In Re: ) ) PUBLIC MEETING ON ) MINING SAFETY TRAINING ) PAGES; 1 through 120 PLACE: Albany, New York DATE: December 11, 1998 MINE SAFETY AND HEALTH ADMINISTRATION DEPARTMENT OF LABOR In Re: ) ) PUBLIC MEETING ON ) MINE SAFETY TRAINING ) Salon A Marriot Hotel 189 Wolfe Road Albany, New York Friday, December 11, 1998 The parties met, pursuant to the notice, at 8:14 a.m. PARTICIPANTS: KATHY ALEJANDRO, MSHA KEVIN BURNS, MSHA ROSLYN FONTAINE, MSHA T. J. LYONS, Rifenberg Construction; speaking as an individual MARINO FRANCHINI, New York State Department of Labor ALLAN ZWOBODA, Homes Safety Association RICHARD CUCOLO, New York State Department of Labor DONNA SHAVE, Rifenberg Construction SAL CASTRO, Buffalo Crushed Stone RICH COME, Cummons Northeast, Inc. ED THOMPKINS, Blue Circle Cement JOHN KLUCSIK, Devorsetz, Stinziano, Gilberti, Heintz & Smith P R O C E E D I N G S MS. ALEJANDRO: Good morning. My name is Kathy Alejandro. I am with metal and nonmetal mine safety and health for the Mine Safety and Health Administration, U.S. Department of Labor. And I would like to welcome you to the third of seven public meetings on regulations for miner safety and health training. These meetings are intended to give individuals and organizations, including miners and their representatives and mine operators, both large and small, an opportunity present their views on the types of requirements that will result in the most effective miner safety and health training. These regulations would apply at those nonmetal surface mines where MSHA currently cannot enforce existing training requirements. I would like to take this opportunity to introduce the members of the MSHA panel who are here with me this morning. To my right is Kevin Burns, who is also with metal and nonmetal mine safety and health, and to my left is Roslyn Fontaine, who his with the Office of Standards Regulations and Variances with MSHA. 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 any sand, gravel, surface stone, surface clay, colloidal phosphate, or surface limestone mine." In the omnibus budget passed by Congress on October 21, 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 30, 1999. It is understood that these regulations are to be based on a draft submitted to MSHA by the Coalition For Effective Miner Training no later than February 1, 1999." MSHA expects to publish a proposed regulation in the Federal Register some time in the early spring of 1999. The regulations that MSHA will be developing must include the minimum requirements in Section 115 of the Federal Mine Safety and Health Act of 1997. To summarize those minimum requirements: Section 115 provides that every mine operator shall have a health and safety training program that is approved by the Secretary of Labor, and that complies with certain minimum requirements. Section 115 specifies that surface miners are to receive no less than 24 hours of new miner training, no less than eight yours of refresher training annually, and task training for new work assignments. Section 115 also requires that the training cover specific subject areas; provides that training is to be conducted during normal work hours at normal pay; requires that miners be reimbursed for additional costs they incur incidental to such training; and provides that mine operators must maintain miners' training certificates and furnish such records to the miners. In addition to these minimum requirements, MSHA is looking for suggestions and comments from you as to how best to achieve effective miner safety and health training, consistent with the Mine Act, including any additional requirements that should be included in the proposed rule, and most importantly, why. Two public meetings have already been held earlier this week, one in North Brook, Illinois, outside of Chicago, and one in Denver on Wednesday. Public meetings have also been scheduled at four other locations in the coming weeks, including Portland Oregon; Ontario, California; Dallas; and Atlanta. This is intended to give as many individuals and organizations as possible an opportunity to present their views. We are intending to conduct this meeting in an informal manner, and a court reporter is making a verbatim transcript of the proceedings. Anyone who has not signed up in advance to speak at the meeting and wishes to speak here today should sign up on the speakers' list which is currently located up here, but I will make it available at the next break if you should decide that you do want to sign up. We also ask that everyone who is here today, whether or not you wish to speak, to sign the attendance sheet, and I think probably just about all of you have already done that. You may also decide to submit a written statement today, either today here or at some later point, which we will include as part of the record for the proposed rule that we are going to be developing. You can also send us written comments after the meeting. Although we don't have a formal deadline for written comments, I would encourage you to submit any written comments that you have on or before February 1, 1999, and that will ensure that we are able to fully consider them. Although we are most interested in what you have to say to us, we will also attempt to answer any questions you may have to clarify the process and the purpose of this meeting. We are specifically interested in comments that address certain areas, although you are encouraged to comment on any issue related to miner safety and health training at currently exempt mines. The issues we are particularly interested in were outlined in the November 3 Federal Register notice that announced the schedule of public meetings, and I will provide you with a short summary of those issues now. Should certain terms, including "new miner" and "experienced miner" be defined? Which subjects should be taught before a new miner is assigned work, even if the work is done under close supervision? Should training for inexperienced miners be given all at once, or over a period of time, such as several weeks or months? Should supervisors be subject to the same training requirements as miners? Should task training be required whenever a miner receives a work assignment that involves new and unfamiliar tasks? Should specific subject areas be covered during annual refresher training? If so, what subject areas should be included? Can the eight hours of annual refresher training required by the Mine Act be completed in segments of training lasting less than 30 minutes? Should records of training be kept by the mine operator at the mine site, or can they be kept at other locations? Finally, should there be minimum qualifications for persons who conduct miner training? If so, what qualifications are appropriate? I would now like to introduce our first speaker this morning. We ask that all speakers state and spell their names for the court reporter before beginning their presentation, and I thank you all for coming this morning. The first speaker that we have signed up is T. J. Lyons of Rifenberg Construction, Inc. Is Mr. Lyons here? You can either sit or stand at the podium? MR. LYONS: I want to get in front of everyone. MS. ALEJANDRO: Okay. MR. LYONS: My name is. T. J. Lyons. It's L-Y-O- N-S. And I'm speaking as an individual, not as an employee of Rifenberg Construction today, for the record. I wish to thank you all for the opportunity to offer my comments on proposed miner safety and health regulations. With a background in the safety field, and the knowledge of the hazards associated with surface mining, I see a comparison between what is being proposed to the initial training that was required prior to allowing workers on hazardous waste site operations. In my opinion, many of the hazards are similar and protected measures are the same. Dealing with airborne contaminants, excavations, spoil piles, confined spaces, respiratory protection from heavy surface material are a few of the commonalities between the two. My first comment would be for MSHA to review the standard, its tasks and follow the NIOSH, OSHA, United States Coast Guard Occupational Safety and Health Guidance Manual for hazardous waste site activities. This document is the bible of the industry and was put together in a fashion that makes it easy to read -- short sections and plenty of pictures. The format of this document may be something for MSHA to copy. In my own opinion, this is a great training aid for a lot of the original 1910 120 training for the HAZ WAPRO standard. It's easy for the students to follow, quite a few bullets in it, not extremely technical but comprehensive. With regard to the action of training of new miners, I would first suggest that all miners, new and experienced, receive the same level of training. There are likely too many miners, experienced miners, with poor safety habits. They must be made aware of improvements that may have been made since they had been in the trade. As an example, tracking of near misses has become an important component of any safety effort. I'll speculate that a near miss to many old miners would mean a negative pregnancy test, not how it works. Next, instructor surely needs to be competent in the field of mining and safety to present the information. Simply pulling someone from the ranks to provide the training would be inadequate. In my opinion, training stresses the implication of exposure to work place dangers, sets the stage for an attentive learning audience. Knowing that the material you work with will harm or kill you is the best attention getter that I know. Toxicology or how things harm were stressed during the 1980s with regard to the asbestos hazard in schools. People from across the United States are now familiar with the standards and material and it has become fact that asbestos can kill. We need to do the same for silica in the 1990s. Last, if the training is presented by a third party and the instruction is focused on what kills and how to stay alive, lessons will be learned. I believe that this must be presented during an eight-hour period in order to link components in the training like atmospheric hazards in confined spaces, or how the body filters airborne particles in health effect section with a link on how well respirators work. At a minimum, I believe this training must be presented by someone certified by a recognized professional organization in health and safety. This would include an occupational health and safety technologist, associated and certified safety professionals and certified industrial hygienists. This is a recognized standard for board certified professionals who present this critical information and field questions on a wide range of health and safety questions that should be important to miners. This board certification also will set a level playing field for the minimum training requirements for instructions across the United States. Last, I just want to comment that there is some discussion in the Federal Register announcement about perhaps breaking the segments into 30-minute portions, and I think when you do that you set an unreal time for people to know that they are going to be out in 30 minutes, and it would severely curtail any discussion among the group on a particular topic. In my opinion, this should be eight hours of concurrent training, not bits and pieces, but information that's not difficult to share with everyone or discuss in the room. I want to thank you for your time. I have one question. Is there a way to summarize perhaps some of the other comments from the previous two sessions? I think there is an interest in this group. MS. ALEJANDRO: Yes. I mean, we can do that. I think what I'd like to do is go through the speakers that we have signed up, and then we can give you some idea of what comments we've gotten at other. Mr. Lyons, I have one question. You indicated that as far as training instructors, that they have minimum qualifications of being certified as a health and safety professional. Do you have any recommendations regarding whether there needs to be some training or certification as far as, you know, the teaching component, I mean, that they be qualified to teach? MR. LYONS: Yeah, I think you will find that people who are interested in providing or presenting instruction are the ones who are going to come forward. You may want to take a look at the people in the ranks who may qualify, but they certainly need to know how to present information or it's going to be a bogus, you know, you put in your eight hours and you're back to work. If you have been certified or tried to get the process of certification through these particular boards, training and committee involvement, public speaking is a portion of that certification process. So a lot of that is already weaned out. If you had been registered, you probably have some of those skills already to make the presentations. A certified industrial hygienist is a good example. They work with people every day. They present some very good information on toxicology, health effects, et cetera, and one of the portions of the CIH's job is to share that information with employees, so a lot of these skills would already be in place if they are certified. MS. ALEJANDRO: Okay. And you also indicated, I mean, that you feel fairly strongly that refresher training should be given all at once, the eight hours all at once rather than broken up? MR. LYONS: Yes. MS. ALEJANDRO: I mean, you don't think that there may be situations where it may be appropriate to give shorter periods of time? I mean, to summarize some of the comments we've gotten, I mean, some people have suggested that, you know, training over some period of time is more effective. I mean, the retention, you know, is better if you spread it out rather than have it all at once. MR. LYONS: Also, for production standpoint, you don't want to shut down some operation and have your people take eight hours worth of training. But I think if you put the emphasis on shutting down production in the interest of doing safety, I think we need to recognize that eight hours is time spent making a safer working place is only going to entail better production, safer production in the end run. I believe this whole process of training miners now is similar to where HAZ WAPRO was as it ran its operations in the late eighties. People did not recognize the value of a safely trained work force and properly. I think if MSHA were to state that and make it clear to the mine operators that there is a return on value, the eight hours would not be so cumbersome as far as loss of production. We've presented training courses over the last several years, I personally have, for fire companies as an example, the volunteer firemen, and when you break the training down into two or three-hour sessions, that may be a minimal. You need to have a focused event for the evening. A 30-minute presentation, I believe, will not serve in the best interest of the people involved. MS. ALEJANDRO: Do you conduct training or are you involved in training at your construction company? MR. LYONS: Yes, I am. MS. ALEJANDRO: Okay, you give safety and health training to the employees there? MR. LYONS: Correct. MS. ALEJANDRO: Could you maybe tell us a little bit about your operation, I mean, just for the record? MR. LYONS: Yes. Rifenberg is a large construction firm. We have a couple surface mines in New York State. We do HAZ WAPRO training, MSHA training is performed every years, as well as an annual safety training for all the employees. It takes quite awhile to get, in my opinion, employees to recognize the value of not only working safe for themselves, but to watch the people they work with to ensure that they are doing everything safely as well. Eight hours a day seems like a long time to put a guy in work boots in a classroom to expect him to listen. But you get a close knit group, and there is a team work effort involved, you will see after maybe a few hours of presentation, you start skimming off into conversations, case histories. MS. ALEJANDRO: Um-hmm. MR. LYONS: It makes for a very active discussion, and I think it's the best, the beat learning experience at that point. MS. ALEJANDRO: Is the eight hours of -- or the refresher training that you give typically classroom training or is there also on-site, hands-on training as well? MR. LYONS: Typically, we have speakers; for example, they will speak on toxicology. Not one person is an expert on everything. We'll have a speaker, a OSHA hygienist who will talk about air sampling. Our insurance company comes in and may do something on excavation or something that's close to the topic of the refresher, but we'll also go through some of these -- it needs to be done every year for high calibre safety meeting, some of the stuff gets missed. You have the whole group there at the same time and you explain some of your expectations on calibration and how important that is legally and to protect yourself. That's usually how we spend the better part of the afternoon. MS. ALEJANDRO: Do you have any questions? MR. BURNS: The manual -- do you have a copy of that manual that you -- MR. LYONS: No, but I can get you the number. MR. BURNS: I'm pretty sure I have a copy. Yeah, if you could send us the number. You can either just call the number that you have. Do you have the Federal Register notice? MR. LYONS: Certainly. MR. BURNS: Okay. I think I have it. It's a little pamphlet? MR. LYONS: It's beige. MR. BURNS: Yeah, I'm pretty sure I have it, but if could call with the number, it would be easier to get. MR. LYONS: Certainly. MR. BURNS: If I don't have it. Now, I think Kathy has covered the other questions. I was really just going to talk to you about the 30 minutes because that was an issue that has come up quite a bit, and we'll go over that later on as you suggested. Thank you. MR. LYONS: Thank you very much. MS. ALEJANDRO: Thank you very much, Mr. Lyons. All right, the next speaker on our list is Marino J. Franchini of the New York State Department of Labor. And I apologize if I haven't pronounced your