In the Matter of: ) ) PUBLIC HEARING ON TRAINING ) AND RETRAINING OF MINERS ) ENGAGED IN SHELL DREDGING OR ) EMPLOYED AT SAND, GRAVEL, ) SURFACE STONE, SURFACE CLAY, ) COLLOIDAL PHOSPHATE, OR ) SURFACE LIMESTONE MINES; ) PROPOSED RULES ) Pages: 1 through 79 Place: Orlando, Florida Date: May 18, 1999 THE UNITED STATES DEPARTMENT OF LABOR In the Matter of: ) ) PUBLIC HEARING ON TRAINING ) AND RETRAINING OF MINERS ) ENGAGED IN SHELL DREDGING OR ) EMPLOYED AT SAND, GRAVEL, ) SURFACE STONE, SURFACE CLAY, ) COLLOIDAL PHOSPHATE, OR ) SURFACE LIMESTONE MINES; ) PROPOSED RULES ) Tuesday, May 18, 1999 Studio Conference Room Holiday Inn & Suites 5905 Kirkman Road Orlando, Florida The meeting in the above-entitled matter was convened, pursuant to Notice, at 8:20 a.m. APPEARANCES: Panel (Continued): MARY K. ALEJANDRO U.S. Department of Labor Mine Safety and Health Administration 4015 Wilson Boulevard, Room 726 Arlington, Virginia 22203 (703) 235-1661 ROBERT F. STONE Mine Safety and Health Administration Chief, Branch of Regulations and Policy Review Office of Standards, Regulations and Variances 4015 Wilson Boulevard, Room 631 Arlington, Virginia 22203 (703) 235-1910 KEVIN BURNS Metal-Nonmetal Mine Safety and Health (MSHA) APPEARANCES (CONTINUED): Panel (Continued): RODERIC BRELAND EP&D (MSHA) Educational Field Services ROBERT W. ALDRICH, ESQ. U.S. Department of Labor Office of the Solicitor Division of Mine Safety and Health 4015 Wilson Boulevard, Suite 400 Arlington, Virginia 22203 (703) 235-1157 Speakers: BEN HART Mine Safety and Health Training Program Manager Florida Department of Environmental Protection Tallahassee, Florida (850) 921-8093 MARK KLINEPETER Florida Rick Industries Coalition for Effective Miner Training DAVID MIHALIK Florida Minerals Association Engelhart Corporation Quincy, Florida (850) 627-7688 ALSO PRESENT: R. VAN ANKER Feldspar Corp. Edgar, Florida (352) 481-2421 TIM CARNES Standard Sand Davenport, Florida (941) 422-7100 ALSO PRESENT (CONTINUED): JIMMY CARTER Florida Minerals Association Green Cove Springs (904) 284-9832 MICHAEL BROWNE E.R. Jahna Inds. Lake Wales, Florida (941) 676-9431 L. STEVENS HALE White Rock Miami, Florida (305) 822-5322 JACK BENNETT Highland County Sebring, Florida (941) 386-6529 LARRY CAPELLO Hasper Bros. Inc. Fort Myers, Florida (941) 481-2350 DAVID DECKER Better Roadela Naples, Florida (941) 597-2181 HANK MANGUM Florida Minerals Association Starke, Florida (904) 964-1230 ED GIERSDORF North American Coal Miami, Florida (305) 824-9755 DOUG HIMES SMR Aggregates Sarasota, Florida (941) 907-0041 ALSO PRESENT (CONTINUED): PHIL DiEULIO Vulcan Ica Tampa, Florida (813) 621-4143 JACK BANNING Florida Limerock & Aggregate Institute Tallahassee, Florida (850) 942-0781 P R O C E E D I N G S 8:20 a.m. MS. ALEJANDRO: Good morning. My name is Kathy Alejandro. I am with the Mine Safety and Health Administration, United States Department of Labor. And on behalf of MSHA, I would like to welcome you to the first of four public hearings on MSHA's proposed regulations for miner safety and health training. These hearings are intended to give individuals and organizations, including miners and their representatives and mine operators, both large and small, an opportunity to present their views on the proposed training regulation which was published in the Federal Register on April 14th, 1999. These regulations would apply at those non-metal surface mines where MSHA currently cannot enforce existing training requirements. And for those of you who are interested, I do have a limited number of copies of the proposal up here if you want to come up and get one at a break. And also, we have a sign-up sheet for people who are attending this hearing on the back table, and also a speaker sign-up sheet up here. So if you change your mind and decide you want to speak, come up and sign up. But we do ask that everyone who is here do sign up on the attendance sheet in the back. I would like to take this opportunity to introduce the members of the MSHA panel who are here with me this morning. To my left is Robert Aldrich who is with the Office of the Solicitor. To my right, immediate right, is Robert Stone who is with MSHA's Office of Standards, Regulations and Variances. To his right is Kevin Burns who is also with Metal and Non-metal Mine Safety and Health. And at the end of the table is Rod Breland who is with MSHA's newly formed Educational Field Services Division. Rod is a Western Operations Manager for EFS. Since 1979, MSHA has been guided by a rider to its appropriations. The restriction currently states that, "None of the funds appropriated shall be obligated or expended to carry out Section 115 of the Federal Mine Safety and Health Act of 1977 or to carry out that portion of Section 104(g)(1) of such Act relating to the enforcement of any training requirements with respect to shell dredging or with respect to any sand, gravel, surface stone, surface clay, colloidal phosphate or surface limestone mine." In the omnibus budget passed by Congress on October 21st, 1998, MSHA was directed to work with the affected industries, mine operators, workers, labor organizations, and other affected and interested parties to promulgate final training regulations for the affected industries by September 30th, 1999. These hearings are intended to give as many individuals and organizations as possible an opportunity to present their views on the proposed rule. MSHA will hold three additional public hearings. Later this week, one will be held in Sacramento, California. And next week we will have two hearings; one in Pittsburgh, Pennsylvania and the final hearing will be held in Washington, D.C. These hearings will be conducted in an informal manner and a court reporter will make a transcript of the proceedings. Anyone who wishes to speak at this hearing, as I mentioned earlier, and has not signed up in advance should sign up on the speakers list which is located up here. But we'll have a break, so you can come up and sign up later if you choose. Anyone who wishes may also submit written statements and information to us during the course of this hearing which will be included as part of the rule-making record. You may also send us written comments after the hearing if you wish. The deadline for submission of written comments is June 16th, 1999. If you need the address where comments should be sent, please feel free to come up at the break and we will provide you with that information. MSHA is specifically interested in comments on certain aspects of the proposed rule, although we encourage you to comment on any of the proposed provisions. These issues were identified in the notice of hearing that was published in the Federal Register on the same day as the proposal, April 14th, 1999, and I will briefly summarize those issues. Definition of miner: Under the proposal, a person engaged in mining operations integral to extraction or production would be considered a miner. We are interested in whether this definition is appropriate. Workers who fit the definition of miner under the proposal would be required to receive comprehensive training including new miner training or newly hired experience miner training as appropriate. Plan approval process: The proposal would require each operator to develop and implement a written training plan that includes programs for training new miners and newly hired experienced miners, training miners for new tasks, annual refresher training and hazard training. Plans that include the minimum information specified in the proposal would be considered approved and would not be required to be submitted to MSHA for formal review. Miners and their representatives would also be given the opportunity to comment on the plan before it is implemented or request us to formally review and approve the plan. We are interested in comments on whether the proposed approach is appropriate or whether any commenters believe a traditional plan approval process similar to the process in Part 48 is needed to ensure the training plans meet minimum standards of quality. New miner training: Under the proposal, no minimum number of hours of training is required for a new miner before he or she begins work under the close supervision of an experienced miner. Instead, the proposal requires instruction in four specific subject areas before the miner can assume work duties. We are interested in whether commenters agree with this approach or whether the final rule should establish a minimum number of hours of training that new miners must receive before they begin work. New task training: The proposed rule would require miners to be trained for new tasks and for regularly assigned tasks that have changed. The new task training requirements in the proposal are very performance oriented and do not include detailed specifications for this training. However, we are interested in comments on whether the final rule should include more detail and guidance on the elements of an effective new task training program and, if so, what areas should be addressed. Training instructors: The proposal would not require a formal program for the approval or certification of instructors or establish rigid minimum qualifications for instructors. Instead, under the proposal, training would be provided by a competent person which is defined as a person designated by the operator who has the ability, training, knowledge or experience to provide training to miners on a particular subject. Under this definition, the competent person must also be able to evaluate the effectiveness of this training. We are interested in comments on whether this approach is appropriate. Annual refresher training: Under the proposal, refresher training must include at a minimum instruction on changes at the mine that could adversely affect the miners' health or safety. The proposal includes a list of suggested topics that refresher training could cover. But these topics are not mandatory. We are interested in whether the final rule should include more detailed requirements and whether there are any other subjects that commenters believe should be required. Effective date and compliance deadlines: We are interested in comments on how much time should be allowed for the mining community to come into compliance with the final rule. One possible approach would be phased-in compliance deadlines where some of the rule's requirements would go into effect at different stages. We understand that there will be a very large number of operations coming into compliance simultaneously. And we wish to allow a reasonable amount of time for the transition. So any comments that you have on this particular aspect, we would be very interested in because we do want to get a pretty realistic idea of how much time is going to be involved for everyone to get their house in order as far as training is concerned. Finally, costs and benefits of the proposed rule: We are interested in comments on all elements, including methodology, assumptions and data, or our analysis of the cost and benefits of compliance with the proposed rule. I would now like to introduce the first speaker this morning. We ask that all speakers state and spell their names for the Court Reporter before beginning their presentation. Thank you very much. And also, I believe -- although we've got -- it's set up for the podium, if anyone would be more comfortable sitting at that table, we can move the mikes I believe. And if you want to sit down while you speak, feel free to do so. The first speaker on our list is Ben Hart from the Environmental Protection Agency for the State