1 MINE SAFETY AND HEALTH ADMINISTRATION + + + + + PUBLIC HEARING + + + + + TUESDAY OCTOBER 28, 2008 + + + + + The Public Hearing convened at 1100 Wilson Boulevard, in the 23rd floor Conference Room, Arlington, Virginia pursuant to notice at 9:00 a.m., Patricia W. Silvey, Chairperson, presiding. PANEL MEMBERS PRESENT: PATRICIA SILVEY CHAIRPERSON JOHN ARRINGTON PANEL MEMBER KEVIN BURNS PANEL MEMBER ELENA CARR PANEL MEMBER GENE AUTIO PANEL MEMBER LINDA ZEILER PANEL MEMBER JENNIFER HONOR GENERAL COUNSEL 2 TABLE OF CONTENTS Welcome and Opening Statement, Patricia Silvey, Chairman . . . . . . . .4 Witnesses: Dan Kane. . . . . . . . . . . . . . . . . . . 18 Linda Ralsovich-Parsons . . . . . . . . . . . 29 Danny Callies . . . . . . . . . . . . . . . . 38 Jim Starns. . . . . . . . . . . . . . . . . . 45 Randy Wideman . . . . . . . . . . . . . . . . 49 Dale Byram. . . . . . . . . . . . . . . . . . 55 Joe Weldon. . . . . . . . . . . . . . . . . . 57 Daryl Dewberry. . . . . . . . . . . . . . . . 61 Jimmy Yates . . . . . . . . . . . . . . . . . 67 Charles Carden. . . . . . . . . . . . . . . . 70 Patrick Watson. . . . . . . . . . . . . . . . 73 Steven Miller. . . . . . . . . . . . . . . . 81 Sandra Blackston. . . . . . . . . . . . . . . 87 Grady Robertson . . . . . . . . . . . . . . . 98 Wendell Rigsby. . . . . . . . . . . . . . . .103 Randall Green . . . . . . . . . . . . . . . .105 Harold Sickles. . . . . . . . . . . . . . . .108 Larry Turner. . . . . . . . . . . . . . . . .115 Ray Lee . . . . . . . . . . . . . . . . . . .121 Thomas Wilson . . . . . . . . . . . . . . . .123 Chastity Farr . . . . . . . . . . . . . . . .132 Patton Bruce. . . . . . . . . . . . . . . . .134 James Blankenship . . . . . . . . . . . . . .137 Terrell Stevens. . . . . . . . . . . . . . . 141 Ron Lovel. . . . . . . . . . . . . . . . . . 143 David Mlakar. . . . . . . . . . . . . . . . .147 John Tasson . . . . . . . . . . . . . . . . .148 Steve Narhi . . . . . . . . . . . . . . . . .151 Mike Maleska. . . . . . . . . . . . . . . . .154 Glenn Saarinen. . . . . . . . . . . . . . . .156 Mike Woods. . . . . . . . . . . . . . . . . .158 Phillip Johnson. . . . . . . . . . . . . . ..161 David Toole . . . . . . . . . . . . . . . . .162 Pat Brady . . . . . . . . . . . . . . . . . .166 Michael Pauley. . . . . . . . . . . . . . . .175 George Hill . . . . . . . . . . . . . . . . .179 Tanya James . . . . . . . . . . . . . . . . .183 Ricky Clark . . . . . . . . . . . . . . . . .187 Barbara Ward. . . . . . . . . . . . . . . . .188 Adam Vance. . . . . . . . . . . . . . . . . .190 Albert Coleman. . . . . . . . . . . . . . . .193 Max Kennedy . . . . . . . . . . . . . . . . .195 3 TABLE OF CONTENTS Witnesses: Walter Seeba. . . . . . . . . . . . . . . . .201 Dennis O'Dell . . . . . . . . . . . . . . . .206 Michael Maynor. . . . . . . . . . . . . . . .223 Charles Graham. . . . . . . . . . . . . . . .224 Jay Pruitt. . . . . . . . . . . . . . . . . .225 Jon Stewart. . . . . . . . . . . . . . . . . 227 James Blankenship . . . . . . . . . . . . . .231 Melissa Earnest . . . . . . . . . . . . . . .235 James Johnson . . . . . . . . . . . . . . . .240 Sean Reach. . . . . . . . . . . . . . . . . .244 Ryan Weston . . . . . . . . . . . . . . . . .247 John Lindsay. . . . . . . . . . . . . . . . .251 Randy Bakes . . . . . . . . . . . . . . . . .255 Larry Spencer . . . . . . . . . . . . . . . .257 Riley Hullett . . . . . . . . . . . . . . . .259 Morris Wilson . . . . . . . . . . . . . . . .261 Dwight Cagle. . . . . . . . . . . . . . . . .263 Joe Weldon. . . . . . . . . . . . . . . . . .272 Deandre Bolden. . . . . . . . . . . . . . . .277 Ned Kimbrell. . . . . . . . . . . . . . . . .280 Antoine McGhee. . . . . . . . . . . . . . . .307 Closing Remarks Patricia Silvey, Chairman . . . . . . .314 4 1 P R O C E E D I N G S 2 9:08 A.M. 3 MS. SILVEY: Good morning. We are 4 back to start the Mine Safety and Health 5 Administration's public hearing on MSHA's 6 proposed rule for alcohol and drug-free mines, 7 policy, prohibitions, testing, training, and 8 assistance. 9 Before we start, can I please confirm 10 that people are at the various locations other 11 than the Washington, D.C. area? We are located 12 at MSHA's headquarters building at 1100 Wilson 13 Boulevard, Washington, D.C. 14 Is Birmingham, Alabama on the line? 15 BIRMINGHAM: Yes, we are here. 16 MS. SILVEY: Okay, thank you. Is 17 Virginia, Minnesota on the line? 18 VIRGINIA: Yes, we are. 19 MS. SILVEY: And Beckley, West 20 Virginia? 21 BECKLEY: Yes, Beckley's on the line. 22 MS. SILVEY: Okay, thank you very 23 much. 24 My name is Patricia W. Silvey and I 25 am the Director of the Mine Safety and Health 5 1 Administration's Office of Standards, 2 Regulations, and Variances. I will be the 3 moderator of this public hearing on MSHA's 4 proposed rule on alcohol and drug-free mines. 5 On behalf of Acting Assistant 6 Secretary of Labor, Richard E. Stickler, I want 7 to welcome you to this hearing today and 8 including, obviously, all of those who are 9 joining us via audio. 10 At this time, I will provide the 11 logistics surrounding today's hearing. The 12 hearing is being held via audio in Washington, 13 D.C. and as you just heard, Birmingham, Alabama; 14 Beckley, West Virginia; and Virginia, Minnesota. 15 I will start with the persons who -- 16 in the order, as is MSHA's usual practice, I will 17 start with the persons in the order that they 18 signed up and the United Mine Workers signed up 19 first and what I will do is take the United Mine 20 Workers who are present in Washington, D.C. first 21 and then the representatives of the United Mine 22 Workers who are in Birmingham, Alabama. And just 23 so to provide people with notice, I would then go 24 to Virginia, Minnesota with representatives of 25 the United Steel Workers, Local 45950; and then 6 1 to Beckley, West Virginia. 2 And on my list I have Murray Energy 3 Corporation and I don't know if there are any 4 United Mine Workers members in Beckley, West 5 Virginia or not, but if there are then -- and 6 obviously, as most of you know, at the end, the 7 presentations from all persons who have signed up 8 in advance, persons will then have an opportunity 9 to speak after that. 10 This is the second public hearing on 11 the proposed rule. As many of you know, we had 12 the first hearing on Tuesday, October 14th, via a 13 webcast in Washington, D.C.; Pittsburgh, 14 Pennsylvania; and Englewood or Denver, Colorado; 15 and via audio in Beckley, West Virginia; 16 Birmingham, Alabama; and Madisonville, Kentucky; 17 and Price, Utah. 18 For purposes of today's hearing, 19 persons who signed up in advance will make their 20 presentations first, as I just said. But persons 21 who did not sign up will be permitted to make 22 presentations. 23 At this point I'd like to introduce 24 the members of the MSHA panel. To my right is 25 Elena Carr and Elena Carr is the Labor 7 1 Department's Drug Policy Coordinator for Drugs. 2 To her right is Kevin Burns. He's with MSHA's 3 Education Policy Development Office and the Small 4 Mines Office. And to his right is John Arrington 5 with the Coal Mine Safety and Health. To my left 6 is Jennifer Honor and I will graciously refer to 7 her as our learned counsel. To her left is Gene 8 Autio and Gene is with the Office of Metal, 9 Nonmetal Mine Safety and Health. 10 As most of you know, the comment 11 period for the proposal will close on November 12 10th at midnight Eastern Daylight Savings Time 13 and I would like to reiterate, Eastern Daylight 14 Savings Time. You can view the comments on the 15 Agency's website, www.msha.gov. 16 The proposal would amend the existing 17 metal and nonmetal standards for the possession 18 and use of intoxicating beverages and narcotics 19 and make a new standard applicable to all mines. 20 The proposal would designate the substances that 21 cannot be possessed on mine property or used 22 while performing safety-sensitive job duties, 23 except when used according to a valid 24 prescription. Mine operators would be required 25 to establish an alcohol and drug-free mine 8 1 program which includes a written policy, employee 2 education, supervisory training, alcohol and drug 3 testing for miners who perform safety-sensitive 4 job duties and their supervisors and referrals 5 for assistance for miners and supervisors who 6 violate the policy. 7 The proposal would also require those 8 who violate the prohibitions to be removed from 9 the performance of safety-sensitive job duties 10 until they successfully complete the recommended 11 treatment and their alcohol and drug-free status 12 is confirmed by a return to duty test. As part 13 of its mission to improve safety and health 14 conditions in mines, MSHA has proposed this rule 15 to protect the safety of all miners from the 16 dangers of alcohol or drug use at mines by 17 prohibiting miners from using, possession or 18 being under the influence of alcohol or drugs 19 while performing safety-sensitive job duties. 20 Before I go further in discussing the 21 proposal, I want to describe the role of the 22 Department of Labor, Working Partners for an 23 Alcohol and Drug-Free Workplace or I will refer 24 to Working Partners in the development of this 25 proposal. Since the late '80s, Working Partners 9 1 has educated businesses about the impact 2 of workplace substance abuse on productivity and 3 safety and equipped them with tools and resources 4 to address the problem. Working Partners 5 provides consultation and assistance to all DOL 6 or Department of Labor programs sinceworkplace 7 substance abuse affects many of the Department's 8 policies and missions. 9 Working Partners has expertise in the 10 development of five step drug-freeworkplace 11 programs and has worked closely with MSHA to 12 develop this proposal. The alcohol and drug test 13 provisions will apply only to miners who perform 14 safety-sensitive job duties under the proposal. 15 Under the proposal a safety-sensitive 16 position is defined as a miner who is required to 17 have comprehensive training under part 46 and 48, 18 as applicable. Managers who supervise these 19 miners are also considered to hold safety- 20 sensitive positions under the proposal. 21 Administrative personnel would be exempt from the 22 proposal. 23 Under the proposal, mine operators 24 would be required to establish an alcohol and 25 drug-free mine program that includes a written 10 1 policy. A mine's written policy could be 2 tailored to the specific conditions at the mine. 3 However, the policy must address the purpose of 4 the policy, and contain a clear description of 5 prohibited behavior. 6 The policy must outline the means 7 including testing for determining if the policy 8 has been violated including an explanation of the 9 consequences for violating the policy and include 10 requirements for training. 11 MSHA intends to assist mine operators 12 in developing their policy by providing a sample 13 template that can be used to address all required 14 elements of the proposal. Operators can tailor 15 the template to the specific needs and conditions 16 of their mine. A mine operator must assure that 17 every miner has been informed of the policy and 18 the proposal would require that the policy be 19 reviewed during training and made available upon 20 request to miners and their representatives. 21 Each operator would be required to 22 implement an education and awareness program for 23 nonsupervisory miners to provide them with the 24 information they need to fully understand and 25 comply with the proposal. Miners who are 11 1 required to take comprehensive training under 2 existing Parts 46 and 48 would be required to 3 take the training under the proposal. The 4 proposal would require newly hired miners to 5 receive 60 minutes of training before they are 6 assigned to safety-sensitive job duties and 7 nonsupervisory miners would be required to 8 receive at least 30 minutes of annual retraining. 9 The proposal would require that time allotted for 10 this training be added to the total number of 11 hours required under existing part 46 or part 48 12 so that there is sufficient time to cover all 13 required training topics. 14 Operators would also be required to 15 implement training programs for their supervisors 16 and to make them aware of their responsibilities 17 for assuring compliance with the proposal. Under 18 the proposal, supervisors would have to receive 19 at least two hours of initial training and one 20 hour of training annually. 21 The proposal would require operators 22 to make miners who voluntarily admit use of 23 prohibited substances aware of available 24 assistance through an employee or miner 25 assistance program, a substance abuse 12 1 professional or other qualified, community-based 2 resources. Under the proposal, mine operators 3 would be required to implement an alcohol and 4 drug testing program that is valid, reliable, and 5 protects the privacy and confidentiality of 6 miners tested. 7 Mine operators would be required to 8 follow the U.S. Department of Transportation or 9 the DOT drug and alcohol testing requirements in 10 49 CFR Code of Federal Regulations Part 40, 11 Procedures for Transportation, Workplace Drug 12 Testing Program. 13 Although operators would be 14 responsible for implementing the testing program 15 and making decisions as to when to test, 16 consistent with DOT, mine operators may use 17 qualified service agents to carry out the 18 collection, laboratory analysis, and medical 19 review and verification of test results. 20 Consistent with the DOT procedures, 21 MSHA's proposal would require testing for alcohol 22 and the following five controlled substances: 23 amphetamines, including meta amphetamines, 24 cannabinoids, meaning marijuana or THC, cocaine, 25 opiates and PCP, phencyclidine. The proposal 13 1 also includes testing for barbiturates, 2 benzodiazepines, methadone, propoxyphene, and 3 synthetic and semi-synthetic opiods, 4 specifically hydrocodone, hydromorphone, 5 oxymorphone, and oxycodone and all of these drugs 6 that are covered in the proposal and the proposal 7 is on the Agency's website. 8 And do we have copies of it here? We 9 have copies of the proposal in the back of the 10 room and we have copies in the back of the room 11 for persons who are in attendance here. 12 The proposal would allow operators to 13 test for additional substances beyond those in 14 the proposal and would allow the Secretary of 15 Labor to add to the list of prohibited 16 substances. Under the proposal, testing would be 17 conducted in the following circumstances: 18 preemployment, randomly at unannounced times, 19 post-accident, if a miner may have contributed to 20 the accident, based on a reasonable suspicion 21 that a miner has used a prohibited substance, 22 and as part of a return-to-duty process for 23 miners who have violated the rule. 24 Consistent with DOT procedures, 25 testing for drugs would be conducted using urine 14 1 as a specimen and alcohol testing would be 2 conducted using a breathalyzer. However, unlike 3 the DOT procedures that have a bifurcated 4 standard, no actions to remove miners from work 5 would be required unless the breathalyzer results 6 showed that the blood alcohol content or the BAC 7 level is .04 or greater and is deemed to be a 8 positive test. 9 Under the proposal, miners who fail 10 an alcohol or drug test would be removed from the 11 performance of safety-sensitive job duties until 12 they complete a return-to-duty process. During 13 the time required to complete the process, the 14 mine operator may, but would not be required to, 15 assign the miner to nonsafety-sensitive job 16 duties. 17 A miner found to be in violation of 18 the alcohol and drug-free mine policy for the 19 first time would be allowed to complete treatment 20 under the proposal. If treatment is successfully 21 completed and miners comply with the return-to- 22 duty requirements, they would be allowed to resume 23 safety-sensitive job duties. Operators would 24 address the consequences for subsequent 25 violations at their discretion. 15 1 The proposal would prohibit mine 2 operators from taking adverse action affecting 3 the miner prior to receiving verified test 4 results. 5 The Medical Review Officer or the MRO 6 would be responsible for providing verified test 7 results to the mine operator. The Medical Review 8 Officer process would include determining whether 9 a miner possesses a valid prescription for any 10 prohibited substances and if so, whether the 11 miner is using the substance in accordance with 12 the prescription. 13 Miners who have failed their test or 14 refuse to submit to a test, would be prohibited 15 from performing safety-sensitive job duties until 16 they have been evaluated by an SAP and complied 17 with the Substance Abuse Professional's 18 recommendations for education and/or treatment. 19 After completing the Substance Abuse 20 Professional's recommendation, the miner would be 21 reevaluated to determine whether the miner can 22 return to performance of safety-sensitive duties. 23 The proposal would require that 24 operators maintain records related to alcohol and 25 drug testing. The DOT 16 1 regulations, require mine operators to use 2 the OMB-approved alcohol test form and the 3 controlled custody form to document the integrity 4 and security of alcohol and drug tests. 5 MSHA has estimated the economic 6 impact of the proposal and included discussions 7 of the costs and benefits in the preamble, as 8 well as in the preliminary regulatory impact 9 analysis. 10 The Agency welcomes any comments that 11 you have on the data and assumptions that the 12 Agency used to develop the estimates of 13 information collection and cost estimates and all 14 other data assumptions that the Agency used in 15 the proposal. As you provide your comments, 16 please be as specific as possible and include 17 with your comments your specific suggested 18 alternatives if you have any, your suggested 19 rationale for alternatives, and your suggestions 20 with respect to safety and health benefits to 21 miners and specific data to support your 22 comments. 23 Please include any technological and 24 economic feasibility information as appropriate. 25 The Agency will use this information to help 17 1 evaluate the requirements in the proposal. 2 As many of you know, the hearing will 3 be conducted in an informal manner. Also, the 4 Agency asks a number of specific questions in the 5 proposal and as you provide your comments either 6 today or before the record closes on November 7 10th, we would like it if you would address the 8 specific questions that the Agency included in 9 the proposal. 10 With respect to today's hearing, it 11 will be conducted in an informal manner. Formal 12 rules of evidence and cross examination will not 13 apply. The Panel may ask questions of the 14 witnesses. The witnesses may ask questions of 15 the Panel. 16 MSHA will make a verbatim transcript 17 of the hearing available on the Agency's website 18 within one week of the hearing. 19 If you wish to present written 20 statements or information, please clearly 21 identify your material and give it to the Court 22 Reporter or a Designated Agency Representative at 23 one of the designated locations. 24 You may submit comments following the 25 hearing and as I said earlier, the last date for 18 1 submitting commits, November 10th, and I will 2 reiterate again midnight Eastern Daylight Savings 3 Time. 4 We will now begin today's hearing and 5 as you come to the microphone please begin by 6 clearly stating your name and your organization 7 and I would ask if you would spell your name so 8 that the Court Reporter will have an accurate 9 record. 10 At this point we will begin today's 11 hearing and we will first hear from Dan Kane, 12 Secretary-Treasurer of the United Mine Workers of 13 America and Linda Raisovich-Parons. 14 So United Mine Workers of America. 15 MR. KANE: Good morning. My name is 16 Dan Kane. I'm Secretary-Treasurer of the UMWA. 17 Kane is spelled K-A-N-E. 18 I don't have a prepared text this 19 morning to give you, but I would like to raise a 20 couple of really important points and I'd like to 21 start by strongly encouraging the Agency to 22 return to the practice of holding hearings 23 throughout the field in person. I think it makes 24 it much easier for rank-and-file miners to 25 participate and bring their particular point of 19 1 view to the rulemaking process. 2 I'm told that there were a number of 3 miners from Pennsylvania who wanted to testify 4 today, but they couldn't get to Beckley, West 5 Virginia and back in time to go to work this 6 afternoon. And I think their voices need to be 7 heard. I think what we've done in the past has 8 served us much better. I think we need to return 9 to that forum for rulemaking. 10 I'd like to begin by saying that 11 MSHA's commentary presents this proposed rule as 12 an urgent need, but it provides no statistical 13 data to prove that alcohol and drug use in the 14 mining industry is attributed to accidents and 15 injuries. The Department of Labor internal 16 review of injury and accident reports referred to 17 in the preamble of this rule revealed only a 18 number of instances where drugs or drug 19 paraphernalia were found. Whether the miner was 20 impaired or whether drugs or alcohol contributed 21 to any accident was not addressed. This is not a 22 sound basis for this rule. 23 The majority of the coal industry, 24 about 80 percent, already has drug testing 25 programs in place that have been used for many 20 1 years. Furthermore, some states like Virginia 2 and Kentucky, also have regulations governing 3 alcohol and drug testing. Nearly four out of 4 five workers in the coal industry are already 5 subjected to preemployment drug and alcohol 6 testing. 7 In addition, three quarters of those 8 working in the mining industry are randomly 9 tested which is more than double the reported all 10 industry average. In spite of the frequency of 11 such testing, neither MSHA nor the mine operators 12 shows any demonstrated benefit. Apparently, 13 neither do they see a need for showing any 14 benefit. 15 UMWA fails to see the urgent need for 16 these regulations. Statistical data for mining 17 accidents injuries does not support that there is 18 a significant enough problem in this area to 19 justify spending Government resources to 20 duplicate what the industry is already doing. 21 Instead, among other well-documented problems, 22 the Agency should be using these tax payers' 23 dollars to promulgate improved dust controlled 24 standards. Data published by NIOSH shows that 25 black lung is once again on the rise and the use 21 1 of Government resources for a proven problem area 2 would be far more productive and save more lives. 3 Neither drugs nor alcohol were 4 involved in any of the recent major disasters. 5 Instead, those miners died as a result of the 6 actions of mine management and MSHA itself. For 7 the Agency to try to deflect focus away from 8 their own culpability in the death of these 9 miners by proposing rules to blame the miner, 10 when there is no evidence to support the need for 11 such rule is unethical. 12 Miners are tested following 13 accidents. So should mine management, especially 14 when they are shown to be at fault. The proposal 15 would also exclude administrative and clerical 16 personnel from the drug testing requirement. 17 These workers do drive on mine property. They 18 often go underground to deliver supplies and 19 usually purchase supplies. We have seen the 20 disastrous effects of incompatible fittings on 21 fire hoses at Aracoma. Why should they be 22 exempt? Miners would be subject to their comings 23 and goings on mine property. 24 Further, the proposal does not make 25 clear who will be responsible for the testing of 22 1 contract workers on mine property or even if 2 contract workers must be tested. Mine operators 3 have historically taken a hands off approach to 4 contractors, accepting no responsibility for 5 these employees. The rule must make clear that 6 the mine operators are responsible for these 7 employees, if they are hired to perform work on 8 mine property. Eight of the 24 fatal accidents 9 to this date had been the employees of 10 contractors. 11 The rule is not clear on which 12 supervisors would be included in the testing or 13 how they will be supervised. If a miner suspects 14 his supervisor is under the influence of alcohol 15 or drugs, who would he report this to? Would the 16 miner then have the same right to require that 17 his supervisor be tested for reasonable 18 suspicion? The manner in which the proposal is 19 written only subjects miner to random and 20 reasonable suspicion testing when in fact 21 supervisors are often alcohol and drug users. 22 In the State of Kentucky, 40 23 certified mine foremen were reported for drug or 24 alcohol violations. Of those 40, 4 were 25 rescinded, and 36 have had their certification 23 1 suspended. The proposal must be revised to allow 2 any person to reasonably suspect drug or alcohol 3 used by an employee on the property, including 4 supervisors and provide for oversight in the form 5 of a second opinion. 6 As proposed, miners would have no 7 recourse if they suspect a supervisor of drug or 8 alcohol abuse. 9 The union also recommends that in 10 lieu of a substance abuse professional that a 11 licensed mental health professional be required 12 to evaluate miners who have violated a mine 13 operator's alcohol and drug testing program. 14 Alcohol and drug addiction are recognized mental 15 disorders and should be treated by a licensed 16 mental health professional. The loyalty of those 17 providing assistance should be to the miner and 18 should not be a part of any procedure that could 19 lead to disciplinary action. 20 This substance abuse professional, 21 their location should be convenient, just as the 22 chest x-ray facility is required to be 23 conveniently located for the chest x-ray 24 surveillance program. It does no good to have 25 these located at long distances from where the 24 1 need is. 2 Services provided by the SAP should 3 also be covered by the miner's health insurance 4 plan or paid directly by the mine operator. 5 Another problem is the term "under the 6 influence." I believe it's defined incorrectly 7 to include a positive urine test for drug 8 metabolites. It's well recognized that a 9 positive urine test for drugs or metabolites is 10 only an indicator of previous use that's previous 11 to the test. And it is not an indicator of being 12 influenced or impaired by the drug. 13 The proposed rule again would 14 incorporate alcohol and drug awareness training 15 into part 48 training. The union believes that 16 part 48 training is currently overloaded with 17 every new training requirement that has been 18 promulgated in recent years. Such training 19 should not be crammed into the part 48 training. 20 The Agency has proposed that 21 supervisors be trained to be the frontline level 22 of detection for alcohol and drug use among 23 miners. The supervisors will receive a minimum 24 of two hours of initial training and an 25 additional one hour annually. The union 25 1 questions whether a two-hour canned training 2 presentation would qualify anyone to recognize 3 and deal with such a sensitive issue. 4 Further, as raised before, who would 5 be authorized to recognize and deal with a 6 supervisor who has an alcohol and drug problem? 7 As the proposal is written, that 8 authority is granted only to the supervisors to 9 test miners. Under the alcohol drug program in 10 the State of Kentucky, 36 persons holding mine 11 foremen certifications have had their 12 certifications rescinded for a positive test. 13 This problem is not exclusive to miners and the 14 rule should be rewritten to reflect this. 15 The union questions the availability 16 of substance abuse assistance programs to the 17 rural coal field communities. If a miner is to 18 participate in such a program, in reality, they 19 are going to have to travel many miles to gain 20 access to assistance. If substance abuse 21 programs are to be successful, they must be 22 easily accessible to rural mining communities. 23 The union would ask that the Agency take a survey 24 of what programs are available and that their 25 locations to supply as a resource to the mining 26 1 community. 2 Further, the rule requires the use of 3 certified facilities and agents under the HHS and 4 DOT. When one examines those laboratories 5 certified under HHS, none are listed as being 6 located in the major coal states such as West 7 Virginia, Illinois, or Kentucky. If specimens 8 are transported great distances to other states, 9 to reach a certified HHS lab, would exposure to 10 conditions of transport affect the outcomes of 11 the tests? We don't know. The union would not 12 object to post-accident survivors being tested 13 for alcohol or drugs. However, we feel that it 14 is unethical to test deceased miners without 15 permission of the next of kin. 16 We question whether anyone should be 17 authorized to do such an invasive test without 18 the victim's family's permission. To propose 19 such a thing as this intrusion at the time 20 family's grief is unethical and immoral. 21 Most would agree that testing for 22 reasonable suspicion is a useful tool. However, 23 anybody that works in a mine can have problems 24 with drugs or alcohol and this includes 25 supervisors. Therefore, again, anyone should be 27 1 able to suggest testing for reasonable suspicion, 2 including the miners. 3 We would also like to point out that 4 we think it's extremely important that the 5 miner's job would be protected. This proposed 6 rule only protects the miners after the first 7 positive test. Apparently thereafter, for the 8 miner's lifetime his fate is in the hands of his 9 employer. The union would recommend that any 10 person in recovery for drug or alcohol addiction 11 be kept out of harm's way in an alternate non- 12 safety-sensitive position until they are reformed 13 and ready to come back to their former job. A 14 person who is honestly trying to rehabilitate 15 himself should be encouraged, not punished. A 16 person who is in rehabilitation is most likely to 17 fail in the initial stages of his or her 18 recovery, therefore they should be provided 19 adequate time and chances to get their life in 20 order. 21 Addiction is a serious social and 22 medical problem which should be dealt with 23 compassionately. If a miner tests positive and 24 for any reason goes to work for another operator, 25 any positive tests while working for that second 28 1 operator should be treated as the first positive 2 test for that operator. And after the miner's 3 first positive test, this proposed rule is 4 unclear about their fate. Again, it's in the 5 miner's hands. 6 We would recommend that the follow-up 7 testing period be used as a recovery period for 8 the miner. He or she should not be faced with 9 losing their job while on the long road to the 10 recovery. Follow-up testing period recommends 11 six unannounced tests in the first 12 months and 12 continuing for a maximum 24 months. The miner 13 should be placed in a non-safety-sensitive 14 position and while he or she is on the road to 15 recovery. 16 Again, I'd like to point out two 17 important things and first is that we do need to 18 return to the idea of holding in the field face- 19 to-face hearings. I think it's much more 20 effective than talking to somebody on the 21 telephone. And secondly, I would like to also 22 point out again that it's important that we use 23 Government resources and target them at the most 24 seriously demonstrated problems in the industry. 25 We've had a number of tragedies over the past few 29 1 years with no statistical demonstration that 2 drugs or alcohol contributed. Let's focus our 3 resources on those particular problems. 4 And I would like to leave you with 5 the observation that we're seeing a new rise in 6 black lung in this industry. It seems like 7 younger miners coming in now are being subjected 8 to more dust, finer dust and I don't want to see 9 another generation suffer from the ravages of 10 black lung. Clearly, the law isn't working in 11 that area as it should be, so either regulations 12 are not being enforced or they're inadequate. 13 I'd like to see you point your efforts at 14 something like that. 15 Thank you very much. 16 MS. SILVEY: Thank you, Mr. Kane. 17 MS. RAISOVICH-PARSONS: Good morning. 18 My name is Linda Raisovich-Parsons. That's R-A- 19 I-S-O-V-I-C-H hyphen P-A-R-S-O-N-S. And I serve 20 as the Deputy Administrator for the UMWA 21 Department of Occupational Health and Safety. 22 I should begin by saying that the 23 UMWA is troubled by the manner in which MSHA has 24 accelerated the rulemaking pace on this 25 particular rule. I have worked in the UMWA 30 1 Department of Occupational Health and Safety off 2 and on for over 25 years. Part of the experience 3 has been in a role which monitored and 4 participated in MSHA's rulemaking since 1983. In 5 that 25 years, I have had no recollection of any 6 rule that was provided a mere 30-day comment 7 period with a hasty one-day hearing conducted 8 from multiple sites as was the case on October 9 14th. 10 Today, we are here with a three 11 working day notice of this hearing which again is 12 cramming three sites into one hearing. How could 13 the Agency expect anyone to adequately prepare 14 and respond to the three-day notice? 15 Even with such a ridiculous short 16 notice, the UMWA was able to rally our members 17 and respond with a number of participants at each 18 hearing site. I just hope their efforts have not 19 been in vain and today they are not turned away 20 without the opportunity to have their say. 21 MSHA generally asks the public to 22 provide a five-day notice of their desire to 23 testimony before any public hearing. In this 24 case, MSHA only provided the public with a three- 25 day notice of this hearing, so providing MSHA 31 1 with a five-day notice of our desire to testify 2 was impossible. 3 The bottom line is the Agency has 4 filed to follow their established practice of 5 providing sufficient time for commenting on this 6 rule and sufficient advance notice of hearing. 7 In addition, they have abandoned their practice 8 of scheduling multiple days for hearings in 9 different locations throughout the coal field. 10 The jamming of different hearing 11 sites into one single day is illogical, 12 irresponsible, and has never been done on any 13 other rulemaking that I can recall. 14 I hope it is not the case, but today 15 we are most likely to see a repeat performance of 16 October 14th. 17 Many of our members have come to 18 testify today after working the midnight shift at 19 the mine. I hope that the Agency shows them the 20 courtesy to be the first to testify so they can 21 go home and get some sleep for their next 22 scheduled shift. 23 Since so many of our miners are here 24 today to testify I will keep my comments short so 25 MSHA can hear from those who would be most 32 1 directly affected by this new rule. 2 In reviewing the proposed rule, I 3 must say that the most frustrating fact is that 4 MSHA provided no data to substantiate such an 5 urgent need for this rulemaking. There is no 6 evidence that alcohol or drug use has 7 significantly contributed to mining injuries or 8 fatalities or is on the rise. 9 The UMWA does not support the 10 Agency's actions in proposing this rule. We do 11 not want anyone who is under the influence of 12 drugs or alcohol working in mines, nor do our 13 members want to work next to them because their 14 lives are jeopardized. However, we do not 15 believe this is as great a problem as has been 16 portrayed by the Agency. UMWA has worked with 17 dozens of our employers to implement drug and 18 alcohol testing programs we can all live with 19 because we remain committed to providing the safest 20 and healthiest environment for our miners. In 21 fact, some of those programs have been in place 22 for over 20 years now. These programs have been 23 successful in minimizing this problem, so why has 24 MSHA chosen to pursue this rule with such 25 vigilance when other legitimate health and safety 33 1 issues are neglected? 2 The Agency's resources would be 3 better spent on such issues as pursuing better 4 control of respirable dust at a time when black 5 lung cases are on the increase among our miners. 6 After reviewing the proposed rule, I 7 guess the one issue that irritated me the most is 8 that the rule is completely written for the 9 supervisors' oversight of the miners for 10 suspected drug or alcohol abuse. The supervisors 11 are provided additional training to recognize 12 signs of alcohol or drug use among the miners. I 13 question who will be watching the supervisors. 