name right. MR. FRANCHINI: That's okay. It's pronounced Franchini, and spelled F-R-A-N-C-H-I-N-I. And I'll be speaking on behalf of the New York Department of Labor. The Department of Labor would like to thank the Mine Safety and Health Administration for the opportunity to comment on proposals to develop and enforce training regulations on the crushed stone, sandy gravel, surface stone, surface clay, colloidal phosphate, and limestone mining industries of our nation. Mine safety training as an integral part of an employer's safety program should address the hazards employees face and the ways properly and effectively to find a solution that can be instituted by the employer in a fair and cost effective way. New York State has been a member of the grants program since its inception, and has provided on-site training to thousands of mine employees. The vast majority of this industry in New York falls under the Part 43 rider, and voluntarily uses our services. They rely on us for accurate, detailed information on required areas of training under the Mine Safety and Health Administration. We have published booklets, flyers and the like to enhance the operator's ability to provide a safe working environment to its employees. In addition, we have co- sponsored workshops each year with the Mine Safety and Health Administration, and a variety of industry-sponsored labor and management organizations to supplement supervisory training with programs that focus on the current enforcement and training issues. The bottom line is that this works. We have minimized the severity, frequency and occurrence of fatality and injuries in the mining industry in the state. We have done so with minimum funding, minimum staff and minimum cost to the employees of the State of New York. The New York State Department of Labor has concerns about how MSHA will implement the new regulations. I would like to cover these concerns so that MSHA can consider these issues in their development of the training regulations. Approval of training plans is the key issue. How will MSHA's approval of training plans be different from that of the non-exempt mine employers? Will training staff be relocated to New York or will this approval come out of the district office in Pennsylvania? Since New York has a large number of federal mines, does the staff here need to be near the source to address the specific needs and problems? What role will the education centers that MSHA has recently created play in the approval of such plans? Instructor certification is another issues: What progress has MSHA made in the tracking of the number of certified instructors in the surface metal/nonmetal industry? Is there more than enough of adequate trainers to address the enforcement of these regulations? Has the process to certify instructions been so monitored so that only competent, qualified people receive their certification? Will instructor certification be required to provide all forms of training under this new regulation? And will the enforcement of training regulations bring an obligation to MSHA to provide cost-effective solutions that address the needs of the industry? One cost-effective option is the state grants program. How does the state grants program fit into the equation? Will funding be increased to address the need for this training? And can the states in the states grants program rely on MSHA to provide definitive levels of funding to support training programs? How MSHA defines the terms "associate" with these regulations will also effect enforcement. Does an experienced surface miner have to record this experience? How will MSHA inspectors check on this? And will independent contractors fall under the same definition? There has been much controversy in determining how much training an independent contractor should receive. The grant program uses the number of independent contractors that are reported to be trained to determine levels of funding for each grantee. MSHA's ability to enforce this new regulation on this group will affect the level of funding available to each grantee. If construction experience counts towards this determination, can the same criteria apply to experienced surface miners? And if cast training is also included in these regulations, it must address these situations and allow each mine operator some flexibility to deal with those who have work experience, but not experienced in the more traditional methods of mining. Here in New York an important segment of the mining population works for municipal towns and counties that operates sand and gravel pits. Most of their employees work on the OSHA side of their operation. Will this experience count in determining their need for training? Does the fact that most of these operations are seasonal come into play? How extensive can the hazard training on portable equipment used by our municipal sand and gravel operators be? Is it appropriate to list self-rescue devices as a subject to train surface mine employees? And does MSHA have data to support this inclusion into the training requirement? Can subject areas that are covered under OSHA regulations be included in a program of instruction? What recordkeeping will be required, and will training certificates be needed by each municipal employee that may enter a mining property? The aforementioned issues do pose problems for the surface mining industry. We believe that MSHA has an obligation to provide workable solutions to each. The Department of Labor would like to know if MSHA has prepared an analysis for any of these issues. We would also like to see an analysis on the costs associated with implementing these regulations. Does this cost differ for small business operators than it does for large employers? Will the penalty structure be the same for a violation of these regulations? Have compliance guides or a sample model training program and programs been prepared by staff such as those assigned to the Mine Safety and Health Academy in Beckley? And will these guidelines be available before the regulation goes into effect? The Department of Labor hopes to continue its fine relationship with the Mine Safety and Health Administration, and that the issues before both of us provide a forum for dialogue between the industry and its regulators. We hope the dialogue continues to recognize the most critical segment of the mining industry: The issues of providing quality training for all mine employees, offer MSHA an opportunity to provide quality solutions that can be embraced by the mining industry and, in turn, help employers lower the costs associated with workplace accidents and illnesses that affect each employer's ability to stay in business to compete in the open market. I would also like to add a couple of personal comments regarding the Mine Safety and Health Administration's safety training. No one who has stood up in front of a group of mining employees and has talked in detail about fatality and the methods recommended to prevent another recurrence can be against the idea that training is a critical element of a mine employer's safety program. The loss of life in an accident that could have been prevented by safe work practices affects us all. I've been in the business since 1984 and have seen this effect. A company that failed to provide training, fails to take advantage of an opportunity to increase employee morale, improve customer relations, improve public relations with the community they live within and lower their operating cost, and last, but not least, save lives. The enforcement of training by the Mine Safety and Health Administration will help level the playing field by getting mine operators who do not provide at least adequate training to provide new miner and new refresher and hazard training to their employees. I personally believe this is how the mining industry can effect the rate by which we unfortunately seriously hurt and kill our most precious human resources. If this takes enforcement to make it work, then so be it. New York State is part of a Workers' Compensation Reform Bill, recently enacted a Workplace Safety and Loss Prevention Program for employers in the state who have not had much success in controlling their workers' compensation cost. As part of the program, employers who meet the parameters must implement a 12-point program that develops and implements a plan for safety. Within this plan is the requirement for training. I believe this is the most critical part of the plan. It is the way that the employer creates a proper environment for safety, the way that employees accept and buy into safety as part of their every day responsibilities, and the way that accidents can be avoided and severity minimized. Safety training works and goes a long way into turning production into safe production, a concept that management should not be able to afford to ignore. Many mine operators are subject to this law and just beginning to realize the impact of accidents on their ability to stay competitive and retain affordable compensation insurance. I do not believe that enforcement of the training regulations on surface mining operations pose a serious threat to any employer, and can only further attempts to keep the workforce safe and provide the nation with quality product and service. I personally hope the industry will embrace the proposal and work harder with MSHA to make sure that safe production is maintained rather than to let even one more accident to occur that could have been prevented by training. And, in addition, based on the comments that were made previously, I cannot begin to believe that MSHA would need to even consider using certified safety professionals or certified industrial hygienists or any type of license to provide good training to the mine employees in this nation. The grant program has been able for years to provide people who are not only interested and step up to the plate who want to provide the training, but certainly are qualified and know the mining industry, and that's been the key element, I think, here in New York. The people that we've certified as instructors come from the industry, they have a feel for what the problems are, and it gives the employer a chance to actually take a look at what's causing accidents in their operation and fix them. I think if you start to move towards other models where you're looking at canned programs, you're going to develop the same take that I think other federal agencies have taken, and you're going to move towards just doing training for the sake of compliance, and personally, I would not support any attempt to bring in any type of licensed or title protection for instructor certification in mining. Thank you. MS. ALEJANDRO: Mr. Franchini, I have a couple questions. You raised several issues, and specifically, you were questioning what the logistics or the process of approval of training plans would be under our new rule, and also instructor certification. Do you have any recommendations as far as what they might look like? Are you involved currently with getting training plans approved by MSHA in your -- MR. FRANCHINI: No, I'm not involved because technically, at least in my understanding, the district offices have the enforcement, have the authority to approve training programs. MS. ALEJANDRO: Right. MR. FRANCHINI: We have a training specialist at the district office that has not melded, in fact, they've never melded with the state grants people to take a look at training plans, and that's -- you know, I see that as kind of a failure. I mean, the person is in Pennsylvania. They've got 13 states and the district. They should be working through the state's grants program to look at training plans and instructor certification. That's one area that we really failed to address, and I think without that you're too far away from the problems. MS. ALEJANDRO: Um-hmm. I guess, so you're saying that the scheme in theory could work. It's just that there has been a failure of the scheme to work effectively? MR. FRANCHINI: I think the scheme could work. I think that if we were involved in the approval of plans, we would be able to address the issues that surface mining in New York face. You can't take an approach, one size fits all approach to training plans. Ninety some odd percent of the industry here is surface metal/nonmetal. Even some of the materials MSHA provides, especially initially, you know, 10 - 15 years ago, focused on underground mining and particularly coal. We had to go and develop our own to make it more pertinent to the needs of the mine operator up here, and I think you have to do that with training plans. MS. ALEJANDRO: Um-hmm. MR. FRANCHINI: And I think the same thing with instructor certification. You bring someone who has taught in underground coal mine in Kentucky, and they come up here, and they use those teaching methods, and they're used to talking about the subjects in the way they do, it doesn't necessarily fly with what's going on up here in surface mining. MS. ALEJANDRO: And far as the regulation is concerned though, I mean, do you have any recommendations for what that might say as far as qualification for instructor? MR. FRANCHINI: One of the things I thought of, you know, and I know MSHA does their instruction, MSHA instruction course down in Beckley. I really think that if you're going to continue to certify people as instructor of instructors, that only MSHA should conduct those courses, and I think there should be a minimum number of hours set aside in that course, the instructor of instructor, something to the effect of what I took way back in 1984. It was a two-week course at the time, and it gave you quite a perspective on the training regs and how to provide the instruction. MS. ALEJANDRO: Um-hmm. MR. FRANCHINI: We do a course to teach or certify instructions that's now four days, 32 hours. That seems to work. I know across the states there are grantees that do one-day sessions, two-day sessions. One state advertises a five-day, one state advertises a 10-day course, and they back it up with first aid training. MS. ALEJANDRO: Um-hmm. MR. FRANCHINI: I just -- you know, I just can't see that route. If you're going to back a course up in instruction, you should back it up with something on the Part 56 or the Part 57 regulations. So there is so much of a mishmash of the way the instruction courses are being taught, I think the end result is you have just many people being certified without any kind of monitoring and certainly without any kind of adherence to course content. MS. ALEJANDRO: Do you have any questions, Kevin? MR. BURNS: Yes, I do have a couple. So you encourage, as far as the qualifications, you encourage some sort of trainer-to-trainer type training for any trainer; is that correct? MR. FRANCHINI: Well, definitely. I mean, again, Beckley has produced so many types of materials and so many books that have been rehashed and reissued and videoed, reissued over and over again. It's a nice attempt, but there has never been anything on instructor training that gives us an outline that all instructors follow. You can buy a lot of the training information from vendors nowadays, but it doesn't necessary mean that you're talking about communication or transportation methods in a mine. It doesn't necessary mean that you're dealing with surface haulage problems as opposed to haulage problems. There really should be some criteria set up to at least give us a guideline these are the -- not only the areas, you know, by title that are required to be trained, but these are the things you need to cover. And actually, I do have a document that I've been preparing for about three years that expand the official MSHA topics, and I will get a copy of that to you. It's something that under the grant that -- this term here, we're going to be issuing and making copies available to every mine operator in the nation, and we've done that with several other booklets and flyers. Not ready for print yet, but it should be ready before your proposal comes out in February. We'll get you a copy. MR. BURNS: I would appreciate that. Is that along the lines of a model training program? MR. FRANCHINI: It doesn't follow the traditional methods of a model training program like you would say under OSHA, but it take the required subjects and expands the issues to give the instructor an idea what they should cover. So when you deal with personal protective equipment, it may list in a very brief outline method eight to 10 areas the instructor make sure is covered, to make sure that that subject is covered adequately. MR. BURNS: Okay. And this is something that you've put together based upon you training and your feedback -- MR. FRANCHINI: Based upon -- MR. BURNS: -- over all these years? MR. FRANCHINI: -- years of experience in this business, yes. MR. BURNS: I would certain appreciate getting a copy. MR. FRANCHINI: I'll get you a copy. MR. BURNS: As far as the cost of the regulations, we will be addressing that. At the other hearings we have had had questions concerning what it cost, you know, a small company to comply versus -- and also we asked for larger companies to put together some information on what they feel it would cost to comply with regulation. MS. ALEJANDRO: Yes, I think Ros has got a couple questions on that. MR. FRANCHINI: Yes. MR. BURNS: You asked a lot -- I mean, you have a bunch of rapid-fire issues there. As far as the independent contractor, that has been an issue. I don't think you can hardly talk about anything in mining without independent contractors being an issue. We certainly want to hear from as many people here that deal with contractors and get their opinion on what sort of training that different types of contractors need, and that's one that you want because you also have to include them in your training? MR. FRANCHINI: We include -- we include them in the training, and one of the big problems is is how the definitive amount of training that MSHA tells us that contractors need have. I mean, you could make a case for hazard training, and