of Florida. Mr. Hart. MR. HART: I would prefer to sit if that's okay. MS. ALEJANDRO: Oh, sure. Do you have it? MR. HART: I think so if I can do it safely. Nobody walk there. That's a no-walk zone, folks. I would like to commend the Court Reporter, first of all, for her good job of taping over there. That was -- that was very good. Most times people lay it down and go on. Thank you and good morning to everybody. I appreciate the opportunity to provide some input and take an active part in MSHA's rule-making process. And I applaud you, Kathy, and the rest of your team for tackling this big job in such a timely manner and getting it out. You've done a great job. I would also like to thank all the Florida mines who are represented here this morning. I was very pleased with the turn-out and support that we're getting. I'm Ben Hart, spelled H-A-R-T, Mine Safety and Health Training Program Manager for the Florida Department of Environmental Protection in Tallahassee. I manage the Florida MSHA State Grant Program and have since 1998. During that time, I've had the privilege of training thousands of aggregate miners under the existing 30 CFR Part 48 rules without any difficulty making it applicable to all mines. Ladies and gentlemen, after careful study -- carefully studying proposed Part 46 rule, I would like to offer the following comments. It is my intention to include in my comments a focus on the issues published in the publication, RIN 1219AB17 that Kathy just referred to, the issues. And I will add additional comments or suggestions where applicable. Is the definition of miner is stated in 46.2(G) appropriate? In comparing 46.2 with 48.22, I believe the latter's definition of miner, particularly paragraphs A(1) and (2), is more complete and appropriate. The final rules should include persons who are regularly or frequently exposed to mine hazards. Owners, operators and mine superintendents are killed or disabled every year in mining accidents even though they do not directly participate day-in and day-out in the extraction and production. Their activities are integral and essential to the overall mining process however. You should also include construction workers in Part 46.2 since many of the serious injuries and fatalities in the aggregates industry involve contract construction workers. So Part C of Part 48 was intended to cover this class of miner, but it has never been promulgated. This is an opportune time I think to include them in mandatory training requirements. 46.2(b) defines a competent person designated by the operator. I'm concerned about whether or not mine operators, particularly those lacking formal instructor training, can adequately evaluate the effectiveness of training. A person who has the knowledge and skill of a particular subject may have the ability to provide training in that subject and may not. Language should be included outlining assistance to be provided upon request by MSHA's Educational Field Service, EFS, and/or the State Grants Program. I would recommend that persons provided Part 46 training should have completed the same requirements as found in 48.23(h) for training instructors. I've got a real problem with -- with a competent person. There are competent people out there who don't need formal training and would do a good job training. But I don't know the number and being able to evaluate the effectiveness, I'm not sure that you don't need more oversight than you've got in the proposed rule. 46.3 outlines the process for training plan approval, requiring mines to develop and implement a written plan, but does not require submission for approval with minor exceptions. I believe this approach is inappropriate, especially when compared with the requirements in Part 48. In order to ensure the plans meet the minimum standards of quality, MSHA should maintain oversight of the training plan. While not true of some mines and mining contractors, many will not write a plan until they are faced with a possible fine and/or closure for noncompliance. As previously stated, EFS and the State Grants Program could provide needed assistance through informational seminars and individual consultation. Paragraph (h) under 46.3 allows training plans to be maintained at a place other than the mine site. I have a question about that. I believe that a copy should be kept at the mine site, even if it's in the glove compartment of the supervisor's pick-up truck. This paragraph should be amended by deleting the second sentence. 46.4, training program instruction, paragraph (a)(2) again mentions competent person as a trainer. And I refer to my previous remarks under 46.2. Paragraph (c) allows substitution of equivalent OSHA training or other federal or state agencies to meet requirements where appropriate. After reading through this several times, I find myself agreeing with the duplication -- agreeing that the duplication of training will not make it more meaningful and effective. Paragraph (e) should include specific minimum times for said training. Many coalitions of effective miner trainings sent to members I've discussed Part 46 with believe that, for example, 48 ten-minute toolbox sessions conducted in the field could be at least as effective if not more effective than one eight-hour class. My belief that the accepted 30-minute minimum under Part 48 should be maintained here remains strong, but I will concede the ten-minute training sessions are worth a try. Change is not always bad. My major concern is that a typical training session will be scheduled for the first ten minutes of the work day, for example, from 7:00 to 7:10 a.m. But by the time everyone gets their coffee, juice, fruit and pastries that I know all the Florida mines provide to all their people every time, then -- and the session -- two to four minutes may have gone by. And the session -- and if the session ends on time at 7:10, then they may have only gotten five or six minutes of training in that time period, meaningful and effective instruction. Language should be included which spells out that a minimum of ten minutes of actual instruction must be conducted in order to count towards the Part 46 requirement training -- training requirements, not ten clock minutes. That's my suggestion if -- if you don't could go with a 30- minute minimum in Part 48 which I would really encourage. 46.5, new miner training, paragraph (a) of the term close supervision of an experience miner should be better spelled out. Some might get the impression that as long as the miner responsible for the new miner's on-the-job training was on the mine site at the same time as the new miner, this rule would be satisfied. Language should be added that while the new miner is forming tasks that exposes him or her to mining hazards, he or she will be close enough to the experienced miner that they can communicate in a normal conversational tone, or something to that effect. Paragraph (b)(1) would be more effective if the words, "and observed", were added after the word, "explained". Let's see. I believe that to require less than eight hours of initial new miner training at certain mines based on size or complexity of operation will complicate tracking the amount of training -- total training hours, particularly when they may not total the mandated -- minimum mandated 24 hours. I do believe that small aggregate mines could do much of the initial eight-hour training as OJT, on-the-job, with the new miner actually performing tasks to which he or she will be assigned. But his or her training hat will remain on all that shift. So they'll get their eight hours of training while they're actually doing some work under this close supervision. 46.6, newly employed experienced miner training: Based on the definition of experience miner in 46.2, I think the words, "newly employed", should be deleted from all references in this part, and also because of the change that took place on February the 3rd in Part 48. Once a person is an experienced miner, they are always an experienced miner for life. So newly employed or not wouldn't matter. 46.7, new task training. The final rule should include requirements found in 48.27 which more completely spells out what the task training shall include. I found 46.7 a little lacking in description. Training instructors. The rules should require 46.5, 46.6 and 46.8 training to be conducted by an MSHA- approved instructor, as does Part 48. Those miners not desiring to conduct their own training can receive Part 46 and/or Part 48 training through the MSHA State Grants Program, perhaps to a limited degree through the EFS program or through an MSHA-approved instructor -- contract instructor, excuse me. Part 48.23(g) and (h) state that, "Except for task and hazard training, all training shall be conducted by MSHA-approved instructors." I think this language should also be included in Part 46. 46.8, annual refresher training. How can a mine, particularly a small mine, spend a minimum of eight hours of training its miners and contractors on changes at the mine that could adversely affect miners' health and safety? If it's a little small, sandy gravel, little mom-and-pop operation like we have many here in Florida and throughout the country, I think that the burden of eight hours to do that would -- if -- if that's all they did, would be -- would be tremendous. The final rule should include the same list of courses of instruction as Part 48 with the addition of the phrase, "where applicable", added to each one. If it's not applicable to that operation, then they could spend more time on something else. And I pause here to say that -- that the Part 48.28 requirement for prevention of accidents is one of the -- one of the courses. That could cover two days in some cases or a week. I mean, it's not a problem to fill up eight hours with discussion and prevention of accidents because that's what the whole problem is all about. The word, "may", in 46.8(b) should be changed to "shall". "Other courses may be added as needed." I think that needs to be added, also, to give them the flexibility that they may need. Section (d) under 46.8 could be amended by changing 30 to ten if that's what most people in the aggregate industry believe would best suit them, as long as it is specified that the clock starts when the training begins and stops when the training ends, not when the hours approaches -- or when you reach a certain hour and reach a certain time limit after that. Effective date and compliance deadlines. I believe that with the assistance of EFS and the State Grants Program, affected mines can be in compliance within six months after the date of publication of the final rule. The mines which are currently in compliance with Part 48 will automatically be in compliance with Part 46 as I read it. Across the country, a great many small aggregate mines are in compliance through their partnership with the MSHA State Grant Program already. Phased-in deadlines would only serve to confuse the issue and should not be included in the final rule. However, I think that perhaps partial compliance with Part 48 might be realistic. I read that in your comment section. If mines are in compliance with Part 48, they should automatically be in compliance with Part 46. Perhaps partial compliance with 48 would work while phasing in Part 46 if they need -- particularly if they need more time. Several state grantees that I've talked with about this plan to continue doing Part 48 training for all the industries because, as I read it, Part 48, if you're compliant with Part 48, you're automatically in compliance with Part 46 which is more encompassing at this time. Okay. Records of training. Paragraph (b)(1) under 46.9 should be modified to read, "the printed name, the first name usually used by the miner, and may include a nickname and last name." The requirement for first, middle and last name is counter-productive and potentially disruptive to training. I've run into that in several instances where people will print their first name and middle initial, but they never go by their first name and nobody knew their first name was Aloishus or whatever it is, Gertrude. And my -- my -- no offense to anybody names Aloishus or Gertrude. But I think it would be nice if it just says a common name such as a first name or given name or nickname or usually used name, something like that. That's a minor point. But nevertheless, I think it needs to be taken -- if you take the 5023 form literally, then you need to print, "William Benjamin Hart", as the full name. 46.11, hazard training. I would like to commend MSHA for paragraph (b) where, for example, electrical contractors performing electrical maintenance need only site-specific hazard training. I think that's something we've been needing for a long time. And I think Part 48 needs to be amended that way, too, at some future point. 