14 This leads you to think that drug and alcohol use 15 is exclusive to miners? I think not. 16 Supervisors are charged with many 17 responsibilities in the day-to-day operation of 18 the mine. Many may have turned to substance 19 abuse as a means of dealing with those stresses. 20 If a miner suspects the supervisor is under the 21 influence who would he report it to? Would the 22 miner have the same right to have a supervisor 23 tested for reasonable suspicion? 24 The manner in which the proposal is 25 written only subjects miners to random and 34 1 reasonable suspicion testing when in fact 2 supervisors are often alcohol and drug users. 3 The proven point is the fact that 40 4 certified mine foremen in the State of Kentucky 5 which has a drug and alcohol law in place has 6 been reported for drug and alcohol abuse 7 violations. Of those 40, 4 charges were 8 rescinded; 36 had their certificates suspended by 9 the state. The proposal must be revised so allow 10 any person to reasonably suspect drug or alcohol 11 use by any employee, including supervisors and 12 provide a means to have those persons subjected 13 to the same testing. With that, I'll shut up and 14 let the miners who have come here to testify 15 today have their say. 16 MS. SILVEY: Thank you. Before we go 17 to Birmingham, I'd like to make just two 18 comments, Mr. Kane and Ms. Parsons. 19 And the first is with respect to the 20 scope of the rule, the coverage of who is 21 included in the rule, in the -- we pointed out 22 that the rule covers miners who perform safety- 23 sensitive job duties and the persons who 24 supervise them. So we therefore made it very 25 clear. Now when you say very clear, you can 35 1 always probably make things clearer, but we made 2 it very clear that management and that disclosed 3 to both of the comments that you both made. 4 Management and administrative personnel who 5 supervise persons performing safety-sensitive job 6 duties are considered to perform safety-sensitive 7 job duties. So throughout the rule and the 8 preamble, the term miner is used to include such 9 supervisors. So therefore, supervisors, persons 10 who supervise miners who perform safety-sensitive 11 job duties would be covered under the proposal. 12 That's one thing I want to make clear. 13 The second thing I want to say is 14 that with respect to the training, while we said 15 that training would be under part 46 or part 48 16 -- in the case of the coal industry it would be 17 under part 48, why we said that the training 18 would come under either one of those parts. We 19 did say that the training required had to be in 20 addition to the existing training that is 21 required under part 46 or part 58. So that one 22 hour of training, initial training, and 30 23 minutes of training for miners, retraining, would 24 have to be added on to the training that's 25 required under the existing rule because we 36 1 recognize and we've got that comment before that 2 person tell us so much is put into part 48. So 3 we specifically said that that had to be 4 additional training. 5 So those are the only two things that 6 I just wanted to clarify and we appreciate your 7 comments. Does anybody else have anything? 8 MR. ARRINGTON: I have a question for 9 Mr. Kane. In your comments you said that 80 10 percent of the miners out there already have 11 testing programs and 75 percent of the miners 12 have already been tested? Question is what 13 research information did you get that and two, 14 did you include surface mines with the 15 underground? 16 MR. KANE: I got that from our 17 Department of Occupational Health and Safety. We 18 included all operations. We've worked with a 19 number of companies to make sure that when they 20 implement testing programs that they are 21 effective and they respect the rights of the 22 miners. 23 MR. ARRINGTON: Surface and 24 underground? 25 MR. KANE: It's my understanding, 37 1 yes. 2 MR. ARRINGTON: Thank you. 3 MS. SILVEY: Thank you very much. 4 We will now, as I stated earlier, we will now go 5 to Birmingham, Alabama so we will start with our 6 first witness in Birmingham and when you come to 7 the mic if you would please state your name and 8 spell your name for the reporter. 9 Are we at Birmingham? 10 BIRMINGHAM: Yes. 11 MS. SILVEY: Okay, thank you. 12 (Pause.) 13 First speaker? 14 BIRMINGHAM: He's out of the room 15 right now. 16 MS. SILVEY: Okay. 17 (Pause.) 18 BIRMINGHAM: Hello, are you ready for 19 Birmingham? 20 MS. SILVEY: I'm ready for 21 Birmingham. 22 BIRMINGHAM: Did you get my list? 23 MS. SILVEY: Bring the first speaker 24 to the mic, please. 25 BIRMINGHAM: Okay. 38 1 MS. SILVEY: Thank you. 2 BIRMINGHAM: If you'll get ready to 3 come on down. Jimmy Starns, Randy Wideman, Dale 4 Byram, Daryl Dewberry. 5 MS. SILVEY: I have your list. Just 6 bring the first speaker to the phone, please. 7 BIRMINGHAM: He's coming and we have 8 some more that we haven't faxed, so I'll just go 9 ahead and compile them? 10 MS. SILVEY: I'll get them from 11 there. Okay, when I run out of the names, then 12 I'll just call the next speaker, okay? 13 Will the first speaker come to the 14 mic, please? 15 MR. CALLIES: Good morning. My name 16 is Danny Callies, C-A-L-L-I-E-S. I'm the 17 Corporate Safety Director for G & R Mineral 18 Services. We're a union contractor working on 19 mine sites. I'm also the president of the 20 Central Alabama Joseph A. Holmes Safety 21 Association and don't have a prepared statement, 22 but a few things I do want to talk about. 23 So far this morning I have not heard 24 anything about contractors. We do work on mine 25 sites and the problem, if someone tests positive, 39 1 as far as holding their jobs, most of our jobs 2 are 7 to 14 to 21 days. The job would be over 3 and we'd move on to another site. We get our 4 gentleman from the local unions, iron workers and 5 the operators/engineers. We also have steel 6 workers and boilermakers. 7 My biggest concern is first of all 8 all the unions that we have dealt with have drug 9 policies. All the mine operators we have dealt 10 with have had drug policies. Every contractor 11 that I know of has drug policies and I do not see 12 the need for the Federal Government to come up 13 with some more regulations. That's my biggest 14 concern. 15 I don't think we need more 16 regulations. I think the unions themselves need 17 to police themselves. Now I am not naive enough 18 to hear because I know for a fact we've had four 19 or five injuries of employees that have tested 20 positive for alcohol or drugs. So to say that 21 because no one has died in the depths that no one 22 has tested positive. There are thousands and 23 thousands of people getting hurt on the job that 24 do test positive. And so I think there is a 25 need, but I don't think that should be the 40 1 Federal Government. I think that should be the 2 companies themselves that police themselves, the 3 strong unions. They're there to protect the 4 miners. So I have a problem. 5 Also, as far as the businesses are 6 concerned, I don't have a problem with an 7 employee comes to us and says hey, I got a 8 problem with drugs or alcohol. I need some help. 9 And as long as he pays for it himself, I don't 10 have a problem with it. If it's in his medical 11 insurance, that's great. But a small contractor 12 or contractor can't afford to pay for rehab for 13 an individual who's been on the job -- sometimes 14 we get them out of the hall. They work a seven- 15 day job and now we're going to be putting them 16 through rehab. I don't think that's the 17 employer's role. That's the employee's role. 18 And once the employee is hurt, once a 19 miner is hurt, that's his responsibility to take 20 responsibility for the action that he tested 21 positive and could have killed fellow workers. 22 So I don't have much sympathy when someone tests 23 positive after an accident. I just want everyone 24 to realize that there are a lot of people out 25 there, there are a lot of rules, there are a lot 41 1 of regulations and I don't think the Federal 2 Government needs to regulate on drug testing. 3 As I said, every site that G & R has 4 been on, we have had to prove our policy and show 5 our policy. And the International Ironworkers 6 and the Boilermakers and Steel workers and the 7 miners in the coal industry, we all have 8 standards and we all have testing. If one of the 9 local unions aren't enforcing it, shame on them. 10 But I don't think the Federal Government needs to 11 take any more action than what we already have. 12 Protect the miners and that means everyone of 13 site. That means everyone on site. 14 When we do random testing, it's the 15 president of the company, it's the secretary. 16 Because the number one killer in the workplace, 17 the number one killer in the workplace is 18 transportation, going to work, working during the 19 day, running to the Post Office. That's the 20 killer. It's not mine disasters. So everyone 21 should be tested, not just the miner. Thank you. 22 MS. SILVEY: Thank you. Let me ask 23 you a few questions for clarification, please. 24 You mentioned a couple of things. 25 MR. CALLIES: Yes, ma'am. 42 1 MS. SILVEY: You mentioned we have to 2 prove our policy when you go on the work site. 3 First you mentioned that, that most of your jobs 4 are 7 to 21 days. I understand that, but you 5 said we have to prove our policy, show our 6 policy. Now when you say "our policy" what 7 policy are you talking about? 8 MR. CALLIES: G & R's drug and 9 alcohol policy. 10 MS. SILVEY: So you have a policy, G 11 & R has a policy? 12 MR. CALLIES: Yes, ma'am. I will 13 tell you that every contractor that I know of and 14 there's several in our association, but any time 15 we do work on a mine site, that is part of the 16 safety prequalification, do you have it? So it's 17 being asked of all the contractors. 18 MS. SILVEY: Okay, now let me just 19 ask you another thing then. So I assume that 20 your policy has some type of drug testing 21 component, right? 22 MR. CALLIES: Yes, ma'am. 23 MS. SILVEY: Okay, who does the drug 24 testing under your policy? 25 MR. CALLIES: We do. 43 1 MS. SILVEY: G & R does? 2 MR. CALLIES: G & R does, except for 3 when there's an accident or if we have a 4 nonnegative. That's a political term for 5 positive. If we have a positive test, we will 6 take that miner, that employee to a special 7 center and have him tested or her tested so that 8 we do not -- we are not in the habit of firing 9 people over a test that could be wrong. So we've 10 got to be careful when we give drug tests because 11 sometimes these tests are not correct. And so we 12 take the extra measure of sending a person for 13 that second test to make sure that that 14 determination is true, that test result is true. 15 MS. SILVEY: Okay, like you said, 16 when you say "we" you mean G & R? 17 MR. CALLIES: I'm talking about G & 18 R. I'm not talking about the Joseph A. Holmes 19 Safety Association. 20 MS. SILVEY: I understand. Okay. 21 How -- what kind of experience do you have under 22 your policy? 23 How often have you had to -- I don't 24 know what I want -- how often have you had to -- 25 for an example, test somebody after an accident, 44 1 hypothetically? 2 MR. CALLIES: After -- 100 percent 3 after every accident we've had and in the last 4 two years we've had four people test positive. 5 MS. SILVEY: You have? 6 MR. CALLIES: Yes, ma'am. 7 MS. SILVEY: And what about do you 8 have a certain percentage of people who are 9 randomly tested? 10 MR. CALLIES: Yes, ma'am. 11 MS. SILVEY: And what's that 12 percentage? 13 MR. CALLIES: Well, ours is a little 14 bit unique. If someone comes on our site out of 15 the local, we test them. That's our random and 16 our random for our other employees is once a 17 month we go out to the jobsite and we test I 18 would say 20 percent. 19 MS. SILVEY: Okay. I just sort of 20 wanted to get a little understanding of how your 21 policy worked. 22 MR. CALLIES: Yes, ma'am. And when 23 someone tests positive, they are removed from the 24 site, not just the work site. They are removed 25 from G & R's policy for 30 days and then we'll 45 1 take some drug tests and the second time, they're 2 removed permanently and what we're doing is we're 3 working with the local unions so that they 4 enforce it, not that they send them from one 5 jobsite to another union jobsite. If he's 6 positive with G & R. He's positive for Drummond 7 Coal, so we don't need anyone positive working on 8 site. 9 MS. SILVEY: Okay. I appreciate your 10 providing us that information. 11 MR. CALLIES: Thank you, ma'am. 12 MS. SILVEY: Okay, thank you. We 13 will next hear from on my list I have Jimmy 14 Starns. 15 MR. STARNS: Jimmy Starns. 16 MS. SILVEY: Jimmy Starns, right. 17 Okay, sir. You're next. Local 1926 North River. 18 MR. STARNS: Yes, ma'am. I am Jim 19 Starns, a safety committeeman from Local Union 20 1926, District 20. I have more comments, I 21 guess, more than questions. 22 We disagree with the type of forum 23 that you're holding. We've been to the last 24 couple and we disagree with them. We'd like to 25 see people sitting in front of us talking to us 46 1 instead of over an intercom. We get a better 2 feel of what's going on in the conference. 3 We also feel that the contractors 4 that we have come on to our mines should be 5 tested immediately prior to them coming on site 6 instead of having a slip from their employer 7 saying that they had been drug tested two months 8 ago or whatever, because as the previous guy 9 said, they keep them for a short period of time 10 and they could have a drug test two months ago. 11 They could fall off the wagon and get right back 12 on the drugs and come to our mines and do 13 something that will hurt some of our individuals 14 at our local. We don't like that. 15 The training of the supervisors, we 16 feel that -- some of us feel that if you don't 17 train these people they need to be trained by a 18 competent person that's already in the field with 19 several credentials behind themselves to train 20 and not just train just the supervisors for two 21 hours. 22 I think all individuals in the coal 23 mine that's working in a coal mine should be sent 24 to this training. It should be at least -- no 25 less than eight hours because there's a lot of 47 1 things out there people can hide drugs with. 2 They can do different things. It really goes 3 into a lot of detail. And two hours is not going 4 to give a man or an individual much time to 5 accept what kind of training he's going to have 6 to have. 7 We also don't think that it should be 8 put in part 48 due to the fact that part 48 is 9 already jammed full of everything and you got 10 time frames of 15 minutes to 2 hours, you work on 11 one certain thing. It's already full and we 12 don't think it should be pushing part 48. 13 We do agree with drug testing. We do 14 want people drug tested. Contractors, 15 supervisors, our own people, our own local 16 people. We're all doing a dangerous job. The 17 safety-sensitive part, we feel, my company feels 18 that all jobs underground are safety-sensitive. 19 There's not one person on site that shouldn't be 20 a safety-sensitive job. If a man or lady has got 21 a problem with drugs, they ought to be sent to 22 rehab and try and get this problem of their’s 23 resolved. 24 Ma'am, that's all I've got to say. 25 MS. SILVEY: Okay, thank you, sir. I 48 1 would only add one thing and you've heard me say 2 it earlier today and that is with respect to the 3 training you said you don't agree that it should 4 be in part 48. And I want to reiterate to 5 everybody, here and in every location why we put 6 it in part 48. 7 We put the requirement there so that the 8 amount of time had to be added to what is 9 required currently in part 48, so it had to be in 10 addition, not jammed into what's in part 48 right 11 now. But there may be some way that we need to 12 look at that and make it clear because I'm 13 getting this comment from everybody that this 14 training that we said that miners have to have in 15 here, miners and their supervisors, is not 16 training that has to be jammed into the current 17 training, but in addition to the current 18 training. So I just wanted to say that. 19 Next -- and thank you very much for 20 your comments. 21 Next we'll have Dale Byram with Joe 22 Weldon. 23 Dale? I'm sorry, thank you very 24 much. Next is Randy Wideman who is with Local 25 1948, Shoal Creek. 49 1 Randy Wideman. 2 MR. WIDEMAN: Yes, ma'am. 3 MS. SILVEY: How are you? 4 MR. WIDEMAN: My name is Randy 5 Wideman, W-I-D-E-M-A-N. I'm on the Mine 6 Committee at Drummond Company's Shoal Creek Mine 7 near Birmingham, Alabama. 8 I haven't had time to dissect this 9 document, but I've read through it briefly and I 10 found three or four areas that concerns me 11 greatly. 12 Due to time constraints I'll just 13 address the one issue. If you'll be so kind to 14 turn -- 15 MS. SILVEY: Hello? 16 (Pause while teleconference is 17 reconnected.) 18 MS. SILVEY: Do we have Birmingham 19 again? 20 MR. BAILEY: You've got Ken Bailey at 21 Lehigh Cement who is just joining in on the 22 conference. I'm at the location in my office. 23 MS. SILVEY: No, okay -- I -- do we 24 have Birmingham? 25 BIRMINGHAM: We're back on the line. 50 1 MS. SILVEY: Did you all know that 2 you -- did you recognize that you had 3 disconnected the phone? 4 BIRMINGHAM: No, we didn't. 5 MS. SILVEY: You didn't. So can I 6 please ask and please just indulge with me, 7 please. If you pay attention to the phone 8 wherever you are, I don't know where the phone is 9 in location to the speaker, and I'll say this for 10 everybody who can hear in Virginia, Minnesota, as 11 well as Beckley, West Virginia, if you would 12 please pay attention to where you are with 13 respect to the phone and do the best you can in 14 terms of the disconnection. 15 We disconnected with Mr. Wideman, I 16 believe. And I think we disconnected Mr. Wideman 17 right at the beginning of your testimony. 18 Did you continue? 19 MR. WIDEMAN: Yes, ma'am. I'll start 20 from the beginning. 21 MS. SILVEY: I think you need to 22 start from the beginning. 23 Thank you. So we will continue with 24 Mr. Wideman. 25 MR. WIDEMAN: I didn't have time to 51 1 study this document, but I did go over it briefly 2 and found several things of concern. Due to time 3 constraints, I'll get right to it. 4 The first part that concerns me is if 5 you'll turn to page 52146, section 66.300, 6 purpose and scope. I'll be reading from the 7 third column, top of the page. 8 "MSHA is offering mine operators the 9 option to use service agents to perform the 10 functions required by this subpart including 11 services for collection of urine specimens, a 12 certified breath alcohol technician, a 13 laboratory, a medical review officer, and a 14 substance abuse professional. The proposed rule 15 includes definitions for the various types of 16 service agents." 17 And if you will, please turn to page 18 52158, subpart A66.3 are definitions. I'll be 19 reading from the lefthand column, top of the 20 page. 21 The definition of a medical review 22 officer. "A medical review officer is a licensed 23 physician who is responsible for receiving and 24 reviewing laboratory results generated by mine 25 operators' drug testing program and evaluating 52 1 medical explanations for certain drug test 2 results. An MRO can be an employee of the mine 3 operator or a service agent." I'd like you to 4 keep that in mind as we go on. 5 If you will, turn back to page 52150, 6 Section 66.402. First column, bottom of the 7 page. "Substantiating legitimate use of 8 otherwise prohibited substances." This section 9 states that "it is up to the mine operator to 10 make sure that miners have ample opportunity to 11 demonstrate that any use of a prohibited 12 substance has been authorized by a physician. It 13 further specifies that the possession of a valid 14 prescription alone is not sufficient proof of 15 legitimate use. This provision allows the miner 16 an opportunity to provide evidence that the 17 prohibited substance has been legitimately 18 prescribed and allows the MRO to conduct the 19 medical interview of each miner following a 20 confirmed positive test." Now it looks to me 21 like you're saying that if I've got a legitimate 22 prescription, you're now declaring this a 23 positive test instead of a negative test. 24 It also says that the MRO company 25 employee may review the miner's medical history, 53 1 circumventing the HIPAA law and now consider not 2 only the possession of a valid prescription, but 3 any other relevant biomedical factors presented 4 by the miner. 5 "The MRO may also direct miners to 6 undergo further medical evaluation and/or contact 7 the miner's physician or other relevant personnel 8 for further information." They're going to allow 9 the company employee to overrule my doctor of 20 10 years and allow further evaluation on account of 11 him prescribing pain medication, let's say. This 12 looks to me like not only are you circumventing 13 the HIPAA law, but you're opening the door for 14 age discrimination. Any miner that's been in the 15 industry very long has been injured in some 16 shape, form, or fashion. I'd say 90 percent. 17 What you're doing here is allowing them to -- if 18 they become a liability to the company's 19 insurance which our company is self-insured. If 20 we become a liability to their insurance, they're 21 going to put us through this ringer directed by 22 an MRO who is an employee of the company who can 23 overrule my personal doctor of 20 years and since 24 you all have determined this is a positive test 25 now, I'm not going to get paid through this whole 54 1 process. 2 Before, if it was a negative test 3 which usually a prescribed drug is, if it's being 4 followed by the prescription, is usually negative 5 test. Now you've determined it's a positive 6 test. The company don't have to pay us for being 7 off for a positive test result. They're going to 8 be able to drag us around months on account 9 they're wanting to get rid of somebody who is 10 determined to be a liability to the company, now 11 too much of an insurance call. He had a rock 12 fall on him and hurt his back. 13 I'm not going to -- I'll leave this 14 to some more people, but this really is 15 disturbing so say the least. This is giving 16 them, you all are giving them powers that I don't 17 think you can and we may can win this in a court 18 of law. It's going to cost us tens of thousands 19 of dollars for each miner that they submit to -- 20 this is really disturbing. Thank you. 21 MS. SILVEY: Thank you, Mr. Wideman. 22 MR. WIDEMAN: Yes, ma'am. 23 MS. SILVEY: Thank you very much for 24 your comments. We will be looking at that. I 25 appreciate it very much. 55 1 Our next speaker will be Dale Byram. 2 Jim Walter Resources. 3 Mr. Byram. 4 MR. BYRUM: Good morning. 5 MS. SILVEY: Good morning. 6 MR. BYRAM: My name is Dale Byram and 7 I'm with Jim Walter Resources in Brookwood, 8 Alabama. 9 Jim Walter Resources supports an 10 alcohol and drug-free workplace and we appreciate 11 the opportunity to speak today. Since the last 12 comment session, we continue to review the 13 proposed regulation and identified a concern that 14 we failed to address on October 14th. 15 And this is related to the type of 16 drug test they conducted. Under 66.3 definitions 17 prohibitive substance, it lists about ten or so 18 drugs that will be tested. And it appears that 19 this -- the drugs listed would require a ten- 20 panel drug test to determine if there was a 21 positive test in a miner's system. 22 Under 66.300 alcohol and drug testing 23 requirements, purpose and scope, it references 24 the fact that the Department of Transportation, 25 DOT requirements found in 49 CFR part 40, 56 1 procedures for transportation workplace drug 2 testing programs would be the one that would be 3 used. 4 Again, in 56.301, substances subject 5 to mandatory testing, the tests would be 6 conducted for the drugs listed there and again 7 there were about 11 or so drugs that were listed. 8 If you go back to the 49 CFR part 40, 9 the DOT test reflects only a five-panel test. 10 This conflicts with the proposed regulation if it 11 intends to test for all the drugs listed under 12 definitions. 13 In paraphrasing, in 49 CFR part 40.85 14 to be specific, states that the DOT test 15 requirement is isolated to only five drugs to be 16 tested, and no others. 17 Our concern also is that the Alabama 18 Workman's Compensation drug testing requirement 19 follows the DOT which is a five-panel test. And 20 so if the test that the regulation is proposing 21 is a ten-panel, this is going to create conflict 22 with existing regulations that are used today in 23 Alabama. 24 And that's all of my comment. 25 MS. SILVEY: Okay, all right. I 57 1 understand. I appreciate your comment. I don't 2 think I have any questions. 3 I don't -- I don't think -- I don't 4 want to speak for them. I don't think any of my 5 panel has any questions. 6 I guess I am speaking for them. 7 Okay. Well, we appreciate your 8 comments very much. Thank you. 9 Next speaker on the list is Dale 10 Dewberry. UMWA, District 20. 11 BIRMINGHAM: He has left the room. 12 They've gone to see if they can find him. 13 MS. SILVEY: Okay, well, I'll go on 14 to the next one and he can -- I'll go back to him 15 after the next speaker. 16 What about Joe Weldon, UMWA District 17 20. 18 MR. WELDON: Good morning. 19 MS. SILVEY: Good morning. 20 MR. WELDON: My name is Joe Weldon, 21 that's W-E-L-D-O-N. Local 1948. Shoal Creek 22 Mines, Drummond Company. 23 Safety Committee Member. 24 First of all, I want to say that we 25 would like to see you all face-to-face instead of 58 1 sitting here talking to a microphone, but we've 2 had conflict -- it's already went off one time, 3 so hopefully that don't happen again. That's 4 irrelevant right now. It's the fact that what 5 we've got at hand. 6 We feel like and I feel like as a 7 safety committee member that's there's too many 8 vague interpretations and it can go too many 9 different ways and there's too many unknowns in 10 this policy which you all are trying to mandate. 11 I feel like we need to redirect the 12 funds that is probably renting this building and 13 all the studies that have been done would do 14 better in enforcing some other different laws of 15 which we have a lot more different problems than 16 this, the way we feel. 17 We feel like that some of the funds 18 need to be directed towards several different 19 areas which would be diesel emissions and 20 stringent work hours. We have just got back from 21 Beckley, West Virginia on some safety committee 22 training and we talked in depth about diesel 23 emissions and underground coal mines. We've had 24 numerous miners not only here in Alabama, but in 25 other states that has contacted different types 59 1 of cancer and have been disabled because of 2 noxious gases and dust. 3 We feel like these funds could be 4 directed towards trying to find a solution to 5 some of those problems. We feel like the 6 policies we have at our mines is an adequate 7 policy, that we as a union can police our own 8 people and the company has some policies that are 9 in effect that takes into consideration that a 10 man can have another chance. 11 We feel like some of these laws are 12 very lacking. According to the diesel regs 13 compared to West Virginia, Pennsylvania, state 14 laws, our laws are lacking and I know we'll have 15 to deal with that on another level, but we feel 16 like these funds that is for these hearings, 17 investigations and studies will be better used to 18 make more stringent laws in dust control and more 19 stringent laws in diesel regulations and 20 particulates. 21 We feel like people need more 22 training in the industry, not only our operators, 23 not only our mechanics, but also MSHA as well in 24 how to look and how to search for dust, diesel 25 particulates and emissions. We realize in the 60 1 coal industry that we do have a problem. We do 2 have a problem in the drug abuse, but not only 3 that, we have a drug problem in this country and 4 we feel like that this policy that you all are 5 trying to implement is too vague and it has too 6 many unknowns. 7 And we feel like we need some more 8 funds put into studying the effects of people who 9 work too many hours. We've had dozens, if not 10 hundreds of people go to sleep going home and had 11 automobile accidents. Several people have been 12 killed trying to get home after working six, 13 seven days a week, 10, 12 hours a day. We feel 14 like that these funds could be directed in those 15 areas. And not only those areas, but some other 16 areas that are having more problems than this. 17 I do again say I realize we do have a 18 problem, but we feel like that some of these 19 other problems with people dying of different 20 type of cancers and COPD poisoning and different 21 lung diseases that we still have a dust problem. 22 We still have a black lung problem. We still 23 have a diesel problem in this country and we want 24 to block to you all to make a stand and redirect 25 some of these funds in those areas. 61 1 I thank you for your time. 2 MS. SILVEY: Okay, thank you for your 3 comments. 4 If we can now -- can we go to Mr. 5 Dewberry? Is he back in the room? 6 BIRMINGHAM: Yes, he's coming. 7 MS. SILVEY: Okay, thank you. 8 MR. DEWBERRY: Good morning. 9 MS. SILVEY: Good morning. 10 MR. DEWBERRY: My name is Daryl 11 Dewberry, D-A-R-Y-L D-E-W-B-E-R-R-Y. I'm 12 International Vice President of United Mine 13 Workers of America, District 20. 14 I rise in opposition of this policy 15 as others have said before. We've addressed 16 these problems some 20 years ago in this 17 District. All of our mines, our contractors have 18 drug policies in effect that are basically 19 working and as the years have gone on we have 20 tweaked them. We've negotiated, come to mutually 21 agreed to drug programs that are not punitive in 22 nature. Run a confirmation test on them to 23 certify the fact that they are, in fact, a 24 positive. There are a lot of problems as the 25 other speakers spoke to and I won't be 62 1 repetitious that much, but I do want to touch on 2 a few points. 3 Let me say first of all that I 4 appreciate you holding another hearing. A lot of 5 our people and I don't know if that was the 6 intent, gave up last time and I guess they 7 anticipated that the same thing would occur 8 today. We hope we've got a crowd full of people 9 here today and I wish that you were here to see 10 them. The problem being I don't think that's the 11 intent of a little conference call to address a 12 public hearing. You need to see the body 13 language. You need to see the response and of 14 course, that's my opinion, and the majority of 15 these coal miners here. But this is a sensitive 16 area. 17 Most of our coal miners are of the 18 age of around, average age from 55 to 58 years of 19 age. Most of them have 25 to going on 30 years 20 of service in the industry. Most of them are 21 wore out and broke down. As they've said and as 22 I've said before, we've worked them to the point 23 of fatigue. The practices are that if they get 24 injured and I had testimony in an arbitration 25 last week, wherein the doctor testified and said 63 1 that he would give the individual a lower tab, 2 but he couldn't take it eight hours before he 3 returned to work. Now my opinion there is the 4 doctor is in error for allowing someone, if he's 5 in so much pain that he's prescribed that 6 medication, but he can keep him off of workman's 7 comp. until he is completely off of it and then 8 return him. But in an effort to get him back to 9 work so that he won't be on workman's comp., 10 won't have a loss time injury that's accountable, 11 they release him to return to work with pain 12 under ibuprofen, causing a danger to themselves 13 and others while in the workplace because as you 14 know a coal miner needs to be sharp. He needs to 15 have his attention span directed on what he's 16 doing and not worried about my leg is killing me 17 or whatever the injury may be and I've got to go 18 to work because if I don't, if I miss two 19 consecutive days I will be terminated. 20 So that's one of the problems. 21 The other problem is that we've 22 addressed this issue. I'll use Jim Walter 23 Resources for an example. That is a negotiated, 24 mutually-agreed program that's been in effect 25 for 20 years. It basically allows a second shot. 64 1 Most of the other miners I'd say Drummond's P&M, 2 has a random drug testing policy that's very 3 effective. We do not. We do not. Let me 4 reiterate that. We do not want drugs in this 5 industry. 6 I'm a strong advocate to tell 7 everybody that there's two things that we can't 8 defend you on. That's absenteeism and drug 9 abuse. If you intend on doing one of those then 10 we will not be able to help you when the time 11 comes. And we've arbitrated a lot of cases that 12 we've -- if there were specific issues, but 13 that's been I guess shortened up over the last I 14 guess 15 years simply because we truly believe 15 that we've got a handle on it. 16 In addition to that, the State of 17 Alabama Workman's Comp., if you have an injury, 18 you've got a zero tolerance drug test that they 19 take at the hospital. I mean if you're found 20 with drugs in your system, then they don't have 21 to pay your doctor bill, basically. So there are 22 a lot of deterrents. 23 We feel like that this money could be 24 well spent and well served curtailing black lung. 25 Let me just bring to your attention here in 65 1 Alabama alone 1979, '78, '79, we had 18,500 2 miners working. That includes construction. We 3 mined around 12 million ton of coal, 12 to 12.5 4 million. Now we have some 3200 miners working 5 here in Alabama and we'll mine over 26 million 6 ton of coal with that amount of people. The 7 exposure to dust levels, respirable dust levels 8 are just unbelievable. I believe that the 9 standards are proper. This is my opinion. 10 However, we need to put more emphasis on 11 controlling the dust, respirable dust. 12 In addition, we need to put more 13 emphasis on diesel equipment. We feel and see a 14 great rise in cancer and I know that it's been 15 touched on, but our people are succoming, they're 16 not getting to enjoy their retirement. They're 17 not getting to enjoy the fruits of their labor 18 that they worked for simply because they have 19 succomed to disease and injury. But this is a 20 problem that we're dealing with and have dealt 21 with for the last 20 years. 22 Now I wouldn't have a problem if you 23 decided that what we need to do is allow anyone 24 that has a drug policy in effect that we don't 25 put these proposed regs on them that they've 66 1 already taken care of their own business. Non- 2 union entities that don't have them, I believe 3 that you should possibly put this program in on 4 them. But if you've already got collective 5 bargaining agreement in place, we feel like it's 6 a mandatory subject to bargaining, as long as 7 it's reasonable, we sit down and discuss it and 8 come to some agreeable resolution. 9 I've been in discussions with Jim 10 Walters doing some additional probing on their 11 drug policy and we're receptive to that. But let 12 me say that I think that at this time it's 13 completely misplaced, that we need to put more 14 emphasis in other areas such as respirable dust 15 and the chemicals that are in these mines that 16 are causing great harm to our miners in the 17 longer interim. 18 I feel like we have had a problem 19 with drug abuse, and I think it's a national 20 crisis. I think one thing that needs to take 21 place is if you'll look around in the State of 22 Alabama, we don't have that much assistance 23 programs to deter this. And if you do, it costs 24 an arm and a leg and I think MSHA not only -- 25 this proposed reg would put such an undue 67 1 hardship on the operator and run the price of 2 coal on up, but I think it should be some federal 3 mandated drug assistance programs that the 4 federal puts money in that wouldn't be a cost to 5 these operators because it is a national problem 6 that needs to be addressed by the Government. In 7 my opinion, it's a disease that needs to be 8 addressed in its infancy when people first 9 contract it. 10 I'll answer any questions you may 11 have. 12 MS. SILVEY: Thank you. Thank you 13 very much. I really don't -- I appreciate your 14 comments very much. I don't have any questions. 15 MR. DEWBERRY: Thank you. 16 MS. SILVEY: Our next speaker is Jim 17 Yates, UMWA, Local 2245. 18 MR. YATES: Good morning, ma'am. 19 MS. SILVEY: Good morning. 20 MR. YATES: Jimmy, J-I-M-M-Y, Yates, 21 Y-A-T-E-S. 22 I have just three points I wanted to 23 hit on, but first of all, we have a great many of 24 folks who is here today who are wanting to speak, 25 so I'm going to make my comments fairly brief. 68 1 I am -- the first point I want to 2 make is I am adamantly opposed to this 3 teleconference. This should have been an on-site 4 hearing with eye-to-eye contact would have been 5 much better to get your point across. 