. That is done already. Annual training. Every year we must have a certain amount of annual training. We do that on a monthly as well as an annual basis, and every year we teach HazCom. We go over what is required in your workplace. What are some of the new chemicals that may be coming out there? How do you read an MSDS sheet? And you reiterate on that over and over again. And MSDS sheets, for the most part, on the chemicals that we feel are most hazardous and are used frequently are available. Maybe that is not the case in everywhere, but our books are on stands out in the shops. But, coming back to the point of the OSHA standpoint, it is very burdensome to keep those up to date on a daily and on an hourly basis. When you have one end with your purchasing group bringing in things, salesmen bringing in things, keeping those completely one hundred percent accurate is very tough. The training portion of it, I feel like I meet your requirements today with what I am doing, except on the new chemicals coming into the workplace. That would require me to almost full-time be out there moving and running and running all day long to try to meet the new trainings for new products, because they have individual and distinct things on the chemicals. The last gentleman mentioned a respirable problem. We have a respirator program. Any chemical that comes in that requires a respirator you have to go through certain steps to be certified to wear a respirator. You have to have skin testing, and you have to have pulmonary function testing. There's all sorts of -- a whole list of things that go with that. So if a chemical comes in with that, we don't allow them to use it. That is already covered. And a lot of the health aspects are already covered. Long-term exposure. We have a respirable dust standard. We already know that our employees are kept under the respirable dust standards, and we do monitor. So that is already covered. Most of these issues are already covered by other programs. The training is covered by the Part 46, and a lot of the exposure hazards are covered by some of the other programs. So, I guess to wrap it up, I would like to say it is a very good intent. OSHA had a very good intent with the program. I feel miners have the right to know what they are dealing with. I think training is very important. But when it comes down to where the rubber meets the road in the enforcement and the paperwork end of it, it will turn into an OSHA program where it could be the topsided thing that we have and it will not reduce accidents. We have had zero accidents in the last three years that I have worked with this company related to chemicals, related to the HazCom issues. We have had some dust in the eyes that probably comes back to your standard as chemical burns. But we have had none related to chemical exposure, save that, and one for water. We had an employee that was exposed to water high pressure. That probably could have become intimately chemical burns. So we are going to keep MSDSs for water on our sites. I do. I keep them for (inaudible) docks. I keep them for carbon monoxide, because they are by- products of dust. So it comes down to how far we take this program. Do we want to make it work? Let's do this in training. Let's tell people with what we are using. But the paperwork end of it becomes a nightmare for me personally. Questions? MODERATOR NICHOLS: Do you have a written statement there, or do you -- MR. PETERS: No. MODERATOR NICHOLS: Okay. Anybody got a question? PANEL MEMBER THAXTON: I have one. MODERATOR NICHOLS: Bob. PANEL MEMBER THAXTON: I heard you mention that you currently cover most of the HazCom material by your current Part 46 training? MR. PETERS: Yes. PANEL MEMBER THAXTON: And that is, you are conducting Part 46 training on a monthly basis as well as annual, is that correct? MR. PETERS: Yes. PANEL MEMBER THAXTON: And you said the only thing that you would have to do is address new chemicals coming on, on like today, because you are not conducting that type of training right now, is that correct? MR. PETERS: That is correct. Or has -- now let me clarify. We don't do HazCom training every month. It may be a monthly topic; it may be an annual topic, but it is covered one time per year. PANEL MEMBER THAXTON: Okay. So now that creates two questions, the one I had originally plus this one now. Since you are only doing HazCom maybe once a year, and you have chemicals come on property that are different than what you -- the hazards are different, not necessarily the chemical is different, how do you get that information to your employees if their task is not changed; the only thing that is changed is the -- maybe the manufacturer of the chemical is changed, so you have got a new manufacturer who wants you to try his product and it has got some different hazards to it. Do you actually sit down with those people and discuss that hazard change, or do you wait until your next training session? MR. PETERS: If we deem it as a significant hazard, it will be covered. Now what does that come back to, is that we don't deem many products in our industry have very serious hazards. You know, if it is another type of oil, they have