46.12, responsibility for training. Commendations again to MSHA for identifying who is responsible for which training, particularly as it applies to independent contractors. Also, MSHA was right on target in paragraph (b), requiring the independent contractor to inform the production operator of any known hazards that may be created by the contractor's work performance. Too many times, I think, the contractors and the operators don't communicate enough about safety. So I commend you for that. There is a question about what percentage of compliance do we hope we will get. Florida's goal, at least from my department's perspective, is a hundred percent. Why have a regulation you can't enforce? We've had one of those for almost 20 years already. I don't think that this is something that -- it needs some minor tweaking I think. But I don't think it's something that is unenforceable and un-doable or difficult to do with the assistance of these other programs. Lastly, my main reason for being here today is to discuss and to urge again that if this is going to work in Florida and I think all the other states, state grant funding needs to be greatly increased. I have seen an increased demand, probably 50 to 60 percent over this time last year, for Part 48 training or for training of any kind. And I think the Part 46 proposed has a big -- has had a big impact on that. Personally, I'm happy. I'm like the other repairman other than Maytag because I've got things to do. It pleases me to say, "No, I can't do it this month; but I'll put you in this month or the month thereafter." But at least I've got some job security. But we do need more funding. And I know that the Coalition is making that in their proposal. I mentioned in the January public hearing and I'm going to continue to mention it -- and I know that in conversations with Mr. McAteer, that is an issue that he is looking at and he is pushing forward, and I realize that he only has a limited control over what happens. All he can do is ask for it. But we hope that Congress will see fit to give us the moneys that -- to implement this program and to help the mines implement the program. Those are all the prepared remarks I have. I will be glad to entertain any questions. MS. ALEJANDRO: Yes, thank you very much, Mr. Hart. I've got a couple of questions and a couple of comments. And some of the other panel members may actually also have questions, as well. You indicated that as far as the definition of miner is concerned, that you favored the current definition under Part 48 and that persons regularly exposed to mine hazards would be considered miners. Is that correct? MR. HART: Right. MS. ALEJANDRO: One of the questions I have -- I mean, and this is one of the reasons we put a new definition in Part 46 -- was the difficulty of defining "regularly". Do you have any suggestions for how we might do that? I know -- I mean, we do have a definition currently under policy for "regularly" under Part 48. Do you favor that definition or do you have -- I mean have a better one, because it has caused us some difficulty? MR. HART: Right. I think that Part 48 is adequate. It could be improved. The problem I've run into is mine superintendents, for example, in a large operation and even mine managers who don't -- who spend a lot of time planning and in meetings and strategy sessions and budgetary sessions who go out what they consider on an infrequent or an irregular basis, not a regular basis. But maybe once a week, they'll be out and exposed to mine hazards. But if they go out once a week, there's 50 exposures -- well, maybe 48 exposures a year at least. And the thing about it is, it won't take but one accident involving them to perhaps end their life. And again, I think that if you're going to err in favor -- if you're going to err concerning training -- concerning comprehensive training versus hazard training, err in favor of comprehensive training. And I -- I did encourage some mine managers -- in fact, I got a ruling from MSHA that in fact supervisors, if they are exposed to mine hazards on some type of recurring basis, need to have the annual refresher training. They were under the impression they did not. So we got that cleared up. But I do like what's in Part 48. I'm comfortable with Part 48. I think it can be adjusted a little bit or here's an opportunity to copy that, but make it more -- a little more stringent. But I think anybody that goes in the mien more than just for a few days, I think the short-term maintenance workers that are described and defined in the 48.22, I think that if you give them a comprehensive hazard training, not just something about, "Well, there's the mine; be careful" -- you need to give them site-specific hazard training. And I think that that would be adequate. MS. ALEJANDRO: One thing I would like to mention is you raised the issue of coverage of construction workers. And although the rule itself does not explicitly state that construction workers are covered, in the preamble to the proposal, we do indicate that our intention is to cover construction workers with Part 46. And, you know, whether or not they are miners, whether they get comprehensive training or site-specific hazard training would, like for anyone, be dependent on what their activities are at the mine site. MR. HART: Right. Good. MS. ALEJANDRO: So just for anybody who is here who is wondering about the status of construction workers, that's what our intention is. MR. HART: Okay. Thank you. MS. ALEJANDRO: Let's see. I think I have one or two more. Also, as far as annual refresher training is concerned, you indicated your concern that eight hours spent on changes at the mine that affected miners' health and safety was a little bit excessive. The intention ion the proposal was that that would be the minimum -- I mean a subject that must be covered. But the expectation is that the mine operator will tailor the subjects to be covered in annual refresher training appropriate to the mine site. So we weren't expecting that people were going to spend eight hours on new hazards. MR. HART: Right. No, I understand that. MS. ALEJANDRO: Okay. MR. HART: But it says -- MS. ALEJANDRO: It's not very -- MR. HART: -- "Should or could include or might include" -- "may include". MS. ALEJANDRO: Yes. MR. HART: I think if it says, "Shall include those subjects and other courses as necessary." MS. ALEJANDRO: Yes, some of the -- some of the written comments we've gotten already indicate a lack of clarity in that section. So we'll take a close look at it. MR. HART: Right. MS. ALEJANDRO: Okay. I think that's all I have. Does anyone else have questions? Rod? MR. BRELAND: Maybe a couple. One, you had mentioned that the initial eight hours, including much of it, could be OJT. Did you have a feel for that? MR. HART: Yes. In -- depending on the conditions of the mine. Also, depending on mine size. I last week visited several mines as I told you last night. I visited several mines who are smaller than five employees, little sandy gravel operations up in the Florida panhandle. And the -- to cover the whole operation very slowly, to walk all the way around the whole property line, everything, would take less than an hour; maybe even less than 15 minutes. So to require them to -- to get into a classroom situation, that's one of the complaints I've heard; is, you know, we hire a person. We need to get them on-line and get them out there. And I think as long as the close supervision is better defined, that somebody is going to be right there with them when they're actually performing tasks -- that doesn't mean they can't say, you know, "Take a break and I'll be back in a few minutes or something; I've got to run over here. Just don't do anything. Go back up to the break room", whatever. In the case of the mines I visited last week, the break room might also be the scale house or it might be the pick-up truck sitting there in case it rains. But I believe that if they -- the flexibility is allowed for on-the-job training, even though they're going to wear their training hat and the person that -- the experienced miner that's giving them this close supervision is going to be able to train them and they're going to be able to talk about safety issues as they work. MR. BRELAND: Okay. And also you talked about you had a concern on the competent person versus approved instructors. Are you advocating something similar to what Part 48 is for approving instructors? MR. HART: Yes, sir. I've mentioned that a couple of times and I'll say it again. I am -- I am comfortable with the Part 48 requirement for instructors. I think if a person has adequate knowledge in the subject matter to be taught, and the same would be true here for Part 46, and also has the ability to train, has the experience from training of some type, or if they don't have that, they can take a formal class in that. I think that -- that the people doing the Part 46 training should be like Part 48 instructors; they should be MSHA approved. And they should receive some formal training. MR. BRELAND: Yes, but the rule is actually requiring that they be competent, have those abilities and skills. Is that -- MR. HART: All right. Who is going to determine competent? And it says the operator will determine the competent -- or pick a competent person. And the operator will evaluate the effectiveness of the trainer. And I'm not trying to offend any operators, any mine operators, by saying that they don't have the ability to determine what's effective and what's not. But I'm not sure that just as across the board, around the country, that we can say that they all do and assume that they all do. MS. ALEJANDRO: Actually, the rule I believe says that the person -- I mean the competent person is the one who is supposed to be evaluating the effectiveness of the training. Are you saying because the mine operator selects the competent person, that the operator is not in a position to determine whether the competent person can evaluate the training? MR. HART: I can't -- I don't think I can say that as a blanket statement in every situation. I've found that in situations where the operator needs to select someone to do something -- and I've run into this in training instructors. If somebody comes because the boss told them to, they didn't really want to be there. But they pick a