6 I want to turn my pages. These are 7 three points I want to talk to you about. 8 The proposal would exclude 9 administrative and clerical personnel from drug 10 testing requirements. These workers do drive on 11 mine property, often go underground to deliver 12 supplies and newly purchased supplies. We have 13 seen the disastrous effects of incompatible 14 fittings on fire hoses. Why should they be 15 exempt? Miners would be subject to their comings 16 and goings on the mine site property. A good 17 example would be a person under the influence of 18 some type of drug coming in and while the coal 19 miner is going over to pick up his pay check on 20 Friday morning, he gets run over. That would be 21 an excellent example. So I'm saying anyone that 22 comes on the property they've got to be drug 23 tested at some point. 24 Next point, the proposal does not 25 make clear who will be responsible for testing 69 1 contract workers on my property or even that the 2 contract worker must be tested. Mine operators 3 have historically taken a hands off approach to 4 the contractors, accepting no responsibility for 5 the employees. This rule must make clear that 6 the miner operator is responsible for those 7 employees if they hire to perform work on the 8 property. Eight of the 20 fatal accidents to 9 date have been employees of contractors. 10 My last point is this, ma'am, the 11 proposal is not clear on which supervisor will be 12 included in the testing or how they will be 13 supervised. If a miner suspects his supervisor 14 is under the influence of alcohol or drugs, who 15 would he report it to? Would the miner have the 16 same rights to require that a supervisor be 17 tested for reasonable suspicion? 18 The manner in which the proposal is 19 written on subjects miners to random and 20 reasonable suspicion testing when in fact the 21 supervisors are often alcohol and drug users. In 22 the State of Kentucky, 40 certified mine foremen 23 were reported for drug and alcohol policy 24 violations. Of those 40, 4 were rescinded and 36 25 had their certifications suspended. The proposal 70 1 must be revised to allow any person to reasonably 2 inspect drug or alcohol use by any employee on 3 the properly. That's including the supervisors. 4 We want every supervisor subject to drug testing 5 from the top to the bottom. We're talking about 6 the mine manager all the way down. And provide 7 for the oversight in the form of a second 8 opinion. As proposed, the miners would have no 9 recourse if they are suspected of drug or alcohol 10 abuse. 11 That's all I have, ma'am. Thank you. 12 MS. SILVEY: Thank you, sir. I 13 appreciate your comments. We will take them into 14 consideration. 15 Our next speaker is Charles Carden 16 with UMWA Local 1948. 17 MR. CARDEN: Good morning. 18 MS. SILVEY: Good morning. 19 MR. CARDEN: Charles Carden, UMWA 20 Local 1948. 21 As I was reading the proposal, the 22 commentary that it presents it says there's an 23 urgent need about this, but you know, from 24 everything that I've read about the last major 25 disasters, I don't believe drugs or alcohol or 71 1 either one of them was involved. If it was, it 2 wasn't listed. Without you all testing the mine 3 owner and he tested positive -- and we don't 4 understand why the Agency is trying to deflect 5 their focus away from the death of these miners 6 without their trying to propose that it's the 7 miners' fault for getting killed. 8 Most of the mines, just to reiterate 9 a little bit, are the working mining force, 10 already are random drug tested. We don't have a 11 problem with that. But we feel that it should be 12 focused on different areas and myself, I'm a 13 diesel mechanic. I've seen inspectors come in 14 and really just overlook the diesel equipment 15 altogether because they're not educated enough to 16 really go through the process of what actually 17 needs to be done to the equipment. 18 Now we feel that the Department 19 should go back and look at this and spend more 20 money on that and time instead of putting more 21 emphasis on drugs and not only that, but it 22 leaves the administrative end completely out of 23 the picture for drug testing and just over the 24 past two or three years, we've had two or three 25 supervisors that were dismissed on account of 72 1 drugs. 2 That's all I've got to say. 3 MS. SILVEY: Thank you very much, Mr. 4 Carden. Let me ask you a question. When you say 5 you've seen inspectors come in and overlook 6 diesel equipment, I guess as you say apparently 7 because they were not trained to -- 8 MR. CARDEN: That's correct. 9 MS. SILVEY: Where was this? 10 MR. CARDEN: Where was this, in the 11 mines. 12 MS. SILVEY: I understand that. 13 MR. CARDEN: Shoal Creek Mine. 14 MS. SILVEY: At Shoal Creek. And so 15 when the inspector came and overlooked something, 16 whatever, did you say anything about it to 17 anybody? 18 MR. CARDEN: Did I what? 19 MS. SILVEY: Did you report that to 20 anybody that -- 21 MR. CARDEN: I sure did. 22 MS. SILVEY: You did not? 23 MR. CARDEN: I sure did. 24 MS. SILVEY: You did, okay. All 25 right. Okay. Thank you. 73 1 Okay, thank you very much. The next 2 speaker will be -- Mr. Carden, before I leave 3 you, I'm sorry, let me just ask you one more 4 question. You said you reported it to somebody. 5 Who did you report it to? 6 MR. CARDEN: Resident inspector. 7 MS. SILVEY: You reported it to the 8 resident inspector? 9 MR. CARDEN: Yes, ma'am. 10 MS. SILVEY: Okay, all right. Thank 11 you. 12 Our next speaker will be Patrick 13 Watson, Local 2397. 14 MR. WATSON: My name is Patrick 15 Watson, P-A-T-R-I-C-K W-A-T-S-O-N. 16 Local 2397, Jim Walter Resources. 17 First off, we don't get disconnected. It turns 18 out we're having to talk over a speaker through a 19 microphone instead of in person. 20 First off, this is ridiculous, 21 absolutely ridiculous. Just about anybody that 22 works in the mines, the contractor or as a miner, 23 you know, people who have come just to visit, 24 whatever, if anybody in that mine thinks or 25 suspects that someone doing a job that would put 74 1 someone else in danger that even looks like 2 they're on drugs, they're going to be reported 3 eventually instead of sitting there. I'm not 4 going to work beside somebody that makes stupid 5 decisions as if they're on drugs. But most 6 people that are on prescription that's not an 7 illegal drug by no means. 8 Over probably 80 percent of anybody 9 that works and uses their physical body the way 10 we do are on some type of prescription drug, 11 whether it be blood pressure, pain reliever, 12 antidepressants, anything. What do you all call 13 it that is something that would put anybody in 14 danger? Nobody really knows. You've got a list 15 of some here, but that don't mean you can't use 16 something all together different and there's 17 another thing in here that I think someone else 18 has already covered earlier about the medical 19 history, about the employer being able to look 20 over your entire medical history. 21 Would you want somebody looking over 22 your entire medical history for something in your 23 medical history that did not pertain to your job 24 at all? That was a question, ma'am. 25 MS. SILVEY: Well, I know that in 75 1 certain situations the employer, and it depends 2 on the situation, the employer does have the 3 right to look over an employee's medical history 4 and I think it just depends on the situation. 5 Now whenever the employer does that, 6 there are a lot of other requirements that come 7 into play, like confidentiality. For example, if 8 the employer in the course of doing that looks at 9 or sees some other things there, I mean these 10 things would -- whether they are related to the 11 job or unrelated to the job, if there's a 12 requirement for confidentiality, that has to be 13 maintained and so all other existing regulations 14 and requirements, health requirements. I know 15 now that you asked me that question. I've heard 16 several people talk about the HIPAA regulations. 17 And all the other requirements related to 18 privacy, related to confidentiality, those would 19 pertain and would have to be complied with. 20 MR. WATSON: How do we know that will 21 be done? We don't know that. I mean you've got 22 a group of company people sitting in a room with 23 someone's medical history, that's not 24 confidentiality. Anyone in that room can go to 25 anyone in that mine and say something about their 76 1 medical history that does not pertain to drugs 2 and alcohol-related business. 3 If there's anything that they need to 4 look it's just drug and alcohol-related business. 5 It's not their entire medical history at all. 6 Is that not right? 7 (Pause.) 8 Are you still there? 9 MS. SILVEY: I'm here. I'll just 10 reiterate what I said. You said how do I know 11 they would do that, maintain a confidentiality, 12 but the requirement is that they have to do it 13 and so that's what I'm saying to you, stating to 14 you, that there is the requirement that privacy 15 and confidentiality, those are legal requirements 16 and they have to be complied with. 17 MR. WATSON: I understand that. And 18 also, you know, where I'm at we have a drug and 19 alcohol program and if you're going to work there 20 you have to comply by it. You're not to do any 21 illegal drugs and now you all are wanting to do 22 this, to test us, saying that you all don't trust 23 us. So how are we supposed to trust you all with 24 a medical history? 25 MS. SILVEY: I'm here. I'm 77 1 listening. 2 MR. WATSON: Drug and alcohol 3 technician, it says here page 62157, top right, 4 rug and alcohol technician, a person who assists 5 the miner in alcohol detection process and 6 operates an individual breath testing device. A 7 DAT can be an employee of the mine operator, must 8 have received qualification training that 9 includes training and alcohol testing procedures 10 and operation of alcohol test devices. 11 Confirmed drug test. Confirmed drug 12 test results received by medical review officers, 13 MRO, from a laboratory. If I'm not mistaken back 14 earlier there was a gentleman talking about the 15 MRO. And it didn't say anything about being from 16 a laboratory, an officer from a laboratory. It 17 said that it could be anyone of the company. I 18 don't know exactly where it was at. I can 19 probably find it if I sit here and look for it. 20 (Pause.) 21 MS. SILVEY: Were you talking about 22 the medical review officer? 23 MR. WATSON: Yes, I've got it here 24 now. Medical review officer, MRO, a licensed 25 physician who is responsible for receiving and 78 1 reviewing laboratory results generated by a mine 2 operator's drug testing program and evaluation of 3 medical explanations for certain drug test 4 results. An MRO can be an employee of the mine 5 operator and service agent. 6 And then back here, if I can find it 7 again, on 52157 it says that a confirmed test 8 result received by a medical officer from a 9 laboratory. Last I checked, we don't have a 10 laboratory on my site. 11 (Pause.) 12 While you all are thinking about that 13 I'll mention something else and I'm going to be 14 done for now. 15 MS. SILVEY: Before you go from that, 16 I know you probably don't have a laboratory on 17 your site. This just is talking about in terms 18 of whatever testing provision that the operator 19 would have set up there and the laboratory might 20 be on site, it might not be on the site. 21 MR. WATSON: Well, it says on site. 22 And in this one it says on site. 23 Another thing it talks about -- well, 24 the alcohol. In the law, you all are using a .04 25 as a legal limit. And the state law is .08. 79 1 Meaning if you get pulled over by a state trooper 2 and do a breathalyzer and you have .08 in your 3 system changes are they'll let you go and won't 4 say nothing to you, but you all are telling us if 5 we have .04 in our system, pretty much we're not 6 going to get paid for the rest of that day, be 7 sent home, and the next year be drawn out for six 8 more tests. 9 MS. SILVEY: Okay, the .04, as I 10 stated in my opening statement, you were using 11 the alcohol level as consistent with the 12 Department of Transportation regulation. 13 MR. WATSON: You can take anybody 14 that you want to and if they've had -- if they've 15 been to a bar and they get slap drunk and they 16 are due to be at work in the next eight hours, 17 when they come to work that next eight hours, 18 there's nothing wrong with them, they're fine, 19 but if get off the elevator and take steps and 20 they trip over something and twist their ankle 21 and the company sends them, makes them do this 22 drug test and they still got .04 in their system, 23 but there's no way that they're by no means 24 drunk, maybe hung over or feeling pretty rough, 25 but they're not drunk. 80 1 (Pause.) 2 MS. SILVEY: Okay, thank you. 3 MR. WATSON: I've got another 4 question here. Under this here law in this 5 statement, if we have a federal inspector come 6 into our site and they step through our line or 7 rail work out in the washer and they just walk by 8 stuff and don't make any comment about it, don't 9 write it up, don't see it, how do we know that 10 they're not impaired by drugs? Do they need to 11 be tested or are we allowed to say hey, I think 12 that federal inspector there needs to be tested. 13 MS. SILVEY: I think in that 14 situation you probably would say something either 15 to your supervisor or as the other gentleman 16 said, if you had a resident inspector there or to 17 the inspector's supervisor about what the 18 inspector passed up, at least what you thought 19 the inspector passed up in that situation. 20 MR. WATSON: I don't know if you've 21 ever been down there where we are, you do that 22 you're pretty much going to be going through your 23 next drug test anyway. 24 (Laughter.) 25 They're going to send you right on 81 1 out, you go stepping in front of them and telling 2 them they ain't doing their job, they need to go 3 back and look at something. That just won't fly. 4 But how do we know that an inspector 5 can come down there and make our life-threatening 6 decisions on whether something looks the way it 7 needs to be or operates the way it needs to be 8 without us knowing whether he's in his right 9 state of mind to make that decision? That's all 10 I've got to say. If you have any questions, go 11 ahead. 12 MS. SILVEY: No, thank you very much. 13 Thank you. 14 Our next speaker will be Steven 15 Miller, Local 1949. 16 MR. MILLER: My name is Steven 17 Miller, Local 1949. 18 Regarding this, I'm just wondering 19 why we're even trying to have such a thing 20 passed, due to the drug testing. Unfortunately, 21 mining is dangerous and people do get injured and 22 drug testing does not determine if you're 23 impaired, you know. When you take a drug test, 24 it doesn't determine if you're impaired. It will 25 tell you if you have any type of drugs in your 82 1 system. It doesn't tell that you're impaired at 2 the time or not. 3 The extent of alcohol and drug 4 problems in the mining field has not been 5 directly measured. Data collected suggests that 6 mines' pre-employment tests and random testing 7 has been doing fine. Every mine that I've worked 8 at before has been doing fine with the random 9 testing and pre-testing. Every mine that I've 10 worked at has done it and has been doing it. 11 I've never seen anything wrong with any company 12 that I've ever worked at. 13 The cost of this, like the first year 14 alone, $16 million that could go for other 15 problems. It could go towards drug testing for 16 advancement -- I got lost track here. It can go 17 for noise control, diesel control and dust 18 control. 19 Also, drug testing for advancement 20 for another job, for bidding for other jobs makes 21 no sense. All the jobs down there, it says for 22 advancement for other jobs that are more 23 dangerous, makes no sense because every job down 24 there is a dangerous job. 25 Also, anyone on the mine site should 83 1 be subject to drug test and that's even upper 2 management, secretaries, vendors, contractors, 3 especially contractors. We're up for random drug 4 testing. I don't know how the contractor do it, 5 if they just give one drug testing when their 6 company hires them, if they do any drug testing 7 at all. They should be subject to because 8 they're down there with us underground, above 9 ground, whatever they're doing, but they're right 10 along with us, subject to get injured just like 11 us, to injure us. 12 It is proven that alcohol and drug, 13 it is a proven fact that alcohol and drugs 14 impairs judgment, you know. With upper 15 management, planning for the employees, it is 16 their responsibility to keep their minds clear. 17 (Pause.) 18 Upper management and contractors that 19 come on the job site to oversee and work, they 20 come upon the same risks as its employees and 21 supervisors that are underground working. 22 I also have a question about these 23 prescription pills and stuff. Some people have 24 to take sleeping pills at night and stuff and 25 antidepressants that they take at home. Taking 84 1 them at home and stuff, were they to take a drug 2 test. You take them at home, but you don't take 3 them at work, your sleeping pills and you take a 4 drug test, will that make you fail your drug test 5 and how would that work? I don't understand 6 that. 7 (Pause.) 8 Ma'am? 9 MS. SILVEY: Well, if the sleeping 10 pills are one of the ten listed categories that I 11 read in my opening statement, they would be 12 covered by the rule, but they would be -- if the 13 person taking them had a valid prescription for 14 them, they would come under that provision of the 15 rule and they were taking them in accordance with 16 a valid prescription. 17 MR. MILLER: Okay. Also, this 18 confidentiality you guys speak about. They say 19 you'll be removed and put on a different task and 20 keep your same grade pay, how would that be 21 keeping your confidentiality -- you know what I'm 22 saying, sorry, I can't speak today. 23 How would you keep your 24 confidentiality? 25 MS. SILVEY: Are you saying how can 85 1 it remain confidential if you're being 2 transferred? 3 MR. MILLER: Yes, when somebody sees 4 that you've been removed from your task and put 5 on a different task, everybody is going to know 6 that something is up there. You wouldn't be able 7 to keep it, that's for sure. That would not make 8 no sense whatsoever. 9 With that going on, I agree that drug 10 testing is appropriate in the industry and I 11 believe that companies are doing a good job and 12 the money could be spent on other problems in the 13 industry and that's about all I have to say about 14 that. 15 MS. SILVEY: Okay, thank you. Mr. 16 Miller, I do have one thing, just for 17 clarification. When you started off, you said 18 drug testing for advancement. I didn't quite 19 understand what you meant then. 20 MR. MILLER: In here it says for -- I 21 had it highlighted here, hold on just a second 22 while I find it. 23 (Pause.) 24 MS. SILVEY: Were you talking about 25 any time you were transferred or anybody having 86 1 to have preemployment testing? 2 MR. MILLER: No. Hold on just a 3 second. Let me find it just right quick. 4 (Pause.) 5 It is 52160 first paragraph at the 6 very bottom of the page. "Any miner who is to be 7 transferred to a position involving the 8 performance of a safety-sensitive job duty must 9 be tested for the presence of alcohol or drugs 10 prior to beginning the performance of safety- 11 sensitive job duty." 12 MS. SILVEY: Okay. That's sort of 13 basically the preemployment type. Okay, I 14 understand. Thank you. I understand. 15 All right, thank you very much. 16 MR. MILLER: Thank you. 17 MS. SILVEY: Okay. The next person I 18 have on the list from Birmingham is Grady 19 Robertson. 20 BIRMINGHAM: I'd ask if Sandy 21 Blackston can go next because she has to leave. 22 MS. SILVEY: That's fine. 23 BIRMINGHAM: Thank you. 24 MS. BLACKSTON: Hello. 25 MS. SILVEY: Hello. 87 1 MS. BLACKSTON: Hi, I'm a 2 laboratorian, I'm not a coal miner. 3 MS. SILVEY: Excuse me, would you 4 state your name again, please? 5 MS. BLACKSTON: Sandra Blackston, B- 6 L-A-C-K-S-T-O-N. 7 MS. SILVEY: Okay. 8 MS. BLACKSTON: All right, first of 9 all, I'm a laboratorian. I have my associate's, 10 my bachelor's and a specialty in laboratory 11 medicine. I have a question. There's no federal 12 law as far as CLIA 88 Joint Commission or any 13 other federal regulation that you all put on me 14 as a laboratorian for these company men to abide 15 by. There's nothing. CLIA 88 is federal and you 16 all put that on me especially with drug testing 17 all because these men are company and they think 18 they can get away with doing it privately that's 19 a complete federal regulation of what you all 20 have already implemented. 21 MS. SILVEY: You said there's no 22 federal law for what now? I didn't understand 23 what you said. 24 MS. BLACKSTON: CLIA 88 is a federal 25 law set by the Government to make sure 88 1 laboratorians do their job. If this is going to 2 be testing, why are they not having to go by the 3 same regulations that I do? 4 MS. SILVEY: Give me that -- 5 MS. BLACKSTON: You can google it. 6 It's on the internet. 7 MS. SILVEY: Just tell me what you 8 said again, CLIA 88, what did you say? 9 MS. BLACKSTON: You should know it's 10 a federal regulation. I should not have to go 11 over that. It's CLIA 88. 12 MS. SILVEY: CLIA 88, okay, but I'm 13 asking -- 14 MS. BLACKSTON: It is CLIA 88 and it 15 was implemented in '93. There are all the 16 regulations there for drug testing. 17 MS. SILVEY: Okay, all right, thank 18 you. 19 MS. BLACKSTON: My question is where 20 the chain of command on these people? If they're 21 going to draw the specimens we have to do chain 22 of command just like evidence in a police thing. 23 We have to sign in and sign out whoever takes a 24 specimen. What if somebody falsely contaminates 25 it because they don't want an employee to work 89 1 there any more? 2 MS. SILVEY: There is a chain of 3 command requirement in there. 4 MS. BLACKSTON: You forgot to put 5 that in there. 6 MS. SILVEY: No, the chain of command 7 requirement is incorporated. They have to follow 8 all the DOT procedures and that includes the 9 chain of command requirement, that is in there. 10 MS. BLACKSTON: Where at? 11 MS. SILVEY: Yes, that's in there. I 12 talked about that in my opening statement this 13 morning, that you have to follow, yes. 14 MS. BLACKSTON: My question is too 15 I've had almost eight years' experience and I'm 16 considered almost still incompetent to do these 17 tests. How can you tell a man all because he can 18 take a two-hour course to determine positive or 19 negative that he can do this? 20 MS. SILVEY: Well, you mean the 21 supervisor? 22 MS. BLACKSTON: No, a man. He's not 23 -- he don't have no degree on this. He's a man. 24 He's a civilian. 25 MS. SILVEY: Okay, that was a two- 90 1 hour course he can do what? 2 MS. BLACKSTON: He can test those 3 men. 4 MS. SILVEY: I think what you are 5 talking about when I said a man, and basically 6 that requirement is for supervisors who to make a 7 determination that people -- if somebody is to be 8 -- if somebody is to be tested due to reasonable 9 suspicion, there's a two-hour training on that. 10 That must what you're talking about. But that's 11 two hours of training to determine -- 12 MS. BLACKSTON: I've had eight years 13 and I'm still considered not able to do some of 14 these specialty testing. 15 MS. SILVEY: They wouldn't be doing 16 testing. That requirement does not have anything 17 to do with testing. That's why you confused me. 18 And when you said it's for a supervisor, whether 19 that supervisor is a man or a woman, it's a 20 supervisor where the supervisor feels that there 21 is a determination of reasonable suspicion that 22 the person should be tested, but that supervisor 23 is not then doing the testing. 24 MS. BLACKSTON: So the company man is 25 not going to do the testing? 91 1 MS. SILVEY: No, ma'am. 2 MS. BLACKSTON: Is that what they're 3 saving? 4 MS. SILVEY: That's what I'm saying. 5 That's exactly what I'm saying. 6 MS. BLACKSTON: All right. I just 7 wanted to make sure you're clear on that. 8 MS. SILVEY: I am clear on that. 9 MS. BLACKSTON: Next question, record 10 keeping and reporting, we're all humans. We're 11 all going to make error. Whoever is doing the 12 drug testing is going to make error. Okay, you 13 have no CLIA 88 regulation in this, so who is to 14 hold them responsible for the mistakes they make 15 when these men lose their job and no pay? The 16 company will be liable and then there will be 17 lawsuits. 18 MS. SILVEY: We have a lot -- a 19 number of provisions in there about the testing 20 and about the verification of the testing and 21 those types of things. Those are all covered in 22 the Department of Transportation regulations for 23 testing and they have to follow this -- what is 24 this, the SAMHSA guidelines. 25 MS. CARR: The testing requirements 92 1 of the Department of Transportation that also 2 includes the mandatory substance abuse and mental 3 health services guidelines are incorporated by 4 reference so that chain of custody and the 5 laboratory process and the collections processes 6 are all dictated by the same requirements. 7 MS. BLACKSTON: Okay, my question 8 here is they said they can do on-site testing. 9 Am I correct? 10 MS. CARR: They can do it as per DOT. 11 They can collect the test on site, as long as 12 they use trained collectors. 13 MS. BLACKSTON: What's going to be 14 their requirement to the trained collector? That 15 goes back to CLIA 88 again. 16 MS. CARR: They would be the same as 17 required under the Department of Transportation. 18 MS. BLACKSTON: But it technically 19 could be a company man, correct? 20 MS. CARR: If he is, a company man or 21 woman, if he goes to the same requirements to be 22 -- 23 MS. BLACKSTON: It's a two-hour 24 course. 25 MS. CARR: No, it's not a two-hour 93 1 course. 2 MS. BLACKSTON: The testing 3 requirements are separate from what you've done 4 is you've confused the testing requirements with 5 the requirements for a supervisor who makes a 6 determination that a person should be tested due 7 to a reasonable suspicion. That's all that two- 8 hour training is for and that's the end of the 9 inquiry. The testing is then done in another 10 manner and the testing has to be done in 11 accordance with Department of Transportation and 12 Department of Health and Human Services, 13 certified laboratory requirements. 14 And so hypothetically, if Jim Walters 15 wanted to do it on site they have to do it in 16 accordance with all the -- which are probably the 17 requirements that you use today and they include 18 chain of custody and everything else. 19 MS. BLACKSTON: My question is is 20 this going to be available for the miners, you 21 know the fact that as a laboratorian, you know, 22 we're held competent to what we do. The Federal 23 Government sends me specimens multiple times a 24 year to test me on my ability. Well, considering 25 there's nobody for these people to regulate back 94 1 to, where is the corrective action on human 2 error? Where is all this documentation where 3 these people are doing the tests, are technically 4 considered competent in doing their testing? 5 Anybody can look at a positive or 6 negative, but there's too many false positives, 7 there's too many diseases. There's other things 8 that can consider these men false positives and 9 then they lose pay just because they have to 10 prove they have a liver disease? 11 MS. SILVEY: This regulation doesn't 12 change any drug testing requirements. The drug 13 testing requirements have to be in accordance 14 with established and verified drug testing 15 requirements as they are today. This rule 16 doesn't change any of that. 17 MS. BLACKSTON: I agree, we all need 18 drug testing. Nobody in here is probably arguing 19 that statement. The statement is the way it's 20 going about -- you know it was talked prior about 21 HIPAA. Would you want your bosses sitting around 22 a table if you're working in a job that requires 23 manual labor discussing your drug test when they 24 might find out you have a back problem? They're 25 not going to keep that a secret. And that's why 95 1 HIPAA is where it's at to protect these people 2 from the company. That's what HIPAA, one of the 3 goals of HIPAA. 4 You're separating company from men 5 when these men hire on Jim Walters, they're 6 saying the company does not have drug testing? 7 Well, if I hire on, whether I'm put in an office 8 or whether I'm put underground, that's almost job 9 discrimination. I can't help where you all put 10 me, so I get drug tested based on where you put 11 me? 12 Do you have additional comment? 13 MS. BLACKSTON: I mean I would really 14 like you all, you know, advise the CLIA 88 in 15 here because that holds everybody accountable and 16 that holds the Federal Government. That's you 17 all's law. You all made that. You all made it 18 in '88. You all started enforcing it in '93. 19 There's nothing in here on that. 20 MS. SILVEY: I just want to reiterate 21 that the drug testing requirements are in 22 accordance with the Department of Transportation 23 rules and the HHS requirements for certified 24 testing laboratories. And I'm sure if you are a 25 laboratorian as you said and I know you are, I'm 96 1 sure these are the same requirements that you 2 indeed follow when you do your drug testing 3 analysis. 4 MS. BLACKSTON: They are under one 5 consideration. When we do drug testing, we have 6 to be either CAP or JACHO which is Joint 7 Commission which is another federal agency to be 8 required to do drug testing. 9 MS. SILVEY: Okay, I understand. 10 MS. BLACKSTON: You know, it's 11 contradicting what I've been taught all through 12 school when I see things like this. But yet ever 13 law that I've been taught has been left out of 14 this little pamphlet we give to these men. 15 MS. SILVEY: All of those 16 requirements are in here. I can guarantee you 17 that. Some of them we incorporated them by 18 reference and maybe you did not see them, but -- 19 MS. BLACKSTON: Okay, if I can't see 20 them how do you expect -- 21 MS. SILVEY: That's something that we 22 need to look at and we will do that, but as you 23 just said earlier, using CAP, only laboratories 24 certified by CAP as well as -- and we talked -- I 25 talked about earlier HHS Substance Abuse Mental 97 1 Health Services Administration shall be used to 2 test collected samples. And I want to reiterate 3 to everybody who can hear me, every one of these 4 locations, only laboratories certified by CAP as 5 well as HHS/SAMHSA, Substance Abuse Mental Health 6 Services Administration, shall be used to test, 7 collect the samples. And that means nobody at 8 one of these locations, this is how we started 9 this, will be testing these who have not -- who 10 is not qualified to do the testing. 11 MS. BLACKSTON: And this should be 12 made publicly available which if everything like 13 you said, there's only things I understand as a 14 laboratorian, these men should have a paper with 15 what these acronyms mean where they can go 16 themselves on the internet and understand what's 17 happening to them. 18 MS. SILVEY: Okay, thank you. I 19 appreciate your comments. Thank you. 20 MS. BLACKSTON: I appreciate you too. 21 Thank you. 22 (Applause.) 23 MS. SILVEY: Mr. Grady Robertson, are 24 you there? 25 MR. ROBERTSON: Yes, ma'am. I'm 98 1 Grady Robertson, District 20, Local 2133. 2 I think we have a drug policy between 3 the union and the company that's good enough. If 4 prescription drugs that your doctor gives you to 5 maintain your health is took from you, then you 6 ain't going to be able to go on to work. So if 7 you ain't able to go on to work, and no money, 8 disability rate is going to climb sky high, 9 especially in the coal industry. 10 HIPAA law is between -- it's a policy 11 set between you and your doctor. I've sent my 12 wife to do some business since I work 6 days a 13 week, 10 hours a day. I sent my wife to some 14 business at the doctor's office and she come back 15 with nothing. And why she did is because of the 16 HIPAA. I had to go up there and sign papers for 17 my wife to get my history or to get what I needed 18 to get that day. So if my wife, that's the one 19 that's me and her against the world, ain't able 20 to get it, if she ain't able to get it, why 21 should you be able to get it. I ain't speaking 22 of you. I know who you are. I'm speaking of the 23 company. 24 That's the law that will protect you 25 from any riffraff that wants to detour you or 99 1 something or to get you. It ain't no secret. 2 There's some issues that can out of this if we 3 don't watch and protect the HIPAA law. 4 And on the drug testing part, the 5 drug testing part of it, in my case, would be the 6 one that looks over the drug testing of the UMWA 7 men. So if Danny Sergeant is looking over the 8 drug testing of UMWA men, the Daryl Dewberry 9 should look over them or Daryl Dewberry's 10 assistants. 11 I mean -- if the doctor says when I 12 prescribe medicine to you, if the doctor said 13 take off a day, see how it acts with you and see 14 what the medicine does, see if it will help you, 15 see if you're able to go to work. After that's 16 said, that should be -- I mean you've got to go 17 on to work. If you got a twisted knee at 35, it 18 ain't time for surgery. You got to put that off 19 as long as you can, so your career can go on as 20 far as you can, hopefully to retire. That's what 21 prescription drugs are. And as prescription 22 drugs getting out of hand or something like that 23 or come to the job messed up or whatever, I think 24 as a union, as men ourselves we can take care of 25 our own between the company's policy and the UMWA 100 1 itself. We've got a policy, let's stick with the 2 policy and the money we spend on this we could 3 have spent it with research of black lung. 4 You don't even hear of black lung no 5 more. It disappeared. We call it cancer or 6 something else. But we could have spent this 7 money and other money that's going to be spent on 8 this for research on black lung and other things 9 of that nature. 10 I just don't agree with the 11 Government coming in to drug test you. About the 12 HIPAA law, if my wife ain't got rights to it, I 13 be dag gum if somebody else -- if I want somebody 14 else to have rights to it. 15 The lady that spoke before me, I 16 forgot her name, but she brought up some good 17 points. It can be contaminated. Just because 18 they want to get rid of a man. And if you don't 19 think that will happen, you're living in a 20 fantasy land because I've been through some stuff 21 like that. And thanks to Dewberry and his 22 assistants, I'm able to support my four kids and 23 my wife. This does upset me. You all are 24 getting into my rights and how I support my 25 family. 101 1 If I abuse that, we done got lost in 2 regulations to take care of it. But other than 3 that, that's about all I got to say. 4 MS. SILVEY: Okay. Thank you. 5 MR. ROBERTSON: Thank you. 6 MS. SILVEY: Okay. Is there anybody 7 else in Birmingham who wishes to speak? 8 Anybody else in Birmingham who wishes 9 to speak? 10 BIRMINGHAM: Yes. I didn't get these 11 faxed in, but I did leave a message -- 12 MS. SILVEY: Let me stop you, please? 13 Would you just let them come to the phone in the 14 order that they are signed up. 15 BIRMINGHAM: Okay. 16 MS. SILVEY: Just come to the phone, 17 okay? 18 BIRMINGHAM: The next speaker is 19 Wendell Rigsby. 20 MS. SILVEY: Just let them come to 21 the phone and state their name and spell their 22 name. You don't need to do that. 23 MR. RIGSBY: Good morning. 24 MS. SILVEY: Good morning. 25 MR. RIGSBY: My name is Wendell 102 1 Rigsby, W-E-N-D-E-L-L R-I-G-S-B-Y. I am an 2 International Field Representative for the UMWA 3 at District 20. 4 I thank you for letting me speak. 5 I'm here today to express my concerns over this 6 policy. I would rather it be in person, so I 7 could see you, but anyway -- 8 MS. SILVEY: I appreciate that all of 9 these people want to see me. That really makes 10 me feel good. 11 (Laughter.) 12 MR. RIGSBY: You sound like an 13 attractive woman. 14 (Laughter.) 15 MS. SILVEY: I'm sure you mean that. 16 (Laughter.) 17 MS. SILVEY: Okay, a little humor 18 everybody. 19 MR. RIGSBY: Anyway, I'm a District 20 Representative and I represent four mines in this 21 area that have some form of a drug policy already 22 in place, has been for several years. Seems to 23 be what we have is working. None of us, being 24 union people or any miner that I know of are 25 either a coal operator, I don't believe none of 103 1 us condone any kind of illegal drugs. We're dead 2 set against it, hate them. 3 But I'm here with concerns about some 4 of our miners that take legal prescription drugs 5 that have been give to them because of their time 6 in the mines and the job injuries they've had 7 trying to work toward retirement, to get a chance 8 to set back and maybe retire and draw a 9 retirement. 