been trained on the hazards of oil. We would see that as your grouping that you mentioned earlier. If it is a cleaner, we group that in with most of the cleaners. If it is a totally different type of product that has a significant hazard, it would be covered. PANEL MEMBER THAXTON: The information as far as what you are saying, as far as covering all this under Part 46, Part 46 or Part 48 for the coal industry, would you be amenable to Part 46 and Part 48 having some modifications made to it that would incorporate more of the HazCom specifics into that type of training program as opposed to having a separate HazCom program? MR. PETERS: I would much rather see it there, in that circumstance, yes. PANEL MEMBER THAXTON: Okay. Thanks. MODERATOR NICHOLS: Anybody else? Okay. Thanks, Brian. MODERATOR NICHOLS: Next presenter will be Butch Oldham with the UMWA. MR. OLDHAM: Okay. First of all, I would like to take this opportunity to thank the committee for the chance to come before you today and speak on this subject. You know, I have heard a lot of talk here about family-oriented job places, family this. I know myself, I have got three grandchildren and, you know, I consider them family, and if I think they are going to be exposed to something I am going -- you bet I am going to want to know what it is. So, you know, we talk about family, but do we practice it. So that is a point that I would like to be explained. You know, just as the Methane explosion that killed the thirteen miners in Alabama, other miners in the industry are dying each year. The only difference is that these miners are suffering longer because these miners are being exposed to hazardous chemicals daily. And the longer we wait the more coal miners and their familiar are going to suffer. I know that just the few chemicals that I personally have been exposed to over the years, such as the Perk Chlorethylene in the prep vats; the Norbad, the ceramic bead liner used to repair the hydra cyclones; and the various glues to cement the ceramic tile that is used to line chutes, and the list just goes on and on. You know, people don't think we use very many chemicals in and around the industry, but when we really look at the situation there is a whole lot more there. You know, and I know personally that when we used these chemicals we were never told of the hazards that was involved in using them, until we read about them ourselves. For example, the Norbad, the ceramic bead liner, you know, it looks relatively harmless. Get a spatula or a trowel and get it out of a can, spread it on. But then when we read the precautions it says if you get it on your clothing or you, or even on your boots, you throw them away. Discard them. Don't use them any more. So we wouldn't know that, that it could be absorbed through your boots or your clothing, so we weren't trained on it. You know, another example that has just been recently is at the Squaw Creek Mine in Indiana here. They have been exposed to a type of by-product that was hauled in to the mine from Alcoa for years, twenty-something years, only to find out that this by- product may be linked to a type of cancer found primarily in the aluminum industry. When doctors tried to determine how individuals at the coal mine contracted a disease that seemed to be linked only to the aluminum industry, it became apparent where the problem was. If the HazCom rule had been in place years ago, when it was first discussed, maybe things would be different for some of those miners. Instead, there have been several miners that worked at the Squaw Creek Mine that have died of cancer. And we just had an individual that had a liver transplant because of the cancer that he may have been exposed to at that mine. Chemicals that are being introduced underground, in a mining such as rockloc, the Polyurethane foam sealants for ventilation control and other chemicals where miners are exposed to in oftentimes areas of limited ventilation and inadequate personal protection, are showing signs of illnesses in the workplace which are linked to these chemicals. If miners had been provided adequate information at the time of exposure, they would have used proper equipment. I think one point that a lot of are missing, we don't see that physicals acts of being a broken leg or a broken arm or something immediate. You know, it is the long-term illnesses that is associated with handling these chemicals. It is not the accidents and injuries. It is the things that we don't see when that individual gets cancer, and all of us say, `Well, Old Joe Blow here, he died of cancer the other day.' But nobody ever checked to see why. It may have been one of the chemicals he was handling. But if it had been one of your family, wouldn't you have liked to set back and say, `Hey, let's look at this. Let's look at the sprays. Let's think about what we are exposing our families to.' You know, I know, in the twenty-six years that I have been in the mining industry, and from Kentucky, we have sixteen hours of daily re-training. It starts at eight on most days. And hazardous chemicals hasn't been ever thought of. I have never been trained on hazardous chemicals in sixteen hours of daily