person that they feel like they could count on and who has probably already got 15 other hats to where already depending on the size of the operation. I must have misread it because I thought it did say the operator would be -- would determine the effectiveness of the training. Maybe I misread it. MS. ALEJANDRO: Yes, well, the -- I mean, I'm saying -- I'm pretty sure it says that the competent person should. MR. HART: Sure. MS. ALEJANDRO: But I'm not a hundred percent. MR. HART: Okay. MS. ALEJANDRO: But that was the intention in any case. MR. HART: Okay. MS. ALEJANDRO: Okay. MR. HART: All right. MR. BURNS: Yes. I think it says the competent person. That's part of his competence, that he must be capable of evaluating the effectiveness of the training. But, I mean -- MR. HART: And that's what all training should do anyway. MR. BURNS: But the operator by -- the operator by designating the competent person -- MS. ALEJANDRO: Right. MR. BURNS: -- is also -- MS. ALEJANDRO: Making a determination. MR. BURNS: -- making a determination that it's effective -- that that person can do that. MS. ALEJANDRO: Yes. MR. HART: Sure. MR. BRELAND: That's all I have. Thanks. MS. ALEJANDRO: Kevin? MR. BURNS: Yes. I guess on the -- just on the annual refresher training, you're suggesting a ten-minute minimum as far as -- or that there should be some minimum, a number of minutes. MR. HART: I think there should be some minimum. I think I stated that I favor the 30-minute minimum as stated in Part 48. MR. BURNS: Okay. MR. HART: However, in discussions with CEMT members and other people around the country over the last couple -- several months, I've been approached by people who believe that ten minutes would be effective, the little toolbox training given in the field or given at -- in the office before they start at the mine. And the one person in particular that I talked with said that he had -- he had 48 ten-minute toolbox sessions or 50 maybe with different topics that were -- the outline was there. And this is good and I don't need to tell you that this is one of the larger mines and larger mining companies in the country. The little small mom-and-pop I really believe is going to be very dependent on EFS for help. It's going to be dependent on state grants for help. And so, again, I think that gives us job security. But I said that I would at least accept the ten minutes if that was -- if that was what the majority of the people wanted to try. And if it needs to be changed, we find out it's not working, then we will go back. But hopefully, if -- if it will work and if it will make more training done and make it more effective for the people, then that's fine. I just think it's very hard to get something across and to be effective in -- in a very short period of time I think. Even in a 30-minute class, it takes -- you've got a core of 15 minutes in there where you really get some interaction and you've got to get them going, pull them out in the -- particularly if it's an early morning class. And then you've got to wrap it up. So I'm willing to -- to try ten minutes. And I'll do whatever the rule requires. As I mentioned also, several State Grant Programs that I've talked to are leaning toward not doing Part 46 training, but doing Part 48 training; yet Part 46 covered operations which would -- which would meet the requirements of Part 46. That's -- that's not cut in stone. Don't -- but nevertheless, that's something we are discussing and looking at including here in Florida; that, you know, we've got something that works, we believe. And if ain't broke, don't fix it. But -- MR. BURNS: Yes. We didn't specify minimum. But I guess part of that was from the standpoint that, you know, if it's -- if it's not long -- if it's too short, then it really becomes a record-keeping nightmare for an operator. And you are right, that people -- the toolbox training that I've seen, people that -- that schedule it for 15 minutes, when they do a good job, it usually lasts 20 or 25 minutes because it just takes that long to get started and stopped and people have questions. So a lot of the toolbox training that's even scheduled for ten minutes really lasts 20 minutes or 25 minutes just because that's the nature of -- if you want people to interact, a lot of times, it will take longer than what it's scheduled. MR. HART: Absolutely. If you don't have any interaction, you don't know how effective it was. MR. BURNS: And the other thing is, you know, we'll have to, you know, evaluate the effectiveness of this training because part of -- the original idea behind the 30 minutes or one of -- part of the rationale behind the 30 minutes was to prevent, you know, the operator from just telling everybody to work safety that day and that being part of their training. I guess there was some history of that with some operators, that, you know, that was their five-minute safety training. Every day, the supervisor and the superintendent telling everybody to work safe and -- and, you know, that certainly is not -- is not going to be effective training and that wouldn't comply with what we're talking about here either. MR. HART: Right. I think the word, "minimum", is a key there. I think we need to -- you need to specify a time limit and you need to emphasize the word, "minimum", because as you said, a ten-minute scheduled training may turn into 20, 25 or 30 minutes. As far as record-keeping is concerned, the other - - since you brought that up, I forgot to mention that. The fear I have is that people will say, "Well, we're going to do this every week, so we'll fill out a 5023 when we get through", rather than keeping records as they go along. And I've -- I've got a little saying when people ask me, "When should I fill out a 5023", I said, "Every time you complete a course." And a course would be individual parts of Part 46, for example, or parts of 46.8, annual refresher -- or 48.28. When in doubt, fill it out. It doesn't take that long to fill one out. Now, if you've got a large operation, you're probably not going to go to these ten-minute meetings anyway. You're probably going to do one day of training and get it over with. I don't know that, but a lot of them do. But from a record-keeping standpoint, I'm afraid that people are going to say, "Well, we'll fill them out once a month", or something, "We'll do one for May of '99." And maybe one person misses one of those sessions. That's going to be a big nightmare. Suppose the person gets killed off property and you don't have any -- don't have any forms filled out and signed, but -- or gets killed on property, God forbid. You don't have a record of training. Now, I understand, too, that there is talk about allowing a sign-up sheet and maybe an attached lesson plan for what was taught as counting towards records of training. And I think that's good because that would have proof if the person signed it that they were present that day. MR. BURNS: Yes, and I guess the other -- the other issue was the competent person versus the qualified. Right now, I mean, the competent person is somewhat based on what OSHA does. I mean, most of their training is based upon the competent person selected by the operator, that it's -- that can do the training understands what they're supposed to be trained about, versus the qualified which is in Part 48 which I imagine, I'm sure you know, is sort of all over the board. Some people -- some people are qualified through trainer-to-trainer type courses. Others -- others are -- are considered qualified trainers just based on a resume or a letter they've sent in. So it's -- it's -- that sort of qualification is really -- to me is equivalent to a competent person type determination. And we already have a lot of -- a lot of people by the very definition that are really competent -- competent persons. I think they're almost inter-exchangeable terms from that -- from that standpoint on a lot of the people that are on that list of qualified trainers. MR. HART: Okay. I'll agree with that; that the people on the list of qualified trainers are competent. Most -- well, you can't say that across the board either. MR. BURNS: Right. MR. HART: But I believe that most of them are. I know that looking at the list a few years ago, some of them were dead. I'm sure how competent they were at that time. But that list is hard to purge. I will say that there is a move now. I believe Judy Tate out in Dallas is heading up a committee to look at MSHA instructor training requirements under Part 48, looking at suggestions, looking at standardizing across the country; what's required and how a person can be approved. I agree that a person doesn't need to attend a training class, a formal instructor training class if they've been a classroom teacher, for example, for 20 years or ten years. That -- that would be duplication. But if they have documentation of that and proof of that, as I read this right now, Part 46, there is going to be no official submission of any resume or any letter or any verification or anything. It's just going to be the operator says, "Okay, you're it." Now, I assume that the MSHA inspector can inspect the qualifications of that person or the EFS people who go out could check the paperwork and check the background of the individual. I think if you -- if you set hard and fast requirements for a person, what would designate a competent person; rather than just say a competent person, be a little more descriptive in your definition and itemize some things that that person must possess other than just ability; ability through experience, training, a combination of both which is very similar to what Part 48 says, 48.23(h) I believe. I'm not opposed, Kevin, to -- to a person who can provide the training whether they've got any formal instructor training or not. If they have that ability, they have the knowledge in the subject matter -- in reading this it appeared to me that this was going to be more for an electrician, for example, with a lot of years of experience talking about electrical safety, something they're comfortable with; not talking about power haulage that they may or may not be familiar with. MS. ALEJANDRO: That's right. I mean, this -- that provision I think was in response to a lot of comments we got that there are a lot of people out there with specialized expertise who can be very effective in providing training in their narrow area of expertise. But you're right. I mean, the expectation is not that someone who is qualified in one particular area will be trained in another -- I mean, that's what that definition is intended to provide. Now, if you've got some suggestions for how we might tighten it out, I mean, we certainly are very receptive to -- to that. MR. HART: Right. Again, I refer to 48.23 paragraph (h), at least as a guideline. I think it does give a little more definition to it. Kevin, as far as -- as far as copying OSHA -- MR. BURNS: That's not what we're doing. I'm just saying that -- MR. HART: Not copying it? MR. BURNS: -- that is what OSHA's -- MR. HART: I understand. MR. BURNS: -- OSHA does just from looking at their regulations. MR. HART: Right, right. I'm not opposed if the person is competent -- a competent person providing training. But I think there needs to be some kind of oversight as to who is deemed competent. Maybe I'm having overkill here. I'm not meaning to. But at the same time I'm thinking about some mines that I'm familiar with that only got two people on their staff to consider. And maybe their expertise is not in training. We've had instances where inspectors have gone out and given training, little mini