that could be as little as 30 minutes. I don't think 30 minutes is adequate. You could make a case that a contractor needs comprehensive training, eight yours. I had one situation this past summer where an employer called up and they said that MSHA had told them that they needed, you know, the equivalent of new miner training for their contractors, and this was an underground mine. And, you know, we discussed it. We came to a solution, but these contractors had been in this mine operation, involved in the operation for over 20 years, and now at this point the employer may be in a panic, contacts MSHA, trying to come up with some take on whether these people are -- people have been properly trained, and they can document that a minimum amount of experience is approximately five years, and at that point they're still going to require, you know, 40 hours of new miner training. It just didn't make sense, and I think that MSHA needs to, if they're going to enforce a regulation, give us some definitive amounts so that when the inspectors go out, they have something to look for and it's not just, well, did you do the training, and when, and how experienced were these contractors. It is a very complex issue, and we've tried to get more and more contractors involved in our training. It's difficult because I feel that the employers don't know that MSHA is going to require them to give them one hour, two hours, eight hours, and a lot of contractors just don't show up. You need to work on that. MR. BURNS: This question is based more on your experience and training, different types of contractors, I'm really asking you now. You've obviously trained some contractors that have OSHA experience. Based upon your training of those people, how much time or what subject areas do you feel different types of contractors need? Say a construction contractor who works normally at a quarry. MR. FRANCHINI: Well, the subjects that a construction contractor or a welding contractor have been exposed to are pretty common. I mean, you take things like confined space and hazard communication, and maybe hazardous waste, blood-borne pathogens, and personal protective equipment. You have a lot of crossovers. There is not a real lot of difference. The big area that when contractors come on to a mine property they need to be exposed to is some of the basic stuff that MSHA put together years ago: introduction to the mine environment; the safe work practices of that employer; I mean, company policies, rules and regulations. I mean, a lot of times there is some different things that companies do that work for them, and, you know, maybe it's stated, maybe down the road it's communicated, but basically if you could give those contractors safe work procedures and tailor it to the company's take on their safety program, whether it's an approved program or not, you have a chance that they can play by the rules. This workers' comp reform thing I'm involved with has a model program in it where it talks about the goals of the safety program, the valuation and analysis, the examination of the workplace. You know, maybe something like that again is particular to that employer is really good information for the contractor. A contractor, a blasting contractor, a drilling contractor, probably not. That doesn't fit. They pretty much have their own mine ID numbers. They are there in the mining environment every day. They know the hazards, so you pretty much don't have to worry about them. You may have to take a look at whether or not it's the first time they've been on that property, and whether or not they have experienced employees, but you probably should be less concerned about the driller and the blaster than you are the construction worker, the welder, maybe the electrical company that's coming in to refit some electrical system in a mill. And you might be able to take advantage of the crossover subjects and supplement them with, you know, really what I would call hard-core mining subjects, make them aware that in 1998, if you're on a surface mine, that's the most dangerous type of mining environment to be in based on, you know, the data that MSHA has. MR. BURNS: I think that's all the questions I have. I think Ros has questions. MS. ALEJANDRO: Ros has got a couple of questions. MS. FONTAINE: Based on your experience in helping to set up training programs for mine operators, using MSHA's traditional definition of one to 19 is a small mine, 20 above is larger, could you give me a range of cost? MR. FRANCHINI: A range of cost for the training program or -- MS. FONTAINE: Yes. MR. FRANCHINI: -- or for the folks to actually do the training? MS. FONTAINE: To actually do the training. MR. FRANCHINI: Well, I can use some numbers that, you know, came out of our grant. We currently have two and a half people funded to do training out of the grant at a cost of an eight-hour refresher session is approximately $45.00 per student, and that's going to, you know, include the travel that we have to do. MS. FONTAINE: Okay. MR. FRANCHINI: The set-up into the class. The number of classes we do annually is approximately 175. We train approximately 5500 people, so you can multiply those numbers and see how much it actually costs. I think, you know, if you're going to take the cost of a four-hour session, you can't really have the numbers because you still have a tremendous amount of travel and set-up, and I honestly don't have the figures on our hazard training committed to memory. But I would suggest that you contact the grant manager. MS. FONTAINE: Okay. MR. FRANCHINI: Because each grantee is supposed to put in their proposals the actual cost of instruction, and we usually do it by way of per student cost. Occasionally you'll see a number per session. And then we have to take those numbers and expand them so that we have a per issue cost. So if you take the 175 classes, of which maybe 135 are end refresher training, we will be able to show in the grant that there is a cost of providing X amount of sessions of end refresher training as an issue and then some contractor training for hazard awareness training, for instructor training. You should be able to get some pretty good quotes out of the grant program. MS. FONTAINE: Okay. MR. FRANCHINI: That at least give you an idea of what the cost of training. Cost of implementing the safety program, not a clue, not a clue. I mean, that's going to vary from company to company, whether or not there is a corporate structure, how many company employees and the like. MS. FONTAINE: Okay. MS. ALEJANDRO: Thank you. Thank you very much. MR. FRANCHINI: Thank you. MR. BURNS: I have just one more question. Do you do -- do you get involved in new miner training? MR. FRANCHINI: We do. What we try to do in the state is during the summer months try to have two to three sessions located geographically across the state where we have one or two companies sponsor the session and send as many people as they can. The problem is the mining employers never know when they're going to hire. So even if we tentatively set up a session out of the Buffalo region in the beginning of July, you know, the day of the class, even though we have 12 - 15 people scheduled, we may have four or five show up. And the mine operators have a problem with -- well, I should say a problem. They don't have a problem with providing the eight hours right off the bat. What happens is when they have to provide the other 16 to get that done in a timely fashion, and to overlap it with that first eight hours, and then have enough people to train at one time, then they start to obviously look at ways to get into compliance as quickly as possible. I was hoping that, you know, if this regulation moves forward, what we would end up doing is scheduling three-day sessions, you know, maybe May, June, July, the peak season for when they - you know, when they bring on new employees, we would have it at a location and hopefully it would be central enough where mine employers could send as many people as they could. They're going to have to get better at projecting, you know, when and where they're going to hire. We're going to have to get better at getting these sessions set up so that they at least get the eight hours in, and if not, the full 24. We could provide the full 24, again, maybe with a little more funding, and a number of training session in new miner training. We could do it here in New York. MR. BURNS: Yeah, that was -- I mean, as you were talking, I was thinking that at some point in time you should be able to give -- have some sort of estimate or projection as to, you know, how many people are going to need to be hired, you know, for start up in some areas of the state, and maybe we need to start gathering that information so that that sort of training can even be given before they hire -- I mean, it could help someone get a job if they already had training. MR. FRANCHINI: One of the problems with that is that the number of employees that are reported to MSHA as full-time employees in the mining industry in New York is very, very conservative. The number is extremely low. I think the current numbers show about 5,000 mining employees in the State of New York. I would venture a guess there are over 10,000. We get to probably half and we're doing 5500. A lot of the small towns and counties that I mentioned in my comments report one, two, maybe four people, when in fact they may have 10, 12, 15, 20, and in some cases county operations may have as many as 75 to 100 people who may in fact enter the mine some time during the summer, and could be subjected to, you know, the enforcement of training regulations, and that's part of the problem with the calculation of funding. The numbers are not good. So, you know, these employers know basically how many people they have on the payroll. The private sector is doing a great job of reporting the numbers they have. Unfortunately, the public sector, for whatever reason, underreports, and the projections, getting a good projection of them would go a long way in, you know, looking at what you're trying to figure out, how many more people you would need for refresher training, new miner training, hazard training. And, again, how you get that data, other than the tradition methods, through the -- you know, the MSHA database, is beyond me. MS. ALEJANDRO: Actually, this may be a premature question but I'm going to ask it anyway. One of the issues that we will have to resolve as we work our way through this rulemaking process is after a rule is developed, a final rule is published, what period of time is going to be necessary for the industry and for the trainers and for everyone involved to get ready to comply with whatever requirements we're going to put in place, and, obviously, that may depend to some extent on what those requirement look like, which we don't know yet. But do you have any sense for how long it might take for operators and trainers to come into compliance? MR. FRANCHINI: Well, I know back in the inception of the grant, it took about three years of instructor training to get everyone certified that the industry wanted have certified at that time. I don't think it's going to take nearly that long. It takes us about two years to really get an instructor up and running when they come to work for the State of New York. The first year, there's a good six months of on- the-job training. They're taking the instructor certification course. We try to get them to Beckley as soon as we can. The next six months they're going to be out conducting maybe a third of the sessions they normally would. Generally, what we try to do is monitor as many sessions as possible. It's not really till the second year that they're really on their own, and ready to be on their own. So you're going to have probably a two-year lag for really qualified instruction. In New York, using the grant program, if we were able to put on one more instructor, we would be able to handle 25 percent, easily 25 percent more work. So that may get us to about 75 percent of the training needs of the employers that are in New York, when it comes to any refresher, and most likely, new miners. The industry themselves, that's what I've seen over the last couple of years, is you have a little more interest in instructor certification. The people that are coming into it are generally from the industry. The unfortunate thing is they wear, you know, several hats, so they are not doing training full time. They're not developing training programs full time. They're not, you know, looking at the training program or safety program full time, so it takes them, you know, many more attempts, many more sessions to really get a program together. There is one company locally that we certified an instructor about a year ago. Last year, we did a co-session with them for annual refresher training. Basically what happened was we did four hours, the new instructor did an hour session, and then brought in three other instructors to do the other three hours. That's what happens a lot of times. MS. ALEJANDRO: Um-hmm. MR. FRANCHINI: This year I've already talked to that instructor. We're going to go back and do another four and four. Hopefully the instructor is going to be ready to take on more. But, again, they're wearing so many hats that they can't develop the programs. And even when you hand them the material from Beckley, or we give them something we've developed, they're not ready to stand in front of a group and, you know, talk about, you know, the rules and regs in detail, and the issues, and the current initiatives. And even though MSHA does a great job with sending the policy memoranda and the fatal-grams, and there is all kinds of information on the internet, these people don't have the time to put it together into a program. So, you know, I think you're going to be hard- pressed that unless a company already has an established safety program, and this is going to affect the small mining operator, to just create instructors. I'm sure people will come running. They're all going to want to be certified, and that's why I asked the questions about the quality of instruction. Unless you use the grant program that each people in each state can monitor that process and move these people along, you're going to find yourself probably with what I think happened, you know, in the last maybe 10 years in underground mining, in the coal industry, there is a different instructor every day, and it becomes just, you know, an issue of compliance as opposed to, you know, good quality training. So I would hope, again, that if you can, you know, use the grant program to get these trained and maybe even look at things like retraining for instructors. This March I'm conducting a retrain the trainer in two locations in New York. We're going to invite as many people we can to come in, and even if it's one day, give them a class in training because unless they've taken the instructor course, they probably haven't had any additional training to stand up in front of a group and know the do's and don'ts. And, of course, with the changing technology and multimedia, there are some different issues they have to face, and, again, a lot of them just don't have the time, and in some cases that's going to create distraining, if there is such a term. MS. ALEJANDRO: I just have one last question and you may or may not be able to answer this. But obviously MSHA cannot enforce Part 48, although technically operators are still required to comply with it. Do you have any sense, I mean, in the area, geographical area that you work in, of what percentage of operators aren't providing any sort of real safety and health training to their employees? I mean, how -- I guess, I'm trying to get, you know, this kind of folds into the whole issue of how long it's going to take for the industry to come into compliance. And if there is large numbers of people who are not into the process right now, I mean, you're going to need additional resources to train those miners and also bring those operators up to speed where they need to be. MR. FRANCHINI: I would venture a guess, if you're looking at the definition of a small mine employer, if we use the 20 or less, I would guess about 50 percent of those operations do provide training. If you're looking at the larger definition of, you know, more than 20 -- MS. ALEJANDRO: Right. MR. FRANCHINI: -- I would think the highest percentage possible of those companies have some system in order either from their corporate office or from the safety person, you know, at that location, or a foreman, or supervisor who may in fact be certified by MSHA and at least provide some form of training, even if it's in 15-minute increments, you know, every other week. MS. ALEJANDRO: Um-hmm. MR. FRANCHINI: I think the small employer is really the one that they don't have the time or the resources. MS. ALEJANDRO: Right. MR. FRANCHINI: At least here in New York. And, you know, I supplement that with the fact that even though we get a lot of them, you know, in the grant program and provide the training, there is a lot of them that still don't know about the program, and in some cases that's -- you know, that is the function and responsibility of MSHA, to make sure they do know. And I think in some cases we've probably failed in that area too. MS. ALEJANDRO: You say 50 percent of the small operators provide training, and you say effective, I mean, reasonably effective training, 50 percent provide it, and the other 50 percent provide no type of safety and health training at all or? MR. FRANCHINI: I think the 50 percent that I'm talking about that provide training are using our services. MS. ALEJANDRO: Okay. MR. FRANCHINI: And we are using -- we are doing the full one-day, eight-hour sessions. We will do occasionally contractor training for a minimum of four hours, but no less, and I, you know, personally would have to say that if you're going to do refresher training, you do have to connect the subjects, and you do have to make a case for setting certain themes