re-training, or in any safety talks. So it has just not been an issue. And people say, `Well, why do you all bring it up now? Why is it important today?' Well, it has been important to the labor union that I work for. For the last fourteen years it has been struggling, trying to get a rule in place where people know what they are exposed to. Also, you should remove any of the language that allows the mine operators to make the determinations on what is or is not a hazard. This should be clearly defined in the regulations and also in the final rule. Require the operators to receive training on the hazardous chemicals present before allowing them to train miners on what is or is not hazardous. And I think that if we are all honest in this, they are no more aware of the hazards that exist in these chemicals than the miners are, your everyday safety directors at most of the mining operations that usually does the site training. The training should include an explanation of where and how a chemical is being used and what precautions the employer has adapted to limit miners' exposure. Require that specific chemical information be included on any label or MSDS sheet, and update the labels and MSDS sheets immediately when the contents change, and require that the burden for maintaining and making MSDS sheets available to miners be the sole responsibility of the operator. Now these are just a few of the things that I believe should be in the final rule. And lastly, I hope it doesn't take another fourteen years to develop and finalize this rule, because truthfully the miners need it now. We thank you. MODERATOR NICHOLS: Thanks, Butch. Anybody got a question for Butch? (No questions indicated.) MODERATOR NICHOLS: Okay. Thanks. Dan Spinnie. Dan is also with the United Mine Workers, Local 2161. MR. SPINNIE: Dan Spinnie, Local 2161 United Mine Workers, Coulterville, Illinois. As a miner and a miner representative, I think that every miner and every worker should be made aware of anything he is working with, especially hazardous chemicals. Now I can tell you that, from working in mines for better than twenty-six years, as Butch was talking about annual re-training, I have never had anything to do with chemicals explained in any way or any training in the coal mines in twenty-six years. And I think that all chemicals should be labeled, and a determination be made by MSHA, and these data sheets on there, that they be -- I don't know how to say this -- made legible in, I call it the King's English, where you can understand it. Most coal miners, working people, they are not chemists or they are not biologists. It needs to be explained to them in a way in which they can understand it. These labels, as I was saying, should be in language that we can understand them. I have seen them, you know, these chemicals and these data sheets, and after I read it I didn't, you know, even understand what it said. I mean, I knew that it was hazardous, but I didn't know why. One other thing I would like to point out, this gentleman over here was talking about the citations. I have been a safety committeeman for just over twenty years, and I -- one thing that the coal company understands is when they get a citation they have got to do it. And I can tell you from past experience, and these guys will agree with me, that coal companies ain't going to do nothing they don't have to do. If it wasn't for the law, our belts wouldn't get cleaned. If it wasn't for the law we wouldn't have the ventilations we have, and you have to have that safeguard. Thank you. MODERATOR NICHOLS: Thank you, Dan. Anybody got a question for Dan? (No questions indicated.) MODERATOR NICHOLS: Okay. That is all the people present that had signed up. We have a couple of more coming in late. Is there anybody else in the audience that would want to come up and make a statement? (None indicated.) MODERATOR NICHOLS: Okay. We will break and come back at twelve-thirty for at least two more presenters and anybody else that might come in late. Thanks. (THE TIME BEING APPROXIMATELY 11:15 A.M., A LUNCH BREAK WAS HAD UNTIL 12:30 P.M.) MODERATOR NICHOLS: Okay. Our next presenter will be Ed Elliott with the Rogers Group. MR. ELLIOTT: Thank you. My name is Ed Elliott. I am a Corporate Director of Safety for Rogers Group, Incorporated. We are a company of approximately two thousand employees and we have operations in six states. We are the eighth largest stone producer in the United States and we are the largest privately held stone producer in the United States. I personally have about twenty-one years experience in mining, and seven of those years have been in surface coal mining. I want to thank you for the opportunity to make comments concerning the interim final HazCom rule. And first let me say that this rule is unnecessary. As you state in the Federal Register, there are existing standards that address the hazards of chemicals in the workplace. And I would like to take just a moment to quote a section out of the Federal Register dated Tuesday, October the 3rd of 2000, that talks about the need for HazCom, and it says: "Our existing standards already require you to train miners in occupational