walk-and-talks and things like that. Just some of the comments I've heard was the person is a good inspector, but he's not a good trainer. Now, I'm not calling any names and don't know any names in particular. But I wouldn't -- at this particular point, I wouldn't make a good MSHA inspector. I feel like I'm a good trainer. That's what I want to do. That's what I've been trained to do and what I -- what I do. But I'm not saying do away with "competent person". But you want comments. And my comment is, again, Part 48 ain't real broke. And maybe -- maybe it should be used as a guide. MR. BRELAND: I think, as you mention, the small committee Judy Tate is on is a result of a lot of differing approaches to approving instructors with state programs, cooperative instructors and so forth and MSHA themselves within the districts. MR. HART: Right. MR. BRELAND: And that essentially has some of the same issues you're talking about with the competent person definition, that some people have been approved maybe as instructors that aren't necessarily the best teachers. But they have the qualifications and background. And I think that this rule was intended, or proposal, was more to be the performance oriented to look at maybe the quality of the training and so forth. And maybe your concern really is more with the monitoring and evaluation process than it is the designation of competent person. MR. HART: Yes. I'm afraid, Rod, that one of the measures of the effectiveness of this training is going to be fatality rates and serious injuries, disabling injuries. And I pray that that doesn't go up. It will go the other way, which it should. But if a person is not doing effective training, then it very well could shoot up. And if it does, then for the people who remain and if the training is adjusted to make sure they get an effective training. But for the ones that lost their lives or became disabled -- I don't have a problem with performance-based anything, evaluation of anything. But I think we need to take all the safeguards we can to make sure the people providing the training know what they're doing. And I know a lot of people who are competent in their field, even experts perhaps, very knowledgeable in their field -- let's use that term. But they can't communicate it to another individual. They can do the job, but they can't talk about it. They can't teach it to somebody else. MS. ALEJANDRO: Do you think that the present Part 48 instructor approval scheme is effective in assuring a level of competence in communication? I mean, that's really what we're trying to get at, is, you know, imposed requirements where there is going to be value added to the results. MR. HART: I think it is more effective than what 46 proposes. It needs some change, too. And that's what Judy's committee -- I'm a part of that committee and that's what we're looking at, and also standardization around the country. As Rod mentioned, in different districts around the country, they're doing instructor approval different ways. And even the ones doing the instructor training classes are teaching different things. So we want to get that standardized so that if you're trained in California and you come to Florida and somebody in Florida goes to California, they've had basically the same training. But I think that's what the goal is and I think here we can do the same thing. MR. BRELAND: Well, one of the points I was making on the Part 48 is that the present guidelines that you're talking about for approved instructors, many people would qualify based on the present guidelines to at least initially be approved. And I think this is what Kathy Alejandro was talking about, too; that that's not necessarily consistent with making sure that's a good -- a good instructor. It's what they do at the site or what they do with their training program that's important. MR. HART: Well, understanding, too, that your program, Education Field Services, is going to do some field monitoring of the training. MR. BRELAND: You know, we -- we hope to do that. MR. HART: Okay. Okay. MR. BURNS: Yes, I guess just on that same subject, I mean, if -- I mean, a big part, no matter what this rule looks like, is evaluation and making sure that the training works. And -- and that's a big -- I think that's one of the key issues in -- in the competent person or if we go for qualified trainer. It should be somebody that's able to evaluate the effectiveness of that training. And I think that's the most important part of this, is -- is that if -- if you -- if you're a competent person or a qualified person, whatever we come up, that person needs to be able to go out there and observe the workers. And if that worker is doing things, working around the conveyor belts in an unsafe manner, contrary to what he was taught, then part of this whole training and safety program is that that person would be taken aside and explained that that's not what he was trained to do and maybe re-trained. I mean, if -- if -- I don't see this ending up being just, you know, you do eight hours of training and then they're out -- they're gone and you bring them back in eight hours -- you know, eight hours the following year because that's not going to be effective. And people that really do have effective training programs, it's not a separate program from everything else. It's integrated into the thing. So if that competent person is doing good training and they're also able to go out there and observe the workers and make sure that they're working as they were trained and if they're not, they reinforce it with more training, I mean, that's -- that's what we want. And however we come up with the definition of what that -- who that person is and how he's qualified, I mean, that's the end result that I think we want. I think that's what you want, too. MR. HART: I agree with you. MR. BURNS: The other issue was the eight hours annual refresher training. Like Kathy said, we had some comments on that. And maybe it's -- maybe it wasn't clear enough in what we stated. But -- but the whole idea of the eight hours, making it a little bit more flexible was to get away from the complaint that we have from operators on both sides throughout the industry, not just the aggregates and the exempt industry, is that people feel like they're required to do compliance training because they have to complete all these various subjects. Then they do their safety training. They train on the things that they know they have a problem with. And the idea here was -- was to -- to try to streamline this so that -- so that if somebody has problems with conveyor belts, they can spend four hours on that and not have to worry about covering some of these other issues that may be listed that they're required that aren't necessarily a problem. That was the idea behind that. And -- MR. HART: I understand. And I -- in my comments, I said -- MR. BURNS: Maybe we need to be more clear on that. MR. HART: -- I said that I think that the ten, I believe it is, subject matter courses required under 48.28 should be -- MR. BURNS: May if appropriate. MR. HART: -- should be "must be included" or "shall be included", but where appropriate or where applicable. It could be added at the end of each one of those. And if there is not a -- an electrical problem. Some of these small sandy gravel operations, probably the only electricity they've got may come from a portable generator that runs the conveyor -- MR. BURNS: Right. MR. HART: -- and the classifier and the screen and all that, and a small conveyor belt. Electrical safety is -- they can solve their problem by cutting -- shutting down the generator. But if it's not applicable, they don't need to talk about it. But also, other courses as needed. Other courses may be added as needed. That gives them that flexibility. If they need a four-hour conveyor safety course, then they can get it. So I'm -- I'm in agreement with you there. MR. BURNS: Yes, okay. MR. HART: But I just think you need to be a little more definitive. I don't think you're going to hurt anybody if you give them the leeway by saying, "where applicable", or "where" -- if it doesn't apply, don't worry about it. MR. BURNS: Yes, I think we're in agreement on that. MR. HART: Yes. MR. BURNS: We just need to clarify that. MR. HART: Sure. Another question? MS. ALEJANDRO: Do you have anything else, Kevin? MR. BURNS: No. Did you have anything, Rod? MR. BRELAND: No. MS. ALEJANDRO: Robert? Thank you very much, Mr. Hart. MR. HART: Thank you, Kathy. I appreciate it. MR. BURNS: Thank you, Ben. MR. BRELAND: Thanks, Ben. MS. ALEJANDRO: The next speaker on the list is Mark Klinepeter from Florida Rock Industries and also, the Coalition. MR. KLINEPETER: Good morning. My name is Mark Klinepeter. That's K-L-I-N-E-P-E-T-E-R. I'm the Director of Safety and Training for Florida Rock Industries. And I am based out of Jacksonville, Florida. I am here representing not only Florida Rock, but also the Coalition for Effective Miner Training which is comprised of 18 members and represents the overwhelming majority of the miners in industries affected by MSHA's proposed rule. The Coalition consists of two companies that are production operators, 14 trade associations of both large and small production operators, and two labor unions. No other organization speaks on behalf of more exempt miners and their employees than the Coalition. MSHA deserves credit for bringing forward a proposal that promises to provide effective training for miners. In addition, the proposed rule is performance- oriented and offers production operators, particular small ones, broad flexibility for complying with training requirements. The Coalition does have a number of recommendations that we feel are needed to improve provisions of the proposed rule. The recommendations include modifications to streamline further the training plan approval process; an implementation time table of one year to permit an orderly and effective transition; and recognition that contractors and production operators must be responsible for training their respective employees. The Coalition believes that MSHA should recommend and advocate strongly that the Congress authorize and appropriate full funding of the State Grants Program to enable state grants personnel to effectively assist operators to comply with the new rule in a timely manner. MSHA's proposal would extent to both hazard and task training, the same requirements for documentation and training plans as other types of training, statement of objectives, description of how training is conducted and evaluated, designation of who will do training, their subject areas of competence and other information. Operators need flexibility to offer such training by the most qualified person available at the time training is to be conducted. Similarly, evaluation of training effectiveness, particularly hazard training with vendors or visitors, would be difficult to accomplish without this needed flexibility. The Coalition recommends that the required documentation of hazard and task training and training plans be limited to a statement of objectives and method of instruction. The MSHA proposal goes a long way to meeting the Coalition recommendation concerning who should be responsible for training miners and other persons at the mine site. The Coalition had recommended that responsibility for training should rest with the employer, the production operator for its employees and contractor for contractor employees. MSHA followed that approach generally throughout its proposal. But for the site-specific hazard training that would be required