in the program each year. We've been able to do that. In fact, you know, since 1989, every year we put a brand new refresher program together, so I think that's what keeps these companies coming back to us, and I think that's what makes it effective training. The other 50 percent may be providing some form of training, but they're using a lot of canned information and they give their employees the MSHA videos and, you know, I think everyone realizes they're making a good faith attempt, but is it really effective training? In a lot of cases, it's, you know, just to make sure that they're in compliance. MS. ALEJANDRO: Okay. MR. BURNS: Yeah, I wanted to look this up. Along the lines of the effective date, I mean, certainly the Mine Act requires training. I mean, that's a statutory requirement. So even if the final rule has an effective date to put together a training plan and to establish qualified instructors or whatever, for the term that the rulemaking comes up with, I believe the Part 48 had in there a requirement that current miners that would be considered experienced, there was -- I think, Part 48 had a requirement that within 90 days they would have eight hours of annual refresher? MR. FRANCHINI: Yes, exactly. MR. BURNS: Now, based on your experience, if this rule would have that sort of 90-day requirement, would you have the resources to do the training that would come from that sort of demand? MR. FRANCHINI: Not under the current funding. I mean, you know, if we -- I mean, we can conduct probably in the three months that we're -- the industry hires people, we conduct possibly 20 new miner sessions, one-day sessions in those three months. I don't think that would be enough to cover the needs of the industry in New York, and we would have to put on at least one and a half people. We'd have to have four full-time people, I think, to be able to put on enough new miner sessions in all the geographic areas to cover the need and provide the full 24 hours of training. Right now we're -- you know, we're okay with the first eight hours that the employers are willing to have us in for. MR. BURNS: Right. MR. FRANCHINI: But then that other 16, truthfully and with no intent to, you know, point fingers at anyone, the other 16 is usually, you know, on-the-job training under the supervision of a very experienced foreman or supervisor. MS. ALEJANDRO: Does that work though? I mean, is some part of that valuable? MR. FRANCHINI: It's very valuable and, you know, the problem is that you may let a few people fall through the cracks. MS. ALEJANDRO: Um-hmm. MR. FRANCHINI: It's not a level playing field. Companies one year are very aggressive in doing that; in other years, they can't be, so it becomes, you know, a little more of a problem for the mine operator to guarantee that every new employee that gets hired every years is adequately trained. And what's going to happen under -- you know, under the enforcement side of this is the two year history that follows, if they, you know, get cited for not having an employee trained, you know, because they're working in July and they had the first eight hours, and that's when their inspection is or occurs, you know, it happens, you know, two years or within that two-year period again, the employer, you know, is going to be subjected to, you know, increased fines and things, and, you know, it may not have been possible, you know, based on what -- based on what's going on that year in that company. If the grant program had the proper funding, and we were able to provide the right number of sessions, and we had three days set up, you know, every other week we had a session set up somewhere in the State of New York, that employer would -- within those 90 days would be able to send their employees to one of those sessions. And, you know, basically they wouldn't have to worry about compliance. They would be assured they were getting good training that meets all the MSHA requirements, that talks about all the current initiatives, and we work very hard in New York to make the pre-call on a lot of these issues. And I think that that would relieve a lot of stress that some of the employers here in New York may go through, with new miner training. I mean, that's going to be one of the tougher, tougher areas probably only second to contractor training. MS. ALEJANDRO: Do you have anymore questions? MR. BURNS: No. I appreciate your help on this. MR. FRANCHINI: Oh, you're most welcome. MS. ALEJANDRO: Thank you very much, Mr. Franchini. MR. FRANCHINI: Thank you. MS. ALEJANDRO: All right, the next speaker on the list is Allan Zwoboda of Holmes Safety. MR. ZWOBODA: Good morning. I'm here representing the Holmes Safety Association for the Capital District. I'm the president, Allan Zwoboda, Z-W-O-B-O-D-A. MS. ALEJANDRO: Thank you. MR. ZWOBODA: Upon hearing of this hearing today, we sent out flyers requesting input from our membership because we felt it was important that we be represented here. One of the overriding concerns from the membership was the fear of losing control of their safety program. The approval for their trainers, I know from the Holmes Association we've helped sponsor retrain the trainer, train the trainer programs, MSHA certified training. I don't believe that our membership feels the need for bringing in the professionals, that they believe in site- particular training with on-site trainers. Mr. Franchini had mentioned that where we -- I'm an MSHA trainer myself, and I'm also a senior electrician for St. Lawrence Cement, but that gives me a neat perspective on the problems that so on my mine site. And if we go to a uniform guideline, I believe that personal touch and that personal knowledge would be lost. We do believe that definite standards should be maintained for the trainers though. We would like to see updates presented, at least yearly, from MSHA on information to the trainers themselves. I know they must maintain a list some place. MS. ALEJANDRO: Yes. MR. ZWOBODA: At least that's a hope. We'd like to know what's going on with MSHA and the overall statistics from the mining industry available to the trainers on a whole. On another area of concern, this is from labor, is the supervisor training, where supervisor training should be above and beyond your minimums, where most safety programs are going to succeed or fail based upon the behavior of the supervisors, and we'd like to make sure that they are adequately trained. I know some companies, when they go for supervisor training, they make sure they know how to keep books, where we'd like to see the training standards elevated for them to be able to work with the men safely. Also, another concern is along the lines of the train the trainer programs is, as Mr. Franchini had mentioned, is that we run into locally here some budget restrictions. We'd like to see some more money provided for the train the trainers. Another concern that was brought forth was the guidelines and how they'll be presented to each mine, and will they change from year to year, will they be updated, and how they would be approved? Another concern was should the contractors be responsible for their own training or will it be the mine's responsibility? And that's all they brought forth. MS. ALEJANDRO: Mr. Zwoboda, I've got a couple of questions. Could you give us some idea of who it is that you've gotten this input from just as far as, you know, size of operations, type of operation? MR. ZWOBODA: The Capital District Holmes Association. MS. ALEJANDRO: Yeah. MR. ZWOBODA: Also, proud and relieved to say that some of our members are here today. MS. ALEJANDRO: Good. MR. ZWOBODA: We take in the cement plants of the region right down to the mom and pop sand and gravel pits. We represent a broad spectrum of the mining industry in this Hudson Valley. MS. ALEJANDRO: Okay. And you also indicated you were speaking on behalf of labor. Are those individual miners or are they -- MR. ZWOBODA: Yes, individual miners. I visited at least two sites and my own fellow workers. MS. ALEJANDRO: Okay. In your initial remarks, you indicated that the people you had spoken to were concerned about losing control of their programs. Could you maybe provide a little bit more detail on what their areas of concern are? MR. ZWOBODA: Well, the number one concern was the establishment of like the safety professional come in, that's at great expense, and it's not always going to be successful. MS. ALEJANDRO: When you say "safety professional," are you talking about the person who comes in to give the training? MR. ZWOBODA: Yes. MS. ALEJANDRO: Okay. MR. ZWOBODA: They are also afraid of the canned presentation where the guidelines would be sent and you will present this information. MS. ALEJANDRO: Because it would not be appropriate to their particular operation? MR. ZWOBODA: That is correct. MS. ALEJANDRO: Okay. You mentioned the value of on-site instruction, I guess, as part of the training. I mean, do you also believe that some classroom training is valuable or do you think that that should be left up to the discretion of the operator as far as one of the elements of, you know, the required training? MR. ZWOBODA: Well, we believe that the eight-hour refresher as a block presentation is very valuable and should not be dismissed. MS. ALEJANDRO: Okay. Eight-hour classroom? MR. ZWOBODA: Yes. MS. ALEJANDRO: Okay. But supplemented with on- site instruction? MR. ZWOBODA: Oh, definitely. MS. ALEJANDRO: Okay. And you also raised the issue of whether contractors were going to be responsible for the training of their employees. Does your -- do the people that you're speaking on behalf of have a position on that issue? MR. ZWOBODA: Well, naturally, everybody wants to make sure everybody foots their own bill. MS. ALEJANDRO: Right. Okay. MR. ZWOBODA: I mean, that's pretty basic. But I know a lot of the local mines offer hazard recognition training for their contractor who comes on site -- MS. ALEJANDRO: Okay. MR. ZWOBODA: -- as a minimum. MS. ALEJANDRO: Right. MR. ZWOBODA: But that is to make sure, once again, it's site particular. Most of the mine operators don't believe they should for every contractor that rolls through the gate they should be responsible to make sure that their people are adequately trained. They should be responsible for receiving a certificate of the training and that's it. MS. ALEJANDRO: Do operators -- I mean, in your experience, do operators frequently provide comprehensive training for the contractors who come onto their property or does it vary? MR. ZWOBODA: It's going to vary. MS. ALEJANDRO: Uh-huh. Okay. Do you have any questions? MR. BURNS: I guess, just a couple things. In your experience, the trainers that are on record with MSHA do not receive much information from MSHA in order to update their training? Is the information they get pretty much limited to the fatal-grams and things like that? MR. ZWOBODA: Yes, and it's -- and it's sent to the operator of the mines particularly. I know that we at my plant, we spend a lot of time gathering information through the MSHA office locally, Mr. Franchini's office, and the National Safety Council. We invest a lot of time and effort and to gathering this information, but it's all self- generated. Nothing is really out there provided easily. I mean, we have the interest, we have the desire. The Holmes Association provides information locally also, but that's still generated from people who have a real, real interest, whereas the small mom and pop mines, for an example, they want to make money, they want to survive, so they are going to do what's necessary to be certified. And if things were more easily provided for them, they would probably do more. MR. BURNS: Okay, so you would see some value in MSHA working, I guess, with industry and labor in the states to put together materials that can be used for small time gravel operation and cement operation, something that's appropriate for individuals operations? MR. ZWOBODA: It should be -- everybody uses the phrase "canned presentation," and nobody wants that, nobody that I've talked to anyway. MR. BURNS: It should just be information that they could -- MR. ZWOBODA: Information for themselves, that apply to them. MR. BURNS: I guess, some of the companies that you talk to were fearful that the -- you mentioned guidelines. I think you were talking about also combining that with the plan? MR. ZWOBODA: Yes. MR. BURNS: Using those interchangeably. They're concerned that the requirements may be more along the lines of Part 48; is that what they're looking at as far as being too restrictive? MR. ZWOBODA: I think there is -- to go back to, they would like to keep it particular to their site, and what they have to deal with every day as opposed to an abstract of the -- a miner as he's out in the field doesn't necessarily care so much about the laws and regulations, et cetera, et cetera. He wants to make it through the day. He wants to do it safely. He wants to know how to do that. MR. BURNS: As far as the qualifications of trainers, that you've already heard some statements here today, and this has been an issue at the other two hearings also, on one side, people offer that they need to be somewhat professional type trainers from the standpoint that they have some real training experience, or they have some sort of trainer certificate. What sort of qualifications would you see necessary or recommend it to ensure good training everywhere? MR. ZWOBODA: Well, I believe that you should have experience in the field a minimum number of years. You should be able to document that. You should have a train the trainer course behind you. You know, you just have to set up a minimum somehow. I mean, those two things there come to mind. I don't think necessary a college degree is necessary or a four-year course or a two-year course where you've stood up and received it is necessary. Where I do see it experience would be a valuable teacher. MR. BURNS: What about at a mine where say -- would you see it appropriate or effective if the mine has one person that meets that qualification that oversees the program, and has perhaps someone that with a great deal of electrical experience that does a little electrical training, he may not have the train the trainer experience? MR. ZWOBODA: I still think your experience is what you need the ability to present the information. MR. BURNS: Okay. MR. ZWOBODA: And you could be the smartest person in the world but you can't teach it, you're wasting everybody's time. MR. BURNS: Okay. Yeah, I'm just bringing up some of the -- you know, statements that we've heard in the past. That was one of the ones that someone made and they felt it was important that not everybody with experience necessarily needs, you know, three days of train the trainer to effectively get across their subject matter. MR. ZWOBODA: Right. MR. BURNS: As long as there is someone there to help them prepare to do the presentation. MR. ZWOBODA: Well, I just think that you still need an effective means to convey your message. I know from my, once again, from my experience in my plant, there are two of us that are certified from MSHA, and we use like the eight-hour refresher course to present a unified message throughout the entire plant population. The ability to have the train the trainer course was invaluable because it gives you the basics on how to present. You know, we come from all walks of life and some of us did take courses in college, some of us didn't, and to have that to fall back on as a starting point, I think, is necessary. MR. BURNS: Okay, I appreciate that. I mean, being in college, I've had some training from professors who really weren't very effective too. MR. ZWOBODA: You've got to have the whole package. MR. BURNS: Right. I don't have any more questions. I appreciate your input and your answers. MS. ALEJANDRO: Thank you, Mr. Zwoboda. MR. ZWOBODA: Thank you. MS. ALEJANDRO: We have come to the end of list of people who have signed up in advance to speak. Is there anyone out there who hasn't signed up who would like to come up and make some remarks? What we can do now is just maybe give you some idea of some of the issues and comments that have been raised at our earlier meetings that we've had this week, and it could possibly -- oh, we do have somebody who wants to speak? Sure. MR. CUCOLO: I'm from the New York State Department of Labor and Director of Safety and Health. We have in New York State -- MS. ALEJANDRO: Excuse me. What's your name? MR. CUCOLO: Richard Cucolo, C-U-C-O-L-O. MS. ALEJANDRO: All right, thank you. In the New York State Department of Labor, we have 11 different safety and health programs; three of which are funded partially by U.S. Department of Labor, that's the mine and safety training program, the 7(c)(1) program, and all public sector state plan. But New York has been in the business of safety regulation for almost 100 years ago. And one of our former Commissioners, Frances Perkins, and give the name to the U.S. Department of Labor in Washington. But there are a couple of general concerns that we have. New York, in 1997, had the best accident performance for the top 10 industrial states in the public sector, and we've had the best public sector accident rate since the program began in 1981. But a couple of the issues that we've seen repeatedly in all of our safety programs, and we have eight state programs which include asbestos control, order of safety industry inspection at amusements, window washing devices, and we have a lot of experience in this area. There are a couple of things that are inherent to the State of New York that are of particular local concerns, and that is, the trainer qualifications. In 1996, the historic Worker's Compensation Reform, occurred in New York state. In the workplace safety and loss prevention program, we addressed the issue of third party consultants, third party trainers being allowed to come in and create safety programs to bring down workers' injury rates, and also the workers' compensation rates, which was driving businesses out of the state. And rather