10 The part that Mr. Wideman related in 11 this policy about the MRO is exactly correct. 12 I'm dealing with it now. There won't be a 13 substance abuse professional. It will be nothing 14 more than a company doctor and this policy will 15 give them the right to review your medical 16 history. If he's off of a job injury before he 17 goes back to work, if he's taking certain 18 medications that will give him a right to either 19 -- I'm dealing with three people right now that 20 the company wants him to sign over their medical 21 records and let them review their medical records 22 and two of them they want to take physical 23 agility tests and they're over 50 something years 24 old with 25 years service. 25 My concern is if this policy is 104 1 passed that basically will give them the right to 2 have this. It will become law and probably will 3 be administered by MSHA. And that's one of the 4 main problems that I've got with this. When you 5 have people that's been in the mines 25 years, 6 we've got some severe medical problems that they 7 deal with every day in order to come to work and 8 work and having to work with a hot seat change 9 out, 9, 10 hours or more, 6 days a week, it puts 10 a burden on them and their family. 11 That's, like I say, if this is 12 implemented and enforced, it's going to be 13 detrimental to our miners, I think, instead of 14 helping the industry as far as the drugs. We 15 seem to be working well with what we're doing. 16 If we can get past the part about turning over 17 our medical records, I've got a good chance under 18 our contract through collective bargaining to 19 have a chance to get these three people back to 20 work right now, but if this MSHA law is 21 implemented, then I probably have no chance at 22 all. They'll tell you right quick that they 23 won't give them no Social Security disability. 24 They'll tell them they're able to go out there to 25 work at Wal-Mart or something like that. So 105 1 their quality of life is -- it will really go 2 downhill. But that's basically my concern and 3 would look forward to MSHA maybe going back. 4 I worked in the mines 34 years before 5 I took this job. I would favor MSHA going back 6 to these public hearings being what they're 7 supposed to be, a public hearing and I appreciate 8 your time and letting me speak. 9 MS. SILVEY: Okay, thank you. I 10 appreciate your speaking. Thank you very much. 11 Would the next speaker in Birmingham 12 come to the mic and state your name and spell it 13 for the reporter, please, the next speaker. 14 MR. GREEN: My name is Randall Green, 15 R-A-N-D-A-L-L G-R-E-E-N. I'm with the UMWA. I'm 16 a safety committeeman and president with Local 17 1948 and also president of the local. 18 I've got a few comments I wanted to 19 make on some of the past testimony and some of 20 the questions you all had this morning. First 21 thing I'd like to say that the drug testing 22 policy that we have in our mines is a very 23 stringent one and over the past 15 years it's 24 done a good job in policing the mines. And of 25 course, we don't want people in the mines, it's a 106 1 hazard to themselves and the people around them. 2 So think a lot of funds has been put to that. 3 But going back to the question on 4 diesel in the mines and dust and also a question 5 to the testimony a gentleman had this morning, we 6 don't have the funding in areas particularly in 7 diesel with the hazards that are occurring in the 8 mines. In our mines we're having a lot of 9 serious diseases that's linked to the mine 10 environment. We've also learned that diesel 11 particulates enter the person's body even further 12 than coal dust and can cause a lot of serious 13 diseases. 14 A question came this morning about 15 training and I think about MSHA here in District 16 11. The first thing I want to say is we've got a 17 lot of good inspectors at District 11 that have 18 always been very courteous and helpful in their 19 inspection of the mines here at District 11 and 20 to the miners' representatives, but they have 21 expressed to me and of course I'm a safety 22 committeeman and a president of local that the 23 problems we have with diesel entering the 24 industry, they do need more training and I think 25 that was the question the diesel mechanic put 107 1 forth this morning. But they have expressed 2 that, numerous ones of needing additional 3 training. And of course, we realize this takes 4 additional funding. 5 And we believe that the problems we 6 have particularly there that MSHA ought to look 7 at funding these areas today, addressing these 8 today first before we try to address the drug 9 policy that's already heavily funded in the 10 industry. 11 We also expressed that we need better 12 training in the industry with diesel. And I will 13 say this that we have had some training and 14 engine personnel has had some training, but it's 15 very limited -- in talking to MSHA personnel it's 16 because of limited resources. It's limited 17 personnel to look at the diesel and of course, 18 the training. That's just some of the comments 19 that I wanted to make to you that we feel that 20 MSHA should be going in this direction and I 21 think as far as again, we'd like to have you all 22 in Birmingham, as usual, where we can stand face 23 to face and you can see the people here and see 24 the interest that we have. 25 And of course, we want a safe 108 1 industry, but I'd just like to make that comment 2 on to the other brother who brought up about 3 diesel that MSHA theirself has expressed the need 4 for better training in this area. 5 Thank you. 6 MS. SILVEY: Thank you, Mr. Green, 7 and I have to say I'm sorry I'm missing seeing 8 you today. I appreciate your comments here today 9 and as usual I appreciate your participation in 10 all of our hearings. 11 MR. GREEN: All I can say is roll 12 tide to that. 13 (Laughter.) 14 MS. SILVEY: And I agree with you, 15 they are doing quite well, you know. 16 I would like to say though that with 17 respect to your comment on the MSHA inspectors 18 needing more training, I will pass that 19 information on to our Coal Mine Safety and Health 20 Office and make sure we look into that. 21 The next speaker in Alabama, 22 Birmingham, please. 23 MR. SICKLES: My name is Harold 24 Sickles. I'm from Local 1948. And I'm going to 25 go ahead and bring up something that's important 109 1 to me. We have in here persons performing 2 safety-sensitive job duties. Down here towards 3 where the last paragraph it says "general 4 administration and clerical personnel are not 5 considered to perform safety-sensitive job 6 duties." 7 Up in the next column it says 8 "safety-sensitive job duties, any type of work 9 activity where a momentary lapse of critical 10 concentration could result in an accident, 11 injury, or death." The CO men, I would really 12 like to know where he's going to fall in. Is he 13 going to fall in under general administrative or 14 the clerical part? Because if this man has a 15 lapse in concentration, if something happens on 16 the coal mines, you're talking about eery man in 17 the coal mine is going to be in jeopardy because 18 they have no outside communication except for the 19 CO man. 20 MS. SILVEY: Okay, I appreciate what 21 you're saying. 22 MR. SICKLES: You appreciate what I'm 23 saying? 24 MS. SILVEY: I understand your 25 comment with respect to the CO man as you said. 110 1 The CO, the person, the AMS operator, that person 2 has to go underground sometimes, doesn't he? 3 MR. SICKLES: No, ma'am. 4 MS. SILVEY: Not at all? 5 MR. SICKLES: No. 6 MS. SILVEY: Okay, he doesn't have to 7 go underground, but he's required to take 8 comprehensive training under 48, isn't he? 9 He would be -- 10 MR. SICKLES: I'm looking around for 11 an answer. Yes. 12 MS. SILVEY: He would be. I'm sure 13 he would be, so if he's required to take part 48 14 training, then he's considered to perform safety- 15 sensitive job duties. 16 MR. SICKLES: Okay. 17 MS. SILVEY: You helped me figure out 18 the answer to that question. 19 MR. SICKLES: Okay. I want to go to 20 Section 66402. And it's about the MRO. I want 21 to pick this paragraph out. It says "it is not 22 the intent of this provision to have the MRO 23 determine whether the use of a given substance is 24 compatible with the performance of a safety- 25 sensitive job duty as this is a determination 111 1 that is best made by the miner's position." 2 What I'm trying to figure out is what 3 would be the MRO's job to conduct an interview of 4 me if my doctor has prescribed or a workman's 5 comp doctor, either one, has prescribed a 6 medication for me to take. 7 MS. CARR: I believe you're reading 8 from the preamble and I think it does go on to 9 describe in the rule text that the job of the 10 medical review officer is to substantiate that 11 you are, in fact, taking the medication as your 12 physician has prescribed. If you are taking it 13 accordingly, it is not the job of the MRO to 14 disqualify you. He would report that back as a 15 negative test result and you would continue 16 performing your job functions and there would be 17 no adverse action. That's the role of the 18 medical review officer. 19 MR. SICKLES: The other part of this 20 that worries me, it says "it is not the intent" - 21 - well, it wasn't the intent of these 22 pharmaceutical companies to make drugs that 23 people abuse. It wasn't the intent of Budweiser 24 to make a bunch of drunks. But some of these 25 companies, it will be their intent to use this to 112 1 get rid of hurt miners. And I say hurt miner -- 2 I'm not an old miner. I'm 35 years old with a 3 back problem. Sometimes I have to take drugs to 4 be able to make it through a shift of work. Not 5 all the time, but there are some miners down 6 there that could not work and they'd be sent to 7 the house with no pay, not way to support their 8 families. I believe Mr. Grady touched on that a 9 while ago. 10 And then that's what the intent part 11 of it means. Well, they don't a lot of things 12 intend to happen, but I would like to see 13 something that says it will not happen. You 14 can't let a company or anybody else say that 15 well, you're taking this prescription and 16 whatever level it is, because I mean when you go 17 in the levels, I see back here where -- it's go 18 standards like 300 and 200 and 100 and all that. 19 Well, up in the paragraph it said it's going to 20 be each individual case required. It will be 21 individual analysis. Well, you got a man that's 22 150 man. You got a man like me who's 270 pounds. 23 Yes, stuff is going to affect differently. Who 24 is going to pay this man or me if they send me to 25 the house and say well, you got 310 in your 113 1 system. Who's going to pay for that? 2 Being lost time, lost work time for 3 the employee? 4 (Pause.) 5 I couldn't find anything in there 6 where there would be any pay for you. You'd just 7 be sitting at the house until somebody makes a 8 decision. 9 MS. SILVEY: I think under the rule 10 that's all determining -- a determination of the 11 -- of the situation of the particular operator. 12 That's what I'm trying to say. Whatever is in 13 place at your mine, what is governed by 14 collective bargaining or not, whether you're 15 under collective bargaining. I know that some 16 operations are. I mean you all said -- I know 17 that. You spoke about it this morning. Some 18 mine operations are not. But it would be 19 governed by the requirements at the mine. 20 MR. SICKLES: Okay, this is leading 21 into this. If this does go through and pass, 22 like it stands, well then what you're talking 23 about it will be going to arbitration. And I 24 know some people at our mines that was off three, 25 four, five months. I know one man he won his 114 1 case and he got a big chunk of money, but who was 2 his light bills and buying him groceries for them 3 kids up until that point? That's what I'm 4 getting at. Whether it's right or wrong, I 5 believe in drug testing. I honestly do. Every 6 industry needs it, but the word "intent" or 7 "intended" -- a lot of this is not intended to 8 hurt anybody. It's to help make everybody safer, 9 but you've got companies and other things that 10 are -- they're finding that there's a way to get 11 rid of people. That's what I'm saying . So the 12 drug policy at Drummond Coal Company right now, 13 it's pretty much zero tolerance. If you're 14 caught with illicit drug and you haven't come to 15 them with help and you need help beforehand, 16 you're gone. You're terminated. 17 I feel like we've got a good policy 18 down here. I just really feel in my heart if 19 this right here is implemented on us down there 20 it's going to be -- it'll be used as misintent 21 for us, rather than help us and that's all I got 22 to say. 23 MS. SILVEY: Okay. Thank you very 24 much. 25 MR. SICKLES: Thank you. 115 1 MS. SILVEY: Our next speaker -- will 2 the next speaker in Birmingham come to the mic 3 please and state your name and spell it for the 4 reporter? 5 MR. TURNER: It's Larry Turner, L-A- 6 R-R-Y T-U-R-N-E-R. Local 2245. Safety Committee 7 Chairman. 8 Ms. Silvey, first of all I want to 9 say that we all do love you here in Birmingham. 10 MS. SILVEY: Thank you. I love you 11 too. 12 MR. TURNER: I'd like you to give Mr. 13 Stickler a notice for us that we would like for 14 these meetings to resume on a face-to-face basis 15 because we think we're important enough to be 16 heard on a face-to-face basis where I can express 17 my concerns to you and your panel instead of 18 doing it over a teleconference. And I have 19 written that to Mr. Stickler and you can give him 20 that message personally. 21 MS. SILVEY: Okay. 22 MR. TURNER: I'm looking across the 23 room and I see a lot of my union brothers. I see 24 several company officials here. People are 25 concerned about drugs in the workforce, but I'm 116 1 going to tell you something personally. What I 2 don't want is the U.S. Government in my life any 3 more than they already are. You take more of my 4 money, not you personally, but your Government 5 and your Agency rule my life and take more from 6 me than I'm willing to give you. I think I'm 7 speaking for a lot of people here. 8 What I don't see, Ms. Silvey, is I 9 don't see any nonunion brothers here. It is my 10 right as a union official and a union-paying 11 official to come to this microphone, but eery 12 time that I am allowed to come and testify before 13 you and other committees about other issues that 14 we have, belt air and escape ways and things like 15 that, one thing that I'm reminded of that I don't 16 see my union, nonunion brothers come to the 17 microphone. That's because if they come to this 18 microphone they probably will not have a job when 19 they return tomorrow. But I do as a United Mine 20 Worker have the right to come and speak to you 21 and go and face my employer tomorrow and still 22 have my job. I'm proud of that. I'm proud of 23 that heritage and I'm proud that I do pay my 24 union dues and it does give me the right to speak 25 before you and an audience. 117 1 You are the contact person right now 2 so we are laying a lot of this on you. I think 3 that the Government is opening a can of worms, as 4 my grandfather used to say, that you cannot 5 control. This can of worms that you're about to 6 open and try to implement on me as a miner and my 7 brothers that I represent has so many holes and 8 so many avenues that the salary people that 9 control our mines that can implement programs on 10 me and my brothers that I cannot fight against. 11 So you have to be considerate of my wages and my 12 family and my brothers and sisters that I 13 represent to make sure even though we do not want 14 drugs or alcohol in our mines. The United Mine 15 Workers stands firm on that. 16 If any of my nonunion brothers could 17 come to the microphone they would feel the same 18 way. I don't believe that you have proved as an 19 Agency that drugs and alcohol are a contributor 20 to most accidents in the mines. I do not feel 21 that your Agency has proved that drugs and 22 alcohol is a driven contributor to any problem, 23 to any disaster, in coal mines. The disasters 24 recently that we've had in our mines and in our 25 country, I have not seen any documentation that 118 1 has been proven that drugs and alcohol has been 2 the problem in those disasters. 3 We have some of the best mine 4 inspectors I think in the nation in Birmingham or 5 in the Alabama area, but they are very limited to 6 the resources and to the things that they can do 7 in our underground coal mines. We have problems 8 that some of our brothers have already brought 9 forth to you, diesel and dust. The dust problems 10 in our mines, if you look at some of your own 11 Agency's results that are black lung is on the 12 uprise. Nobody wants to talk about black lung 13 anymore. Our black lung registrations and 14 regulatory rules are out of date. The dust now 15 generated in our mines is much smaller and much 16 finer than when those rules were implemented 17 years ago. So that's why I think and feel that 18 things like this money that you're trying to 19 spend on trying to rule the way that my doctor 20 prescribes my medicines and my doctor prescribes 21 the way I can work under any kind of influence 22 that he gives me or any drug that he gives me, I 23 think this money can be implemented to do other 24 training to some of your local inspectors on 25 diesel regs and dust regs and things like that 119 1 that control and affect my life directly. 2 I am very much opposed to you and 3 your Agency trying to implement a drug program 4 that's going to drive me out of the mines and 5 give the company people, whether it be a woman or 6 a man, give them the ability to look at my 7 records and to achieve what they want because in 8 my job as a safety committeeman I'm not very well 9 liked sometimes. I don't have the likability of 10 some upper officials. So you can take this 11 format that you have written out and you can 12 allow the people, the higher powers that may be 13 to rule over me and to my doctor and I'm very 14 much opposed to that. 15 So in closing, I would like to say 16 please tell Mr. Stickler to spend this money in 17 another area and in another place that affects me 18 directly, immediately now. Diesel regs, dust 19 regs, and especially diesel regs in the State of 20 Alabama are backwoodish and we're not backwood 21 people any more. We're United Mine Workers and 22 we're proud to say we're United Mine Workers and 23 those that have not yet joined the United Mine 24 Workers I'm speaking for you as well. 25 (Applause.) 120 1 MS. SILVEY: Thank you, Mr. Turner. 2 We will -- hello? 3 (Phone disconnected.) 4 MS. SILVEY: Okay, while we're 5 getting Alabama back on the line, can we take a 6 five minute break. But five minutes. That's it. 7 Just so the other locations know, we are going on 8 a five-minute break. 9 Is Alabama back? 10 BIRMINGHAM: It is. 11 MS. SILVEY: We won't take a break. 12 We were going to take a five-minute break. If 13 Alabama is back on the line, so we will continue 14 with the hearing. 15 Mr. Turner, thank you very much. 16 Just as you were going off and we were listening 17 to all the clapping, we were disconnected. So 18 thanks for your comments. 19 I will pass on your information to 20 Mr. Stickler. 21 Can the next speaker in Alabama come 22 to the mic, please? 23 (Pause.) 24 Is the next speaker in Alabama. 25 BIRMINGHAM: There's one more to 121 1 come. They've gone to get him. 2 (Pause.) 3 MS. SILVEY: Do we have one more 4 speaker in Alabama? 5 BIRMINGHAM: Yes, he's coming. 6 MR. LEE: Yes, I'm here. 7 MS. SILVEY: Okay, thank you. 8 MR. LEE: Are you ready? 9 MS. SILVEY: I'm ready. 10 MR. LEE: My name is Ray Lee. I'm 11 the president of Local 2397, Jim Walters No. 7 12 mines in Brookwood, Alabama. 13 MS. SILVEY: Okay. 14 MR. LEE: I was just waiting. I want 15 to speak on behalf of my local myself and I know 16 what kind of dealings we've had with the new drug 17 policy that you all were trying to implement. We 18 already have a drug policy at our mines. 19 Preemployment is screened for drug usage. If we 20 have an accident or injured on the job we are 21 scrutinized and taken to the hospital and are 22 drug tested. Plus if we have an excessive amount 23 of absenteeism, we are also drug tested. So in 24 my view we have already got a system that is 25 working well with us. 122 1 The things that bother me right now 2 with our new employees is coming in we've had an 3 increase of black lung. I think it needs to be 4 more emphasis put on controlling dust in the 5 mines. We've also been having problems with -- 6 we've had cases of cancer in the mines now that I 7 think it contributed to the dust particulates in 8 the mines. I think that we need -- MSHA needs to 9 put more emphasis on dealing with these 10 situations. 11 And another thing also that I'd like 12 to make a comment on is the amount of hours. I 13 know that we signed a contract to work a certain 14 amount of hours, but we're under a mandatory 15 overtime which is about 60 to 70 hours a week. A 16 lot of our older miners are having to take -- 17 I've had 33 years myself in the mines and out of 18 the 33 years, 30 years of that has been six days 19 a week, 10 hours a day a lot of it, and 12 hours 20 a day. And a lot of the older miners have to 21 take medication to be able to even work. They're 22 wore out. And the U.S. Government regulates 23 truck drivers to drive a certain amount of hours 24 and they get rest. There's no regulations for 25 coal miners. 123 1 That's about all I've got. 2 MS. SILVEY: Okay, all right. Thank 3 you very much, Mr. Lee. 4 MR. LEE: Thank you. 5 MS. SILVEY: The next speaker in 6 Alabama, can you come to the mic? Or is that it? 7 Anybody else in Alabama who wishes to 8 testify? 9 BIRMINGHAM: Just a moment. 10 MR. WILSON: Thomas Wilson with UMWA 11 International. 12 MS. SILVEY: How are you today? 13 MR. WILSON: I'm doing well. And 14 you? 15 MS. SILVEY: Doing pretty good too. 16 MR. WILSON: I'll start off by 17 addressing the mannerism in which you're trying 18 to hold public hearings. 19 We have previously commented on the 20 mannerism and this still is a very ineffective 21 way to have public hearings. We've already 22 experienced being disconnected twice today and 23 we've also encountered miners showing up here and 24 not being afforded written materials as to copies 25 of the proposed rule. 124 1 If you look under the proposed rule 2 66201, written policy, it clearly stats that mine 3 operators are not required to distribute the 4 policy to the miners. As I just stated this is 5 similar to how MSHA has treated in the miners in 6 Birmingham this morning in that no copies of the 7 proposed rule was provided. 8 I don't agree with that in either 9 situation. Under the proposed rule miners should 10 definitely be afforded a copy of the written 11 policy. That is the policy that's going to 12 govern his work and possibility maintaining his 13 employment and denying him a copy of it is just 14 -- makes no sense under this situation. 15 I've listened to numerous miners 16 testify this morning and I still believe there's 17 a large lack of understanding of how deficient 18 this proposal is on the miner's ability to 19 identify a supervisor who is under the influence 20 and needs to be tested. There was some exchange 21 earlier today and the record can speak for 22 itself, but as I understood it, the expectation 23 of those on the panel that it's quite a simple 24 matter to, for the miner to just go and request 25 that a supervisor be tested. 125 1 What disturbs me is it sounds like 2 the panel fails to understand what Congress 3 understood in 1969 and again in 1977 in the 4 formation of the Mine Health and Safety Act. 5 Congress clearly understood that miners were 6 often being discriminated against for their acts 7 for health and safety. And it alarms me 8 tremendously that this panel and this proposed 9 rule seems to indicate that all that 10 discrimination has simply gone away. I submit to 11 you that any miner under this proposal that 12 identifies a supervisor that needs to be drug 13 tested will cease to be a coal miner. 14 The discrimination -- this proposal 15 has done nothing to protect that miner in how he 16 identifies a supervisor. I believe that serious 17 consideration needs to be placed on this and MSHA 18 needs to rewrite this, not just training 19 supervisors to identify and send miners off to be 20 tested, but more importantly, give the miners an 21 avenue for identifying a supervisor that not only 22 causes that supervisor to be tested, but also in 23 the same and equal sense protects that miner for 24 reporting that supervisor out. 25 I also believe that the proposal 126 1 falls short in that it doesn't address 2 supervisors who distribute drugs and alcohol to 3 their workers. If MSHA is as serious about this 4 problem as they claim to be, then we need a ban 5 on any supervisor from working in the industry 6 who distributes drugs or alcohol to his workers. 7 I believe that is completely missing 8 from your proposal. 9 This proposal needs to address that 10 within 24 hours of any mine disaster, all 11 supervisory personnel starting with the CEO and 12 extending down must be tested for drugs and 13 alcohol. 14 I find that this proposal's 15 suggestion that substance abuse professionals, 16 SAP, is completely inappropriate and inadequate. 17 The proposal needs to be revised to include only 18 mental health professionals. 19 I'm disturbed by the and you're 20 welcome to correct me if I've overlooked it, but 21 a very important term "under the influence" is 22 not listed. There's no definition of it. It's 23 totally missing from the proposal. 24 On page 52145, Section 66202, I've 25 just got a few things under 202 marked, but the 127 1 proposed required amount of time for this 2 training would be 60 minutes for new hires and 30 3 minutes annually for all nonsupervisor miners. 4 It goes on to state "MSHA is proposing" and this 5 is in the third column, "MSHA is proposing that a 6 minimum of two hours of initial training be 7 provided to each supervisor with an additional 8 one hour of training annually thereafter." 9 Based on the amount of time that 10 you're suggesting to train supervisors for 11 identifying drug problems, that's not consistent 12 with the preamble statement that there's a 13 serious problem in the industry. 14 Section 66202, education and 15 awareness program for a nonsupervisory miner, 16 both proposed amount of time for training, 60 17 minutes for new hires and 30 minutes for all 18 nonsupervisory miners is not adequate. 19 Additionally, this training should not be 20 incorporated with MSHA existing training. The 21 UMWA has commented for years, proposed rule after 22 proposed rule, that existing training sessions 23 are full and that operators can not effectively 24 cover the require topic. 25 MSHA has never listened to and/or 128 1 addressed these comments. If it is truly MSHA's 2 goal to achieve zero accidents, then they must 3 expand existing time dedicated to training. 4 Section 66203, training program for 5 supervisors. Both proposed amount of time for 6 training, two hours for initial training and one 7 hour for training annually is not adequate. It 8 is my belief that the initial should be no less 9 than eight hours, followed by at least two hours 10 of training annually. In language under proposed 11 Section 66203 demonstrate that MSHA is not 12 interested in identifying problems that exist 13 with supervisors. Miners and miners' 14 representatives must be properly trained by the 15 operator to identify abuse among supervisors. 16 Additionally, this rule needs to be 17 revised and must address the termination from the 18 industry of any supervisor who distributes 19 alcohol or drugs to employees. 20 (Pause.) 21 With that I'll take any questions. 22 MS. SILVEY: Okay, thank you. I just 23 have a couple of comments. 24 The first comment is and some of 25 these are reiteration of some of my earlier 129 1 comments is that first of all on your comment 2 about the miners being provided a copy of the 3 written policy, first of all, before I get to it, 4 I think the rule specifically says that the mine 5 operator must ensure that every miner who is 6 informed of the policy and is provided a written 7 copy of the policy to the miner's representative 8 and posted on the mine bulletin board, if the 9 miner does not have a representative. So the 10 rule provides that. 11 We agree with you that the miners 12 should be provided on the written policy. 13 MR. WILSON: Okay. 14 MS. SILVEY: The second point is -- 15 MR. WILSON: Ms. Silvey? 16 MS. SILVEY: Yes, sir. 17 MR. WILSON: That doesn't address my 18 first point. My point was that the miner himself 19 or herself deserves a copy of the policy. 20 MS. SILVEY: Okay, the miner -- 21 MR. WILSON: Not the miner's 22 representative or posted on a bulletin board. 23 MS. SILVEY: Okay, all right, duly 24 noted. Thank you. 25 The next point is and I'm reiterating 130 1 this. With respect to the training and I think 2 the only thing that we could do to make it 3 clearer, I have continuously said that this 4 training was not to be -- I'm using your term 5 now, I may not be using yours, Mr. Wilson, I'm 6 using somebody else's. This training is not to 7 be crammed into part 48. This training is to be 8 in addition to part 48, but we said it could be 9 integrated into the part 48 training, but it had 10 to be on top, in addition, had to be additional 11 time. 12 I think the only thing we can do to 13 make it clearer would be to put it in to make it 14 part of 66295 and I just made up 295. I don't 15 know if something here is 295 or not. But what 16 I'm saying is the only thing that we could do to 17 make it clearer that we are talking about 18 additional time, not time within what the 19 existing part 48 is now which would be consistent 20 with exactly what you are saying would be to 21 include it in this part so that you could see 22 that is separate because we do say that it has to 23 be additional time. 24 Now with respect to your comment on 25 impairment, your comment is that we have no 131 1 definition for impairment. I'm sorry, I said 2 impairment because that's in mind. "Under the 3 influence." 4 We used "under the influence" -- we 5 talked about being under the influence or 6 impaired. For an example, with respect to 7 alcohol and we talked about that by talking about 8 having a verifiable blood alcohol concentration 9 of .04. We talked about it as being under the 10 influence of another -- of a prohibited substance 11 as defined and there we incorporated the 12 Department of Transportation. But with respect 13 to a specific definition, we will take into 14 consideration your comment on a specific 15 definition. 16 And your comments on training, we 17 heard those before and we appreciate what you 18 said. I don't think I have any other comments. 19 Thank you. 20 I take it then that with Mr. Wilson, 21 that's it from Birmingham, at least at this time? 22 BIRMINGHAM: No, there's more. 23 MS. SILVEY: Oh, okay. The next 24 speaker from Birmingham? 25 MS. FARR: My name is Chastity Farr. 132 1 I'm from 4522, Jim Walter. I would like to ask 2 you one question. 3 MS. SILVEY: Would you state your 4 name again, please? 5 MS. FARR: Chastity Farr, C-H-A-S-I- 6 T-Y F-A-R-R. 7 MS. SILVEY: Okay, thank you. 8 MS. FARR: Anybody over there 9 listening to us on the intercom would any of you 10 be willing to hand your medical records over to 11 your boss? 12 MS. SILVEY: Okay, thank you. 13 MS. FARR: That was a question. That 14 wasn't a statement. 15 MS. SILVEY: That question was asked 16 earlier and I answered it to the best of my 17 ability, that sometimes -- 18 MS. FARR: Can you say it for me 19 again because I must have missed it. 20 MS. SILVEY: Sometimes medical 21 records are required in the course of employment 22 in a variety of situations. It's a case-by-case 23 basis and you can't answer that without a proper 24 context -- 25 MS. FARR: Put it in a context like 133 1 this. All of us are already employed by the 2 mines. We were not asked for our medical jobs to 3 get these jobs. Why should we have to give them 4 our medical records to keep our jobs? 5 MS. SILVEY: I didn't -- what did you 6 just say? 7 MS. FARR: When we were hired on at 8 these mines, we were not asked for our medical 9 records, so why should we have to give them our 10 medical records to keep our jobs? 11 MS. SILVEY: It depends. That's why 12 I said it depends on the context. So this is -- 13 we're talking about here if in the context of 14 whether the employee has to take a drug test. 15 Sometimes certain medical information is 16 necessary, but whenever, as I stated when I was 17 talking to the gentleman this morning, whenever 18 medical records are required by the employer 19 there are a number of existing requirements with 20 respect to privacy and confidentiality. And the 21 employer has to comply, must comply with those. 22 MS. FARR: Okay, apparently you don't 23 know too much about UMWA and the company. The 24 company has a way to manipulate the system, to 25 manipulate the laws to where they want to get rid 134 1 of anybody that might cause a little bit of 2 trouble that they don't agree with in that mine. 3 Now what is going to protect us from losing our 4 jobs because we're speaking out against our 5 rights? 6 MS. SILVEY: The only thing I can say 7 to that is I will restate the fact that the 8 companies must comply with the existing 9 requirements related to privacy and 10 confidentiality. In all cases, companies must 11 comply with that. 12 MS. FARR: Thank you. 13 MS. SILVEY: Thank you. The next 14 speaker in Birmingham, would you please come to 15 the mic and state your name and spell your name 16 for the reporter? 17 BIRMINGHAM: He's coming. 18 MR. BRUCE: Yes, the name is Patton 19 Bruce, like General Patton from Local 2397. 20 My question pretty much the same as 21 what she said, you're saying that you're going to 22 classify that you can bag this up. Is there any 23 way you're going to put down a written thing to 24 guarantee us that the company will follow the 25 rules? 135 1 MS. SILVEY: You are asking me am I 2 going to guarantee. I'm going to tell you what 3 the companies must do. I mean -- 4 MR. BRUCE: What I'm saying is there 5 a way just like you're telling us that we have to 6 follow it, can you guarantee that the company has 7 to follow what you're saying? 8 If you want us to do it, then you've 9 got make sure that the companies do their part. 10 MS. SILVEY: The companies -- there 11 are rules that the companies must follow if 12 they're going to do drug testing. When it comes 13 to -- first of all, when it comes to the drug 14 test itself, the results, if it's any other 15 medical information, the companies must maintain, 16 as I said earlier and I'll say it right now, 17 privacy and confidentiality and that's my answer 18 to you. 19 MR. BRUCE: I understand that, but 20 that still doesn't tell me if you're guaranteeing 21 it that they're going to do their part. I mean 22 it's buddy-buddy under the table thinking also 23 affected. 24 MS. SILVEY: I can only -- what I can 25 tell you today is what the companies have to do 136 1 in accordance with the law. 2 MR. BRUCE: So you're still saying 3 that you can't guarantee that they're going to 4 abide by and make them enforce what they're 5 saying? You've got to be somebody who's got to 6 be accountable for what they're doing. So now 7 you're making us accountable to follow the rules, 8 but you still telling me that you can't make the 9 company accountable to follow the rules? 10 MS. SILVEY: We're all accountable 11 for what we have to do. 12 MR. BRUCE: But you're not telling me 13 the company is going to abide by the rules. 14 MS. SILVEY: You're asking me could I 15 guarantee, didn't you? 16 MR. BRUCE: Can't you guarantee this? 17 MS. SILVEY: If you had asked me can 18 I state to you that the companies will follow the 19 rules I can answer yes to that. You asked me 20 could I guarantee. I mean I've lived in this 21 world long enough that there are no guarantees to 22 anything. And you probably know that yourself. 23 So you put it in the terms of can I 24 guarantee, but I'm telling you that the companies 25 have to follow the requirements and 137 1 hypothetically, whatever requirements are in this 2 rule, whatever requirements are in the Department 3 of Transportation rules, whatever requirements 4 related to drug testing are in the Department of 5 Health and Human Services rules, they have to -- 6 because we use the context of those three rules 7 in our proposal. They have to follow those 8 requirements. And that's what I can say to you 9 with a given certainty. 