by Section 46.11, decided to propose making the production operator responsible for training of both production operator employees and contractor employees at the production operator mine sites. The Coalition continues to urge MSHA to adopt the approach it originally advocated. Each employer should be responsible for all aspects of training for its employees irrespective of where those employees may be working. The Coalition agrees that the production operator must have -- must maintain the responsibility for informing contractors of site-specific hazards since it is the production operator who is in the best position to know what site-specific hazards exist. However, the Coalition believes the contractor then must include this information as a part of this training of its employees. This approach does to preclude the contractor from asking the production operator to communicate with the contractors' employees about site- specific hazards; nor does it prevent the production operator from initiating a communication directly to the contractor employee about site-specific hazards. The Coalition recommendation would, however, provide necessary consistency and clarity about who is ultimately responsible for all training. This consistency and clarity are essential to the safety of all people working at the mine site. MSHA's insistence that a competent person must accomplish training unduly limits the flexibility of small operators to offer instruction by other than traditional types of instruction. As an example, it should be fully acceptable for a miner to receive training by means of a CD ROM in a classroom setting administered by someone other than a competent person. The Coalition recommends the proposed rule be changed to require that training be done under the direction of a competent person. The Coalition strongly supports MSHA's proposal that it will accept OSHA and other equivalent training where appropriate. The Coalition does believe, however, that MSHA should clarify its statement that such equivalent training must be safety and health training that is relevant to the mining environment. MSHA should make it clear that this does not mean that the training in question must have been directed to the mine environment; but rather the training be relevant to the work and/or health and safety risks that the worker will experience in the mine environment. MSHA states in its proposal that it views close supervision to mean that a competent person must be physically near the miner and give him or her the competent person's undivided attention. The Coalition objects to MSHA's proposed requirement that miners work under close supervision as that term is defined until their new miner training is completed. Should, for example, a competent person be standing at an untrained miner's side giving him or her complete attention while the miner is sweeping out a maintenance shop, the Coalition recommends the definition of close supervision be redefined to reflect appropriate attention commensurate with the risk of the supervised activity. The Coalition favors a working day criterion as opposed to a calendar day criterion for completion of new miner training. A miner may work for several weeks, then be laid off, only to be rehired again at a later time. Under such a scenario, training received before or during lay-off may be largely forgotten before he or she returns to work. Therefore, it would be far more effective to train when the miner is working and can immediately apply what he or she has learned. MSHA does not specifically provide for the use of practice to count towards satisfaction of the health and safety aspects of assigned tasks for newly hired experienced miners. The Coalition thinks the agency should. If the miner can demonstrate through practice to the satisfaction of a competent person that he is familiar with the health and safety aspect of assigned tasks, then what justification is there to require more? The objective of assuring the miner is properly schooled would be satisfied. And those are my comments. MS. ALEJANDRO: Mr. Klinepeter, I've got a couple of questions. MR. KLINEPETER: Sure. MS. ALEJANDRO: I'm not sure I understood the point that you were making about hazard training and task training. I -- what I understand is that you indicated that the paperwork requirements in the proposal for hazard and task training presented some obstacle or were unduly restrictive, or did I misunderstand that? MR. KLINEPETER: No. My -- my point there was the documentation of training plans that would be required for both hazardous training and task training. MS. ALEJANDRO: Okay. In the plans themselves. MR. KLINEPETER: That's correct. MS. ALEJANDRO: Okay. So the itemized information that is required you're saying is not appropriate -- MR. KLINEPETER: That's correct. MS. ALEJANDRO: -- for hazard and task training. MR. KLINEPETER: That's correct. MS. ALEJANDRO: And you would instead suggest that -- MR. KLINEPETER: That it be limited to a statement of objectives and method of instruction. MS. ALEJANDRO: Okay. All right. Let's see. I had some other questions. And as far as responsibility for training, you -- your position is that production operators should be responsible for all aspects of training for their employees and independent contractors should be responsible for all required training for their employees. MR. KLINEPETER: The production operator would be responsible for the hazardous training of all -- MS. ALEJANDRO: Site-specific hazard training. MR. KLINEPETER: Site-specific hazardous training for all independent contractors. MS. ALEJANDRO: Okay. And you support that or you don't support that? MR. KLINEPETER: I support that, yes. MS. ALEJANDRO: Oh, okay. I guess -- I guess I'm having a little bit of a hard time. Under the proposal, independent contractors who have employees who fit the definition of miner would be primarily responsible for ensuring that their employees have required training. Similarly, production operators would be primarily responsible for ensuring that they have site-specific hazard training. Now, what -- what part of that is it that you disagree with? Is it that it's not the primarily responsible; you're saying that they should be exclusively responsible for that training? MR. KLINEPETER: Exclusively, that's correct. MS. ALEJANDRO: Okay. So you're saying in those situations, I mean, it wouldn't be an opportunity for MSHA to issue citations to both; I mean, one or the other and exclusive responsibility for ensuring that that training is -- MR. KLINEPETER: That's correct. MS. ALEJANDRO: Okay. MR. KLINEPETER: And my viewpoint there goes to the legal definition that businesses are contending with in today's environment where dual citations can and have been issued -- MS. ALEJANDRO: Okay MR. KLINEPETER: -- the legal definition of an independent contractor. MS. ALEJANDRO: Okay. All right. I think that's all I have. Rod, do you have any questions? MR. BRELAND: Yes, maybe a couple, Kathy. The -- the working day criteria -- I want to make sure I understood -- you were talking about in lieu of some calendar clock running I assume. MR. KLINEPETER: That's correct. MR. BRELAND: What -- what if you had the proposal, the 60-day requirement to complete the 24 -- initial 24 hours. Are you saying that could be -- under your -- your -- your suggestion maybe dragged out over several years if somebody is only working intermittently? MR. KLINEPETER: No. And my comment there was the person -- and maybe this doesn't really apply obviously to the southeast area of the country. But in those regions where short-term lay-offs are -- are reoccurring and maybe lay-offs for a very short period of time. I'm not talking about an extended period of time or an economic down-turn of a longer duration. MR. BRELAND: Well, could you give me an example what you meant then in one of your situations you're familiar with where the working day criteria would be an appropriate fit for -- MR. KLINEPETER: Well -- and maybe I'm confusing the issue here. And I -- I apologize for that. But the point I'm really trying to make there is it's effective -- it's far more effective to train the person when they are actually working than to have the person being trained where they're not -- MR. BRELAND: Oh, okay. MR. KLINEPETER: -- where they can apply their skills in the immediate -- in the immediate environment. MR. BRELAND: I must have misunderstood you then. And then also, you talked about the documentation being burdensome I guess for the assigned task training and hazard. Now, is that the only two places where you were concerned about the documentation being burdensome? MR. KLINEPETER: I don't believe I made the comment that the documentation was -- MR. BRELAND: You -- you were suggesting that it just be a statement of fact of what you -- MR. KLINEPETER: Oh, the documentation -- documentation in terms of the training plan, the written training plan. I'm not talking specifically -- MS. ALEJANDRO: You're not talking about record- keeping. MR. KLINEPETER: I'm not -- MS. ALEJANDRO: You're talking about -- MR. KLINEPETER: I'm not talking about record- keeping. MS. ALEJANDRO: -- what needs to be in the training plan with regard to the outline or what -- what's going to be addressed in the -- MR. BRELAND: Okay. MS. ALEJANDRO: -- site-specific hazard training and the task training. MR. KLINEPETER: That is correct. MS. ALEJANDRO: Okay. MR. BRELAND: Okay. And then I wanted to make sure I understood what you meant by competent person. Are you talking about that if you had some program set up where you could have some interactive CD ROM-type of program, you could get somebody started basically or assign them to review that and -- MR. KLINEPETER: Yes, that is correct. And I agree with Kevin's comments during Mr. Hart's presentation about being OSHA-based. And certainly, it is our -- our goal, at least at Florida Rock, that -- that everyone be considered a competent person. I think we're all -- ultimately we're all responsible for training and training of a new employee that we certainly teach our people to look out for one another, not only -- and to take responsibility not only for their own actions, but responsibility for the actions of people working next to them. And my approach is really just very -- is very practically oriented. And again, we talk about the commentaries of a small operation, a five person or less operation in Crossroads, Florida. To be able to get training available to that person and to have effective training, I think you've got to have quite a bit of flexibility and the ability not only to -- to provide various media forms of training, but also to make that training available in the local areas where those -- those operators exist. MR. BRELAND: Okay. And then one other thing. You started talking in the beginning about streamlining the training plan approval process. What did you mean by that? MR. KLINEPETER: That's -- again, that's where I mean as far as the requirements for the hazard -- hazard and task training, the documentation of hazardous and task training. MR. BRELAND: Okay. All right. Thanks, that's all I have. MS. ALEJANDRO: Kevin? MR. BURNS: Yes, I just -- I'm still not clear on the -- on the site-specific hazard training concerning contractors or -- is the point that you're making that operators should be able to supply contractors with that site-specific information and with the idea that the contractors would train their employees concerning those site-specific hazards? MR. KLINEPETER: That they include -- that's correct. That's essentially -- MR. BURNS: Or -- or they can do it -- or the operator can give that training themselves to the -- MR. KLINEPETER: That's correct. We provide that initial site-specific hazardous training which them becomes a part of their -- of their training regimen, the contractor's training regimen. MR. BURNS: Okay. And then your comment concerning how close supervision is going to be defined, I guess basically you're -- you're stating that that should be somewhat performance based -- MR. KLINEPETER: On the -- MR. BURNS: -- depending on what that person is doing -- MR. KLINEPETER: On the specific hazards of the job being performed, that's correct. MR. BURNS: Okay. How -- would -- I guess it would be helpful if we could come up with, you know, more examples of what you're suggesting there. I mean, you did give one example. But -- but I mean this is -- this is sort of getting into an area of one of the things that we're trying to -- trying to get out of before with this "regular" and "frequent". I mean, those are terms that -- that can be interpreted in so many different ways. And every factual situation sort of changes the determination. So if you could, you know, put your heads together with some of the other people and try to come up with some more examples of how that should be applied, that would be helpful. MR. KLINEPETER: Okay. MR. BURNS: Yes. The other thing was you mentioned the competent person. It should be the training should be done under the direction of a competent person. And I guess that's consistent with what Ben was talking about where you might bring in an electrical person that is competent to talk about electrical, but may not be the best trainer in the world, but can answer questions and make people feel a little bit more comfortable that they're getting good electrical training rather than someone off the street. MR. KLINEPETER: That is correct, Kevin. It equally applies, say, for example, in Ben's case to a -- to a State Grant Program and being able to present some training being done by a competent instructor who is not an employee or direct employee of the operator. MR. BURNS: Okay. I don't have any more questions. Anybody else? MS. ALEJANDRO: Robert? Robert? Thank you very much, Mr. Klinepeter. MR. KLINEPETER: Thank you. MS. ALEJANDRO: Do you want to take a short break? MR. BRELAND: I guess we can ask people if they want to come up. MS. ALEJANDRO: Yes. We -- we're going to take about a ten minute break. And in that ten minutes, I would encourage people who have not signed up to speak to come up to the podium here or to the desk I guess and sign up to speak. And I also have got extra copies of the proposal. And if you need any information, feel free in the break. We'll start again in about ten minutes. (Whereupon, a brief recess was taken.) MS. ALEJANDRO: The next speaker that we have is - - and I apologize in advance for the pronunciation -- David Mihalik from Florida Minerals Association. MR. MIHALIK: Mihalik. MS. ALEJANDRO: Mihalik. MR. MIHALIK: You did well. Good morning. I appreciate the opportunity to come before this group. As I said, I'm representing the Florida Minerals Association. It's an industry group of mining and minerals processing industry companies. It was formed in 1997 with the purpose effectively addressing legislative and regulatory issues impacting the common issues. FMA currently contains 26 member companies from the mining and minerals processing industry throughout Florida. Again, like I said, I appreciate the opportunity to present some views on this particular regulatory language. I didn't -- I didn't do what I was supposed to do as far as my name yet either. So my name is David Mihalik. It's M-I-H-A-L-I-K. And I work for Engelhart Corporation in Quincy, Florida. I am here representing the Florida Minerals Association. While we in the mining industry do strive to provide the training necessary to provide a safe environment in which to work -- and I believe that most, if not all, our member companies are striving to meet what is currently existing in Part 48 -- we do have some concerns about what is being proposed. We generally support the guidance and the training. It's something that's been lacking from OSHA -- or from MSHA. What we want to do is avoid getting vague guidance -- and we've seen some of that with some of the regulatory language in the past -- that can be used as an enforcement tool. There are a couple of areas that we wanted to address as far as clarification. On the subject of "miner", I do think what's in there -- what's in the language is more appropriate than what's in Part 48 for the industries that are involved. There are some examples in the preamble language. I think it may be even better to give some more examples in the -- in the language. For example, areas that we struggled with as far as what training to give people if we have people come in, we contract grass-cutting services. And if it is in particular a dam for a containment pond on our facility, how far do you go as far as, you know, do you -- do they require 24 hours? Probably not. Site-specific hazards, yes. And you addressed the issue with water and things like that. But looking at the language that's in the current proposal, I think that puts a lot of -- a lot of onus on the -- the inspector when he comes in to decide what really is appropriate and what isn't appropriate. And that's where we have some concerns there, is where the -- what -- what is a miner and what really isn't a miner. The other aspect there -- and I appreciate the opportunity that this does present as far as the flexibility with the training and all that are involved. In our facility -- I'm out in Florida -- we have probably 30 people who are involved directly in the mining operation, the actual extraction of the material from the ground. We have a total of 176 people though within our facility. The rest of those people are involved in the milling and grinding and packaging aspects. I would like the opportunity to have the flexibility to do different training for those people. Obviously, if you follow Part 48, I have to do some of the things as far as berms and things like that for everybody right now if you follow the specific language of what it says. I've got people who have worked at my milling operation for 30 to 35 years who, except for the MSHA training, probably couldn't tell you what a berm is because they don't get out in the field where the mines are. But they are still yet an MSHA site. Their training we would like to gear more towards things like guarding, lock-tag try, things like that that are more pertinent to the job they do. Concerning the written training program, I think it's a great idea to require it. I'm a little unclear on the -- on -- on why we would -- on why you would want to submit it for approval and what value that has to MSHA or to the site. I'm not sure whether it's to address smaller sites -- MS. ALEJANDRO: Well, I think the -- what we got in comments was a concern on some people's part that they -- I mean, it's like the good housekeeping seal of approval; that it would have gone through MSHA approval and therefore there's not going to be an inspector who follows up and comes and says that the plan is inadequate. I mean, if they get formal approval, then they have eliminated -- MR. MIHALIK: Is that to say that if you got formal approval, the inspector won't look at it or -- MS. ALEJANDRO: Well, no. The inspector won't come and say, "This falls short. This doesn't meet the requirements." I mean, that -- that was the impression we got from the comments. So it was that some people may choose or would like to have the opportunity to exercise that option, but that it not be required. MR. MIHALIK: Okay. MS. ALEJANDRO: That was the thinking anyway. MR. MIHALIK: Okay. Thank you. Concerning new miner training, you had asked for some comments concerning whether or not we ought to specify hours. Looking at the different type of mining operations, in particular, in the panhandle, I think Ben addressed this a little bit. I'm not convinced that you need to specify a minimum number of hours, say eight hours or six hours or four hours, or even try to split it up based on mine sites because when you look at different things, Ben -- I think Ben stated that you could -- some of the facilities you can walk around in an hour and others it may take you days. And to specify hours of training, I think we would end up in a lot of cases of putting people in training that really wouldn't be necessary and wouldn't be necessary just because you have to do -- fulfill the eight hours. I think the -- the 24-hour commitment, that specifies what you have to do. And I think to require something just to have someone come on site is not necessary. As far as training instructors, no formal certification I strongly believe should be required. I'm probably a good -- I'll use myself as an example. I've been in the mining industry for nearly two years now. My background, however, is OSHA. I implemented a VPP program in a facility under OSHA, a 2000 person facility. I've been doing safety training for approximately 12 years of the 15 that I've been there. I think I'm certified. However, under the Part 48, I have not gone to that two-week course or submitted to get done, and therefore I'm not a training -- certified trainer under Part 48. And so we use Ben and that's fine. Ben does a good job. But -- but I think that's -- that's a good example of what it is. The other thing I would address -- and I think Mark touched on it a little bit concerning computer -- computer-based training. And that's something that we've been starting some information on. And we do that in addition to other training that we do. We do the annual refresher training and such there. But computer-based training is probably the -- you know, the effort of the future. And I think this regulation should address that issue somehow whether you say that computer-based training can be administered under a competent person. That's fine. But I think that the lack of having it may be interpreted at some future date as not being allowed. MS. ALEJANDRO: Yes. No, I mean, I think the intention clearly in the proposal was to allow not only existing technology for training, but also to have the flexibility to allow things that may be developed in the future. And I think that's a good point that's been raised, is how does a competent person fit in when you've got some kind of an interactive, computerized system. So that's -- I mean, that's something that we will certainly take a look at. MR. KLINEPETER: Great. And by the way, there is some really good computer-based training out there. So it's just like instructors. So it's not -- it's not inconsistent. MR. MIHALIK: The other comment that I wanted to make was concerning phasing in versus a time frame to administer this. I definitely support the time frame aspect. I think phasing in would only add confusion. Most of us are -- I think most of the mining industry in Florida is already doing the training anyway. But I think there are some aspects as far as contractors that -- that may take some time. I would recommend the one-year basis as opposed to the six-month just because it gives time. And with the support of the -- or in Ben's case, the lack of support of -- monetary-wise, I think to get some of those things done for some of the contractors could be very difficult. One of the aspects which I didn't hear addressed, finally, that I wanted to address was -- and you mentioned with construction workers. And this is kind of a question for the panel from me is -- is we struggled a