than a OSHA-type of regulations, you know, thousands of pages and volumes, we basically set up a program which had 12 different areas that a consultant would go in and look at safety problems, and address that with a program based on areas where accidents and injuries were occurring. And this program has been in effect for a year and a half, and the workers' compensation rates in New York State have gone done 37 percent. And the people we certify, we certify the trainers and the consultants that do these third party consultations, which is something that's not really even adopted by OSHA, but we found it works very well here. And the types of people that we certify to do this include: certified industrial hygienists, we'll accept a CIH, we'll accept a CSP, we'll accept two or three of the titles of the World Safety Organization, we accept ARM, which is an insurance, associate risk management from an insurance company, and ALCM, associate loss control management, from the insurance company. But most notably, we will accept also a person who has eight and a half years of verifiable experience as a safety officer for a construction company or a public safety company. Many times, especially in the construction field, they have persons working in the construction industry as an ironworker or an electrician or a carpenter who, as he gets older in his career and can no longer handle the actual construction work, becomes the safety officer based on lifetime source of experience with safety. And also, in police departments you'll find this and many of the fire departments around the state, why put someone on the shelf who has got a lifetime worth of experience just because he doesn't have the CIH or CSP. In two legislative sessions ago, title protection, special interest legislation was introduced that would make it easier to get a license to do safety consultations and safety work in the workplaces and was very strongly supported, as they are around the country, by AIHA and ASSE. This was strongly opposed in New York State by the AFL-CIO for this very reason. There are many qualified people out there with the experience that do not have a college degree but who have a lifetime worth of very valuable experience. I would hope that along with what MSHA is asking for, what Marino had mentioned before, that you would make the qualifications broad enough to address this. The second point I'd like to raise is that we do have a lot of small entities in federal and state, especially as Marino mentioned, municipalities that own mines who would qualify under the Small Business Administration definition of small entities for RIFA purposes, and I would certainly hope that you reach out to them in other session like this around the company, the public sector. This is something that would been highly critical of OSHA for -- they just -- they just did a respiratory protection standard, as well as a number of other standards, where there was absolutely no outreach to the public sector. These regulations are formulated for private sector and then basically the public sector is told to heed it,you know, through the state grant plans, state plan grant system. There is no real -- there is a difference between the way a public sector and private sector operation works, and I hope you take that into consideration. Also, on the issue of cost/benefit analysis, one thing that OSHA continually ignores and we would hope that MSHA will take this into consideration too, is not just the cost of putting on the training sessions, which you may not be able to derive from assistance in the organization as well as, you know, from the state grants programs, it cost $45.00 per student, et cetera, but also don't forget to take into account overhead the employer. You know, the mine needs to be open by an electrician. The electricity has to be turned on, people have to be there. That overhead is a cost to be factored in. Also, the salary paid to all the people who train, that's not productive time, and that's a cost to the employer. Also, unproduced product for that day. While they are training, they are not producing the product, undelivered product for that day, and also profit not realized for that day. On the OSHA side, even the most optimistic course projects and analyses that have been done about OSHA regulations show that the cost of OSHA regulations are about $30 billion, and the benefit is about $3 billion, outnumbering, you know, costs outweighing the benefit by about 10 to one, and that's not even to mention some of the analyses that have been done -- Bicusi's study on the cost per life saved. Some of the OSHA regulations, most of the older ones, in fact, are a very good ratio, of course, to life saved, whereas the new ones, some of them have outrageous prices attached to them, the asbestos standard, formaldehyde standard, the ones that OSHA is probably very proud of, like the methylene chloride standard, has a cost per life saved of about $30 million. So I hope all of these factors will be taken into consideration and making certain -- you know, we've heard about, you know, talk, scuttlebutt, about OSHA and MSHA merging, and OSHA taking over MSHA. We would certainly hope that doesn't happen. But if it does, that it be MSHA taking over OSHA. (Laughter.) MS. ALEJANDRO: Yes, I have a couple of questions. Your comment about experience being considered as -- I mean, that you can be qualified through experience as well as by, you know, licenses or whatever, do you have a particular recommendation, you know, for the context of this regulation as far as if we were to cast that in terms of experiences and alternative, how we might do that? Where did the eight and a half years come from, for example, for New York State? MR. CUCOLO: We did a lot of -- before we got the total of 59 on workers' comp reform, we did a lot of outreach with the different people that would be under the regulations. MS. ALEJANDRO: Um-hmm. MR. CUCOLO: Especially engineers. Engineers are also, by the way, automatically accepted, engineers, ACLM, JLM, CIH and CSGs, and the eight and a half years basically was a number that was thrown out. You know, we capitalized, and some people said, well, we need 10 years, some people said five. MS. ALEJANDRO: That was negotiated? MR. CUCOLO: Yeah. MS. ALEJANDRO: There is nothing scientific about eight and a half year? MR. CUCOLO: No. MS. ALEJANDRO: All right. MR. CUCOLO: No, but this is the type -- when someone is applying for certification in New York State, basically it's $10,000, it's good for three years, and then renewal fee is -- is it $100.00? And then also, if you apply as a group, we have a sliding scale. So if you apply for six or more people, it goes down to $750; for 10 -- like this will allow the company who want to get its own people certified a break on getting it certified. And our feeling is the more certified consultants that we have, the better. We currently have in New York State over 400, and the geographical distribution is very good so that employer in Buffalo wouldn't have to get someone from New York City. And also, one of the best features that we have here was that the New York State Department of Labor does not a monopoly on this. We have private sector consultants charging market rate, and the statute also allows for us to -- we keep our costs so the employer is in a position of being able to choose either a government agency to do the consultation or the private sector, and this builds in excellence because it's not a monopoly. It's competition. If the state doesn't do it well, you can go elsewhere. And if the private sector consultants charge too much, they can always come to the state. This is, I think, an excellent way to do it, and if you create something along those lines, we would be more than happy to share with you our experience in promulgating Code Rule 3059. As I said before, our worker's compensation rate has done in the past three year 37 percent in the state. MR. BURNS: Yeah, I mean, we would cheerfully be very satisfied if the first year after this regulation we come up with a 37 percent reduction. That's a very commendable rate reduction. You talk about state certified consultants. They are not only doing training, they're doing walk-around and - - MR. CUCOLO: Yes. MR. BURNS: -- around the plants and making recommendations on where they can increase safety? MR. CUCOLO: Their primary focus is creating safety and health programs. MR. BURNS: Okay. MR. CUCOLO: And they will conduct training if that is one of the areas identified as a loss or course driver for that particular employer. It's is diametrically opposed to what OSHA does. OSHA will go in and do a wall- to-wall inspection, cite you for violations which maybe never have caused an accident in your workplace. We approach it from a different angle. We look at an employer's C-2 forms of workers' comp. Where have you been having accidents? And we focus right in on those. There are federal agencies, they take care of the rest. But that is the cost driver, that's the think that's causing costs for the employer and suffering for the worker, and the thing that, if you can make an analogy, we're the emergency room. These are the employees identified as having a 1.2 experience modification rate or higher. They also have got to get down. And we think it's working very well, and our program is being copied by other states, Missouri, Pennsylvania, Connecticut has a program right now based on ours, and we think this is the way to the future because it gets more people involved. If we have 1,000 certified consultants out there, and after a year or two they lose interest, we still have more. We can have 500 - 600 actively involved, and they'll be replaced. And also, by getting them into the workplace for this purpose, while they're in there they can sell other things, like getting in there for purpose of workers' comp, but they could at the same time address workplace OSHA violations for an additional fee. So it's good for the private sector, it's good for the entrepreneurs, it's good for labor, it's good for management, and we hope you go that way. MR. BURNS: I have another question for you too. You mentioned the cost/benefit analysis? MR. CUCOLO: Yes. MR. BURNS: Maybe this is an assumption on my part. I assume that the state did some sort of analysis for their program? MR. CUCOLO: Yes. MR. BURNS: Would you be able to provide a copy of that to use? MR. CUCOLO: Yeah, sure. We have to cost everything out when establishing per diem rates. Yeah. MR. BURNS: I think that would be very helpful. I think we'd certainly be remiss if we didn't come up with something that had such a good effect. I mean, that's what we want. MR. CUCOLO: A cost/benefit analysis is, as you know, down within the beltway, something which is hotly debated, how you do it. I'm not an accountant or a statistician, but I know there is a great deal of dispute about what one person says the cost/benefit analysis is and what another one says, and there is always finger pointing, well, you forgot this and you forgot that. MS. ALEJANDRO: Right. MR. CUCOLO: I hope you take a very good look at that because a lot of it is, you know, you get numbers. This will costs if there is no net budgetary effect, you know, no one really agrees with that, and I hope -- I can highly recommend this book "Risks and Lives Saved" by B-I-C- U-S-I, which is an excellent book on cost/benefit analysis. MR. BURNS: That's all the questions I have. I certainly appreciate your input. MS. ALEJANDRO: Thank you very much. MR. CUCOLO: Yes. MS. ALEJANDRO: Do we have anyone else who -- all right. MR. BURNS: Donna. MS. ALEJANDRO: Donna. MR. BURNS: It's easy to remember the women's names. (Laughter.) MS. ALEJANDRO: You can say that. MS. SHAVE: I didn't prepare or write a speech to go across with you today, so I'm going to keep it pretty simple. My name is Donna Shave, S-H-A-V-E. I'm also with Rifenberg Construction. And I would just like to quickly bring up a point. I've taken both the MSHA train the trainer, and as recently as last week, the OSHA competent person training or the 10-hour training, although they do not consider that you're certified or technically qualified to be able to teach that. When Marino spoke about doing train the trainer with a contractor and the first lesson or the first session that person did being four hours of Marino and four hours of the contractor, I know he wasn't talking about me because I think we did our seven ours of Marino and one hour of me. I did not have the same expertise in the sand and gravel arena to feel, even though I had my training, feel comfortable in relating that information. I have since established a better library of material and more competencies in being able to address that information to the people that I train, but I think you want to add one more thing with your training. When I went to OSHA training, they required you have five years of experience in the field. If you did not have five years of experience, then there was an additional training requirement, that you needed to spend an additional week to first have pre-introductory training before you were trained as a trainer. One thing that they've incorporated in the program through this OSHA training is that, although you're qualified to train, every four years you need to do a refresher on that training, and that's the one point I'd like to bring up. I think it should be mandated that people have to stay about that current with the issues. Within their training block, there are -- if you are doing 10 hours of OSHA training, there are five segments that are mandated. They mandate that those segments be one hour each. I have to believe that they've done studies that indicated that that was a minimum and that was beneficial. The other five hours, there were several blocks that you can choose from, if you feel that your operation is more -- more demanding in a certain area, such as ours being more demanding in excavation, then I have the liberty to be able to train in excavation for four or five hours, so the five hours of mandated are done, and the other could be technically just excavation. I think that would give mine operators also the availability to be able to hone in on the items that are most relevant to the operation that they're doing. And that's about all I have to interject at this point. MS. ALEJANDRO: As far as the segments that you're talking about, I mean, you mentioned excavation, are they -- I mean, are the subjects that you choose from, I mean, specific to sites, or, I mean, what kind of subject areas do they typically cover? MS. SHAVE: As far as excavation? MS. ALEJANDRO: Well, no. MS. SHAVE: Oh. MS. ALEJANDRO: I mean, you say that that was, you know, one of the things that you could choose from. I mean, what other types of things? MS. SHAVE: They go mainly with the standards. MS. ALEJANDRO: Uh-huh. MS. SHAVE: And the five mandatory segments would be such as fall protection, and one hour of OSHA history and statistics, and I think you would probably want very much the same as far as statistics in MSHA on incidents that have occurred. Then they go through the subparts of the standards and choose relevant areas; scaffolding, electrical, and such that -- at that point the five options can be chosen from any of 20 different subtopics in the regulation. MS. ALEJANDRO: Is any of the focus methods of instruction? I mean, one of the things that keep coming up is, you know, people have got substantive knowledge and experience, but -- MS. SHAVE: Right. MS. ALEJANDRO: -- a lot of them are going to need some kind of additional instruction in how to actually provide training. MS. SHAVE: Actually, the MSHA train the trainer was more specific to how you would present your material than the OSHA was. The OSHA was more driven to what material needed to come across -- MS. ALEJANDRO: Right. MS. SHAVE: -- in hopes that if you're going to stand in front of a group, you're -- maybe you're going to muddle through, and for me every time I step up here my heart is pounding like crazy -- MS. ALEJANDRO: Right. MS. SHAVE: -- and I'm scared to death that I'm going to start stuttering. But if you're willing to stand up in front of a group, I think, just for personal comfort, you're going to find a way to be able to do that. I think maybe the MSHA and the OSHA could mesh together and find a happy medium, but, I'm sorry, Marino, but personally for me coming through the MSHA, which was marvelous for the public speaking portion of that training, I still was not confident that I knew everything that I needed to know about electrical or grounding, and that was not Marino's job to be there that day and teach me everything there was to know about mining. On the other hand, the OSHA segments went through all the regulations, and if you can remember all of your statistics and your ratios of where people need to be and such. I came out of there realizing that all the people in the room had different -- we each had to do a presentation at the end of the week, and each person had a different way of presenting themselves. So I think the mix of the two would be good, or knowing that you have to have the five years experience. I can get through a train to trainer segment in MSHA, but I've worked very hard at that, and I have never operated a loader and I need to stand up in front of 20-year veterans and say this is what you're going to do and this is why. So the experience factor should weigh heavily on that, I do believe, but there are ways to train people without having to be the expert in the area also. And for those companies that don't have the full- time people on board, or don't have the resources to do that, then I strongly encourage that we continue supporting the grant type programs in the Department of Labor type areas so that those resources are still there for the smaller company. At Rifenberg, we're trying really hard, we just recently started a safety committee, and we're trying really hard to in the future incorporate bringing in a lot of our subcontractors