10 MR. BRUCE: We will see. 11 MS. SILVEY: Okay, thank you. Next 12 speaker in Birmingham? 13 BIRMINGHAM: Is there anybody else? 14 Yes, we have one coming up. 15 MS. SILVEY: Yes ,sir. 16 MR. BLANKENSHIP: Good morning. 17 MS. SILVEY: Good morning. 18 Afternoon. 19 MR. BLANKENSHIP: It's morning in 20 Alabama. 21 MS. SILVEY: That's right, it's 22 morning in Alabama. 23 MR. BLANKENSHIP: Yes, ma'am. James 24 Blankenship, B-L-A-N-K-E-N-S-H-I-P. 25 MS. SILVEY: How are you doing? 138 1 MR. BLANKENSHIP: Just fine. How are 2 you doling? Local 2245, United Mine Workers. 3 On page 52145, on the bottom it talks 4 about -- they left up with a company who they 5 were trained to observe and direct the work force 6 of activities, opportunities to discover reasons 7 to suspect the miners misusing substances. 8 Nowhere could I find in there that 9 allowed me, as a miner to take any action when I 10 felt that supervisor also was misusing 11 substances. And I think that's one-sided. I 12 think if you really did the research of who does 13 drugs in the coal mines, and who does alcohol, 14 you'll find that supervisors are probably a 15 higher number than the miners are. 16 And there needs to be some avenue for 17 me, as a minor to have to go to someone and say 18 this gentleman or this lady is I suspect misusing 19 drugs or alcohol, but without any recourse to 20 come back on me from management or that 21 supervisor. 22 I also in reading this, I don't find 23 where the upper echelon management is going to be 24 tested. I know Jim Walter Resources, George 25 Richmond is our vice president in charge of 139 1 resources department. Every decision he makes 2 affects No. 4 mines. Our mine manager, Keith 3 Shelby, every decision he makes affects the 4 minors on the ground. 5 We don't have any say so in the 6 equipment they buy. We don't have any say so in 7 the parts or supplies they buy, whether inferior 8 and they fail and cause us to get hurt and then 9 we want to be drug tested because they think it's 10 our fault. 11 I'll give you a good example. They 12 bought a dual headed roof bolter at No. 4 mines. 13 Had more pinch points in it than you could shake 14 a stick at. Keith Shelby, my manager, has three 15 fingers right now he can't use because he was 16 watching the bolted work and got his hand in a 17 pinch point and got it mashed. That wasn't the 18 miners' fault. We don't buy that equipment. We 19 have no say so in that equipment. 20 So I suggest that in this proposal 21 you test everybody from the headquarters in 22 Tampa, Florida, to the CMO office in Brookwood, 23 to the secretaries to the vendors, to the guy 24 that fills up the Coca-Cola machine. If they 25 bring in vendors, test them. If they bring in 140 1 salesmen, test them. If they bring in service 2 reps, test them. If they bring in these high 3 fallutin' visitors, test them, because going on 4 that property they've got access to the minors 5 and they could possibly cause an injury. 6 So if you're going to test me as a 7 miner, you need to test everybody. I think it's 8 one-sided. I think there's things that MSHA 9 could be doing that's more safety-wise for the 10 miners. We've got people working 10 hours a day, 11 6 days a week. Some days 12 hours before they 12 can get out of the mines. I think fatigue is a 13 lot of the problems of accidents, not drugs and 14 alcohol. 15 Diesel emissions, there are studies 16 done that diesel emissions and truck drivers have 17 a higher rate of cancer than the normal every day 18 public. They did that study and found out it was 19 diesel emissions. Now they're in the open, out in 20 the atmosphere driving. We're in a captive area 21 underground where our breathable air is brought 22 in to us and the oxygen goes out. So I think 23 money would be well more served in doing more 24 testing on emissions. I know at No. 4 mines 25 we've got a lot of people that's come up with 141 1 cancer, a higher number than normal community. 2 My personal opinion is the diesel emissions. 3 MSHA standards are diesel emissions 4 is ridiculous. I mean there's a lot better 5 emissions. State of West Virginia has a lot 6 better program and they do stuff that they more 7 serve the miners underground it's more safety. 8 And with that I'll answer any question you've 9 got. 10 MS. SILVEY: Okay. I don't have 11 anything. Thank you very much for your comments. 12 MR. BLANKENSHIP: Thank you. 13 MS. SILVEY: Thank you. Any other 14 speaker in Alabama? 15 BIRMINGHAM: Yes, there's one 16 gentleman approaching the microphone. 17 MS. SILVEY: Okay, thank you. 18 (Pause.) 19 MR. STEVENS: Good morning. My name 20 is Terrell Stevens, S-T-E-V-E-N-S, Local 1867, 21 construction. 22 In regards to also what Mr. 23 Blankenship just said about having supervisors 24 tested, I've worked under several supervisors 25 that was drug abusers, alcohol abusers, and we 142 1 had to follow the rules. We talked about it. 2 Nothing ever came down unless they really, really 3 messed up. And as you said this is a one-sided 4 testing program that should cover everybody, not 5 just -- we're all for a drug and alcohol-free 6 environment. But we also wish that all people, 7 supervisors included, would be covered in any 8 kind of drug testing that happens. 9 Thank you. 10 MS. SILVEY: Okay, thank you. 11 Anybody else in Alabama? 12 BIRMINGHAM: That looks like it's it 13 for Alabama right now. 14 MS. SILVEY: Okay, you all hold on 15 because I'll be back to each location that I 16 leave, I'll be back there. So right now we'll go 17 to Virginia, Minnesota. 18 Is Virginia Minnesota on the line? 19 VIRGINIA: Yes, we are. 20 MS. SILVEY: Okay, would the speakers 21 in Virginia, Minnesota, the first speaker I have 22 is Ron Lovel. So I'm asking you just let the 23 speakers in Virginia, Minnesota come to the mic 24 and state their name, spell the name for the 25 reporter and we're going to go like that. Nobody 143 1 needs to do anything else. 2 Mr. Lovel, are you there? 3 VIRGINIA: He's here. 4 MR. LOVEL: Good morning, Ron 5 Lovel. 6 MS. SILVEY: How are you? 7 MR. LOVEL: I'm fine this morning. 8 MS. SILVEY: Good. 9 MR. LOVEL: I'm representing United 10 Steel Workers 4950. We have the iron mines of 11 Upper Michigan and I want to spend my best 12 regards to my brothers in the UMWA working coal 13 down south. 14 I want to speak to this issue on the 15 policy today that I feel very strongly that there 16 really isn't a good reason for this regulation to 17 be issued. 18 Just as many of the other speakers 19 have mentioned, we have had a long term 20 established drug policy in our mines and although 21 it's not a policy that the union was involved in 22 negotiating with the company, it was a unilateral 23 implementation of a policy. Nonetheless, it 24 seems to be doing the job and I'm not aware of 25 any problems that we're having. 144 1 At the outset of the implementation 2 of this drug policy some years back, there was 3 very limited reasons that a person wouldn't get 4 tested. If you sneezed the wrong way, you would 5 find yourself getting a drug test and when the 6 company exhausted all of this excessive testing 7 and finally realized that they were spending a 8 lot of money on useless testing and we're finding 9 that we had a whole workforce full of abusers 10 that slowly kind of backed up to the point where 11 we're at today where there's very limited drug 12 testing done. No random testing other than for 13 persons who may have been identified with an 14 abuse problem previously. 15 All I can see is what this proposal 16 change does is just provide for mandated random 17 testing and frankly, it appears that the policy 18 really was written more than company CEOs. We 19 had had a federal given to us and we're going 20 back to the 1930s called the National Labor 21 Relations Act and that allowed us to kind of get 22 an even keel with organized labor to negotiate 23 contractual bargaining agreements with companies 24 and give us a little bit of a level playing 25 field. 145 1 This policy right here, although it 2 talks periodically throughout the policy about 3 the company and/or labor groups negotiating 4 things through a contractual bargaining 5 agreement, if you read it closely the companies 6 are given total license to do whatever they want 7 to do with this policy. 8 We will be in no position to be able 9 to bargain anything. We just completed 10 bargaining here in Pittsburgh in late August. 11 That would have been an opportunity for us to 12 bargain a meaningful drug policy that protected 13 our membership, protected the rights to continue 14 working in the event of false tests and other 15 tests in the states that had been made. So we 16 will have no capability of negotiating anything 17 meaningful in the bargaining area to help us out 18 over this proposed rule. 19 I don't want to belabor this whole 20 thing. Many people have gone on very good 21 subjects and I don't really want to rehash them. 22 I know there's a lot of people that still want to 23 talk. But when you look at reasonable suspicion 24 testing, I mean there are medical personnel, 25 highly trained out there, police officers, EMTs, 146 1 and even they would have difficulty determining 2 someone's specific problem when they're looking 3 at them at a scene of an accident or whatever. 4 Is this person have an insulin reaction? Are 5 they diabetic? Are they under the influence of 6 drugs, narcotics? And these are people that are 7 highly trained. They're not getting a two-hour 8 training period subsequently followed by one hour 9 annual to recognize. 10 This rule has too many areas that 11 open this whole are up to mischief on the part of 12 an employer. Frankly, my employer, although I 13 don't have any of them present, I would think 14 that they're not very excited about this. They 15 feel they probably have a workable drug program 16 in place. They don't need MSHA to come up with a 17 specific rule that would actually take and make 18 our program probably not work as well as it does 19 now. 20 With that, I want to conclude my 21 comments and thank you. 22 MS. SILVEY: Thank you. 23 (Applause.) 24 MS. SILVEY: Thank you very much for 25 your comments, Mr. LOVEL. Is there anybody else 147 1 in Virginia, Minnesota, who wishes to present 2 testimony? 3 MR. MLAKAR: Yes. This is David 4 Mlakar with USWM. 5 MS. SILVEY: Would you spell that? 6 MR. MLAKAR: David Mlakar, spelled M- 7 l-a-k-a-r. 8 I'm with the USWM District Health an 9 environmental adviser for the District. First of 10 all I want to thank you for allowing us to speak, 11 but I really do oppose the way this is set up. I 12 prefer to have faces here that I could face and 13 speak to directly. 14 Secondly I vehemently oppose this 15 drug and alcohol policy. There are too many 16 loopholes that give an employer too much power to 17 harass the membership. There were many good 18 points that were made along the way by a lot of 19 other people. I'm not going to rehash all of it 20 either. 21 The other thing is, there are fatigue 22 factors that limit someone being on drugs. We've 23 had testimony already that people are working six 24 hours, 16 hours, 10 hour, 12 hour shifts six days 25 a week. 148 1 If MSHA up to put their money into 2 something, I think they should be looking at 3 regulation to regulate how long people can work. 4 I'm not saying that's the way, you know, to put a 5 number on it, because people are different. 6 The thing is, what you're doing here 7 is just regulation. It's putting us at a great 8 disadvantage. 9 Another place to look at, if you want 10 to put your money where your mouth is and really 11 do something for workers, people have brought up 12 black lung and that, well, why don't we put the - 13 go back in 1973, under 1973 threshold limit 14 value. Let's bring those up to standard, because 15 there is a lot of information out there that 16 could bring those up to where they're actually 17 functioning to where they should be. 18 And we have asbestos standards that 19 are way behind the times, and OSHA had an 20 asbestos standard that was definitely over the 21 limit. 22 So in conclusion I'd like to say that 23 again I really oppose this policy, and I'd hope 24 you'd reconsider, because we do have negotiating 25 agreements. We don't need the federal government 149 1 in this part. 2 Thank you. 3 MS. SILVEY: Thank you. 4 The next speaker, Mister - is there 5 another speaker in Virginia, Minnesota? 6 MR. TASSON: Yes, I'm here. 7 MS. SILVEY: Okay. 8 MR. TASSON: My name is John Tasson, 9 T-a-s-s-o-n. I'm a union safety representative 10 for Local 4974 in upper Michigan. 11 And I have somewhat of a unique 12 perspective to safety in the workplace because 13 I'm also part of the safety department. I'm 14 involved with many aspects from corporate teams 15 on down to right in the workplace. 16 And my focus is solely to provide and 17 safe and healthy workplace for our workers and 18 keep them from being injured on the job. 19 We do have preemployment testing, and 20 we do have a policy in place where people are 21 evaluated using our checklist administered by two 22 people. I believe two people are betting than 23 one to rule out some of the subjective in it. 24 That may or may not, depending on how 25 that checklist plays out, send someone in for 150 1 random testing. 2 Our alcohol standard is already at 3 0.02, twice as stringent as the UMSHA proposal. 4 This fits in with the policy we've had, tested 5 upwards of 100 people and have had zero positive 6 results. 7 Additionally I'm involved in weekly 8 conference calls where all of our reportable all- 9 serious-incidents-in-North-America are discussed, 10 and never have drugs or alcohol been a factor. 11 Personally I find it to be 12 substandard conditions, fatigue, equipment not 13 being maintained properly, corporate procedures 14 or training that turns out to be a root cause. 15 It has never been impaired employees. 16 So we do also have a successful EAP 17 program that I happen to be a committee member of 18 that does provide support for people that do have 19 these issues. 20 Our established policies are working 21 well. There ha never been a demonstrated need 22 for further government oversight in this area. I 23 find it hard to believe that my company would 24 welcome this further oversight. 25 I'm concerned that these report 151 1 standards will drive reporting underground. 2 United mine operators, safety department and MSHA 3 show relevant information that we need to address 4 real safety issues. 5 Without a doubt that would be 6 detrimental to our safety efforts overall. I do 7 believe that UMSHA should focus its resources on 8 enforcing standards already in place - dust, 9 noise, as reported black lung, all those things - 10 and if you do have the resources to spend more 11 inspectors in the field would give us a real 12 benefit and immediate payback. 13 That's all I have. 14 MS. SILVEY: Okay, thank you very 15 much. Let me ask you just something for 16 clarification. 17 MR. TASSON: Could you repeat that? 18 MS. SILVEY: Let me ask you something 19 for clarification. When you talked about your 20 preemployment testing, and then you said 21 something about using a checklist that is 22 reviewed by two people. Could you explain to me 23 - I just didn't fully follow you there. 24 MR. TASSON: Sure. 25 MS. SILVEY: Okay. 152 1 MR. TASSON: Preemployment testing is 2 a historical test before anybody gets hired. 3 MS. SILVEY: Right. 4 MR. TASSON: The checklist, should 5 there be an accident, and it doesn't have to be a 6 serious accident virtually any accident. 7 MS. SILVEY: Right. 8 MR. TASSON: We have a checklist that 9 two people from management go through. And all 10 the obvious things that would be on there. They 11 go through it as their checklist dictates. If 12 there is a cause for further evaluation then 13 those people would be transported to a local 14 hospital for testing. 15 MS. SILVEY: Okay, I got you now. I 16 understand. 17 MR. TASSON: Okay, all right. 18 MS. SILVEY: Thank you very much. 19 MR. TASSON: Thank you. 20 MS. SILVEY: Okay. The next person in 21 Minnesota? 22 MR. NARHI: Hi. 23 Ms. SILVEY: Hi. 24 MR. NARHI: My name is Steve Narhi. 25 I'm a member of 4974. 153 1 MS. SILVEY: Your last name is what 2 now? 3 MR. NARHI: Steve Narhi, N-a-r-h-I. 4 MS. SILVEY: Okay. 5 MR. NARHI: I'm a member of 4974 out 6 of Michigan. 7 I guess I kind of go along with what 8 Ron and John have both just stated pretty much as 9 far as the policies that we have in place right 10 now I believe are more than enough. They've 11 shown that they produce good results, as far as 12 our record at Michigan mines. Everything has 13 come out to be zero. 14 I also have a different perspective 15 as far as anything that I've heard so far today 16 as I was the first person to be drug tested in 17 the Michigan mines between the Tilden and Empire 18 mines. 19 A lot of these policies weren't in 20 place at the time between the mines. It was 21 handled poorly to say the least. There were a 22 lot of the - I guess the confidentiality rules 23 weren't followed. I would hope to say that like 24 you said earlier how it would be governed by MSHA 25 that the company must follow these policies. 154 1 It hurt my family, it hurt me, it 2 hurt my career, to have this information let out 3 ahead of time, and afterwards to people that had 4 no business to this information. 5 I believe that this is not something 6 that MSHA should be involved in period, other 7 than the fact that these HIPPA laws and all these 8 other privacy laws are being violated. 9 I'm a trained EMT. I've been one now 10 for almost six years. We have to go through 11 extensive training to learn to define how people 12 act, how people look, for alcohol abuse, or just 13 behavioral problems. 14 We also are required by law, by the 15 State of Michigan, to continue our education in 16 this to learn to determine, you know, what 17 requires a behavioral problem I guess. 18 I have my serious doubts that you are 19 going to be able to train a supervisor in a short 20 period of time to make an educated guess is what 21 it's going to be as to whether this person has 22 been drinking or if they have a serious medical 23 problem. 24 This should all be confidential. It 25 shouldn't be the right of our supervisors to make 155 1 determinations as to whether or not we have a 2 problem. 3 With our company we have a checklist. 4 If there is an accident, and it doesn't matter if 5 it's minor or major, gallery personnel have to 6 follow this checklist to try to make an informed 7 decision as to whether or not we need to see a 8 proper medical professional. 9 I believe that MSHA - and here I'm 10 outdated again - the drug policies should be left 11 between the employers and the union; that this 12 has been working fine. I don't believe that the 13 federal government needs to step in and do 14 anything else. 15 That would be it. Thank you. 16 MS. SILVEY: Okay, thank you very 17 much. 18 MR. MALESKA: Good morning. My name 19 is Mike Maleska, M-a-l-e-s-k-a. And I represent 20 about 440 iron ore minors and their families. 21 And on their behalf we stand in 22 opposition to the changes in MSHA drug and 23 alcohol standards. 24 I take my position with the belief 25 that these changes would worsen the abuses of 156 1 existing practices and procedures. 2 I'll be brief, but I brought two 3 examples. We had an equipment operator that was 4 directed to operate his bulldozer in the area of 5 a fire suppression systems building. He asked 6 the boss to locate to see if there was anything 7 underground there and was told to go ahead and 8 dig. 9 The dozer struck the underground 10 electrical feeder supplying power to the building 11 leaving the plant without fire protection for an 12 extended period of time. 13 The operator was subjected to a drug 14 and alcohol assessment nad the supervisor wasn't. 15 A second example was, our local union 16 president was in a telephone argument with a 17 human resources manager. A manager had diagnosed 18 him over the telephone, and he too was subjected 19 to a drug and alcohol testing. 20 Both of these tests returned non- 21 positive. These issues have been grieved, but 22 there is no recognizable remedy for these types 23 of abuses. And yet they do serve to insult and 24 intimidate our workers, our committee persons and 25 union officers. 157 1 I ask you why would we support an 2 expansion of management tools to abuse workers? 3 What hurts and kills miners is poor work 4 conditions, equipment failures, and lots of other 5 things including bad judgments on the parts of 6 management and supervision. 7 Thanks for the opportunity. 8 MS. SILVEY: Thank you, sir. And what 9 did you say your last name was, please? 10 MR. MALESKA: Maleska. 11 MS. SILVEY: Could you spell that, 12 please? 13 MR. MALESKA: Yes, M-a-l-e-s-k-a. 14 MS. SILVEY: Okay, thank you very 15 much, and thank you for your comment. 16 MR. SAARINEN: Good morning. 17 MS. SILVEY: Good morning. 18 MR. SAARINEN: My name is Glenn 19 Saarinen, G-l-e-n-n S-a-a-r-i-n-e-n. 20 I'm a member of Local 2705 union of 21 steelworkers. I'm union training coordinator. 22 One comment and one question. The 23 comment I really am concerned about is the lack 24 of detail on how mine operators would deal with 25 contractors. 158 1 Our facilities right now, a large 2 percentage of our people working in our mines are 3 contractors, and I really don't feel that it 4 deals with them and their obligation for drug and 5 alcohol testing. 6 That's my comment. 7 My question is, and I'm sure you've 8 heard this many times, there is definitely 9 concern about our workers' fears of the testing 10 being abused and used for harassment. 11 My question is, will MSHA respond to 12 complaints by miners as to abuses and 13 discrimination that will result from the 14 implementation of this policy? 15 I guess I'm asking is MSHA prepared 16 to punish a mine operator for improper 17 application of reasonable suspicion? 18 That is my question. 19 MS. SILVEY: Okay. Well, the - all of 20 the existing rules and regulations applicable 21 under the Mine Act would pertain under this rule 22 if - under the proposed rule. And so if a miner 23 felt discriminated against, the miner would file 24 a discrimination complaint. And then MSHA would 25 investigate the complaint. 159 1 So that would follow that 2 discrimination complaint procedure. 3 MR. SAARINEN: Okay, thank you. 4 MS. SILVEY: Okay, thank you. 5 Next speaker? 6 MR. WOODS: Hello, my name is Mike 7 Woods, W-o-o-d-s. 8 I'm a member of Local 1938, and an 9 employee of U.S. Steel. 10 I'm also here to oppose the proposed 11 legislation and change it. We have currently 12 with our company, between the union and the 13 company we bargained a drug-and-alcohol policy. 14 It's a for-cause policy. 15 And even at that the company has 16 tried to use it as a random testing policy. 17 There goal has been to intimidate the people for 18 speaking their opinion. They've had people sent 19 out for voicing their opinion in a grievance 20 hearing, for being upset because a manager 21 instructed somebody to remove a safety lock. 22 Somebody reporting an accident, it 23 could be something minor like a scratch, and the 24 end result is, we've got people up here that tell 25 us constantly that they will not report another 160 1 accident unless you are hauling them out in an 2 ambulance. That is completely counterproductive 3 to I think any of the goals that we as 4 steelworkers or any other union member, as 5 employees of a union, it's totally against - we 6 can't improve anything if we don't know what's 7 happened. And if people aren't going to put 8 forth the effort to let us know, how are we going 9 to address the hazard? 10 Trust is, we learn every time there 11 is an accident there is something that can be 12 learned from it, no matter how minor it is. 13 I don't believe that we need the 14 federal government to address an alcohol and drug 15 problem. I don't believe that we have an alcohol 16 and drug problem in our plants. Out of probably 17 60 tests that we had over a four-month period, 18 there was one positive test which was a for-cause 19 test. It was determined to have a for-cause test 20 because the manager did his job, he showed up in 21 the morning, he spoke to the employees and he 22 made sure that they were all fit for work. 23 I guess I'm a firm believer, if it's 24 not broke don't try to fix it. We have lots of 25 known hazards already in the plant, that you 161 1 could talk to a lot of their inspectors and see 2 from their reports, there's a lot of things. 3 There is dust exposure. There is housekeeping 4 problems. There are things that the company 5 doesn't ever try to address. They will just time 6 and again pay the fine. 7 At our plant alone we - U.S. Steel 8 will pay probably between $1.5 and 2 million in 9 fines a year just because they figure it into 10 their budget; that's easier than correcting the 11 problem. 12 I think that if there was an effort - 13 if this effort was put forth and directed in the 14 right way to make our plant safer, maybe in 15 adding some more inspectors and providing these 16 inspectors with the means to enforce the 17 standards that are already in place, so that 18 companies can't just pay the fine and let things 19 go on. 20 The accidents that we have in our 21 plants aren't because of drugs or alcohol. 22 They're because there are hazards there. 23 And I guess that's really all that I 24 have. 25 MS. SILVEY: Okay, thank you, Mr. 162 1 Woods. I guess the only thing I would say is 2 that I think we agree with you that something can 3 be learned from all accidents. 4 But thank you for your comment. 5 The next speaker, please. 6 MR. JOHNSON: Yes, hello. My name is 7 Phillip Johnson, Local 2705. And I'd like to 8 thank you for giving us this opportunity to 9 respond to this proposal. 10 And I guess no different than anybody 11 else I've heard today, we are adamantly opposed 12 to the MSHA getting involved in something that we 13 have been involved in for the last 20-some years 14 here. 15 I'm chairman of the Local 2705 used 16 to be called human services, now it's the 17 employee assistance program. And also district 18 chairman up at the mine. And we have been 19 working for many years, since about 1985, with 20 problems with alcohol and drugs in the mines. 21 And we have established a really good 22 relationship with the company and with the union 23 people. That's taken a lot of work. And my 24 feeling is, MSHA getting involved in this is 25 going to probably do great harm to that program. 163 1 And I think it's just going to create 2 a lot of suspicion and hard feelings, and I 3 really don't understand why MSHA is getting 4 involved in it to tell the truth. The company 5 has spent a lot of time, money and effort getting 6 the drug and alcohol policy established, and 7 although it's not perfect, it is working quite 8 well, and it's taken a lot of work on their part 9 and on our part to get it to work well. 10 So that's my feelings anyway. But I 11 do appreciate you giving us an opportunity to 12 speak to this. 13 MS. SILVEY: Okay, thank you. 14 Next speaker, please. 15 MR. TOOLE: I'm David Toole, T-o-o-l- 16 e. I'm a member of Local 1938. 17 I'd like to start out by thanking you 18 for the opportunity this morning. I work with 19 about 1,000 people at U.S. Steel Minntac, and I 20 don't know of anybody in that plant that doesn't 21 want an drug-and-alcohol-free work environment. 22 As a steelworker I have rights and 23 privileges that I'm allowed because of that, and 24 because of that we have a drug-and-alcohol policy 25 at our plants already. We don't need a new 164 1 policy; we just need to fix the policy we have. 2 There are problems with it that we 3 have used here and there at times. But it's the 4 policy we have that we can work with. 5 And listening to everybody else here 6 today they have policies at their plants already, 7 so they don't need another one. 8 I also realized that not everybody 9 has policies, and maybe there is a need for them. 10 But we have a policy, and we don't need another 11 one. 12 I also agree with a lot of the other 13 speakers earlier that maybe you need to take 14 these resources that you putting into this policy 15 and put them into other places to have more 16 inspectors around to take care of the problems 17 and fix the problems that we have in other areas, 18 or also to fix - these long hours that people are 19 being forced to work, and being threatened with 20 discipline if they don't work these long hours. 21 I think MSHA needs to come up with a policy to 22 fix those areas, and also the dust problems and 23 guarding issues and housekeeping issues we have. 24 The company I work for already has a 25 doctor on property, and he is bought and paid for 165 1 by that company. He quotes the company line all 2 the time. He tries to downplay the issues that 3 we bring in and talk to him about. In an issue 4 lately that I brought up to them, and they 5 basically downplayed the whole issue. Oh, it's 6 not a big deal. We've done testing on it. You 7 weren't exposed, this, that, the other thing. I 8 asked him to prove it, and he couldn't quote it, 9 but he's quoting the company line. And people 10 don't tell that doctor lots of information 11 because it's not any of his damn business what I 12 have and what I do outside of their property. 13 The one question I have for you is, 14 how is the random testing going to be done? 15 MS. SILVEY: If I remember correctly 16 the rule said that about - that there should be a 17 minimum of 10 percent of the population at the 18 mine selected for random testing, so a policy has 19 to make sure that it has the program at the mine 20 has to have at least 10 percent of the employees 21 tested annually under the random testing policy. 22 MR. TOOLE: So they - I'm sorry. 23 MS. SILVEY: So they would be 24 designated every year. 25 MR. TOOLE: So basically they could 166 1 come up and say, Dave Poole, you're a union 2 member, you're a radical because you are a safety 3 committee man, you are a grievance man, we are 4 going to test you today just because of that? Or 5 is it going to be a policy where they're going to 6 pick them out through their Social Security 7 number, test those people, or a number, the last 8 number of your employee number, do it that way? 9 Or is it not set up yet? Or is it something that 10 the union could have some say in if this comes 11 into play? 12 MS. SILVEY: Well, the proposal 13 requires that it be a random method, that it 14 cover 10 percent. Like I said, it has to be a 15 scientifically valid method. So there probably 16 could be a variety of ways, but it has to be 17 under the proposal scientifically valid method 18 such as random number table or computer-based 19 random number generated. 20 MR. TOOLE: Okay, that's all I have. 21 I don't think we need another policy. But thank 22 you for your time. 23 MS. SILVEY: Okay, thank you. 24 MR. TOOLE: That's all of our speakers 25 from Virginia, Minnesota. 167 1 MS. SILVEY: That's all your speakers? 2 Well, I'll be back to you all before we close the 3 hearing, if you all are going to continue to stay 4 on the line. 5 Thank you all very much for your 6 participation. 7 We will now go to Beckley. Is 8 Beckley on the line? 9 Okay, we are ready for Beckley. It's 10 Pat Brady, Murray Energy. Are you there, Pat? 11 MR. BRADY: Can you hear me? 12 MS. SILVEY: I'm sorry, what did you 13 say? 14 MR. BRADY: Can you hear me now? 15 MS. SILVEY: I can hear you. I can 16 hear you now. 17 MR. BRADY: First of all let me thank 18 you for the opportunity to speak with you, Pat. 19 And listening to everybody's opinions on this has 20 helped me to understand the urgency and the 21 difficulty of proposing a rule such as you are 22 proposing right now. 23 And my name is Pat Brady, B-r-a-d-y. 24 And I'm the manager of employee development for 25 Murray Energy Corporation. And I likewise would 168 1 like to see all of you and your panel, certainly 2 at least for other reasons, to say hi to you. 3 Murray Energy Corporation strongly 4 objects to the initiative that the Mine Safety 5 and Health Administration has taken on the 6 proposed rule on alcohol and drug testing in 7 mines. 8 We believe that the adoption of the 9 proposed rule would diminish the level of 10 workplace safety currently provided by Murray 11 Energy's policy on drug and alcohol abuse. 12 The level of protection from the 13 adverse effects of drug and alcohol in the 14 workplace which is provided to miners employed in 15 our coal mines and processing facilities by our 16 policy exceeds the level of protection provided 17 by MSHA's proposed regulation. 18 We find it irresponsible to propose a 19 rule that would condone unlawful activity and 20 diminish miner safety by prohibiting mine 21 operators from terminating employment of a miner 22 or an employee who tests positive for being under 23 the influence of illegal drugs or alcohol while 24 on mine property. 25 MSHA's proposal to dictate the 169 1 appropriate discipline for miners who violate 2 mine operator drug drug-and-alcohol free 3 workplace policy in our opinion runs contrary to 4 federal statutes such as the Americans with 5 Disabilities Act which does not prohibit the 6 termination of illegal drug users; other federal 7 regulations such as the Department of 8 Transportation Safety and Health Administration 9 regulations, which do not prohibit an employer 10 from terminating workers who report for duty 11 under the influence of alcohol or illegal drugs 12 in many other state statutes. 13 We also find it irresponsible to 14 propose a rule that only applies to safety- 15 sensitive jobs. At Murray Energy we believe that 16 all jobs are safety sensitive, and to divide our 17 employees into sensitive and non-sensitive groups 18 would be detrimental to our policies and the 19 standards that we expect all employees to adhere 20 to. 21 Murray Energy Corporation's current 22 drug and alcohol abuse policies have proven to be 23 effective, and all employees of Murray Energy are 24 required to pass a preemployment drug screen, and 25 are subject to post-accident random and reasonable 170 1 suspicion drug-and-alcohol testing. Miners who 2 either refuse to submit to testing as required 3 under the policy, alter or attempt to alter a 4 test result, or produce a positive test result, 5 are subject to termination. 6 Murray Energy encourages any employee 7 who has a drug or alcohol abuse or dependence 8 problem to seek professional assistance before 9 the employee is required to submit to testing 10 under the policy. 11 Treatment and counseling are 12 available for employees who voluntarily seek 13 treatment or counseling. However if an employee 14 does not seek professional assistance before 15 being tested under the policy they can not avoid 16 disciplinary action for the violation of the 17 policy, or requesting professional assistance. 18 The risk of termination of employment 19 on a first violation is the best deterrent in our 20 opinion to violation of the drug-free and 21 alcohol-free workplace policy. 22 Most of Murray Energy's concern 23 regarding the proposed regulation can be 24 addressed by MSHA's deletion of the requirement 25 that employees who violate the drug-and-alcohol- 171 1 free-workplace program be referred for assistance 2 by the addition of a provision stating that these 3 regulations shall not be construed to or preclude 4 an employer from developing or maintaining their 5 current drug and alcohol abuse policy; their 6 substance abuse policy that exceeds a minimum 7 requirement set forth in the regulation. 8 And again that's a prepared statement 9 from Murray Energy, and I'd be welcome to answer 10 any questions. 11 MS. SILVEY: Okay, thank you, Pat. 12 Let me just ask you a couple of 13 things, that's all. The current Murray policy 14 applies to all employees, you said. But under 15 the program treatment and counseling is available 16 to people who seek the counseling; is that 17 correct? 18 MR. BRADY: All employees at Murray 19 Energy are expected to be fit for duty and in a 20 condition to safely and productively carry out 21 their assignments. And all employees have 22 available to them counseling under their medical 23 benefits programs. 24 MS. SILVEY: Okay, I guess what I'm 25 saying though is, I guess I'm a little bit 172 1 confused. If under the Murray policy if an 2 employee voluntarily sought counseling for drugs 3 or alcohol, then that person does have the - how 4 should I say - that person under the Murray 5 policy can seek counseling, can voluntarily seek 6 counseling and get it, right? Or is that what I 7 understood you to say? 8 MR. BRADY: That is correct. If they 9 have a dependence problem, and they voluntarily 10 recognize that problem and seek professional 11 assistance, they can submit to do that. But if 12 they are selected for a random drug test, and 13 they haven't done that first, then they have to 14 abide by the policy. 