lot. We had a construction project at our facility about a year and a half ago. And we had a company come in and do the training. We -- we had them -- they were not familiar with the MSHA requirements because they did a lot of OSHA. We did a lot of work with them on making sure they had all their people trained and met the qualifications even though we were an exempt facility. We believe in safety. However, their comment back to us was, "You're repeating a lot of what we already have to do under OSHA. But because it's not allowed under OSHA, that OSHA training does not transfer to MSHA, we're having to re-do this." And we feel like we paid extra money because of that and really got very little results out of that. So I'm curious from the panel's perspective, is there some way that we can cross-reference, if you will, the training that they receive under OSHA versus -- and maybe the competent person does address that. MS. ALEJANDRO: Well, yes. There is -- there is a specific provision. I think it's in 46. Where is it -- 46.4 -- MR. MIHALIK: Okay. MS. ALEJANDRO: -- that provides that, "Equivalent training required by OSHA or other federal or state agencies may be substituted to meet the requirements under Part 46 where appropriate." MR. MIHALIK: But -- MS. ALEJANDRO: So the intention was to -- MR. MIHALIK: As long as you -- as long as you leave the "competent" language there, that would apply. But if you went back to the certified language, would that still -- MS. ALEJANDRO: I -- well, I mean, I think the idea was there was a lot of effective, relevant training that people were receiving under OSHA. And either because they had experience outside of the mining industry and came into the mining industry with experience which this training would be credited, or because they switched back and forth between OSHA-regulated facilities and MSHA-regulated facilities. I mean, the intention was that relevant OSHA training and training provided by other agencies, that we were intending to provide that you would get credit for that and you not have to repeat training that's already been given. MR. MIHALIK: Okay. MS. ALEJANDRO: But I guess what your question is, is that hypothetically if under the final rule we should impose, you know, more restrictive instructor requirements, then how does that fit in -- MR. MIHALIK: Yes, that's correct. MS. ALEJANDRO: -- with the -- and that's a good question. I mean, and that's something that we obviously would like to keep in mind. MR. MIHALIK: I would support you not going back that route -- MS. ALEJANDRO: Okay. MR. MIHALIK: -- I guess is what I would say. MS. ALEJANDRO: All right. Thank you. MR. MIHALIK: And that's all the comments I have, if you have any questions. MS. ALEJANDRO: Okay. I don't have any -- any questions. Rod or Kevin or Robert? MR. BRELAND: I had a couple. One, you talk about you would like to see more guidance in the area that's vague up there on -- what -- what did you have in mind exactly? Are you -- MR. MIHALIK: Well, I believe in the preamble, there was some -- some reference given about electricians coming on site, that type of -- that type of reference. That was one point I guess that was made. And I don't know whether it would be appropriate -- I'm not suggesting it would be appropriate to list these type of -- clerical workers and that type of thing. But -- but in some of the discussions we've had in the sidebar, if you will, here, one of the issues that came up is I have, let's say, an accounting manager who we have go out in the facility to do STOP which I guess is Dupont's Safety Training Observation Program. That's what STOP stands for. And he goes out and we require him to go out once a week to do that. Does that mean because I've required him to go out and make observations that he would be required to go through a full eight-hour annual refresher, or do I just do him site-specific? And -- MS. ALEJANDRO: So you're saying that specific examples in the preamble to the final rule -- MR. MIHALIK: It may be appropriate, something that we could reference -- MS. ALEJANDRO: More examples to give a better idea of what it is that we intend -- MR. MIHALIK: Yes. MS. ALEJANDRO: -- or are you suggesting that maybe we need more clarifying language in the rule itself? MR. MIHALIK: I think it would appropriate in the preamble, not in the rule. MS. ALEJANDRO: Okay. MR. MIHALIK: I don't think -- I don't think -- if you put it in the rule, it's going to be hard and fast. MS. ALEJANDRO: Well, I mean, and that's -- you know, that's the problem that you run into when you start to use, you know, specific terminology, that it can be ambiguous. MR. MIHALIK: You know, and -- MS. ALEJANDRO: All right. MR. MIHALIK: -- and if nothing else across the mining industry, terminology is not -- MS. ALEJANDRO: Okay. MR. MIHALIK: -- standard. MS. ALEJANDRO: More examples. MR. MIHALIK: Yes. MS. ALEJANDRO: Okay. MR. BRELAND: Yes. I would suggest that if you have in your sidebar discussions some of those examples, those would be good to submit as comments, that these are the kinds of reoccurring kinds of -- MS. ALEJANDRO: Yes. MR. BRELAND: -- situations that ought to be considered because inspectors will no doubt run into those, just like you said, where they have to make a decision. So if early in there is discussion in the preamble, it would be good to have those examples if you have some concern, at least -- MR. MIHALIK: Yes. Think about things like air -- people doing air conditioning; people -- delivery people who -- even Fed. Ex. and things like that. Those are examples of -- MS. ALEJANDRO: And I would say -- I mean, that's true for all aspects of the proposal. I mean, and this applies to everyone here. If you have got, you know, a specific situation that you don't think is clearly addressed by the language either in the rule itself or in the preamble and you want, you know, some -- some light shed on how the proposal was going to affect a particular situation, I mean, it would be very helpful if you could, you know, send that in in writing to us. And then we can consider including it in the proposal or even addressing it to some degree in the rule to clear it up. Because obviously, I mean, it's not going to do us or you any good if the provisions in the rule are unclear. MR. BRELAND: The same thing on the -- where you brought up, following up on that, the milling versus the mining. And the difference in the milling aspect would be a lot more like your OSHA background and probably industry kinds of -- MR. MIHALIK: Correct. MR. BRELAND: -- experience versus an extraction- mining kind of process. But I would do the same thing. If you see clear areas that are of more benefit in the milling area than it would be in the mining, you might want to give examples that make that break, how you would tailor your program -- MR. MIHALIK: Right. MR. BRELAND: -- within the same mine property if you will or the same ID. MR. MIHALIK: And I like what was done in the proposed rule as far as this more specific areas you have to give training on. I think that's -- that was well stated and very appropriate what was done there. So -- MR. BRELAND: And the OSHA duplication of training OSHA has has come up with four. But do you have some examples when you say, "We were doing some training with this construction company", and you said, "Gee, we had this already; it's kind of" -- are you talking -- was it a task training phase of it or -- MR. MIHALIK: Well, I think about things like lock-tag and try, fall protection -- MR. BRELAND: Those kinds of things. MR. MIHALIK: -- those type -- those type issues. In fact, some of those, OSHA has stronger guidance, I guess, would be the appropriate term. Forklift operation is another good example. There is some strong specifics on forklift operation that OSHA has that don't necessary apply to what we do and you don't think as mining as being forklift operation. But unfortunately, we use a lot of forklifts. MR. BRELAND: That's all I have. MR. BURNS: I think most of them are covered. The only -- I mean, your concern about the -- the acceptance of OSHA -- relevant OSHA safety and health training and that being tied to the definition of the person that's doing the training -- MR. MIHALIK: Right. MR. BURNS: -- that is part of the problem now, that, you know, under 48, the training has to be done by a qualified trainer. And if you have people that were trained under OSHA and they weren't -- they weren't qualified through our process, then it wouldn't count. But we wouldn't necessarily have to treat those two things as being, you know, one issue in this rule because, you know, we're aware of that concern now. So, I mean, certainly, we wouldn't have to tie those two issues together. MR. MIHALIK: Okay. MR. BURNS: But I don't think we would. I think back when 48 was promulgated, that, you know, there wasn't - - that wasn't recognized as a problem. Yes, for -- you know, to have someone -- other people raised examples of, you know, having a -- having a paving contractor come on your property that maybe does the majority of the paving in the state and complies with all kinds of DOT training requirements and OSHA requirements. How are you going to tell them how to -- how to protect their workers, you know, putting in a parking lot for you better than what they've already -- already done? It's pretty tough. But in many cases, people have had to require them to have 24 hours of training. MS. ALEJANDRO: All right. MR. BURNS: Anybody else? MS. ALEJANDRO: Robert? Robert? Thank you very much. MR. MIHALIK: Thank you. MS. ALEJANDRO: We have reached the end of the people who have -- list of people who have signed up to speak. And at this point, I would like to ask if there is anyone here who has not spoken who would like to speak or who has already spoken who has additional comments they would like to make. Okay. I will give you just a little short summary of what comes next. As I mentioned earlier, we're going to have three additional public hearings this week and next week. The record will close on June 16th. So if you would like to send in written comments, I encourage you to do so by that deadline. And then we will work to develop a final rule from all of the comments that we have received on the proposal. And also, as I have indicated earlier, our deadline -- Congressional deadline is to come up with a final rule on or before September 30th of 1999. And we are intending to do everything that we can to meet that deadline. If you need a copy of the proposal, I have extra copies up here. Also, for those of you who have internet access, I encourage you to visit the MSHA website at www.msha.gov. We have a button on the home page for what's going on on the Part 46 rule-making. Among other things, we will be posting the transcripts of these hearings and any other documents that are relevant. That is pretty much all I have to say. If anybody has any additional questions, please feel free to come up here at the termination of the hearing. Otherwise, I thank everyone who came. I specifically thank the people who came and spoke. And I look forward to finishing this project. Thank you very much. (Whereupon, at 10:10 a.m. on Tuesday, May 18, 1999, the hearing was concluded.) // // // // // // // // // // // // // REPORTER'S CERTIFICATE DOCKET NO.: N/A CASE TITLE: TRAINING AND RETRAINING OF MINERS HEARING DATE: May 18, 1999 LOCATION: Orlando, Florida I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the United States Department of Labor. Date: May 18, 1999 Bonnie Niemann Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N. W. Washington, D. C. 20005