and vendors into our training segment so that we can share some of that knowledge and training and expertise with the companies that work along with us, because if your subcontractors aren't up to snuff, it's eventually going to tunnel down and you will feel the effects of that. So maybe some of the other companies could also incorporate people into their training. But most assuredly, at least utilize what's available through the Department of Labor. MR. BURNS: I just had one, I guess, question. I've gone through the OSHA training too, and my recollection was that it covered the types of hazards, like fall protection and things like that, that make up -- I can't remember the exact percentage, but something like 90 percent of the fatalities and serious injuries is the way it was set up. But it also had a segment on how to set up an effective safety and health program and how to evaluate it. Do you feel that that's -- was that of value, in your opinion? I mean, is that something that we ought to have in our training? MS. SHAVE: It probably would not be a bad idea, although there are a lot of safety and health programs canned and available within the industry. I think it was really beneficial to go to the OSHA training just in having so many other people that work in different -- within your industry but maybe with a different focus on that industry, and sharing their expertise. It was just -- it was really a well worth week for sure. Is that it? MS. ALEJANDRO: Thank you very much. MR. BURNS: Thank you. MS. ALEJANDRO: Do we have anyone else? Actually, do you think we should take a break? MR. BURNS: Yeah. Yeah. MS. ALEJANDRO: Why don't we take a 15-minute break. I have like about five till 10. So why don't we come back at 10 after 10. (Whereupon, a recess was taken.) MS. ALEJANDRO: Okay, I think we can get started again. Is there anyone here who would like to make remarks for the record? There was somebody who had their hand raised earlier, but I don't think he's come back into the room. What we can do -- we've had a couple of requests from some of the people here to give you a short summary of the comments and the issues that have come up at our earlier meetings, and with the help of Ros and Kevin, I will try to give you some idea of what the issues -- did you want to speak? MR. CASTRO: Just for a second. MS. ALEJANDRO: Okay. MR. BURNS: That would be great. MS. ALEJANDRO: Okay, why don't you come up now? MR. CASTRO: My name is Sal Castro, C-A-S-T-R-O, and I represent Buffalo Crushed Stone. At the top of my -- excuse me, my breath is -- MS. ALEJANDRO: Do you want to just -- MR. CASTRO: I'm okay. MS. ALEJANDRO: Okay. MR. CASTRO: At the top of the hearing you had mentioned that this is an informal hearing, and you got informal. I did not prepare anything. However, I did want to reiterate a lot of what Marino had said today, excuse me, a lot of what Richard had mentioned, from the Department of Labor. As I stand here today, hearing the comments of what was said today, I closed my eyes and I envisioned being at the quarry, and I see a lot of what could be administrative nightmares, especially for the lowly safety guy like myself where the administrative aspect of this could conceivably become a nightmare, especially with subcontractor issues. Subcontractor issues, at least in my organization, proposals are accepted predominantly through cost, the low bidder generally gets the work. Trying to have this man stop his operation, stop our production operations to say, "Well, stop, you don't have the training, I'm sorry, we can't bring you on to the site," or, "Well, you're going to have to take new miner training and I'll see you in a week," Is totally, at least in my mind, a little impractical. I think you should at least recognize the fact that we do have those situations that we have to contend with. As far as enforcement goes, certainly I am a big proponent of safety training. I think Marino can attest to that. We have -- we have 99 to 100 percent of our people trained each year. However, there are occasions where we do have people that come in, for instance, after July, as a new miner. We have the program set up and we have this gentleman trained for the first four hours initially, in- classroom training, we have on-the-job training, and we have once a month a safety meeting that I give for half an hour, 45 minutes, to reiterate or just to enforce some of the policies that we have. The question that I have is in that training that I do with these people is that going to be considered part of the new miner training, or can it be? What I don't want to see is an additional tool for the MSHA inspector to come out and say, "Well, you don't have it, so therefore here is your citation," even though there is a concerted effort being made to have these people trained. Like I said, I don't want to see that as a tool where citations are issued pretty much at every facility because that conceivably can happen. Again, such specific training, I think, is important. I think the subcontractors need to be aware of the site-specific hazards that are involved with the operation. However, they know the job. They have been trained specifically, they were hired specifically to do a job. To say that I can train them any better than what they already know or the experience is already attested to would, again, be impractical and not cost effective. Those re the comments that I have. MS. ALEJANDRO: Mr. Castro, could you give us some idea of what your operation, you know, the size and -- MR. CASTRO: Well, Buffalo Crushed Stone is an entity of times during peak operations of about 600 people. There are about 150 miners that are represented, and there are three limestone quarries, two sand and gravel operations. The biggest being about 40 people. The smallest operation being about 15. MS. ALEJANDRO: Okay. Then you raised the contractor/subcontractor issue. What kind of services do the contractors/subcontractors that you bring onto your property typically perform? MR. CASTRO: Well, they can range anywhere from last year we built a whole new facility where we had ironworkers down to concrete people, whereas, as week we had a tire guy come in and change a tire on a loader. MS. ALEJANDRO: Uh-huh, so big, big extensive and small. MR. CASTRO: There's a broad spectrum. MS. ALEJANDRO: Okay. Do you have any questions? MR. BURNS: Yes, I do. You touched on one of the issues that we really haven't heard much, at least I don't recall anybody really talking about it today, but it's come up at the other two meetings, and at least I think you touched on it. You mentioned that your new miners, you have -- you do four hours of classroom training; is that correct? MR. CASTRO: Initially. MR. BURNS: And then the next four would be supervised work, I think. I mean, you said on the job, and that's sort of the same thing. MR. CASTRO: Right. MR. BURNS: Supervised work or on-the-job training, is that correct? MR. CASTRO: Well, typically, typically, a scenario in that respect would be four hours would be going through the training of the overall agenda of our policies and our requirements for working at the mine. The on-the- job training would be, for instance, if he was a truck driver hauling, would be in the seat right next to an experienced miner for at least the duration of the week, if not more, depending on how well he adapts, in addition to the monthly safety meetings that I give. MR. BURNS: How much of the training that the person would receive from the experienced truck driver, how would you see that entering into the mix of required 24 hours of training? MR. CASTRO: Well, again, on-the-job training, he is hired to do a specific task. I certainly wouldn't want him to be experienced and expertise in blasting operations. However, he would know that blasting operations do exist and the hazards that are involved where he is exposed. The driving training specific where -- any hazards, inherent hazards on the haul roads or in areas where he's going to travel, the experienced miner would point out those situations, and make the new miner aware of those situations specifically for his operation. MR. BURNS: Okay. Yeah, I guess, some of the other people have mentioned that -- in the past, I'm just bringing up what I've heard at the meetings -- that particularly a small sand and gravel quarry plant, they might do two hours of training and then supplement that with on the job or supervised work and additional training thereafter, you know, classroom type training. And I believe one of them mentioned that as far as their -- the training that they provide before they start to work, it's pretty much the subjects that are covered under Part 48 that require if you do the eight hours of training before they go to work, they get miner's rights, and safety and health aspects of the job and very site-specific things. Are those things that you cover? MR. CASTRO: Yes, they are. MR. BURNS: And that takes four hours for your particular site? MR. CASTRO: It takes -- there are certain -- you could go for eight hours very easily in our operation. Four hours that I give the initial training. It's given to the man so that he has a general understanding and knowledge of what it takes to work in the mine industry. The on-the-job training is accomplished throughout the rest of the week. There is a follow-up course by me as a site inspection to see how he's doing, if there is an issue of training that's required or not, grasping a certain task, then appropriate measures will be taken. That hasn't happened. MR. BURNS: Okay. MR. CASTRO: Most everybody has pretty much caught on. MR. BURNS: Yeah, I mean that's pretty -- that consistent with what we've heard, at least with -- I can't remember which meeting it was, but one of the portable plants where more or less stated that it really only takes two hours, and in some cases with some miners, it might even take two hours for their particular site, to cover the things addressed in Part 48 before they start to work, and that's really what we're looking at is what's appropriate for -- I mean, this is going to be a wide variety of operations covered by this rule. MR. CASTRO: Well, we obviously have a concern over interpretation once the law does come out. You've had problems in the past, but we have disagreed with comments on the past as far as what -- where the line was. There are obviously some very important things in the regulations that we want to make sure that we're clear on. MR. BURNS: No, I can appreciate that, and I -- you know, being an attorney, and attorney's love, you know, any word to be interpreted well, any word can be interpreted in a lot of different ways, and we want to try to make this rule as clear as possible so that there isn't that much left for interpretation on the very basic issues of what we're talking about, and I appreciate your input. MR. CASTRO: This area is not unique to budget restrictions. MS. ALEJANDRO: I believe that Roslyn has a couple of questions for you, Mr. Castro. MS. FONTAINE: Yes. You said that you train 99 to 100 percent of your employees annually. Could you give me a rough estimate of how much that cost you? MR. CASTRO: Well, I don't have specific numbers. However, you can take about 130 miners at a day's pay at the end of the wages, giving them lunch and, you know, whatever production is lost, as Richard has mentioned earlier, you take those into account, and there is a substantial amount of money. MS. FONTAINE: Do you usually bring an instructor in or do you just have -- MR. CASTRO: Well, we have a Department of Labor on an annual basis with Marino's group coming in to do the training, and followed up by myself, and we pretty much take care of things in that respect. MS. FONTAINE: Okay. MS. ALEJANDRO: Thank you very much. MR. CASTRO: Thank you for your time. MS. ALEJANDRO: Do we have anyone else who would like to make some remarks? There was a gentleman -- this gentleman here in the black leather jacket? MR. COME: Thank you. Good morning. My name is Rich Come, and I represent Cummons Northeast, Incorporate. MS. ALEJANDRO: Could you spell your last name for the record, please. MR. COME: C-O-M-E. MS. ALEJANDRO: Thank you. MR. COME: We function in New York and New England as a contractor. We do primarily diesel engine repair, and some power unit service and repair for our customers in the mining industry. We routinely have men and equipment on surface mine sites. However, we are concentrated solely on the repair of power units in mobile equipment. And our concerns stem mostly in the area of definition. Going back to the early eighties, our people were classified as surface miners and we were -- VOICE: Speak up, please? We can't hear you. MR. COME: In the early eighties, we were classified as surface miners, and we were required to initiate 16 hours of training for our people, followed by an annual eight-hour refresher. Much of what we were exposed to was outside the area in which we operate. At the time the only expense we bore was that of that manhour wage and lost productivity, and we're concerned that if we are to be redefined or reclassified, we're concerned about what the training requirement for us will be, how much of it will be directly pertinent to the function we perform, and how the cost is to be allocated. We also, going back to those early eighties, remember that if we as a surface miner were in violation of any of the existing regulations, the entity responsible was the site owner. This put us in a particularly awkward position in that we were responsible for our own training and our own safety administration. However, our customer was the one who ended up with the fine assessment and the mark on their safety record if we were in violation. Again, we can understand that point of view from the standpoint of you are responsible for whomever is on your property. However, it seemed to be kind of a dual contradiction there, and that was basically an area in which we felt that the mine operator was being held to task unfairly. Not that we had any particular incidents that played into that, but it was always something we always had to be extra careful about. And those basically sum up our concerns as a contractor. MS. ALEJANDRO: What kind of training, if any, do you provide for -- I mean, aside from, I guess, you know, the immediate training regarding the equipment itself, but do you provide your employees who go to mine sites with kind of comprehensive training right now? MR. COME: What we have been doing since the time that we were no longer classified as miners, is we coat tail on our customers' training whenever possible. Our people who work at mine sites train with the site owner's people. They are kind enough to allow us the courtesy to sit in on their training, and that's what we do. We have not gotten into specific areas like confined space and such other areas as don't concern us with power haulage and mobile equipment, but we've concentrated on mine traffic control and safety around mobile equipment. MS. ALEJANDRO: Typically, do you go repeatedly to the same mine sites? MR. COME: Yes. MS. ALEJANDRO: And typically, how long would someone from your company spend on a mine site at any given time? I mean, is it just a couple of hours or days or weeks? MR. COME: All of those, yes. MS. ALEJANDRO: Okay, it depends -- MR. COME: Depending on the extent of the repair. We have had people assigned to a site for as much as four weeks continuous. MS. ALEJANDRO: Okay. MR. COME: And we've also done a lot of one-day or two-day repairs. MS. ALEJANDRO: When they were there for four weeks, what specifically were they doing? MR. COME: Engine removal from say a large wheel loader or shovel. MS. ALEJANDRO: Okay. MR. COME: Rebuild and reinstallation. MS. ALEJANDRO: Okay. Do you have specific recommendations as far as what kind of training would be appropriate for employees such as yours and who should be responsible for that training? I guess, you know, reading between the lines you don't think that it's appropriate to classify or consider your employees as miners, subject to the 24-hour comprehensive training requirements. But short of that, what would you say would be appropriate safety and health training for those individuals? MR. COME: I think there must be a middle ground there somewhere that -- we're dually regulated in that in our shop operations OSHA is the regulating authority, and we do training, of course, in those areas as required annually for the initial training and the refreshers, In addition to that, the people who go onto mind sites, I think, should be exposed in those areas of basic safety, especially as regards power haulage for their own and for the safety of the people around them. Other task-specific training, I think, would be best left off their agenda as something that they won't be concerned with. MS. ALEJANDRO: Do you have any questions? MR. BURNS: You sort of answered one of the questions I had. I assume you also do diesel engine repair at OSHA sites? MR. COME: Yes. MR. BURNS: Not only your repair shop but also at construction sites and things like that? MR. COME: Yes, we do. MR. BURNS: Do you -- so then you feel that -- is there a problem for you at times where you feel you have to provide MSHA training and OSHA training and they are not necessarily the same and you're perhaps doing some redundant training to comply with both? MR. COME: I think that some of our people, because we do train in-house and we do expose them to our customers' training just to make sure everybody is on the same page, I think they do see some redundancy, but a reminder never hurt anybody either. MR. BURNS: Okay. Okay, that was basically what I was going to ask, whether or not some -- if you see some way where if you do the training under OSHA, if that should comply with what's required by MSHA, as long as it's supplemented by the mine operator or you to include, you know, the mine traffic and things like that that introduce additional risk; that the actual task that they're going to perform is the same. MR. COME: Okay. MR. BURNS: Is that accurate? MR. COME: I would say yes, as long as the functions are compatible, then the training would be adequate. MR. BURNS: I think that's -- MS. ALEJANDRO: Thank you very much. MR. COME: Thank you. MS. ALEJANDRO: Is there anyone else who would like to -- yes, the gentleman in the back? MR. THOMPKINS: Good morning. My name is Ed Thompkins. I am the safety rep for Blue Circle Cement, also a certified MSHA trainer. And I'd like to ask the audience a few questions, if that's permissible, when we get to it. MS. ALEJANDRO: I think that would be alright. The only problem we have is with -- to make sure that the court reporter gets everything down, so it may be a situation of people are going to be answering your questions, they would have to come to a mike. MR. BURNS: Come to the table. MS. ALEJANDRO: Yeah, that would probably work out. MR. THOMPKINS: Okay, that will be good. MS. ALEJANDRO: Okay. MR. THOMPKINS: I've been a miner for 37 years, and then have been dealing with safety at our facility for at least 35 of the 37 years. And I've seen all the regulatory agencies come and go. As a certified miner trainer, I do 90 percent of the safety training in our facility. We have used Marino and associates in the past, and they have done a good job. But we found, in our estimation, that we're the ones that work on site. We know what our personal problems are on a daily basis. We've set up a safety committee. We've set up accident investigation teams that work, both salary and hourly together. And our safety committee has done a very viable job in our facility. Now, getting down to training, the eight-hour course is what we provide. We use a slightly different format than other people. We use a monthly what we call "Time Out For Safety Program." Every miner at our facility has to attend these classes. They are usually an hour session. They are credited with 45 minutes for each session they attend over the year. Then at one month out of the year we do a four- hour session, and that gives us normally more than eight hours for every miner at our facility. And those that don't have the total eight hours, we make sure that they get it before the end of the year. In fact, next week we'll be doing our four-hour session for the year to get the total requirements required. Recently, we just did an in-plant survey of every aspect of the working facility at our cement plant, and the highest rating, the ratings went from poor, good, to very good to excellent, and the highest rating out of that survey that was -- it was -- no one wa required to sign the survey, so the people had an open mind as to what they wanted to check off. And Ironically, if you want to put it that way, our safety program wound up with the highest rating of the whole survey. Our people like the way we do our training at our facility. At times we bring in outside experts for safe specifics, like electrical, HAZMAT, if there is a need for it. Every week on a Tuesday morning we have a safety committee meeting. That's an open door policy. Everybody in the plant has an opportunity to stop in that meeting and ask any or have any problems, they're usually corrected within an hour's time of that meeting. Over the years I've met many peers across the country in the safety aspect in the mining industry, and one of the most important meeting per year in the National Safety Council's Congress and Exposition that's put on once a year. Now, you're well aware that we call it the MSHA brass, is available at those meetings, that we can talk to McAteer -- well, he didn't show up this year, but we can talk to the hierarchy of the MSHA staff with personal questions, and years ago we asked about the outside contractor training that has become quite an issue. What we do at our facility is any contractor that has to come on site we give them a one-hour safety rules and awareness orientation of what's required by our rules and MSHA's rules while they are on our property. We flatly state that as your -- if you're on our property, you're considered a miner, and you will adhere to both of these rules and regulations. When they finish this one-hour orientation, they are required to sign off, each individual that will be working on our property, and as such, we keep documented records of the outside contractor's force. It works for us. It has also provided MSHA inspectors on site have cited outside contractors that have gone through this rules and awareness, and we have provided the documentation and they receive citations while on our property, but they violated the rules and regulations. But getting back to training, we use as many, I call my fellow workers at the plant professional miners, which 99 percent of them are. We have a bunch of young, new people in there that has to have all the training from new mining right up to their personal task training. But most of my professional associates on site agree with our safety program and it has worked for us. If there is any questions. MS. ALEJANDRO: Yes. Mr. Thompkins, you've touched on a couple of areas, and I'd like to see if you've got, you know, maybe a few more specific comments. From what you've said, I gather that the people who provide your safety and health training are people who have got experience doing the tasks at your operation Do you have any specific recommendations for what, if any, minimum qualifications might be appropriate for people who are providing safety and health training? I mean, experience or, you know, training in how to train or anything like that? MR. THOMPKINS: On an outside entity, there is an outside source for many professional trainers. But, in our estimation, they provide safety training in the areas that they are expertise in. Take a generality like electrical safety training, there are many experts in the field out there, but a lot of our outside training people dealing with safety deal in generalities across the board, those MSHA- mandated requirements per se. MS. ALEJANDRO: Um-hmm. MR. THOMPKINS: We have found that in-house we get to the exact source of the problem because we know what the source and the problem is, and that's the way we provide our training to our people. And outside source may be able to provide the safety training 80 percent, but it's that extra 20 percent that we provide in-house that seems to make the difference. MS. ALEJANDRO: Okay. Do the people that provide the training at your operation get any kind of instruction on how to train, or usually, I mean, do they, you know, just do it however they feel most comfortable? MR. THOMPKINS: We use two factors. One, a certified MSHA trainer, that's one of our requirements. They have to sign the certifications during the year that they provided adequate MSHA-mandated training. By the same token, as long as that MSHA, the way that we use it, as long as that MSHA certified trainer is setting in that classroom and monitors the training that's going on, whether it be someone out of our own department that's been there 20 or 30 years and knows the hazards more than anybody else in his task filed, as long as we monitor those classes and make sure that we agree to what the content that was put into those classes, then we sign them off. MS. ALEJANDRO: Um-hmm. MR. THOMPKINS: If we don't agree, then we simply do not sign the certificates and do not allocate that amount of time as safety training. Over the years we've had some poor instructors, then we kind of weed them out, if you want to call it that. We wind up with the good instructors to the excellent instructor. In the mining industry throughout the United States, there are safety instructors in the mining facilities themselves, who I deem is the best safety instructors in the world, considered in mining. And I can give you their names and addresses if you want. But, again, referring back to the National Safety Congress and a lot of people in this room have probably never been there, and a lot of people just for whatever reason don't attend, but when you go to the National Safety Congress on a yearly basis, every form of technical information, classroom information, the best and the latest in the safety field of technical training is available to you. There are professional development seminars available to you. Now, for the first time this year, for four days, in the past it used to be for two days. This training is all provided at these national congresses, along with the best safety speakers in the world. They all attend this. And if I'm acting like I'm promoting the National Safety Congress, that's exactly what I'm doing. But by the same token, we also have a chance to talk to the MSHA brass on a one-on-one basis if you have specific problems, and try to get them to give us an answer. It's not successful some of the times. MS. ALEJANDRO: The type of training that you give to your employees, is the format typically classroom or does it vary or is it on site? MR. THOMPKINS: Over the years what we've done is two things. We've provided formulated and made a training room. That's specifically what this room is. And we are able to accommodate up to 50 people in that room, and that's where all -- 90 percent of our safety training is provided in that training facility. We have some of the latest technology in how to provide that training with your visual aids and such. Some of the training is done on-site. Well, take for instance the haul trip driver. We can run them through a two or three-day course on providing the training. You take them from the workbooks right on up through the actual physical hands on approach on that vehicle. There is no better training, you provide the technical training up front of what they're going to be doing, but if this person has never drove a haul truck, you have to provide an in depth training period for them with physical hands on driving, and there you have to make a decision: Is this man qualified after a certain period or isn't he? And there is some people that will never be a truck driver, and there is others that after eight hours you feel totally confident in what their abilities are, and that provides the same thing in basically all of our job classifications at the plant. There are people that come into our electrical program. They are continually trained. We have just about every department in our cement industry in our plant, we have seminars, off-site classes and everything. But most of the safety training, 99 percent of it is done right on site. MS. ALEJANDRO: You sort of touched on this in your remarks, but I would maybe like to get a more specified statement from you. You indicated that you give -- over the course of the year you'll give your employees, you know, short safety talks of, you know, periods of an hour or so, and this is one of the issues that we've been hearing a lot about at some of our other meetings. Eight hours of annual refresher training, I think, Part 48 currently requires that that training be given in increments of no less than 30 minutes, and we've heard a lot of comments about how, depending on the circumstances,, that the training will last less than 30 minutes over an extended period of time can be valuable. Do you have any feelings on that? MR. THOMPKINS: In my personal estimation, 30 minutes is not enough. MS. ALEJANDRO: Okay. At one? MR. THOMPKINS: For any session on any topic. MS. ALEJANDRO: Okay. And why is that? MR. THOMPKINS: Because we've found that by using an hour format, you usually get 45 minutes of productive information gathering/sharing out of that. If you limit it to a 30-minute time, there is always going to be a few people a few minutes late and a few minutes that's got more important things to do and a few people that's basically not interested in what you're telling them. But if you can provide enough interest, keep their attention span, and another things, as an instructor over the years you learn who is listening and who is not simply by looking at them, their body language, et cetera. I think every instructor in here knows that and will tell you the same thing. What we've found for us, the format of one hour, 45-minute, that's what we allocate to their records, that works on a monthly basis. We also have each crew, as we call it, each crew does tailgating safety talks with their own crews during the week, and they touch on certain subjects. But basically that's it. MR. BURNS: Yeah, I have a couple questions for you. As far as the tailgate talks, that's not something that you document? Give me a second, please. MR. THOMPKINS: Sure, go ahead. MR. BURNS: That's not something that you document from the standpoint of the eight hours annual refresher. You may document for your own purposes, but not for that? MR. THOMPKINS: That's right. The tailgates aren't allocated to the time slots for the eight hours, no. MR. BURNS: Okay. Even though some of those probably last more than half an hour? MR. THOMPKINS: They could be, yes. MR. BURNS: Okay. MR. THOMPKINS: But here again, somebody has got to do the documentation and the recordkeeping. MR. BURNS: As far as -- do you sometimes use manufacturers' reps to do training? MR. THOMPKINS: Yes. MR. BURNS: Okay, and these are the people that many of which would not be -- MR. THOMPKINS: Well, we're talking about -- MR. BURNS: --- certified or qualified by MSHA? MR. THOMPKINS: Right, but we're talking like say a motor mechanic. MR. BURNS: Right. MR. THOMPKINS: There might be a safety aspect as to taking apart a hydraulic system that could explode in their faces if they don't know the awareness of what they're dealing with. We have those type of training programs. MR. BURNS: Okay. The other thing is you mentioned that you do one-hour training for all contractors? MR. THOMPKINS: Yes. MR. BURNS: Does that include someone who might, like a welder or somebody who you might call out, you know, on an emergency basis to get something done in the mine? MR. THOMPKINS: I'll give you -- I'll tell you what we do at our plant, and we actually stole the idea from somebody else in the mining industry . When we give these outside contractors their one- hour training, we have high visibility stickers that we punch on the month or the day that they were trained, and while they're on our property they are required to wear that hard hat with that sticker on. So anybody on our property can look at that contractor and if he doesn't see that sticker for this year, then they are to be questioned as to why they are not, and that's how we regulate. Once in awhile there is a couple that try to slip through the cracks because they're only going to come in for four to six hours. That's kind of difficult. And we have a lot of outside trucks that come on our property, and that's one of our major concerns, how do we regulate our constant daily flow of outside contractors, the haul trucks, the cement tankers, the flat beds, the outside entities that come in and bring supplies. Some of them might come here once in five years, but they're still on our property. MR. BURNS: Yeah, that's an interesting -- how do you deal with the truck drivers? MR. THOMPKINS: If they are a truck driving outfit that comes on our property continual, then we contact their supervision and make them aware of what their responsibilities are on our property. Some of our concerns is a lot of truck drivers come out of New York and New Jersey, and they can't speak English. If they can't speak English, how can they read road signs? Good question. MR. BURNS: I mean, do you also give them one one- hour training, the individual truck drivers -- MR. THOMPKINS: No, because -- MR. BURNS: You never know who is going to come. MR. THOMPKINS: You never know who is coming on the property, but we make their supervision aware of any transgression or if they come on our property speeding, they're given a one-shot deal. You do it again you don't come on our property ever. We throw them right off the site. MR. BURNS: And I'm sure you know that that's not an issue that's unique to you. I mean, how to do with truckers, it's very difficult, and you can't possibly train everyone of them because they'll send a different driver, you know, who they haven't touched on yet. I was somewhat intrigued by your sticker issue. Is this something like, you know, a sticker issued for inspection of cars or it's a certain color and it has the year on it? MR. THOMPKINS: Exactly. It has the year and the coloration, like this year happens to be high visibility, is blue. Last year's was a high visibility pink. So we've got contractors that's got both of them on their helmets. Some of them carry three or four. We've been doing this for about four year now, and it does work. I have people come to us or anyone on the safety committee and say, "Hey, there's a contractor up there doing some welding and he hasn't got a sticker on his hat." So we find out why. MR. BURNS: Okay, I just wanted to go back to the manufacturers' reps, but I think you covered that from the standpoint that your preference is, is that you may have a loader operator make a presentation, and they may not be qualified -- they may not be a qualified trainer, but you or someone that is qualified is present in the room in case they need some assistance? MR. THOMPKINS: No, I didn't quite say that. What I'm saying is an outside manufacturer's rep, he might come on site and demonstrate a new loader, front-end loader per se, but we're there with them while they're on site. MR. BURNS: Now, this was -- that was brought up in the past, and I think that's an important point. Probably some of the best training you can get would be from some of the manufacturers's reps because, you know, they've seen -- MR. THOMPKINS: You can run into -- you can run into all kinds of problems like say a manufacturer's rep for a new front-end loader comes in there. You buy the loader, and some of them think that they can just simply drive on your property to check that loader operation wherever it happens to be in the operation. Well, we require that you sign in, and then find out where it is, and someone has to either go with them or they