15 MS. SILVEY: Then they what? 16 MR. BRADY: They have to abide by the 17 policy. 18 MS. SILVEY: Okay, so that's when you 19 said - then you can terminate them if they are 20 found to have a positive test? 21 MR. BRADY: That's correct. 22 MS. SILVEY: Okay, I just wanted to 23 make sure. And then the current policy covers 24 post-accident reasonable suspicion and random? 25 MR. BRADY: Yes, the drug test - the 173 1 drug and alcohol testing is done for 2 preemployment. 3 MS. SILVEY: Okay. 4 MR. BRADY: For return to work, for 5 reasonable cause, and the policy outlines in 6 writing what reasonable cause is; post-accident 7 testing; and any employee involved in a serious 8 incident. 9 MS. SILVEY: Okay. 10 MR. BRADY: The term, employee, it's 11 any employee, not just a miner. 12 MS. SILVEY: Okay. Okay, I think 13 that's all. I don't have any more comments, 14 clarifying comments. 15 Anybody? I think that's it. Thank 16 you very much, Pat. 17 MR. BRADY: Thank you, Pat. 18 MS. SILVEY: The next I have on the 19 list from Beckley, Roger Horton with the UMWA. 20 Are you there? 21 MR. HORTON: Yes, I am. 22 MS. SILVEY: Okay, can you come to the 23 mike, please. 24 MR. HORTON: Thank you for the 25 opportunity to be here. Although I don't like 174 1 this type of hearing. I prefer the standard 2 hearing that is allowed in the act. I will 3 participate, although I prefer the hands-on. You 4 know I have five senses, and I like to be able to 5 use all of them, and I cannot hear. 6 I believe this is a deviation from 7 the intent of the act. The act clearly allows a 8 much longer comment period. 9 And when we plan a visual 10 presentation such as PowerPoint, I actually could 11 not do that in this type of setting. 12 Now to the policy that you want to 13 enact itself, I don't think you should interfere 14 in what is already working well, and I mean that 15 in my operation and many others, 80-probably plus 16 percent, there are already standard drug and 17 alcohol procedures in effect. Many of them are 18 negotiated by United Mine Workers and their local 19 unions which in essence allows both sides to 20 present the good, the bad and the ugly of any 21 procedure or policy that they want to implement. 22 And it allows us also the opportunity 23 to bring about some sort of compassionate 24 dealings with people who have problems. You know 25 for an outside entity to come in and say you have 175 1 to do this and you have to do that, it takes away 2 the human side of it. And for that I object to 3 it as well. 4 We spent a lot of time in discussions 5 in our meetings that as I said allowed us to 6 raise our concerns, and since the implementation 7 years ago of our drug and alcohol policy we have 8 had both management and salaried and support 9 people to come forward for counseling, and some 10 who refused not, and also were terminated. 11 Everyone is tested, and that's the 12 way it ought to be in all facets of the mining 13 industry, whether it's clerical or whether it's 14 someone who is working as a roof bolter or a 15 truck driver or a foreman or a parts person, they 16 all should be tested. Their jobs are important, 17 and we're relying on every one of them to be 18 straight and clean. So every one who is involved 19 in mining if there is going to be a policy they 20 should be tested. 21 I think you should spend your time 22 promulgating rules that would clearly - and I 23 don't mean to be redundant here, but I don't 24 think it can be said enough as well - to 25 eliminate black lung, silicosis, diesel 176 1 particulates from entering the lungs of the 2 miners. I think the money would be better spent 3 in those arenas. 4 Again I want to - I oppose this type 5 of format. I prefer the longer period of time 6 one-on-one discussions that I think we should 7 have. 8 And with that I'll answer any 9 questions you may have. 10 MS. SILVEY: Thank you very much. I 11 don't have any questions. 12 Next person on the list is Michael 13 Paulie. 14 MR. PAULIE: I'm here. 15 MS. SILVEY: Okay. 16 MR. PAULIE: Mrs. Chairperson and 17 panel, I would like to take this part to go on 18 record to say that I also oppose the way this has 19 been handled. I understand that logistics is a 20 problem and travel is also an expensive thing 21 that everybody has to deal with. But yet the act 22 and a policy of this magnitude, as opposed to 23 pushing it down our throats, I would have 24 preferred you to come and face us and look us in 25 the eye whether you think this is more important 177 1 than the policies we already have in hand. 2 And having said that, I want my parts 3 of my statement. First of all we have no real 4 proof in the industry that drugs and alcohol have 5 been a high percentage of accidents. 6 Without that proof positive I think 7 you may have gone off a little half-cocked on 8 this because of a few issues in another state. 9 I think you know what we are 10 referring to in the drug-related problems in some 11 states. 12 Virginia has taken over a new policy, 13 but the thing we have in West Virginia mostly are 14 company-related policies, and they are good 15 policies. The company I work for is a service 16 kind of operation. We have zero tolerance. Our 17 policy is also just like the gentleman who was 18 representing the coal company. You are given the 19 opportunity to address the company that you have 20 a problem. They in return will take you under 21 their wing: they will give you help, they will 22 give you psychiatric help, they will give you 23 medical help and evaluate you for a year. But if 24 you fail to do so and are tested, it is zero 25 tolerance, exactly what was said. 178 1 As a member of the working force 2 there and of the union, the first I found that a 3 little hard to deal with, but then as I thought 4 more about it I had zero tolerance too. I want 5 nobody around me who is under the influence of 6 any drug or alcohol, because it is my life that's 7 put in their hands. I don't want any brother or 8 sister to go home mangled or worse not go home 9 that day because somebody had a problem. I want 10 zero tolerance. 11 The one thing I do find in our 12 industry, and your act does not cover it, is 13 contractors. Those are a higher percentage of 14 accidents from contractors than actually working 15 miners, and UMWA miners. I would like to see 16 that, if this comes into effect, I'd like to see 17 that as mandatory that everybody is tested - the 18 clerical, administrative, contractors. I don't 19 care if you come there just to park a car on our 20 property, especially surface mines. Everybody 21 interacts in traffic, and with the engineers, and 22 individuals who come and go to the mine sites, 23 they need to be tested too. 24 Training the supervisors under this 25 medical two-hour class is - that's almost a joke. 179 1 There is no way that a person could be trained in 2 two hours to evaluate an individual with a drug 3 problem or alcohol problem, to evaluate his 4 problem or what he needs to be doing at the time. 5 I think that what you have done is, 6 you have taken an act that you are proposing to 7 put on a blanket that this industry already has a 8 good blanket over it, and a working blanket, and 9 you are wanting to put a blanket over the top of 10 it that has holes over top of it. 11 We prefer the blanket we have, not 12 the ones with holes in it. You can better spend 13 that money on a little black lung, you can better 14 spend it on hearing protection, and hearing 15 studies, and even more inspectors for surface 16 mines. Our inspectors of surface mines are just 17 absolutely worked to death. They can't even 18 cover the mines they have, and yet we still need 19 more, yet no more are trained. 20 That money, I wish you'd leave this 21 alone and put in those areas. 22 That's all I have to say, but if you 23 have any questions of me I'd be glad to answer 24 them. 25 MS. SILVEY: No, I don't have any 180 1 questions of you. And as you mentioned about 2 contractors, we have heard the fact that 3 contractors are a problem from a number of 4 earlier speakers, both at today's hearing, and 5 also at the hearing on October the 14th. But 6 thank you very much for your comments. 7 MR. PAULIE: Thank you. 8 MS. SILVEY: Is there anybody else in 9 Beckley who wishes to testify? 10 Thank you, come on to the mike. I'm 11 sorry, I have one more person on the list, I'm 12 sorry, Mr. George Hill. 13 Are you there? 14 MR. HILL: Yes, I am. 15 MS. SILVEY: Okay, George Hill, UMWA. 16 MR. HILL: Good afternoon. 17 MS. SILVEY: Good afternoon. 18 MR. HILL: My name is George Hill. 19 Spelling of the last name is H-i-l-l. 20 Can you hear me now? 21 MS. SILVEY: Yes, I can hear you, 22 thank you. 23 MR. HILL: Good afternoon, ma'am, and 24 members of your committee. I want to thank you 25 for allowing me and others to speak. 181 1 I'm speaking on behalf of UMWA Local 2 Union 6426. I'm safety committee chairman and 3 the recording secretary. 4 My voice should be heard not only for 5 all the miners in the industry, but especially 6 for the 25 that have died in the industry in `08 7 as of today. 8 The first thing I'd like to bring to 9 your attention is the fact that West Virginia is 10 one of the nation's leading coal producers, and 11 most of your rules and laws in effect today were 12 the result of the blood that was shed from the 13 good people in the state of West Virginia. 14 I think it's a slap in the face of 15 the miners in this state that you could not be 16 present at the wonderful facility in Beckley, 17 West Virginia. 18 As I said before 25 men have lost 19 their lives in the industry this year, eight in 20 the state of West Virginia, two of them being 21 apprentice miners. I resent the part of your 22 rule that includes additional training under the 23 Part 48, alcohol and substance abuse. 24 I want to make it clear that the 25 union does not object to a miner being tested for 182 1 drugs or alcohol, only the manner you are doing 2 so in your proposal. Your agency has more issues 3 that needs dealt with concerning miners health 4 and safety and testing that has already been done 5 by operators anyway. 6 If you are going to add additional 7 training to Part 48 it needs to be pertaining to 8 coal miner health and safety, and aimed at 9 reducing miner disabilities and unnecessary 10 deaths, not training on substance and alcohol 11 abuse and testing. 12 Your agency has lost touch with its 13 true purpose, which is to protect the health and 14 safety of miners in the United States. 15 With respect to the 25 men that have 16 perished this year, get your agency on track and 17 reverse this trend. 18 I will close my comments by saying 19 thanks again, and with saying, remember our 20 organization, the United Mine Workers, because we 21 are tired of miners dying a senseless death 22 around the country, and we will be heard. 23 Thank you, ma'am. 24 MS. SILVEY: Thank you. And as you 25 brought up the point that we've lost our 25 183 1 miners, 25 coal miners so far this year, which 2 unfortunately we have suffered 25 coal mine 3 fatalities. Twenty, and if we have the people 4 from Virginia, Minnesota, still on the line, 20 5 from the non-metal mining community have lost 6 their lives so far this year. 7 And so at this time we would as an 8 agency like to take a moment and reflect in 9 memory of those 45 miners so far this year who 10 have lost their lives, and to say with you that 11 every life is one too many, and we pause to 12 remember them, and so let's do that for a moment 13 right now, if you all don't mind, wherever you 14 all are, let's take a moment of silence in memory 15 of the 45. 16 (Moment of silence.) 17 MS. SILVEY: Thank you very much. 18 MR. HILL: Thank you, ma'am. And 19 again, we welcome you to the state of West 20 Virginia and this wonderful facility here in 21 Beckley. I'd like to also make mention the 22 traffic is not so hard here. We do have an 23 Interstate system and an airport here, and we'd 24 like to see you in person from time to time. 25 MS. SILVEY: Yes, sir. Thank you. 184 1 MR. HILL: This is our business here 2 in the state of West Virgina. We'd be glad to 3 have you. 4 MS. SILVEY: Yes, thank you very much. 5 I appreciate it. 6 If there is nobody else at - is there 7 anybody else at Beckley? Okay, next speaker in 8 Beckley, come to the phone, please. 9 MS. JAMES: Good afternoon. 10 MS. SILVEY: Good afternoon. 11 MS. JAMES: My name is Tanya James, T- 12 a-n-y-a J-a-m-e-s. I'm a United Mines Workers 13 Local 9909 out of the district 31. And as you 14 can tell by all the comments that have been made 15 today, none of us here wants drugs or alcohol 16 anywhere in the workplace. 17 But I'm afraid we're kind of losing 18 sight of a lot of the problems that affect more 19 of us than drugs and alcohol does. 20 After 20 years the mining industry 21 has just recently started hiring younger miners, 22 so the majority of us in the workforce are in the 23 age range of anywhere from 45 to 50 years old. 24 And at our mines we rotate shifts every four 25 weeks. Most of us work on a mandatory six-day-a- 185 1 week 10 hours plus a day. Although it has an 2 adverse effect on our safety awareness, most of 3 us are on scheduled medication. We have to 4 change the times when we take them and our 5 systems just start getting used to the new 6 schedule, it's time to rotating again, and 7 everything starts all over again. Your body has 8 to adjust again, and a lot of times you have to 9 start again. 10 Also as you have heard several times 11 today black lung is on the rise, and that's to do 12 with coal being ground up finer nowadays than it 13 used to be. We have more advanced equipment and 14 the coal that comes out of the mine doesn't come 15 out in as big as lumps as what used to. There is 16 a lot of finer coal out there now, a lot more 17 respirable dust in the air. 18 We have several brothers and sisters 19 with several years in the industry being denied 20 benefits everyday for black lung, and I think 21 this is a terrible terrible shame. 22 And I have myself 20 years in the 23 mining industry. I have two grandchildren along 24 the way, and I would like to be able to play with 25 those children when I finally retire from this 186 1 mining industry, and not have to have to sit with 2 an oxygen mask around my face all the time. 3 We need some way to reinforce our 4 older seals in the mine that don't meet the 5 requirement any more, that aren't 20 psi. But we 6 are ready to bring diesel equipment into our 7 mines, and no one really knows the full effect of 8 diesel emissions on a human body when they are 9 inhaled on a daily basis. 10 I understand there have been studies 11 done, but I don't anybody can say the full 12 spectrum of what diesel can do to a person. They 13 say you can't smell it or nothing like that, but 14 I've talked to many people that have diesel in 15 their mines, and they say you can smell it. I 16 think there needs to be further detailed studies 17 on that. 18 I still don't agree with the fact 19 that a person with two hours training is making 20 the call whether someone is under the influence. 21 I was a certified EMT for 12 years now, and I've 22 had extensive training, and there are times when 23 I still can't tell if someone is under - having a 24 diabetic episode or is under the influence of 25 alcohol. 187 1 And if you have this in a workplace, 2 especially four or five miles under the ground, 3 and the supervisor says, hey, I think you are 4 under the influence, I'll take you out and have 5 you tested, he better be calling an ambulance 6 instead of a bottle for this person to urinate 7 in. 8 It's a very serious situation. 9 Diabetics, they act, when they have a diabetic 10 episode they act like they are intoxicated. 11 Their speech is slurred. They even have the odor 12 to their breath like a sweet whiskey smell that 13 is very hard to determine what they are having, 14 and I don't think two hours training and one hour 15 every year after that qualifies anyone to make 16 that judgment. 17 And I'll close with the fact that the 18 company would like to see the medical records, 19 and I'll tell you this: the day the company shows 20 me their medical records is the day I'll think 21 about showing them mine. And I don't think 22 that's any of their business. If I have an 23 illness I think they need to be aware of such as 24 diabetes, I'll be sure to tell them about it. 25 And with that I would like to thank 188 1 you for your time. And I would also like to have 2 seen the faces today other than the ones sitting 3 here with me. A lot of us have traveled a lot of 4 miles, myself have traveled a few miles to be 5 here. 6 Appreciate your time, and I thank you 7 very much. 8 MS. SILVEY: Thank you, and thank you 9 very much for coming, and thank you for your 10 participation. 11 Next speaker in Beckley. 12 MR. CLARK: Hi. 13 MS. SILVEY: Hello. 14 MR. CLARK: My name is Ricky Clark. 15 I'm a UMWA Local 5958, and I'm a safety 16 committeeman, also a third generation UMWA miner. 17 I don't like MSHA involved in the 18 drug policies when we need more black lung bills 19 passed. I have had both grandfathers and father 20 died because of black lung. Why can't we spend 21 money for black lung bills, because most all 22 mines have a drug test for their employees, and 23 it's working very well. 24 And I want to thank you for the 25 opportunity for allowing me to talk at this time. 189 1 MS. SILVEY: Okay, thank you Mr. 2 Clark. 3 MR. CLARK: Clark, C-l-a-r-k. 4 MS. SILVEY: Okay, Clark, I'm glad you 5 spelled it, I didn't quite get it. Thank you. 6 Clark, okay I wrote the wrong thing down. Thank 7 you very much. 8 MR. CLARK: Thank you. 9 MS. SILVEY: Next speaker in Beckley. 10 MR. WARD: My name is Barbara Ward, 11 that is W-a-r-d. I am from 1713 of Pine Hill, 12 West Virginia. I am the mine committee safety 13 committee reporting secretary of my local, first 14 generation coal miner. 15 First of all we did have an employee 16 assistance program in place at our mine, and this 17 program is for employees that were having drug 18 problems, alcohol problems, any other personal 19 problem. And they could get assistance there. 20 That, and they can do random testing, 21 and they're starting to do some of the first in 22 2008, they were in with their own random drug 23 test policy. 24 I feel like that we - that the 25 company should be able to manage this problem and 190 1 not MSHA. MSHA should spend more time inspecting 2 the mines as they are trained to do, and enforce 3 the MSHA laws. Because they are protecting 4 miners and our rights. 5 We have two freshmen inspectors at 6 our mines, and working for the overtime that they 7 are working, they couldn't get our mines made 8 without help and help with overtime. 9 That's - we feel that overtime now 10 has been cut out for our - with respect to our 11 mines, and we are worried about the quality of 12 the inspection that we are going to get, not the 13 quantity, because they really need the mines made 14 regardless of how they do it. But we worry about 15 the quality of the inspection that are going to 16 come along since they have cut out the overtime. 17 We also feel that this money that you 18 all are going to waste on this drug testing for 19 MSHA should go to helping to protecting our 20 miners from black lung and any other lung disease 21 that come from the diesel they put into our 22 mines. 23 Thirdly, therefore I would like to 24 see the companies enforce their own random drug 25 policy if they have one, and if they don't, they 191 1 need to adopt one for their own mine. 2 Thank you. 3 MS. SILVEY: Thank you very much. 4 What mine is your mine? 5 MR. WARD: I'm from Cleveland Cliffs, 6 Pine Hill, West Virginia. 7 MS. SILVEY: Okay, all righty, gotcha. 8 Okay, thank you very much. 9 Next speaker from Beckley? 10 MR. VANCE: Yes, ma'am, my name is 11 Adam Vance, from District 17, Local 1713. 12 Spelling of my last name is V-a-n-c-e. 13 On your drug laws that you have 14 proposed here, on what basis I'd like to ask that 15 prompted the federal government to want to 16 propose this law? 17 MS. SILVEY: We did it on two bases: 18 the fact that mining is - and we think we all 19 said that and we all agree - that mining is a 20 dangerous occupation; that the use of drugs and 21 alcohol is present in the mining industry, and we 22 all agree with that today, that it's present in 23 the mining industry as well as in the entire, and 24 you all have said that to us, and I think we 25 agree to that too, in the entire American 192 1 society. 2 And that to any use, impairment, any 3 workers being impaired, could adversely affect 4 safety and health in the mines. And our overall 5 purpose is to improve safety of mines and mining. 6 So with that in mind we proposed this rule to 7 improve mine safety and health. And that's why 8 we are here today. We proposed the rule, but as 9 the - as we do with all of our proposals, we 10 provide an opportunity for the public to comment. 11 And so we are here taking your comment and 12 testimony on the proposal, and we are doing just 13 what the public participation phase of the 14 process allows. 15 MR. VANCE: Okay, you said that one of 16 the purposes was for the safety of the miner, 17 right? 18 MS. SILVEY: That's correct. 19 MR. VANCE: Okay, then how come there 20 are still regulations that are being overlooked 21 for instance black lung or improper road 22 support or stuff that like that are causing 23 fatalities and stuff like that that people are 24 coming in and overlooking. Instead of putting 25 money towards this drug law I think that we 193 1 should put it towards black lung, bare 2 identification of failures of the way a coal 3 company can mine coal, as well as get it out 4 safely. 5 Anyway I'm a third generation coal 6 miner. My grandfather died from black lung at 7 the age of 55; I never got to meet the man. My 8 father is 54 years old now; he has black lung. 9 All my uncles was coal miners, and they had black 10 lung. But they cannot get their black lung 11 benefits because they say that they don't have 12 it, that their lung problems come from their 13 heart problems, where in fact their heart 14 problems come from their lung problems. 15 I think it is a shame that people who 16 make a standard of living in this state in West 17 Virginia and in this country make them go through 18 what they go through, and when something happens 19 to them, the federal government turns a blind eye 20 and turns their back to them, and will not get 21 them the benefits that they deserve. 22 My father now as well as my uncles 23 cannot do - they are disabled from the coal mine. 24 They are retired. But they cannot do the things 25 that they like to do and used to do such as hunt, 194 1 fish and stuff like that, their hobbies, because 2 they can't walk more than 10 feet without having 3 to take a deep breath. And it's all because the 4 federal government has overlooked certain places 5 in their own regulations of ventilation and stuff 6 like that. 7 I think you should put more money 8 toward that, train better and more intubators, 9 and I think you'd be a whole lot better that way. 10 That's all I have to say. 11 MS. SILVEY: Okay, thank you. Thank 12 you, Mr. Vance. 13 Next speaker, please. 14 MR. COLEMAN: My name is Albert 15 Coleman, A-l-b-e-r-t Coleman C-o-l-e-m-a-n. I am 16 president of UMWA Local 8783. 17 First I'd like to ask a question: 18 Under this regulation of testing, would a company 19 person be allowed to do the testing? 20 MS. SILVEY: If the company person met 21 the requirements, the requirements for testing, 22 the company person would. But as I mentioned 23 earlier today there are specified requirements 24 for doing the testing, and a person would have to 25 meet those requirements to be qualified to do the 195 1 testing. 2 MR. COLEMAN: Okay. Just from 3 listening here today and talking to some of the 4 people I've got a - I've formed an opinion. 5 First, I don't think there is any data to support 6 the regulation, for if there is a significant 7 problem in the industry. And if we had this 8 regulation I think it should include all 9 employees working on mine property, not just 10 safety sensitive jobs. 11 If you have a positive test that 12 indicates that you were impaired or in some way 13 influenced by drugs, not just that there was a 14 trace in your system, I don't think the 15 regulation has enough training incorporated into 16 it, and any records generated from these tests I 17 think should be completely confidential, and 18 should only be accessible under the HIPPA rules. 19 There are many shortcomings in this 20 regulation the way it is today. I believe it 21 should be reconsidered, because once any 22 regulation is implemented, no matter how bad it 23 is, it'd be hard to change it. 24 So if you are going to do it, do it 25 right the first time, and make it something that 196 1 we can all live with. 2 And I appreciate the opportunity to 3 speak here today. Thank you. 4 MS. SILVEY: Thank you. Your comments 5 are well taken, and thank you very much. 6 We talked earlier about the 7 requirement for confidentiality. And I don't 8 think that I'm like some of you said, I'm not 9 going to belabor the point there, because I have 10 already stated that operators must comply with 11 all privacy and confidentiality requirements. 12 Thank you for your comments. 13 Next speaker, please. 14 MR. KENNEDY: Good afternoon. This is 15 Max Kennedy. 16 MS. SILVEY: How are you doing? 17 MR. KENNEDY: Fine. 18 MS. SILVEY: Good. 19 MR. KENNEDY: First I'd like to say 20 that today we appreciate the second chance to 21 give comments on the proposal. However, the 22 testimony given in Minnesota, we couldn't hear 23 it. The speaker or whatever was muffled, and 24 some of the questions asked by your panel first 25 of all this morning, we couldn't hear those 197 1 questions either. 2 But anyway I'll go with additional 3 comments that I'd like to place on the record 4 with those that I gave you a couple of weeks ago. 5 This whole problem started in East 6 Kentucky about five years ago, and during that 7 time there was a rash of miners that were taking 8 illegal drugs. It ran rampant until finally the 9 state of Kentucky - until finally the state of 10 Kentucky took action through its legislator. 11 As far as Virginia, from Virginia's 12 Coal Mine and Safety Board, which is a regulatory 13 board group for the Department of Mines, Metals 14 and Energy. The chief state mine inspector 15 anticipated that those mines that were tested 16 positive in the state of Kentucky would cross the 17 border into Virginia and seek employment in the 18 coalfields. 19 So therefore there is no data to back 20 up the promulgation of regulations. However he 21 was insistent, and also the department was 22 insistent, because of that anticipation of those 23 miners seeking employment in Virginia. 24 So that prompted the state 25 legislature to promulgate the statue. And that 198 1 brings us to today. Which West Virginia itself is 2 starting to do the same process as Virginia. 3 And personally in 1979 I was employed 4 at Tyson Mine Construction in Wise County, 5 Virginia. And the company was in the process of 6 sinking the shafts in a slope for Lynchfield coal 7 company, later it would be McClure Number 1 Mine. 8 This was - metal mining and 9 construction is a harsh environment with that 10 type of work. The company and this was 1979 had 11 a refrigerator in the back house, and it had 12 beer, wine, and liquor. There was a statement 13 over the top of the refrigerator that said, after 14 hours only. 15 So we policed ourselves from that 16 point in 1979 to today. And most responsible 17 employers and individuals that work in the 18 industry know that you don't go into a coal mine 19 in a working environment without all your senses 20 about you. 21 There has not been and the same 22 situation in Virginia where they were developing 23 their statute, there is no data that drives this 24 promulgation for regulation. It's only 25 speculation. 199 1 And with that I would request that 2 MSHA place the data it has on record for 3 promulgation of this regulation. 4 And finally I would like to read a 5 letter that was submitted to the assistant 6 secretary that pretty much sums up this whole 7 event and proposal. 8 And I'll start with the letter: Dear 9 Mr. Stickler, I am very concerned about the 10 timing of the Mine Health and Safety 11 Administration's proposed rule on substance 12 abuse. 13 It troubles me that this proposal was 14 pursued at a time when MSHA could be making more 15 appreciable progress on its many other pressing 16 priorities. Such as addressing coal miners 17 exposure to coal dust and silicate. 18 It further troubles me that this 19 proposal was withheld from the public until the 20 final months of the administration; that is now 21 perfected through a comment period that is 22 unusually restrictive. 23 Given the concerns raised by mine 24 operators and miners, who will have to abide by 25 this rule, I strongly urge you to extend the 200 1 current comment period and to hold a series of 2 public hearings before this rule takes effect. 3 Further, as we look ahead to a new 4 administration, and inevitable personnel changes, 5 I cannot help but feel that MSHA is entering a 6 potentially dangerous period. Your agency 7 continues to implement significant changes in the 8 wake of Sago, Alma, Crandall Canyon, and as a 9 result the passage by Congress of the first major 10 mine safety and health legislation in a 11 generation. 12 As well the agency continues to grow 13 into the Congress significantly increasing your 14 budget for coal enforcement. 15 With so many changes still underway I 16 encourage you to do all you can to prepare for 17 the upcoming transition to ensure that ongoing 18 enhancements suffer no unnecessary and that the 19 federal inspectors have the leadership and 20 resources they need to protect our nation's coal 21 miners. 22 Sincerely yours, Senator Robert Byrd. 23 With that I conclude my comments. 24 Thank you. 25 MS. SILVEY: Okay, thank you very 201 1 much, Mr. Kennedy. And we appreciate your 2 comments. 3 But one thing that I must say is that 4 this is probably the first time that anybody has 5 ever said that they couldn't hear me, couldn't 6 hear my voice. 7 So you said some of the things that 8 the panel said you couldn't hear. I generally 9 speak so loud that people can hear my voice 10 anywhere. But anyway. 11 MR. KENNEDY: There was a question 12 from one of the panels members to Secretary- 13 Treasurer Kane this morning. We couldn't hear 14 the question. 15 MS. SILVEY: Okay, from one of the 16 panel members. Okay. I think I know what the 17 question was, then, let me just say that right 18 now. I think one of the secretary-treasury Kane 19 mentioned in this testimony that 80 percent of 20 the mines had drug programs, and the panel member 21 asked him did he have research on that or where 22 did he get that data, and he responded where he 23 got that data. And that's what the question was, 24 I believe. 25 Okay, next speaker in Beckley? 202 1 MR. KENNEDY: I believe that's it. 2 MS. SILVEY: Is that it? Okay. 3 Is Alabama still on the line? 4 Alabama? Is there anybody else in Alabama who 5 wishes to testify? Nobody else in Alabama who 6 wishes to testify? 7 If there is nobody else in Alabama 8 who wishes to testify I'm going to go to 9 Virginia, Minnesota. Is Virginia, Minnesota on 10 the line? 11 MR. SEEVA: No, we have one more 12 person. 13 MS. SILVEY: Virginia, Minnesota? 14 MR. SEEVA: No, this is Walter Seeva, 15 S-e-e-v-a. I'm from Local 2705. I'm a safety 16 representative up here, and part of the EAP. 17 I got a couple of questions for you. 18 I guess I like a lot of what was being said as 19 far as I think you should stay out of it. 20 A couple of questions I do have today 21 I hadn't had a chance to read the whole thing, 22 but I just wondered if you'd take into 23 consideration the false positives that could come 24 up? And I know that was somewhat talked about, 25 but I didn't really hear how those would be 203 1 handled. 2 Also, relapse is part of the disease, 3 and my understanding was that it looked like you 4 were going to give the individual one chance, and 5 I think that was unrealistic. 6 I'd like to know who was on the 7 panel. I'd like names and qualifications, and 8 maybe we'll get that before November 10th. 9 In a bulletin sent out about a year 10 and a half ago, maybe two years, Joseph A. 11 Holmes, he had talked about in several places in 12 that bulletin, a special bulletin on workplace 13 substance abuse about how the company and the 14 employees should work together, try to put 15 together a program, and it didn't mention that 16 MSHA should be involved. 17 And I guess that's about it. Thank 18 you. 19 MS. SILVEY: Okay. Mr. Seeva, let me 20 ask you something. Were you here at the 21 beginning of the hearing this morning? 22 MR. SEEVA: Hello? 23 MS. SILVEY: Were you here at the 24 beginning of the hearing this morning? 25 MR. SEEVA: Yes. 204 1 MS. SILVEY: So did you hear me when I 2 gave the members on the panel? 3 MR. SEEVA: No, I didn't hear that. 4 MS. SILVEY: Oh, you didn't? You 5 missed that part? 6 MR. SEEVA: Must have. 7 MS. SILVEY: Okay, because I gave the 8 members of the panel. 9 MR. SEEVA: And their qualifications? 10 MS. SILVEY: Yes, I did. 11 MR. SEEVA: I didn't hear that. 12 MS. SILVEY: Okay. 13 MR. SEEVA: Are we going to be given 14 copies of this? 15 MS. SILVEY: The transcript will be on 16 the agency's website. 17 MS. SILVEY: How soon? 18 MS. SILVEY: I beg your pardon? 19 MR. SEEVA: When? 20 MS. SILVEY: Within a week. Let me go 21 over the names of the members of the panel 22 anyway, because it'll only take a few minutes. 23 MR. SEEVA: And their qualifications? 24 MS. SILVEY: I'm going to give you 25 their names and their titles. The fact is that 205 1 they are Department of Labor employees. I'm 2 going to give you their names and their - and 3 where they work, okay? 4 MR. SEEVA: Okay. 5 MS. SILVEY: All right, and I'll start 6 with myself. I'm Patricia W. Silvey, and I'm the 7 director of MSHA's Office of Standards, 8 Regulations and Variances. 9 To my right is Elena Carr. She is 10 the policy - drug policy coordinator for the 11 Department of Labor. And she is with the 12 Department of Labor's Working Partners program. 13 And I gave the - in my opening statement I gave 14 the - the experience and the purpose of the 15 Working Partners program. And instead of me 16 belaboring the point on that now, you can read 17 all of what the Working Partners program when you 18 look at the transcript. 19 Next to Ms. Carr is Kevin Burns. 20 Kevin Burns is with the Office of Educational 21 Policy Development, and he is the director of the 22 Office of Small Mines. 23 And to the right of him is John 24 Arrington, and he is with the Office of Coal Mine 25 Safety and Health in the division of safety. 206 1 To my left is Jennifer Honor. I 2 referred to her this morning as our learned 3 counsel. In other words, she is our attorney on 4 the project. She is with MSHA's - she is with 5 the Labor Department's Office of the Solicitor, 6 and the division in the solicitor's office that 7 provides counsel on mine safety activity. 8 And to her left is Gene Autio, and he 9 is with metal-nonmetal mine safety and health, 10 and with the Office of Safety and Health in metal 11 and nonmetal mine safety. 12 There is another person on the panel 13 who is Linda Zeiler, and she is with the Office 14 of Technical Support, and she is - has also 15 worked on MSHA's drug activities in the past. 16 So those are the members on the 17 panel, and I figured since it would only take a 18 couple of minutes of time I'd state that to you. 19 MR. SEEVA: Okay, thank you. 20 MS. SILVEY: Okay, thank you. 21 Next speaker, please. Anybody else? 22 MR. SEEVA: No, I don't think so. 23 MS. SILVEY: No other speaker? Okay. 24 And I just want to make sure. I think I must 25 have a fondness for Birmingham, Alabama. I want 207 1 to make sure that there is nobody else in 2 Birmingham who wishes to speak. 3 BIRMINGHAM VOICE: There is no. 4 MS. SILVEY: There is nobody? 5 BIRMINGHAM VOICE: There is not. 6 MS. SILVEY: There is not? Thank you 7 very much. I don't think this will make any - 8 will upset the record any. I think a lot of 9 people know I am from Alabama. 10 Okay, so if - so there is nobody else 11 in Virginia, Minnesota who wishes to speak, 12 nobody else in Birmingham, Alabama. 13 Let's go back to Beckley just to make 14 doubly sure. Anybody else in Beckley who wishes 15 to speak? 16 BECKLEY VOICE: No, there is no one in 17 Beckley. 18 MS. SILVEY: Nobody in Beckley? So is 19 there anybody else in Washington who wishes to 20 speak? Mr. O'Dell, I thought so. 21 MR. O'DELL: My name is Dennis O'Dell, 22 D-e-n-n-i-s, O apostrophe capital D-e-l-l. I'm 23 the administrator of Occupational Health and 24 Safety for the United Mineworkers of America. 