health, hazard recognition, and the safety and health aspects of tasks, among other subjects, except in underground coal mines you must also label hazardous materials." For years there has existed regulations that could be used to address every concern that I have read in the transcript of public comments at all of the hearings for this interim rule. Could it be that the agency, itself, has not educated or trained inspectors in the area of occupational health and how it applies to the mining environment, including chemicals. And I would like to ask a question, I think maybe more directly at you, Mr. Nichols, not to answered at this moment, but after I conclude my comments. Exactly how much training do inspectors receive on occupational health other than for dust and noise sampling? If there are situations where miners are being exposed improperly to unsafe chemicals, then the mine operator should be held accountable. And MSHA should aggressively do just that under existing regulations. You cannot legislate safety. You cannot ensure safety through regulation. Safety can only be present when miners, operators and regulatory agencies want. Each of us is responsible for their part. I read where the representatives of the UMWA feel that all operators are denying miners their right to safety in the workplace. And I was very concerned about the adversarial tone of the UMWA representatives and comments in the most previous meeting that was held. I have never worked with UMWA, but I am sure they have the same objectives that we do of providing a safe and healthy workplace. My experience of working with other labor organizations in development of the Part 46 training regulation was very positive and constructive. And the labor organizations that I am familiar with provide training for their members, and training on chemical hazards in the workplace is an important contribution that can be made by these groups. Yes, there may be some operators out there that are living in the past with respect to safety and health. But the vast majority have done a tremendous job of promoting safety and health in the workplace, and their statistics show that. To add another rule to the Code of Federal Regulations would only make compliance more complicated and require inspectors to focus in an area of massive paper trails and take precious time away from other more important duties. As I mentioned earlier, we have the means to better manage the safety and health of miners when it comes to chemical use, but no one has been the champion to do so. For years the training regulations in the metal, non-metal industry were not enforceable. But now, with the new regulation, Part 46, they are. And education on chemical hazards should be a part, and the industry fully supports that. Rogers Group fully supports the education and training of all our employees on hazards in the workplace and the safe way to do their job. We do many hours of training. For example, every day we have a five- minute safety contact at the start of each shift. Once per week we have a twenty- to thirty-minute formal safety meeting. And annually we have an eight- hour refresher training course. Communicating about chemical hazards in the workplace is a part of the refresher training and, when necessary, a part of safety meeting information. In addition, we do task training, which would include training and education on chemical hazards, if necessary. And any non-routine tasks require a job safety analysis prior to work activity. Our company goal is zero injuries, and that includes any chemical exposure that would harm employees. We feel that what we do is in support of what is the spirit and the letter of the current law. Rogers Group is no different than any other company in that we sometimes fall short of our goal. But with industry, labor and MSHA working as a team, we can improve the health of the miner without a new regulation. And what I would like to do is talk also for a moment about, and comment on a couple of things that were mentioned earlier. As far as the burden, you -- I think you asked the question of one of the presenters, `How would this add a burden to you?' I would say that the burden would come from having to comply with some technical aspects of the rule that may have no direct reporting benefit. For example, let's say the inspector comes on site, goes to the shop, sees a mechanic changing oil in a piece of equipment, as Mr. Feehan brought out earlier. Potentially there could be something there that would indicate that there may be a negative health effect. And let's say through activity of the operator that they have developed a method where the employee that is doing the changing of the oil does not have to come in contact with the oil whatsoever. But the inspector says, `I want to see your material safety data sheet on that.' He is taking and changing Texaco oil out of the machine. We go to the office, pull out the latest material safety data sheet for 10W40 oil, but it is BP oil. Then the inspector says, `Okay. You don't have a material safety data sheet. I am going to leave you my autograph.' Has no bearing whatsoever on the safety of that employee, but that