bring the loader to the garage are, or they take someone with them to actually see it in operation. MR. BURNS: Now, that's a separate issue. I mean, I've heard that -- that's not that uncommon too. They might even bring somebody else with them on the property to show them the loader, which is another problem, you know, entirely. I'm just talking about using them as trainers. MR. THOMPKINS: Well, we don't use any -- MR. BURNS: Okay. MR. THOMPKINS: -- any of them in safety training outside of -- unless they have a particular issue, like some of your new loaders I'm sure that you're aware of, we just lost two mechanics this year in the mining industry when they were working on a hydraulic systems, when they removed a certain hydraulic portion, the buckets fell on them. Now, that's two miners that's not going to make it home tonight, and we're already up to 49 fatalities for the year. So here again, our consensus and my peers and the rest of the cement industry feel the same way, safe production is paramount. And if we can get that miner home safely every day, that's what we're all about, and that's our criteria that we use every day at our facility. MR. BURNS: I don't have any more questions. MR. THOMPKINS: I have a question for you people. MS. ALEJANDRO: Okay. MR. THOMPKINS: I think just about everyone in this room is concerned, if this rule goes into effect, which I assume it will, if and when it does, what authority has an on-site MSHA inspector, is he going to have to be delving into the training records that we've done over the years? Is it going to be a personal MSHA -- his own personal view of what training is required? Take a front-end loader operator for instance. If he's been totally trained in the safe operation of that piece of equipment, but maybe he doesn't have, and he has no training yet because he's only been on the facility for a couple months. Are we going to be cited because he hasn't been trained in HAZMAT? MS. ALEJANDRO: Well, obviously, that's going to depend on what specifically the rule requires, which obviously right now, I mean, we're in the information gathering stage. And, you know, aside from the minimum requirements that are already in the Act that we would need to include in the regulation, you know, such as 24 hours minimum, eight hours annual refresher, you know, paying miners for their normal -- their normal wages when they're doing training, I mean, you know, right now we're trying to figure out what additional requirements are going to be included. You know, subject areas that need to be covered. I mean, there are certain minimal subject areas that the At includes, but beyond that. So, you know, depending on what the regulation looks like, that's obviously going to give an inspector some basis for making determinations of whether an operator is in compliance or not. But one of the things that we keep hearing is, you know, flexibility and discretion for the operator in coming up with a training program, and, you know, the down side of that can be that you give people a lot of discretion, and an inspector comes on and is going to be making a subjective determination of how well an operator has complied with what are essentially performance-oriented standards. So, I mean, I guess the short answer is it really depends on what the reg is going to look like, and I mean, if you've got specific areas of concern as far as what inspectors may or may not do, I mean, you should, you know, maybe give us some idea of what your particular concerns are so we can take those into account. Is there something specifically you're concerned about? MR. THOMPKINS: Well, I've got a two-page broken down part of the CF 30 proposal here for the new regs back there. MS. ALEJANDRO: You mean Part 48 or -- MR. THOMPKINS: Yeah. MS. ALEJANDRO: Okay. MR. THOMPKINS: So, yes, there is questions on some of those issues, but that will take quite a bit of time. MS. ALEJANDRO: Well, I mean, one other thing that you could do, and I encourage you to do this, is if you want to submit something in writing to us, you know, we would be really happy to get that from you. And if you don't have the address to send it to -- MR. THOMPKINS: I've got it. MS. ALEJANDRO: -- you can come up to us after the meeting and we can get that to you. But yeah, if you think of thing, and this goes for everyone in this room, you know, if you're not prepared to make a presentation after this or haven't spoken, but later on you come up with some things that -- some issues that you want to raise or some suggestions that you'd like to make, I encourage you all to submit stuff to us in writing, again, before February 1st of next year. I don't know whether that answers your question. MR. THOMPKINS: Somewhat. MS. ALEJANDRO: Yeah. MR. BURNS: I mean, if you have something here with you that you want to, you know, discuss some of the details, or if you'd rather think about it. MR. THOMPKINS: Let me look at it. MS. ALEJANDRO: Okay. MR. BURNS: You know, I'm not going to throw a plug in for the National Safety Council, I guess maybe I will, but I mean, I've attended a couple of conferences and, you know, I do agree with you. They are very valuable. I think somebody else mentioned that it's important to hear what other safety professionals in other fields are doing. Sometimes in mining we just sort of get focused on their own little world, and there are other people doing things that, you know, that can help you out. So I agree with you from that standpoint, that it is important to go to things like that and learn from other people. MR. THOMPKINS: I'm glad you touched on it because that's something I forgot. One of the most important things at the safety congress is the interaction between your peers and the safety industry, and for us specifically in the mining industry. They might have a problem ongoing on their mining site that they might have with their personal MSHA inspector, which might be the same problem that we're having, but we have got into a problem with our MSHA inspector about it yet, but they might have the answer, or we might have the answer available for them, and that interaction, that interworking between your peers in the mining industry is extremely important. And if you don't go to the congresses and you don't meet these people, you don't have that interaction or that interconference, I call it. It's extremely important and I've found it well used over the years. MS. ALEJANDRO: Thank you very much, Mr. Thompkins. Is there anyone -- yes, the gentleman in the back. MR. KLUCSIK: Good morning. My name is John Klucsik. I'm an attorney with the law firm of Devorsetz, Stinziano, Gilberti, Heintz & Smith in Syracuse, New York. We also have an office in Albany, and we have for the past 20 years represented a very large proportion of the surface mining industry in the State of New York, as well as operators throughout the northeast. MS. ALEJANDRO: Could you spell your last name for the record, please? MR. KLUCSIK: Yes. It's K-L-U-C as in "Charles, S as in "Sam," I-K. MS. ALEJANDRO: And your firm is, if you could repeat again? MR. BURNS: You don't have to spell the whole firm. MS. ALEJANDRO: Yeah, you don't have to spell it, just repeat it. MR. KLUCSIK: Devorsetz, Stinziano, Gilberti, Heintz & Smith. MS. ALEJANDRO: Do you have a card? MR. KLUCSIK: I do have a card. MS. ALEJANDRO: Maybe you can give us a card afterwards. MR. KLUCSIK: And the next question is how did they let a Klucsik in with that group. But I'd just like to ask you to consider one element of training and enforcement that we have seen in the course of our practice and our involvement with the mining industry, and that is the phenomenon that occurs when a inspector finds a lapse of adherence to a safety rule, he finds some employee who is not wearing is safety belt, he finds some employee who is not using a line when perhaps he should, and the inspector draws from that observation a failure to indoctrinate in the safety rules, and further frequently concludes that even though there is no requirement presently or no ability to enforce, that that represents a failure in training, which very often takes the form of a citation, a failure to indoctrinate. And I would just suggest to you that a lapse in compliance with a specific safety standard does not necessarily represent a failure to indoctrinate, and I would encourage you to do what you can in the formulation of the rule to make that clear and to provide that instruction and training to the MSHA inspectors. Thank you very much. MS. ALEJANDRO: Thank you. Is there anyone else who would like to come up and make some remarks, or someone who has already made remarks who has additional issues they would like to touch on? Okay. Well, what we're gong to do now is, as best we can, give you a short summary of some of the issues and positions that we've encountered in the last couple of meetings. Well, I've got a little list here and I'm sure Kevin and Ros have got a couple of issues that they would like to touch on too. One of the things that we've been hearing, and you heard some of it today, is the whole issue of contractors, and there is a couple different facets to this. One of the issues is who should be responsible for the training of contractors who come onto a mine site. Some of the people who have commented have said that it would be appropriate for operators to provide site- specific hazard training to contractors, but that the contractors themselves should be responsible for the comprehensive training for their employees. Another issue related to contractors is what type of training is appropriate for individuals, depending on what kind of work they may be doing on the mine site. And obviously, the guy who comes and puts cokes in the machine or delivers, just delivers materials and leaves quickly should perhaps be subject to different kinds of training requirements than someone who is directly engaged in the extraction or processing process. One of the issues that has come up is for initial miner training, the 24 hours of new miner training, how much training should be given to the individual before they actually begin work. Some people have advocated eight hours minimum. Some individuals have indicated that, particularly from very small operations, and there really isn't all that much that needs to be done to orient the individual to the hazards of the work site, and that the rules should allow a great deal of flexibility as far as how much initial training should be given before the employee begins work. We've gotten a lot of comments about satisfying annual refresher training requirements, the eight-hour requirement. A lot of people have gotten up and said that the 30-minute minimum that is in Part 48 is too restrictive for them and that they would like to have the flexibility to be able to give training in even smaller increments than 30 minutes to be applies towards the eight hours of annual refresher training. Other people have raised the issue of, you know, the recordkeeping that might be involved in something like that. I mean, if you are going to be providing eight hours of training over the course of the year in very small increments, I mean, that presents a -- can present a pretty significant recordkeeping burden for an operator. The theme that has gone through a lot of the comments from operators has been encouraging the incorporation of flexibility in the rule and a reduction in any kind of administrative or recordkeeping burden. We've also gotten a number of comments about, particularly given, you know, increasing electronic maintenance of records, that it doesn't make a great deal of sense to require training records to be kept at the mine site; that we should have the flexibility to allow centralized recordkeeping, particularly for operations with multiple locations, and that to include in the rule some kind of a time frame for operators to be required to provide training records to an inspector who requests them, some period, an hour, a couple of hours, or a day, if the records are not maintained at the mine site. And then, finally, the other issue that has come up, and it came up a little bit here, is compliance deadlines. We are under an obligation to publish in the Federal Register a final training regulation for the affected industries on or before September 30th of 1999. And then the issue becomes, all right, you know, the requirements are going to be books on or before that date, what time are we going to set for the industry to come into compliance with the requirements that we finally agree on. And I would say that probably most commenters who have addressed that issue have recommended that we give a year after the date of publication for the industry to come into compliance with those requirements. And, you know, that's my best summary of the issues. Kevin and Ros may have some issues that I have forgotten. MR. BURNS: I tried to keep track of what you stated. Another issue that has come up is the plan, whether or not the rules should require that operators submit their plan to MSHA for some sort of approval or whether or not there should be another method to have a plan that meets the requirements. And at one meeting it was suggested that maybe there should be, you know, many some nonmandatory guidelines concerning what would meet the requirements of an approved plan in the final rule rather than burden both MSHA and the operators with going through the paperwork of sending plans back and forth. The issue of -- I think this was raised here too, is the issue of evaluating trainers, whether or not MSHA should rather than just have a paper qualification based upon something submitted in an abstract and saying they're qualified, whether or not MSHA should try to do more to evaluate trainers either by sitting in on some training that they do or talking to miners in terms of whether or not training in effective. Those were the -- the two main things that, I think, I don't know if you mentioned them. The only other thing concerns records, of what sort of information is required on the record. Some people suggested that what's on the Form 5023, that information should also be gathered, and others have suggested that all that information is not necessary. So those are some of the issues that were discussed at the other meetings also. MS. ALEJANDRO: Hearing that, does anybody have anything else they'd like to ask? Okay, well, I want to thank you all for coming and for your participation. I would like to maybe give you a short summary of what we think our time frame is going to be so that you can, you know, plan for the future as far as this rulemaking proceeds. We have got, let's see, we have two more public meetings next week, and then we have two, the two final public meetings are going to be the week of January 5th. We're going to be in Dallas and in Atlanta the week of January 5th. The Coalition for Effective Miner Training, which is an industry group of companies that have been involved in developing a draft to give to MSHA by February 1st, will be giving us that draft, and that will be used as a basis for developing a proposed rule. Obviously, the proposed rule will be published in the Federal Register some time after February 1st. Our schedule calls for publication some time in the early spring. I think we're looking ideally some time in March. After the publication of the proposed rule, we'll be holding, I would say, at least two public hearings which in format will be similar to the public meetings that we're having now, although the difference will be that commenters will have a specific proposal that MSHA has come to with to make comments on. The record will -- people will also have the opportunity to submit written comments on the proposal if they are not able or do not wish to participate in the public hearings. And then we will be publishing a final rule, taking into account all of the comments that we've gotten on or before September 30th of 1999. Again, I would encourage you to submit written comments if you wish by February 1st. If you need the address, you should come up and talk to us at the end of the meeting. And also, I'd like to let you know, for those of you who have got access to the internet, MSHA does have a home page on the Worldwide Web, and the address is www.MSHA.gov. There is a button on the home page entitled "Training Regulations," and we are going to -- we've already got a couple documents on there, and as this rulemaking proceeds, we will be adding relevant information to that site. So if you want to, you know, check on that every now and again, that will be one way for you to keep up to speed for what's going on. Additionally, if you've got any questions, you want to give us a call, we can give you our phone number or you can also call the telephone number that's in the Notice of Hearing, the notice of meeting that was published in the Federal Register on November 3rd. VOICE: Is there an e-mail also that we can get to you? MS. ALEJANDRO: If you want to get to me, I can give you my e-mail address. It's kalejande@MSHA.gov. And, Kevin, do you want to give your -- MR. BURNS: Yeah, mine's the same except it's burnsk. MS. ALEJANDRO: And do you want to give yours? MS. FONTAINE: It's rfontain, without the "e," @MSHA.gov. MR. BURNS: I thought yours was unlisted? No? MS. ALEJANDRO: So, you know, if you've got any questions or you need additional information, feel free to contact us and we will try and help you out. And if there is nothing else, again, I'd like to thank you all for coming, and I look forward with working with most of you or all of you in the next few months. Thank you. (Whereupon, at 11:18 a.m., the public meeting was concluded.) // // // // // // // // // // // // // // // // // // REPORTER'S CERTIFICATE DOCKET NO.: N/A CASE TITLE: Public Meeting on Mine Safety HEARING DATE: December 11, 1998 LOCATION: Albany, New York 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: December 11, 1998 George Kraft Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N. W. Washington, D. C. 20005