25 And I have about 31 years of 208 1 experience in the coal industry, 20 years of that 2 working in the ground. 3 There's been a couple of problems I'd 4 like to point in respect to what we've heard from 5 miners today, concerns that I think either need 6 to be clarified or cleared up, and I'd like to 7 take the opportunity to do that now with the 8 panel. 9 And while some of the folks who are 10 out there may feel like they didn't get their 11 questions answered or not clarified. 12 One of the things I'd like to clear 13 up was a question that you had for Danny Kane. 14 That information did come from my department. 15 The part of the information, the 80 percent that 16 shows that the mines out there that already have 17 programs in place was provided from MSHA. So we 18 actually got that information from MSHA with the 19 drug and alcohol - what do you call them when 20 they did the field a couple of years ago and they 21 have mine operators come in and they testified 22 and they spoke about the program. 23 MS. SILVEY: They had the meeting, the 24 public meeting. 25 MR. O'DELL: Yes, thank you. It was 209 1 reported, and that was part of the information, 2 where we got the 80 percent. 3 And it may be even more than 80 4 percent have their own policies in place now. 5 That information is a little bit old. 6 I'd like to address if I could first 7 under 66.304 the preemployment, and it's listed 8 on page 52148 of the Federal Register. 9 And this is something that was 10 brought up today, and I don't think the answer 11 was clarified. Because I understood what the 12 brother was asking when he asked you, where it 13 says, under Section 66.304, preemployment 14 testing, if you go down to where the sentence 15 starts out, preemployment testing includes 16 testing new applicants for safety-sensitive 17 positions as well as incumbment miners if they 18 are switching from positions that do not involve 19 safety-sensitive job duties to positions that 20 involve safety-sensitive job duties. 21 And the way I read this is that if 22 I'm a block mason at the mine, and in UMWA mines 23 you can bid from one job to the other, and if I'm 24 a block mason, which isn't really considered a 25 safety sensitive - or belt shoveler or something 210 1 to that nature, and I bid on a job such as a 2 boulder operator or miner operator, when you read 3 this you could take that that the operator could 4 give me another preemployment testing. 5 Is that what you are saying? 6 MS. SILVEY: No, I follow what you're 7 saying there. So now when you tell me I want 8 everybody here that the scope of this rule covers 9 miners who are subject to Part 48 who have to 10 take Part 48 training. 11 So you are giving me an example of a 12 miner who doesn't have to take Part 48 training, 13 and is therefore going from that job to a job 14 where he has to take Part 48 training. 15 MR. O'DELL: No, you get retrained 16 every year, right? 17 MS. SILVEY: Right. 18 MR. O'DELL: So say for example me. I 19 worked in the mine for 20 years. And I started 20 out as a general inside laborer. Okay? That's 21 how they actually restricted me. So then they 22 classified me general inside labor, and I bid on 23 a job. 24 MS. SILVEY: But you have to take Part 25 48 training after general. So see, you would be 211 1 under the rule. 2 MR. O'DELL: So they could test me 3 every time that I bid on a different job 4 according to this. If I bid from a mine operator 5 back to a belt cleaner, and then a belt cleaner 6 back to a roof bolter operator, the way I read this 7 is that they could test me every time I bid on a 8 new job. 9 MS. SILVEY: I wouldn't think so. 10 MR. O'DELL: That's where the 11 confusion comes in. 12 MS. SILVEY: There might be some 13 confusion. So I understand what you are saying. 14 MR. O'DELL: It says - read it - it 15 says preemployment testing includes testing new 16 applicants for safety-sensitive positions as well 17 as incumbent miners if they are switching from 18 positions that do not involve safety-sensitive 19 job duties to positions that involve safety- 20 sensitive job duties. 21 MS. SILVEY: Okay, but that's but - 22 even assuming that that is how we wanted it, that 23 is talking about hypothetically. I'm just making 24 this - saying this now. That's talking about if 25 the miner was in an administrative or clerical 212 1 job going to a job that requires Part 48 2 training; that's basically what it's talking 3 about. 4 MR. O'DELL: Well, that's not what it 5 says. 6 MS. SILVEY: Okay, but I'm just 7 telling you. So it wouldn't require this testing 8 every time the miner switched a job where the 9 miner was already covered under the rule, no. We 10 can clarify that. 11 MR. O'DELL: Clear that up, because I 12 can see that being used. 13 MS. SILVEY: Okay, I understand. Our 14 learned counsel has that for me. No, it wouldn't 15 require that. I can say that right now I think. 16 MR. O'DELL: Thank you. I hope that 17 clears it up for our members. 18 There is also a concern about 19 privacy, and I think this is a valid concern. 20 You've heard a lot of our brothers and sisters 21 speak about this today. It's not only a concern 22 of ours, but it must be a concern of our whole 23 country. And I think that's why the HIPPA laws 24 were provided to protect all workers. 25 So I hope that this rules falls, and 213 1 mines are still protected under the rules and the 2 laws of HIPPA. I guess down the road if this 3 proposal were to move forward, I guess we'll find 4 out down the road whether those protections will 5 exist or not. 6 I can see that it may be challenge, 7 and I'm just putting it on the record that it 8 possibly could be a problem for some folks that 9 want to take advantage of that. 10 And let me say, some of the problems 11 that we've seen take place already in respect to 12 what we call impairment versus a test positive, 13 because there is a big difference between 14 impairment and a positive test that comes out. 15 We've seen this with a spiking of a prescribed 16 drug, or somebody that may be - well, let's take 17 an example, a beer on somebody's Super Bowl 18 Sunday, and a lot of people have Super Bowl 19 Sunday parties. And they may drink six cans of 20 beer or a 12-pack, whatever, I don't know. I'm 21 not a drinker. But the rule of thumb they tell 22 us is for every can of beer you drink you should 23 let one hour of time go between you. It's just a 24 rule of thumb; it doesn't mean it's a positive 25 science. 214 1 But say I'm watching the Super Bowl 2 with a bunch of my friends, and I drink a 12- 3 pack, that means there has to be 12 hours before 4 the time I stop drinking and go to work. Well, 5 there are not going to be 12 hours for a lot of 6 guys that have to go to work. But let me tell 7 you, when they go to work there may be eight 8 hours in between time, but they are not going to 9 be impaired. 10 And that's where the problem with 11 this positive testing comes into play. I think 12 we have to make sure people understand there has 13 to be a difference between test positive and 14 somebody actually being impaired. And I think 15 that has to be somehow squared out to where we 16 don't get people into trouble - in Pennsylvania - 17 let's talk about prescription drugs for example. 18 We've already seen this happen. We had a miner 19 who was on a prescribed drug. And their policy 20 allows monitors to take prescription drugs. 21 But what happened was that this 22 individual took a prescribed drug at the 23 beginning of the shift - that's when the doctor 24 prescribed him to take it - he happened to be 25 randomly tested. Well, he tested positive, as 215 1 being - and because he was tested positive they 2 fired him. No way to fight to get his job back. 3 Now here is a case of where these 4 kinds of things need to be fixed so that that 5 miner should not have been fired. 6 What happened was - they said what 7 happened was, I guess - I'm not a doctor - but 8 they say when you initially take a medicine it 9 will spike I guess until it gets through your 10 bloodstream. And that initial spike was when 11 they took this test. So it actually showed that 12 this guy was under the influence, and he wasn't. 13 So I think it's another reason that 14 we need to be able to look at whether impairment 15 versus test positive, we have to address those 16 kinds of things if we decide to move forward. 17 We heard a silent but a strong 18 message from a friend of mine, Pat Brady, who 19 went to work for the dark side. He used to be an 20 MSHA employee, but now he works on the dark side. 21 But it reflects - 22 MS. SILVEY: You're on the record. 23 MR. O'DELL: I know I'm on the record. 24 I won't say anything that I wouldn't say to his 25 face. 216 1 But let me tell you, this is a 2 message that is out there with most of industry. 3 A first offense is - and if it's not self 4 reported, they are fired. And we have a lot of 5 plans out there with our brothers and sisters 6 that that's what they have to live with. 7 See, that's one of the things that we 8 did agree with on your proposal is that it 9 actually gives a miner second chance, versus 10 these operators playing on zero tolerance and 11 self reporting. 12 As I told you last time I spoke, 13 addiction in many cases you also have a state of 14 denial. I told you about my grandfather, loved 15 him to death, and I know other people I've worked 16 with in the past, and other people out there, 17 they've got problems, but let me tell you they 18 don't realize they have a problem. 19 So the rules are not completely bad. 20 There is one part that I liked about that, and I 21 wish that a lot of operators would take that into 22 consideration and give people the opportunity to 23 actually - so that they could contribute to 24 society. 25 But the failure with the proposal, 217 1 even though it gives a person a second chance, is 2 that it leaves the final decision up to the 3 operator. It's gray. I mean you can give a 4 person a chance, and then it's up to the operator 5 whether they put them back in a safe and 6 sensitive job. 7 And you heard Pat also say that if 8 they are not able to step in and perform that 9 job, you know that's part of the criteria that 10 they use, and chances are they are going to be 11 fired. 12 So if we're going to do something, I 13 think those are the kind of things that we need 14 to address and talk about. I mean even a DUI 15 person that comes clean and completes rehab, they 16 get their driver's license back. In many cases - 17 and they end up being great contributors to 18 society. 19 So if we really and truly - and if 20 these operators out there are listening - if we 21 are really and truly wanting to do something in a 22 positive manner that is going to help these 23 people out, you need to get away from zero 24 tolerance and self reporting, you need to do 25 something that is actually going to reach out and 218 1 help miners to where they can get the proper 2 help that they need. 3 Many chances a miner - like I said, 4 you know, a mine operator or other safety- 5 sensitive job holder may not get his 6 classification back under this rule, which could 7 lead to discharge, because miners have to have 8 the ability to step in and perform their job or 9 they could be discharged. 10 You heard a lot of concerns about the 11 supervisor with two-hour training to be able to 12 identify problems. Let me tell you, I worked 13 underground for 20 years, and sometimes miners - 14 I did it - you get goofy. You're tired. You get 15 disconnected. Or whatever. There are a number 16 of times that because of horseplay or just acting 17 crazy I was accused of being on drugs or drunk or 18 whatever. And I don't do any of that. But 19 because of the manner in which I was acting, if 20 you look at some of the ways that people - I mean 21 I tell you right now, if you look around even at 22 the panel, a lot of us could be accused of being 23 on drugs and alcohol because we are tried, you 24 know what I'm saying. And I don't think that 25 this two-hour training is adequate enough to be 219 1 able to qualify somebody to be able to identify 2 if somebody is under drugs or alcohol. 3 I don't drink; I don't do drugs. But 4 like I said, under the description of possible 5 signs of impairment, and the fact that I was a 6 union activist, they would have to run a 7 continuous bus in and out of the coal mine for 8 me. They'd have taken me outside everyday just 9 because that's the nature of it. But we have to 10 be able to address that. 11 The breath alcohol technician, and 12 the MRO, the medical review officer, where it 13 does say it can be an employee of the operator, 14 this does risk a monitor's confidentiality. And 15 it almost reminds of the days of the company 16 doctors and the company stores. 17 I think you need to go back and 18 remove that language; that of an employee of the 19 operator; and make those persons a third party 20 impartial group that has no conflict of interest 21 with either the company or the workers. I don't 22 think that they should be allowed to be employed 23 by the operator, because people are people, and 24 if they are employees, and they get to be buddy- 25 buddy with folks at work, they are going to say, 220 1 hey, did you hear about such and such and this 2 and that, and I think we're just opening up a can 3 of worms that shouldn't be. 4 And it'd just make it a lot cleaner 5 if you make it somebody who is a non-employee if 6 we move forward. 7 I question again because of the lack 8 of data who is pushing this proposal. I mean 9 you've heard miner operators and miners alike 10 voice their opinions that there is no real need 11 for this, for different reasons you've heard. 12 I'm curious who is behind this rule 13 and who really benefits. The proposal suggests 14 that the first year costs would be over $16 15 million, and the reoccurring costs would be over 16 $13 million, and half of that cost I guess goes 17 to testing. 18 So it almost makes me feel like it 19 may be the firms who would be contracted out to 20 do the testing who is behind this rule, because 21 it seems like that's where the largest chunk of 22 money goes, to those firms who are pushing it. 23 I'm just wondering if that is an outside of 24 influence of those contractors. 25 Which leads me to say this: that if 221 1 this rule does go forward, these firms, these 2 contractors that do this testing, they should be 3 chosen like arbitrators and jurors: give a list. 4 Make that list provided to us and the operators, 5 and let us use the strike and select process that 6 COB chosen to do the test. I mean I think that 7 is fair and impartial; don't let the operators 8 decide, let the miners have a voice like we 9 choose arbitrators, and like jurors are chosen. 10 If everybody thinks this guy wouldn't be 11 impartial we'll strike them, and this one 12 strikes, and strike until we get a list that 13 everybody thinks is fair and impartial. 14 We have already seen cases of 15 contractors that don't follow the guidelines of 16 things like split testing - I'm talking about the 17 operators out there now that have drug policies 18 in place. We've found problems already with 19 these contractors. They don't follow the 20 guidelines of split testing. They don't use a 21 proper chain of custody. And we've even 22 witnessed collectors not using sanitary measures 23 to make sure everything is clean and not 24 contaminated during testing at the mine. 25 These are problems. And it's bad 222 1 because miners lose their jobs over things 2 aren't followed properly. 3 So my point is that we just have to - 4 I mean these little fine details that people 5 don't really think about sometimes are details 6 that we should be concentrating on if the rule 7 moves forward. No one wants someone working that 8 would be a danger to themselves and others. 9 You've heard that said today. We have been 10 advocates of mine safety since 1890; that's how 11 long we've been around. And we don't want our 12 members or anybody else endangered, to 13 themselves, or a danger to others. 14 But honestly, Pat, we feel that 15 MSHA's time could be spent better on enforcing 16 those laws that we have on the books today. 17 There are other health-related issues 18 we should be looking at that are actually 19 supported by data that show a need to be 20 addressed, things such as black lung, you've 21 heard that said today; things like diesel 22 emissions that cause cancer; the hearing loss 23 that we are still fighting today; job stress; 24 chemical exposure; extended work hours as well as 25 safety issues such as the use of proximity 223 1 devices to prevent accidents such as the ones 2 we've seen this year. 3 We need to work on equipment so that 4 it is more quiet and produces less dust. 5 A lot of those things I think we need 6 to focus on more so than the drugs and alcohol. 7 I don't know who is behind it; I don't know who 8 is pushing it. But I would like to see MSHA 9 table this, provide data that shows that there's 10 a real need. I've asked for data; haven't really 11 seen it yet. And I think that this is something 12 that should be table; it should be removed. We 13 should move forward with those problems that we 14 know are killing miners today, put this one on 15 the back burner, let's concentrate on the hazards 16 that are killing miners today as I previously 17 mentioned, and I thank you for your time. 18 MS. SILVEY: Thank you. I don't have 19 any comments. Thank you very much. 20 Does anybody else wish to testify? 21 Anybody else? 22 If nobody else here or in the three 23 locations that we have - did anybody else wish to 24 testify? 25 BIRMINGHAM VOICE: We have three more 224 1 in Alabama. 2 MS. SILVEY: Okay, Alabama, would you 3 just come to the phone and state your name and 4 spell your last name for the reporter, and we'll 5 just take them in the order that you come to the 6 phone. Would you please come to the phone. 7 MR. MAYNOR: Yes, ma'am. My name is 8 Michael Maynor, last name M-a-y-n-o-r. 9 MS. SILVEY: Okay. 10 MR. MAYNOR: Yes, ma'am, I was in this 11 case, MSHA, I believe this ain't nothing but 12 another battering ram for the coal companies to 13 push up on the union. 14 If you want to find drug dealers and 15 everything go to the toast lines, not blue collar 16 workers like us. 17 This just gives a company a way to 18 harass us, and single us out, in some way, and 19 like I said it's just a battering ram for the 20 union, knock the way into the union and single 21 people out. 22 And I feel like this is a waste of 23 time, and the government should spend money on 24 other things like the pushed work hours - that's 25 what's causing accidents to go up. And when 225 1 somebody is down under ground with the rest of 2 us, and they are on something, the rest of us 3 know it, and it's dealt with, because we don't 4 want nobody like that down there around us. 5 And that's pretty much as short and 6 sweet as I can put it. 7 MS. SILVEY: Okay, I understand. 8 Thank you very much. 9 Next speaker in Alabama. 10 MR. GRAHAM: Yes, ma'am. My name is 11 Charles Graham, G-r-a-h-a-m. 12 I'm a miner operator on No. 7 mine. 13 I'd like to give - I noticed that these miners 14 that did a drug test and all that, those who deal 15 with about the process and MSHA folks, and 16 contractors and everything like that, are they 17 going to be drug tested as well as us? 18 MS. SILVEY: The MSHA employees are 19 subject to drug testing right now, all the Labor 20 Department employees are subject to drug testing, 21 all inspectors, and the people here in 22 headquarters are subject to drug testing. 23 MR. GRAHAM: Okay, now where a union 24 man suspects a company man being on drugs, and 25 rat him out, and let's say he does go for that - 226 1 did not pass a drug test, and the next day that 2 employee will be taunted and all that, might lose 3 his job. Is there any way, anything in there for 4 that to be stopped? 5 MS. SILVEY: No, I appreciate the fact 6 - I've heard the testimony on that. 7 MR. GRAHAM: I guess that's about it 8 from me. 9 MS. SILVEY: You know, earlier I 10 talked about the fact that the existing 11 protections under the Mine Act remain in place, 12 so if a miner felt like - to Mr. Graham, if a 13 miner felt like - and this goes to the other 14 gentleman I spoke to - that he was discriminated 15 against wrongly discriminated against, they could 16 file a complaint under the Mine Act, which MSHA 17 has to investigate. 18 Okay next speaker in Birmingham. 19 MR. PRUITT: Jay Pruitt, P-r-u-i-t-t. 20 So if you - you are saying that if a doctor 21 prescribes someone with heart medication, blood 22 pressure medication, you are saying that that 23 person is unable to work and they take a drug 24 test and test positive for that, that they are 25 unable to do their job and unfit to do their job? 227 1 MS. SILVEY: Give me your - what did 2 you just say again? 3 MR. PRUITT: Are they disabled to do 4 their job? 5 MS. SILVEY: No, the proposed rule 6 doesn't say that. 7 MR. PRUITT: So anything like Lortabs 8 or blood pressure medication that a doctor 9 prescribes, and you test positively randomly, you 10 will not - that person will not be disabled to 11 work? 12 MS. SILVEY: No, the person won't be 13 disabled to work; not at all. 14 MR. PRUITT: Well, I think in my 15 opinion, like I've heard a lot of people say 16 before me, I think that y'all need to focus your 17 minds on something else other than this random 18 drug testing, since we already have drug testing 19 procedures, and focus on more things like safety, 20 dust control, silicosis, and things of that 21 nature. 22 This is kind of redundant, and it 23 really don't make much sense. Y'all need to 24 focus on safety, and if y'all can focus on safety 25 then I think the drug - the whole accidents and 228 1 all that which y'all really worry about more than 2 anything will fall in place. Because working six 3 days a week, and some guys working seven days a 4 week, you get tired, and when you are tired you 5 make mistakes. And that all falls into play; 6 it's nothing drug related. 7 That's pretty much all I've got to 8 say. 9 MS. SILVEY: Okay, all right, thank 10 you. Anybody else in Birmingham? 11 MR. STEWART: Yes, ma'am, I'm John 12 Stewart, STEWART. I just want to say something. 13 I think it's kind of ridiculous particularly 14 worrying about things like - I work at No. 7 mine 15 at Jim Walters. We stay on a section for about 4 16 hours without an emergency bus, the overtime guy 17 brings the bus in. I think you guys need to 18 worry about getting the bus in there for us just 19 in case something happens, a man gets cut or 20 bleeds, it's going to take us two hours - it 21 takes us 45 minutes to get to the section, and 22 another 45 minutes to get a bus down there, what 23 if something happens? Instead of drug testing, 24 let's worry about getting a bus on the section, 25 an emergency bus. What if a man has a heart 229 1 attack, what are we going to do, wait 45 minutes 2 to get him out, two hours? 3 And that's all I got to say. 4 (Applause.) 5 MS. SILVEY: Okay, thank you. 6 Back to your comment about emergency, 7 having an emergency bus on the section, you don't 8 have any provisions if there is an emergency on 9 the ground? 10 MR. STEWART: Well, we've got an 11 emergency bus. They sit on the long wall. Half 12 the time it don't crank up. All our buses are 13 out of date, but y'all need to come down there 14 and check these buses out instead of worrying 15 about these drug tests. Let's check these buses 16 out and let's get some running buses. Let's get 17 some emergency buses, you know. 18 MS. SILVEY: Okay. That was Jim 19 Walters No. 7. 20 MR. STEWART: Yes, ma'am. It takes us 21 35 minutes to get to a section. 22 MS. SILVEY: Okay. 23 MR. STEWART: At the time we don't 24 have a bus - we need an emergency bus on the 25 section. 230 1 MS. SILVEY: Okay, we'll look into 2 that. 3 MR. STEWART: And limited work hours. 4 MS. SILVEY: Next speaker please. 5 (Pause.) 6 MS. SILVEY: Any other speakers in 7 Alabama? Are there any other people in Alabama 8 who wish to speak. 9 BIRMINGHAM VOICE: No one's coming 10 forward. 11 MS. SILVEY: Okay, thank you. 12 Is there anybody else who can hear me 13 at any of the other locations who wish to speak? 14 (Pause.) 15 MS. SILVEY: If nobody else wishes to 16 speak then, I would like to say on behalf of MSHA 17 that we want to thank everybody for participating 18 in today's hearing. We want to thank the people 19 who attended the hearing here at our 20 headquarter's location. We want to thank the 21 people who attended in Birmingham, Alabama, the 22 members of the United Steelworkers who attended 23 in Virginia, Minnesota, and the members who 24 attended, the persons who attended, in Beckley, 25 West Virginia. 231 1 I want to say that we appreciate the 2 time and effort you took to provide us with your 3 comment and testimony; that that information you 4 provided us is a lot of useful information, and 5 that will be useful to us as we move forward 6 toward making a decision with respect to the 7 final rule. 8 I would like to encourage persons who 9 heard the testimony today that if you have 10 further comment and testimony that you would like 11 to make, please, or supplement testimony that you 12 made today, please feel free to do so before the 13 record closes on November 10th, midnight, Eastern 14 Daylight Savings Time on November 10th. 15 And again, on behalf of our agency, 16 thank you very much, and this public hearing on 17 the Agency's proposed rule on drugs - the 18 Agency's proposed rule on alcohol and drug free 19 mines policy, prohibition, testing, training and 20 assistance, the proposed - the public hearing is 21 concluded. 22 Thank you. 23 (Whereupon at 2:30 p.m. the 24 proceeding in the above-entitled 25 matter went off the record and 232 1 resumed at 4:10 p.m.) 2 MS. SILVEY: We will now reconvene the 3 Mine Safety and Health Administration's public 4 hearing on the agency's proposed rule of alcohol 5 and drug-free mines, policy, prohibitions, 6 testing, training and assistance. 7 At this point we will take testimony 8 from persons who are in our - just to reiterate 9 we are taking testimony from persons in the 10 headquarters location, Washington, D.C., in 11 Birmingham, Alabama, Beckley, West Virginia, and 12 Virginia, Minnesota. 13 At this point we will take testimony 14 from persons in Birmingham, Alabama. So will the 15 first speaker in Birmingham, Alabama, come to the 16 mike, state your name, and spell your last name 17 for the court reporter, please. 18 MR. BLANKENSHIP: James Blankenship, 19 B-l-a-n-k-e-n-s-h-I-p. 20 I've got a couple of questions before 21 we get started. Are we testifying before a full 22 committee? 23 MS. SILVEY: Yes, you are. 24 MR. BLANKENSHIP: Okay, second 25 question is, why didn't MSHA provide copies of 233 1 the proposed rules? You had about 250 miners 2 here testifying, and we only got what rules the 3 miners brought with us to pass around. 4 MS. SILVEY: Okay, thank you. 5 MR. BLANKENSHIP: I don't get an 6 answer. 7 MS. SILVEY: I said thank you for 8 passing around the rules. The copies that you 9 did. 10 MR. BLANKENSHIP: But that's not my 11 job. MSHA should have had copies here for the 12 miners to read and study and figure out what's 13 wrong with them. 14 MS. SILVEY: I'm sure you have some 15 comments for me. 16 MR. BLANKENSHIP: I would like to have 17 an answer before I continue. 18 MS. SILVEY: As I stated thank you for 19 passing out the copies that you did. So if we 20 can proceed with the testimony we would 21 appreciate it, we would appreciate it. 22 MR. BLANKENSHIP: All right. 23 A couple of points. Like I said 24 earlier, drugs and alcohol is not the problem 25 that MSHA is trying to make it out to be. 234 1 Fatigue is the biggest problem we've got in these 2 mines here in Alabama. Ten, 12 hours a day, six 3 days a week, the miners my age, or older, 52, the 4 government can regulate truck drivers, how many 5 hours they work, there is no reason why they 6 couldn't regulate miners. 7 I think if you lessened the hours a 8 miner had to work, I think you'd see a lot less 9 accidents because the fatigue factor wouldn't be 10 in play. 11 Part 48 training, I understand there 12 is some training for what the proposed rules is 13 going to be with the Part 48. Part 48 has got 14 enough training. I mean we get eight hours. Are 15 we going to get another eight hours to that and 16 make it 16 a year? Question. 17 MS. SILVEY: The training is eight 18 hours under the existing rule. The way it is 19 under this proposal is that the miners have to 20 have an additional hour initial training. So if 21 - so let me just give you an example. That means 22 that - but it can be integrated into Part 48. So 23 if it's a surface miner, that means the miner 24 will get 25 hours of initial training. If it's 25 an underground miner, the underground miner will 235 1 get 41 hours. It can be integrated into 48, but 2 it has to be in addition to the numbers of hours 3 in the existing rule, and then the half an hour 4 of annual retraining would be 8-1/2 hours a year. 5 It would be added onto; it's not to be taken 6 within the context of the amount of time of the 7 existing training. 8 MR. BLANKENSHIP: Do you actually 9 think that a half an hour is enough? 10 MS. SILVEY: Well, your comment to me, 11 then, is that a half an hour is not enough, 12 right? 13 MR. BLANKENSHIP: Right, that's 14 correct. 15 MS. SILVEY: All right, I'll take 16 that. 17 MR. BLANKENSHIP: And like I said 18 earlier, I want to make sure that you understand 19 this, there is no avenue that I can find to test 20 upper echelon management. They are the ones who 21 make the decision of where we go, what we mine, 22 what kind of equipment we use. You got to put in 23 there that they can be tested. You've got to 24 give me an avenue as a miner if I observe a 25 foreman or supervisor that I feel is under the 236 1 influence, I've got to have an avenue to have him 2 tested just like he's got the avenue of having me 3 tested. 4 If you don't test everybody that 5 comes on that property then this drug policy is a 6 failure, because everybody that comes on that 7 property has an opportunity to cause an accident 8 to someone else. Like I said, even if it's just 9 the guy that's filling up the drink machine, he 10 brings a truck on that property, he backs it into 11 areas where miners are loading on and off to put 12 the cages down in the ground. He can back over 13 them. He should be drug tested. 14 And this proposal says miners are the 15 only ones who do drugs. I just don't think 16 that's true. I think if you did an actual drug 17 policy, you'll see the supervisors are a lot more 18 apt to have the drugs now caught on their system 19 than the miners are. 20 I appreciate it. 21 MS. SILVEY: Okay, thank you. 22 The next speaker, please. 23 MS. EARNEST: My name is Melissa 24 Earnest, E-a-r-n-e-s-t. 25 MS. SILVEY: Okay, thank you. 237 1 MS. EARNEST: Yes, ma'am. I'd like to 2 just voice my opinion today that I really think 3 that MSHA trying to pass a law to make drug 4 testing mandatory, that sort of defeats the 5 purpose of the companies that they already have 6 their drug policies. They have worked fine for 7 years at our mines, specifically. We don't have a 8 real problem. 9 And I do think that MSHA does do a 10 wonderful job trying to keep us safe, which is 11 great. But I think they need to do a little 12 better job on finding better solutions for our 13 roof problems, dust control, black lung, all of 14 this, that would be money better spent in keeping 15 us miners safe. 16 And if you do want to do something as 17 far as the drug so-called problem, the only thing 18 that I would see would be a problem is maybe 19 regulating workmen's comp and some of their 20 doctors who send the miners back to work too 21 soon, who regulates them? No one. If somebody 22 is on painkillers, okay, he's on workmen's comp, 23 it's okay for him to be down there. Who 24 regulates that doctor? Who regulates workmen's 25 comp and say, you need to send him back to work. 238 1 That's not right. That's puts all of us in 2 danger, not just illegal drugs and alcohol, it's 3 prescription stuff too. 4 And I don't see where the way this 5 proposal is going to benefit everyone. It does 6 not benefit everyone. It needs to benefit 7 everyone. It doesn't have anything in there for 8 the supervisors. The supervisors are coal miners 9 too. They need to be drug tested. Everyone 10 needs to be drug tested, just like that other man 11 said. Anybody who comes on that property needs 12 to be tested. There is too much danger just 13 being there. It needs to be rethought. This is 14 just not a good plan. 15 And that's all I have to say. 16 MS. SILVEY: Okay, thank you. 17 I want to make a comment here 18 though. And I understand the comments that you 19 have stated to us about the fact that the 20 proposal should have a provision in it that 21 allows the miners to request the supervisors to 22 be tested. 23 But with respect to your testimony, 24 Ms. Earnest, that there is nothing in there on 25 supervisors, the rule does cover, and I stated 239 1 that earlier today, the rule does cover miners 2 who perform safety-sensitive duties and the 3 supervisors who supervise them. So the 4 supervisors who supervise miners who perform 5 safety-sensitive duty fall under the definition 6 of the rule, under the definition. Every time a 7 miner is used, you are talking about the 8 supervisors who supervise them. 9 So the rule itself, I don't want 10 anybody to leave without understanding that. I 11 understand the comment, the earlier comment, 12 about a provision being put in there about a 13 person can also identify supervisors who may need 14 to be - miners can do that, who may need to be 15 tested. That's a separate issue. I understand 16 that. 17 But the rule does cover supervisors 18 of miners in safety-sensitive positions. And I 19 don't want people to think that the rule does not 20 cover supervisors; it does. And as I say that, I 21 don't want anybody to say that - I'll say it 22 before you say it. 23 I also understand the comments from 24 people who said that everybody should be - that 25 they suggest that everybody be drug tested. And 240 1 I also understand it from the CEO on down, and 2 everybody who comes on the mine also. 3 So but I did want to clarify that; 4 the rule does cover supervisors. 5 MS. EARNEST: Okay, well what about 6 the doctors in workmen's comp? Would that law be 7 - would it have a mandate or something to say you 8 can go behind someone and say, yes, this person 9 can come back to work or not as far as the drugs. 10 MS. SILVEY: Well, you are mixing two 11 - when you say the workmen's comp, this rule 12 doesn't have anything to do with workmen's comp. 13 So I'm not - 14 MS. EARNEST: Well, the miners that 15 come back to work are nine times out of ten on 16 painkillers or some type of medication. But who 17 would regulate that? 18 MS. CARR: This is Elena Carr. The 19 rule - the proposed rule doesn't speak to 20 regulating worker's comp doctors. But there is a 21 provision where someone who is on medication who 22 returns to work who subsequently tests - has a 23 confirmed positive, the medical review officer's 24 role then is to make sure that that prescription 25 is being taken as the personal physician has 241 1 prescribed, and if so then that person then is 2 not considered to be tested positive. 3 So there is some oversight over that, 4 but it really remains a matter of the personal 5 physician. 6 MS. EARNEST: Well, what's the 7 difference between a worker's comp doctor and 8 somebody else's personal doctor? Why would there 9 be a difference? 10 MS. CARR: As Pat said we are not 11 speaking to the worker's comp issues. They are 12 not addressed in this rule proposal. 13 MS. EARNEST: Okay, that's all I have 14 to say. 15 MS. SILVEY: Thank you. 16 Next speaker, please. 17 MR. JOHNSON: My name is James 18 Johnson, J-o-h-n-s-o-n. My question would be 19 that a lot of the miners like myself who are older 20 and on maintenance drugs from their private 21 doctors. 22 How would we be effected as far as 23 blood pressure medicines and stuff like that 24 under this new rule? 25 MS. SILVEY: The new proposal only 242 1 covers the 10 categories of drugs that are listed 2 in there that I named this morning. Now I don't 3 know whether blood pressure medicine - in my gut 4 I would think that blood pressure medicine 5 wouldn't fall under one of those categories. 6 But if someone was taking a 7 medication that fell under one of the categories, 8 then if they were taking it, they had a valid 9 prescription, and they were taking it in 10 accordance to the valid prescription, then they 11 would not then be deemed to be in violation of 12 the regulation. 13 MR. JOHNSON: And who makes that 14 determination? 