technical aspect, that is where the burden could come from, and that is from the practical perspective. Also, chemical exposure without training. This is something that I heard Mr. Mahan -- I don't think he is here -- when he mentioned about -- they wanted to know about what they were using and they couldn't get the information or weren't told, or wouldn't be -- you know, the supervisor wouldn't tell them. I think that is appalling. And I also say that I think MSHA has a responsibility that they should have been enforcing some of the existing regulations to require that operator to educate them on the task that they are undertaking. That is there. Now let me throw out one suggestion. There is n o question that once you start down the slippery slope and you have a regulation out there, and here is something that appears as though it is the magic bullet and it is going to make it better for everybody with this HazCom rule, I say in -- from my perspective, Part 46 is available for us. There are regulations already out there that say we have to do the training. The MSHA inspector comes in the operation and says, `Okay. Look. I see Sue Smith using this particular chemical. How are you training her on those hazards?' It is the responsibility of the operator to demonstrate clearly how they are doing that. If they are not doing that, they are in violation of the regulation and they should be cited for that. But Part 46 is there. That operator can say, `Okay. Clearly this is an issue I should address. I will. I am doing this. Here is my Part 46. Here is my training plan. Here is how I am addressing that on a task training basis. Here is how I am addressing this in annual refresher training.' Then, on the other side, people would say, `Well, Part 48 doesn't have anything that addresses that.' I think it is probably time that Part 48 be looked at and open up -- reopen that regulation, and then have the opportunity to clearly put in Part 48, if it follows a similar format to its current state, for hazard communication, the use of chemicals would have to be covered as a section in Part 48. It could be covered in task training. I think there is the flexibility there. And clearly in 46, with the current regulations, it could be easily done in Part 48 without trying to develop an entire new regulation that is going to take years of training with the inspectors, with the operators, to learn about the technical aspects of it. This isn't rocket science, what we are dealing with in our industry. If I was working for DuPont or 3-M in a chemical manufacturing plant, you are doggoned right it is potentially life and death every day. I don't think we face that. We clearly need to get operators to provide information to the miners so they don't get sick, long-term or short-term, from what they are working in. That is a moral obligation. And one gentleman said, "I look at a place where I go about safety and I give it my daughter test." I have a daughter that is going to University of Evansville. She is nineteen years old. And the way I judge the place, I will go in and say, `Would I have a problem with my daughter working in this operation? If I would not want her to work there, it is unsafe or it is unhealthy.' And I think if more of us use that standard as operators, we wouldn't have some of the problems like we have mentioned this morning. But those are my comments. I want to thank you for the opportunity. I would like to refer back to my question to Mr. Nichols, if you could tell me about the amount of training that inspectors receive. MODERATOR NICHOLS: I don't know that, but I have got somebody that should know it. Bob? I know that we have made an effort to hire industrial hygienists in each of the districts. I don't know how much of that training and expertise has been passed on down to the inspectors. PANEL MEMBER THAXTON: I can speak specifically on the coal side, as we have talked earlier about coal was preparing for the implementation of the HazCom rule back earlier this year. In preparation of that, we brought in two to four people per district into our academy in Beckley, and provided specific training on HazCom hazard determination and what we were going to be doing with the hazard communication rule. That was to be taught to those people as train-the-trainers, and then they were to go back to the districts and put on the same type of training then for all inspection personnel at their respective district. That did not go through at that time because we did not pursue the implementation of HazCom at that point. Right now we are holding those people in abeyance until the final work is done on the HazCom. And, if need be, we will pull those people back in and update their training, and we still would intend that those people would go back to their district, to those people at the mine site. But there are specific people, though, that we had identified in each district that were going to be available to assist mine operators with their specific programs, with the determination of the hazard of specific chemicals, and to assist them in developing a program that they felt then would cover what needed to be, and everybody understood pretty