15 MS. SILVEY: A doctor would make that 16 determination. 17 MR. JOHNSON: My personal doctor? 18 MS. SILVEY: Your personal doctor. A 19 medical review officer, okay. 20 MR. JOHNSON: A medical review 21 officer. 22 MS. SILVEY: The medical review 23 officer would be a licensed physician. I think 24 under the proposal it could be an employee of the 25 mine operator. But the medical review officer 243 1 could consult with your personal doctor. 2 MR. JOHNSON: And what if my doctor 3 disagrees with the medical review doctor? Where 4 would it go from there? 5 MS. SILVEY: We're here, just a 6 minute. 7 MR. JOHNSON: Okay. 8 (Pause.) 9 MR. JOHNSON: I might say while you 10 are looking, I'm at a disadvantage because I have 11 not seen the proposal. 12 (Pause.) 13 MS. SILVEY: In the final analysis, I 14 think, if there is a decision about whether you 15 are taking a prescription, whether you are taking 16 - you have a valid prescription, you are taking 17 the medication in accordance with the 18 prescription, and then how that - whether that is 19 compatible with your performance of your job 20 duties, that final decision would be made by your 21 personal physician, by the miner's personal 22 physician. 23 MR. JOHNSON: Personal physician? 24 MS. SILVEY: Yes. 25 MR. JOHNSON: Okay. One more question 244 1 about the contractors. Contractors, a lot of 2 time what they'll do is they'll contract a job 3 and they'll go out and get somebody from off the 4 street that's not a miner, no experience or 5 anything like that, and they'll bring them on the 6 mine site. Who is going to regulate these 7 people? 8 MS. SILVEY: The contractors are 9 covered. And I understand that probably we need 10 to refine and make sure we provide clarification 11 of the coverage for contractors. 12 But the rule covers any persons who 13 are required to have 30 CFR Part 46 or in the 14 case of a coal miner, 30 CFR Part 48 training. 15 And I know that there are a lot of contractors 16 that have to have that training, that they are on 17 the mine, on a continuous basis, and they have to 18 have Part 48 training. 19 So for those contractors they would 20 be covered by the rule and subject to the 21 requirements of the rule. 22 MR. JOHNSON: Okay, thank you. That's 23 all I have. 24 MS. SILVEY: Okay. 25 The next speaker, please. 245 1 MR. REACH: Sean Reach, R-e-a-c-h. 2 I just wondered if MSHA has their 3 drug and alcohol policy? Does their employees 4 get tested like we're going to be random tested? 5 MS. SILVEY: All Labor Department 6 programs have drug and alcohol policy, and there 7 is a drug and alcohol policy for MSHA, yes. 8 MR. REACH: Okay. Well, if you send 9 the employees to the mines, and they get hurt, 10 are they to report that and go and get tested? 11 MS. SILVEY: I didn't - 12 MR. REACH: Are you supposed to be 13 tested right then, or are they going to have time 14 enough to go to their doctor and get tested at a 15 later date? 16 MS. SILVEY: Oh, you mean in case of 17 an accident? 18 MR. REACH: Yes. 19 MS. SILVEY: In case of an accident I 20 think there is a certain period of time for 21 testing for alcohol and a certain period of time 22 for testing for drugs, within a certain period of 23 time, if I'm not mistaken, within after an 24 accident within eight hours testing for alcohol, 25 and within 32 hours testing for drugs, within 246 1 that time period. 2 MR. REACH: Okay, they've got plenty 3 of time to leave the mine site and go get their 4 urine cleaned before they can pass a test. 5 MS. SILVEY: Well - 6 MR. REACH: But we have to be tested 7 on site? 8 MS. SILVEY: Okay, I didn't understand 9 your question. I thought about that too. I 10 started to further clarify, because you started 11 off asking about MSHA requirements. 12 You were talking about an MSHA 13 inspector? 14 MR. REACH: Yes, ma'am. 15 MS. SILVEY: If am MSHA inspector gets 16 hurt on the property, you say? 17 MR. REACH: Have they got to be tested 18 right there on our property, or have they got to 19 go to an MSHA doctor. 20 And you say within eight hours. 21 MS. SILVEY: No, I'm sorry, I was 22 giving you the eight hours and the 32 hours in 23 this room. I wasn't giving you the Department of 24 Labor rules for MSHA personnel. I wasn't giving 25 you the rules there. 247 1 MR. REACH: But they're on our mine 2 site, right? 3 MS. SILVEY: If they got hurt on your 4 mine site? They wouldn't be subject to this 5 rule. The MSHA inspector or employee would be subject to the 6 Department of Labor drug testing requirement. 7 MR. REACH: But you said earlier 8 everybody on that mine site would be subject to 9 this rule. Now MSHA - 10 MS. SILVEY: No, I didn't. I said - 11 wait a minute. I said, I said for this rule 12 people who have to take 30 CFR Part 46 and 30 CFR 13 Part 48 training would be subject to this rule. 14 I then said, earlier I said I 15 realized that some people have told us all 16 persons should be subject to the testing. But I 17 basically said that people who have to take 30 18 CFR Part 46 and 30 CFR Part 48 training and 19 subject to this rule. 20 And that wouldn't be the MSHA 21 employee. 22 MR. REACH: Sound like discrimination 23 to me. I mean UMSA needs to be worried about gas 24 problems, dust problems, when we've got our own 25 problems, and our company already has a drug 248 1 policy for us if we get hurt. 2 And that's all I've got to say. 3 MS. SILVEY: Okay, thank you. 4 The next speaker please. 5 MR. WESTON: Ryan Weston, W-e-s-t-o-n. 6 I want to first say that I feel at a 7 disadvantage because I haven't seen the proposal. 8 My question is, who is able to 9 discern the term, under the influence? Who says 10 someone is under the influence? Who discerns 11 that to say that they are under the influence? 12 MS. SILVEY: There are a variety of 13 persons who can make that determination under the 14 rule. It could - the operator can make that 15 determination, the supervisor can make an initial 16 determination. But that all has to be verified. 17 That is the whole purpose of the drug testing; 18 that is not done without verification through the 19 drug testing. 20 MR. WESTON: Can you define under the 21 influence for me? 22 MS. SILVEY: Well, we have the 23 required - the definition in here for what is a 24 positive, what would be determined to be a 25 positive test result. And that's what the rule - 249 1 that's what somebody would have to comply with 2 with respect to the rule. 3 MR. WESTON: That doesn't answer my 4 question. That's talking about the test that you 5 have to go take when someone said that you are 6 under the influence. I want to know who discerns 7 and says that I'm under the influence or not, 8 because to me that leaves a big door open for 9 discrimination. 10 MS. SILVEY: Okay. You want to answer 11 that? Okay, I understand. 12 MR. WESTON: Next question would be, 13 okay let's take for instance I hurt my back at 14 work. I pull a muscle in my back, and I go to a 15 workmen's comp doctor who the company has paid. 16 The company pays his bills and pays him for me 17 going. 18 He says to go back to work the next 19 day, he gives me a prescription for say Loritab 20 for instance. He says, don't take these at work, 21 but you need to take these if you're hurting. 22 Well, if I'm hurting I have to take the 23 prescription drugs. Let's say a supervisor or 24 someone doesn't like me because of a previous 25 circumstance or something has happened, who's to 250 1 say he can't come to me and say I'm under the 2 influence because he knows that I went to the 3 doctor, and I'm on the medication that the doctor 4 is prescribing, and then I'm out of a job, 5 correct? 6 MS. SILVEY: Okay. You know as I said 7 before, if the miner has a valid prescription and 8 is taking the medication in accordance with the 9 valid prescription then the rule - that miner 10 would not be deemed to be in violation of the 11 rule. 12 MR. WESTON: Excuse me, I'm sorry, I'm 13 at a disadvantage like I said because I haven't 14 seen the proposal. Okay if say that if a miner 15 is on prescription medication and the company 16 says or somebody says that he is under the 17 influence, let's say he does lose his job for 18 taking prescription medication that has been 19 prescribed for him, are y'all going to go after 20 that doctor who prescribed that to him and take 21 his license and his job and his income away from 22 his family? 23 MS. SILVEY: If the miner is on a - 24 has a valid prescription, is taking the 25 prescription in accordance with the instruction, 251 1 as I said earlier, that's the - that - if that is 2 what's happening, then that person would not be 3 deemed to be in violation of the proposal. 4 MR. WESTON: Okay. Does the policy go 5 all the way up to management in the company? 6 MS. SILVEY: The policy goes to miners 7 and to supervisors who supervise them. If a 8 particular miner happens to be supervised by a 9 vice president of the company, then the policy 10 goes to the vice president of the company. If 11 the company happens to be supervised by the 12 general superintendent of the mine, it goes to 13 the general superintendent, or the mine manager, 14 it goes to the mine manager. It just depends on 15 where the supervisory chain is in the mine. 16 MR. WESTON: So would it go to human 17 resources on the people that decide who comes 18 into the mine and who they hire into the mine? 19 MS. SILVEY: I don't know, it depends 20 on the setup the supervisory setup of the mine. 21 Human resources might hire them in, but if - they 22 could make somebody else to supervise them. I've 23 got to know what the setup is and who supervises 24 the mine. 25 MR. WESTON: Well, I personally 252 1 believe that this proposal is a big window for 2 discrimination for supervisors, whoever, saying 3 that they don't like one person and can just pull 4 them out of a crowd and say, I think you are 5 under the influence. And I think it's going to 6 happen, and I do not think this is a good 7 proposal. And that's all I have to say. 8 MS. SILVEY: Okay, thank you. 9 Next speaker please. 10 MR. LINDSAY: How are you doing today? 11 MS. SILVEY: How are you doing. 12 MR. LINDSAY: Fine. My name is John 13 Lindsay, L-I--d-s-a-y. 14 I have a question: are you saying 15 that the drug test, the supervisor, everybody has 16 to be tested, what you got here says, the ruling 17 is not clear on the supervisors which are 18 included in this test, how they would be 19 supervisors of the miners or inspectors. So what 20 you are telling us there? Ain't nobody going to 21 be tested but the miners, and the supervisors are 22 going to go without being tested? 23 MS. SILVEY: I said the rule covers 24 miners who perform safety-sensitive job duties, 25 and the persons who supervise them. The rule 253 1 covers them. Those people are within the scope 2 of the rule. 3 MR. LINDSAY: But it says here it's 4 not clear on the supervisor. 5 MS. SILVEY: Where does it say it's 6 not clear on the supervisor. 7 MR. LINDSAY: On the second page, 8 second paragraph. 9 MS. SILVEY: Second paragraph of what? 10 MR. LINDSAY: On the second page of 11 this - you don't have it? 12 MS. SILVEY: I don't have it, do I? 13 You must be reading from your prepared comments 14 now. I don't have them. 15 MR. LINDSAY: You don't have them? 16 MS. SILVEY: No sir. But it's still 17 the same thing, if you're going to test anybody 18 for drugs, a supervisor gets more people killed 19 than the workers can. 20 MS. SILVEY: The rule covers 21 supervisors. It covers supervisors of miners 22 performing - the category of miners that are 23 covered by the rule, the rule covers the persons 24 who supervise them. So miner X is a long wall 25 operator, and miner B is his supervisor, the rule 254 1 would cover miner X and miner B. 2 MR. LINDSAY: But still it ain't - as 3 it is the miners all of us would be tested 4 regardless of what they'll be doing for just the 5 miners? Like the guy said a few minutes ago, you 6 get a supervisor you had a run-in before, and he 7 come back and say you are under the influence, 8 and get you for sniffing glue or something. Okay, 9 when they take you off your equipment, or what? 10 I mean there are just too many things 11 that they could do to hurt you with the drug 12 test, what they're doing, which ain't fair. 13 MS. SILVEY: Anything else? 14 MR. LINDSAY: I'd like another 15 comment. You just saying the way we are going to 16 be testing, okay, some supervisors or management 17 might not be in it. If they get hurt are they 18 going to be covered under the same thing? 19 MS. SILVEY: The rule covers miners 20 and their supervisors. So supervisors are 21 covered. 22 MR. LINDSAY: The manager too? 23 MS. SILVEY: Miners and the people who 24 supervise minors. 25 MR. LINDSAY: The management? 255 1 MS. SILVEY: That's management, yes. 2 MR. LINDSAY: Okay, you are saying 3 that, why can't we make it more safe for us as 4 far as dust and some of the equipment down like 5 the track, stuff like that, safety that needs to 6 be taken care of beside the drug. Because we 7 have a drug test. If anyone of us gets hurt 8 today, the management would come down and say, 9 everybody in the sector, y'all take a drug test, 10 we got to take a drug test. What do we need 11 another drug test besides the one we already 12 have? I was tested before I went to work. 13 MS. SILVEY: Let me go back to talk a 14 little bit about the coverage. Everybody is 15 talking about miners and supervisors and 16 contractors. The rule actually covers miners, 17 supervisors, contractors, it exempts - it does 18 not cover - administrative and clerical 19 personnel. For example, a payroll clerk. That's 20 the only category that the rule is all-out 21 exempting, administrative and clerical personnel. 22 It covers miners, management, and it covers 23 contractors. 24 MR. LINDSAY: The job I was at before 25 I came to the mine, even the office personnel 256 1 they was drug tested. I say everybody. If you go 2 with a company, the majority of companies, they 3 have drug testing, and they test everybody in the 4 company, go through a random drug test, the 5 secretaries and everybody else. Anybody who is 6 on that company's property is subject to testing. 7 They had to take their test. 8 It would be a random, they would go 9 by computer, they would pull them up, and 10 sometime that supervisor would tell you to go two 11 or three times a month. 12 MS. SILVEY: Okay. Okay, is that it? 13 MR. LINDSAY: Yes, ma'am. That's it. 14 MS. SILVEY: Okay, thank you. 15 MR. LINDSAY: You're welcome. 16 MS. SILVEY: Next speaker please. 17 MR. BAKES: How you doing, ma'am. 18 MS. SILVEY: How are you? 19 MR. BAKES: My name is Randy B. Bakes. 20 I've been in a coal mine 29 years. We used to 21 drink beer and have parties when we first started 22 running coal for him. Most of them got more 23 problems than we got. Like this country has been 24 around drugs and moonshiners to prohibition. The 25 government didn't want to legalize marijuana. 257 1 Now they got 2 Quaaludes, and then they cut them out, and they 3 substitute in with Valiums, and they substituted 4 with Loritabs. 5 We have a contract we work under, and 6 if this is passed, they'll be able to take on 7 anybody that they want to from working too long, 8 fatigued, and everything thing else. 9 I didn't come here to ask questions 10 when I came here, but I just came to speak. And 11 I know I've seen more than I could tell. If I 12 could tell half of what I know I'd be 13 assassinated before I left this building. I've 14 seen bosses go to the turn and know good and well 15 what they are doing, they don't turn, they go so 16 far off that they go and use the bathroom, 17 knowing good and well what they are doing. 18 I've even gone in behind places and 19 found needles on the roof or anything else. It's 20 hard to prove. If you go speaking up, if this is 21 passed, then somebody else gets picked off. 22 I never tried to do nothing, no drugs 23 - I was always told any drug you do that's white 24 you get addicted to it. If this country would 25 legalize marijuana it probably wouldn't have all 258 1 these other big drug problems. 2 Drugs is big business in this 3 country. This country was built on drugs, always 4 your farmers go out on their contractors with a 5 shot of moonshine. 6 And that's probably why the Indians 7 lost their land because they smoke so much 8 marijuana. 9 And this - I guess I done said 10 enough. You got any questions for me? 11 MS. SILVEY: No, sir, thank you. 12 Next speaker please. 13 MR. SPENCER: Good afternoon. My name 14 is Larry Spencer, S-p-e-n-c-e-r. I'm the - I 15 work for the United Mineworkers of America. I'm 16 district rep for the International. I've been 17 sitting here listening all day, and I've listened 18 to comments about the policy that is out there. 19 And one thing we do want to reiterate, the United 20 Mineworkers stands for a drug-free workplace. 21 The thing that concerns me more today 22 than anything is that out of all the mines that 23 we represent in Alabama, 100 percent of our union 24 mines have drug policies. Not 85 percent, not 75 25 percent, but 100 percent of our union mines have 259 1 drug policies that are much better than the 2 policies y'all are trying to put into place 3 today, because they are also testing all the 4 personnel people, anybody that comes onto the 5 property that works for one of these mines now 6 are subject to be drug tested. 7 And now you are wanting to change it 8 and just allow the miners and the supervisors 9 that supervise miners to be tested. The people 10 that are making the decisions such as the mine 11 managers, if they are not supervising someone 12 they don't have to be drug tested, but they still 13 make the decisions that can cost people's lives. 14 And I do not understand why the U.S. government 15 is trying to make a decision that will still cost 16 people's lives by not drug testing them too. Why 17 can't we leave these policies in effect. Because 18 if you put this policy in effect now, all the 19 companies are going to step back to the lesser 20 policy than what they've got in effect today, and 21 I think you need to spend your money on testing - 22 doing more dose testing, diesel emissions, black 23 lung. We've got a lot of other problems. And 24 today the inspectors can't even get all their 25 routes down without getting help into the mines. 260 1 And you are asking them to do more than what they 2 are doing today. And I can't see that happening. 3 And what that, that's my comments. 4 And I will answer any questions. 5 MS. SILVEY: Okay, thank you very 6 much. I don't have any questions. 7 The next speaker, please. 8 MR. HUGHLETT: Hello. My name is 9 Riley Hughlett, H-u-g-h-l-e-t-t. 10 I again at a disadvantage. We don't 11 have the interest given to us, full writing and 12 everything. But I'm in agreeance with the last 13 speaker that the policy they have is already a 14 good policy. Why does the government want to 15 jump in and change a policy and go backwards when 16 they already have a good policy. It doesn't make 17 any sense. 18 I just wanted to know why does the 19 government want to come in and change the policy 20 that we already have in place. Question? 21 MS. SILVEY: Well, the rule would not 22 seek to change a policy that is in place. It 23 would put in place a rule that all mine operators 24 would have to comply with. 25 MR. HUGHLETT: They already do - I'm 261 1 sorry, I didn't mean to cut you off. 2 MS. SILVEY: Well, it would put in a 3 place a policy that all mine operators would 4 comply with, a standardized drug program. 5 MR. HUGHLETT: Now we already have 6 that program. Now another thing - 7 MS. SILVEY: Well, let me finish. 8 What it does say is that any operator who has a 9 program that meets the requirements of this rule, 10 that program would be held as being - would be 11 viewed as being in compliance with the rule. So 12 in other words it would not seek to undo good 13 operator programs that are in place. And I've 14 heard a lot of testimony from people who say that 15 a lot of their operators, not from the labor 16 sector, UMWA, the Steelworkers, as well as 17 operators who say that they have good programs in 18 place. 19 This proposed rule would not seek to 20 undo those good programs. 21 MR. HUGHLETT: Okay, and another 22 question, who is paying for this policy? Is this 23 a government policy, or is the company paying for 24 it? Who's paying for it? Is it taxpayers? 25 Who's paying for it? 262 1 MS. SILVEY: It would be a company 2 policy. Mine operators would have to pay for 3 the requirement. 4 MR. HUGHLETT: Okay, so it's coming 5 out of the company's pocket then. 6 MS. SILVEY: Yes. 7 MR. HUGHLETT: I was just wondering 8 why the government wants to impose more rules, 9 and how much deeper does it go from there? Are 10 they next going to come to the house and seeing 11 what we're doing there? 12 MS. SILVEY: I doubt it. 13 MR. HUGHLETT: You doubt it, but 14 possible huh? 15 MS. SILVEY: No I doubt it very 16 seriously. MHSA wouldn't do that. 17 Okay, is that - do you have anything 18 else? 19 MR. HUGHLETT: No, I don't have 20 nothing else. 21 MS. SILVEY: Okay, thank you. 22 Next speaker please. Is there 23 another speaker? 24 MR. WILSON: Yes, Morris Wilson. 25 MS. SILVEY: Okay. 263 1 MR. WILSON: Nickname Stretch. 2 I wanted to ask you, did they have 3 any particular drugs that they were really 4 targeting on this? 5 MS. SILVEY: Any particular drugs? 6 The drugs that are listed in the proposal. It's 7 a 10 panel drug. 8 MR. WILSON: Oh, 10 panel drug? I 9 haven't seen that paperwork. But this is totally 10 wrong. 11 MS. SILVEY: I called them all this 12 morning. 13 MR. WILSON: Okay. You have evening 14 shift in here now. 15 MS. SILVEY: I understand that. 16 MR. WILSON: Is this one of those Bush 17 policies? 18 (Laughter.) 19 Excuse me? 20 MS. SILVEY: I'm here. 21 MR. WILSON: Is this one of those Bush 22 policies? 23 MS. SILVEY: The rule was proposed by 24 the Mine Safety and Health Administration. 25 MR. WILSON: Is that a part of the 264 1 Bush policy? 2 MS. SILVEY: I don't understand your 3 question. 4 MR. WILSON: MHSA is the federal 5 government, right? 6 MS. SILVEY: That is correct. 7 MR. WILSON: So this is a part of the 8 Bush policy then, right? 9 MS. SILVEY: MHSA is an agency of the 10 Department of Labor, and MHSA proposed this rule. 11 MR. WILSON: Send him a message from 12 us. We going to give him a treat after this 13 election. 14 Thank you. 15 MS. SILVEY: Thank you. 16 The next speaker please. 17 MR. CAGLE: On my way. 18 MS. SILVEY: Okay. 19 MR. CAGLE: My name is Dwight Cagle, 20 D-w-I-g-h-t C-a-g-l-e. I'm with the UMWA. 21 I need a definition on safety- 22 sensitive job duties. 23 MS. SILVEY: Okay, we - safety- 24 sensitive - miners are determined to be in 25 safety-sensitive job duties. Any miners who have 265 1 to take 30 CFR Part 46 and 30 CFR Part 48 2 comprehensive training. And I know you know who 3 those are. I'm sure you know who those are at 4 your mine. 5 MR. CAGLE: Everyone that's in the 6 mine. 7 MS. SILVEY: Everyone - most everybody 8 in the underground mine. 9 MR. CAGLE: Okay, say that you have 10 reasonable suspicion for testing. You challenge 11 this man and take him at that time you'll be 12 taking him to, at our mines, about an hour and 13 half away to be tested, where he'll be waiting 14 five hours to be tested, if they get to him 15 within five hours. In the past before this 16 proposal come up, you challenged a man and he 17 comes back clean, not a positive test, there is 18 no language in this proposal who is going to pay 19 this man. 20 Could you answer that? 21 MS. SILVEY: The rule doesn't specify 22 pay. That would be a decision made by the mine 23 operator. 24 MR. CAGLE: Well, if you are trying to 25 implement - ma'am. 266 1 MS. SILVEY: It does say that there is 2 to be no adverse action against any miner if it 3 is later determined that the test was not - that 4 there was no positive test, that there can be no 5 adverse action taken. 6 Mr. CAGLE: And some of the tests, you don't get 7 results back within two or three days, what does 8 this miner do? 9 MS. SILVEY: I think that decision is 10 left up to the operator. He can - the operator 11 can put him in a nonsensitive job duty, during 12 that period of time. And no loss of pay. 13 MR. CAGLE: There is no job like that 14 in the mines. 15 MS. SILVEY: Well, no loss of pay 16 anyway. 17 MR. CAGLE: Does the proposal state 18 that? 19 MS. SILVEY: Yes. It does. 20 MR. CAGLE: But what I'm saying there 21 is no job like that, safety-sensitive job. 22 MS. SILVEY: I understand. But I'm 23 saying the miner can't suffer any loss of pay 24 though. 25 MR. CAGLE: Otherwise it's not a good 267 1 plan, leaving all these unanswered questions. 2 MS. SILVEY: No, I'm saying to you, 3 I'm answering that one, I'm saying in the 4 situation you just described the miner can suffer 5 no loss of pay. That is in the rule. So I don't 6 want you to go away thinking that that is 7 answered. So I've answered every question you 8 asked. 9 MR. CAGLE: If left up to the 10 operator. 11 MS. SILVEY: No, I said that the miner 12 must suffer no loss of pay. I didn't say it's 13 left up to the operator. In the event that 14 Section 66.403 covers operator actions after 15 receiving a verified test result. 16 MR. CAGLE: But at that time they may 17 not get that - 18 MS. SILVEY: In the event that there 19 is a verified negative test or a test that is 20 cancelled, the miner will be immediately returned 21 to the performance of his duty; the miner will 22 suffer no adverse personnel consequences. 23 You gave me the situation where the 24 test came back later negative. 25 MR. CAGLE: Right. But the question 268 1 was about the safety-sensitive jobs. We do not 2 have jobs like that. 3 MS. SILVEY: But the bottom line is 4 that the miner suffers no loss of pay. 5 MR. CAGLE: So if the supervisor 6 challenged this man with his three hours of 7 training, two initially and two yearly by this 8 plan, and this supervisor, which we've got 9 several that's in their early 20s, and he's going 10 to be able to challenge these folks with three 11 hours training to recognize conditions to 12 challenge these people, giving reasonable 13 suspicions for testing? 14 MS. CARR: Your point is simply that 15 the supervisor doesn't have sufficient training 16 to make this reasonable suspicion determination; 17 is that your concern? 18 MS. CAGLE: That's one of them, yes. 19 MS. CARR: Remember, it's reasonable 20 suspicion. It's not an absolute determination. 21 The drug test itself is the objective 22 determination as to whether or not there was 23 prohibited use. And if it comes back negative 24 there is no adverse personnel consequences, even 25 if the miner isn't placed on another job; if he 269 1 has to sit out, be suspended, he would be 2 returned with no adverse personnel consequences 3 and no loss in pay, so he would be paid. 4 MR. CAGLE: As the people that come in 5 earlier, they all have the same belief that a 6 little bit of discrimination here would be if a 7 supervisor doesn't like that employee, challenge 8 him, with three hours training, two yearly. 9 Also is Part 36, who gives that 10 training? 11 MS. SILVEY: What do you mean who gives 12 Part 46? 13 MR. CAGLE: A competent person? 14 MS. SILVEY: Or - 15 MR. CAGLE: Or an MHSA trainee? 16 MS. SILVEY: A competent person. 17 MR. CAGLE: So just anybody competent 18 could give this training? 19 MS. SILVEY: Part 46 training. You 20 wouldn't take Part 46. You'd take Part 48 21 training. 22 MR. CAGLE: Yes, I'm underground. 23 What about the contractors and all that come on 24 that site, are they Part 36 if they don't go 25 underground? 270 1 MS. SILVEY: They would be Part 48 2 too. 3 MR. CAGLE: Metal or non-metal, that's 4 Part 46? 5 MS. SILVEY: Part 46 is metal, non- 6 metal, only part of metal, non-metal. Metal/non- 7 metal surface, stone, and aggregate. 8 MR. CAGLE: That would be a competent 9 person? 10 MS. SILVEY: What did you say? 11 MR. CAGLE: And that would be a 12 competent person? 13 MS. SILVEY: A competent person could 14 give the training yes, for that segment of the 15 training. 16 MR. CAGLE: On the drug and alcohol 17 recognition? 18 MS. SILVEY: For the people who fall 19 under Part 46. 20 MR. CAGLE: Okay, thank you. 21 On the other one, the lady that 22 testified about the workmen's comp, about sending 23 these people back to work with a back injury or a 24 bruise, whatever, back strain. And they 25 prescribe them Loritabs, don't take these at 271 1 work. It's still in your system. 2 And you say that they get challenged, 3 and as long as the doctor with workmen's comp 4 prescribed this it's going to be okay? 5 MS. CARR: As long as it's being taken 6 according to prescription it would be okay, and 7 that is the role that the medical review officers 8 role is to assure, to review the medical 9 evidence, to talk to that worker's comp doctor 10 and determine whether or not in his best medical 11 judgment it is being taken as prescribed. 12 So if the prescription was, take it 13 in the morning or as needed, the medical review 14 officer, trained licensed physician, would make a 15 judgment, and in all likelihood in that scenario, 16 it would come out a negative - be reported as a 17 negative test result. 18 MR. CAGLE: I want to say that this is 19 the way it works at our - with our company. They 20 send you to the hospital with an injury. They 21 treat you and then you got to go see the company 22 doctor before you return to work. And at that 23 time you either take away or prescribe and send 24 you back to work the next day. 25 Don't you think this plan would 272 1 either take away the painkillers and he'd tell 2 you to take two aspirins, what this plan would 3 lead to? 4 MS. CARR: That is your speculation. 5 There is nothing specific in this rule that would 6 require that or even necessitate that. 7 Legitimate use of prescription painkillers so 8 long as they are being used for a particular 9 medical condition and as prescribed. 10 MR. CAGLE: As prescribed. 11 MS. CARR: So if you take twice the 12 amount and you show up that might be a problem. 13 But if you are taking the amount prescribed for 14 pain, for a medical condition, it is the medical 15 review officer's job to determine that and report 16 that as a negative. 17 MR. CAGLE: Say it's prescribed, take 18 one every eight hours, we don't have eight-hour 19 shifts at our mines. So it would be in your 20 system and you would be taking your medication at 21 work. 22 MS. CARR: And you'd be taking it as 23 prescribed. 24 MR. CAGLE: Every eight hours. 25 MS. CARR: As long as you take it as 273 1 prescribed you are not in jeopardy of being in 2 violation of the proposed rule. 3 MR. CAGLE: That's all I have at this 4 time. 5 MS. SILVEY: Next speaker please. 6 MR. WELDON: Hello, how are you doing? 7 This is Joe Weldon, United Mineworkers of 8 America, 1948, that's W-e-l-d-o-n. 9 MS. SILVEY: How are you doing? 10 MR. WELDON: I'd be doing better if I 11 was at home right now, but I'm not. 12 I still question the explanation 13 concerning the supervisors being tested, and when 14 I finish maybe you can explain to me a little bit 15 more. 16 I personally don't believe that this 17 panel fully understands what it's really like in 18 the coal mines. And I doubt very seriously if 19 any of y'all have been in the coal mines, but if 20 you had you would understand more about what we 21 are trying to portray here, and how we are trying 22 to tell you about some of the things and issues 23 that we are trying to describe. 24 First of all, discrimination does 25 still exist in the coal mines. If you stand up 274 1 for what you believe in and push issues such as 2 safety issues or grievance issues, you will be 3 reprimanded in one way or another if not fired. 4 They will put you to doing dirty work, and one 5 prime example that I can give myself personally 6 is that me and Mr. Wilson was on an inspection of 7 the mines here a few months ago, and we rode up 8 about 50 crosscuts of bad cop, broken straps, bad 9 roof bolts, and such as that. 10 Well, guess who got to fix all that? 11 It was me. And believe it or not I done it 12 smiling the whole time. And they put me - took 13 me off my regular job, put me to running a roof 14 drill, setting pins, putting up straps, timbers, 15 setting building cribs. And doing everything 16 that nobody else wanted to do. Why? Because I 17 stood up for what I believed in. I stood up and 18 I took a stand, and tried to make that mine as 19 safe as possible for my fellow workers to work 20 in. But yet I was reprimanded, and I was 21 discriminated against because I'd done that. 22 But I wouldn't let them know that. 23 Like I said, I smiled the whole time that I was 24 doing it. 25 But the fact still remains that if 275 1 some of us did have the ability to turn in a 2 supervisor, and he was under the influence of 3 drugs or alcohol, and we did turn him in, 4 absolutely 100 percent we would be reprimanded 5 one way or another, whether it be fired, whether 6 it be put off somewhere shoveling mud in a place 7 that it didn't need to be shoveled, we would be 8 reprimanded for that, standing up for what we 9 believed in. 10 We believe that this policy that 11 y'all are putting into effect, we don't agree 12 with it, none whatsoever. We believe that the 13 policies that we have in effect at all of our 14 union mines are adequate, and they've been 15 working, and like the old saying goes, and other 16 brothers have said it before, if it's not broke, 17 don't fix it. 18 We believe that you will either be 19 fired if you do turn in a supervisor, or they'll 20 make it so hard on you you will want to quit, 21 especially if you push safety issues and/or 22 grievance issues. 23 I also want to make a comment: is it 24 just because that you all are putting this policy 25 into effect or this policy does go into effect, 276 1 what makes y'all believe that the company is 2 going to adhere to it? What makes y'all think 3 that the company is going to do what y'all say in 4 these standards? You can look at the number of 5 citations at every one of these mines, especially 6 in Alabama, at the number of citations that 7 they've got written, and look at the number 8 they've paid. They drag them out in court, they 9 drag them out in court. Every one of them goes - 10 we used to have citation conferences every two 11 weeks. We don't have them any more. Why? 12 Because they take them all to court. 13 So just because this policy goes into 14 effect doesn't mean that the companies are going 15 to adhere to it, and they are not going to do 16 what they are supposed to do. 17 That concerns me that just because 18 y'all say that they have to go along with this 19 policy doesn't mean that they are going to do it. 20 They'd just as soon to pay it and go on to the 21 next issue, or drag it out until it just goes 22 away. 23 And that's all I had, Ms. Silvey. If 24 you have any questions. 25 MS. SILVEY: No, I don't have any 277 1 questions per se, except to make a comment that, 2 and I'm sure you know this too, that in the last 3 year, year and a half, the civil penalty, we put 4 in new civil penalty regulations, in addition to 5 the Miner Act, there was a provision in the Miner 6 Act if an operator fails to notify MSHA it's a 7 minimum penalty for that, and also flagrant 8 violation penalty, and also minimum penalties for 9 unwarrantable failure. 10 You ask me, now why do I say that? 11 Because I would suspect that - I know that the 12 penalties have gone up tremendously. So a lot of 13 mine operators are at a different - are dealing 14 somewhat differently with the penalties today 15 maybe than they were a little over two years ago. 16 MR. WELDON: Yes, ma'am, I understand 17 completely what you're saying. And our mines is 18 on D status as I speak; we are still on D status, 19 have been for awhile. And of course everything 20 that they get they take it to court. And so I 21 understand that as well. 22 But what I want you to understand is 23 this of course, and my last point being that we 24 will be discriminated against if there are not 25 provisions in there if we have the policy, if we 278 1 turn a supervisor in, and we ought to have that 2 ability to do that, Ms. Silvey, because we feel 3 like that everyone that comes on that property, I 4 know it's a broken record and you keep hearing 5 that, but we believe that everybody that comes on 6 that property, every job in that mine is a 7 sensitive job. 8 And so I want y'all to please take 9 that into consideration if you will. 10 MS. SILVEY: I understand. I 11 understand what you're saying. And I do want to 12 say one other thing, because I've heard several 13 people talk about you feel like you would be 14 discriminated against. And I just want to 15 reiterate that there are provisions in the Mine 16 Act, if a miner feels discriminated against for 17 filing a discrimination complaint which MSHA must 18 investigate. 19 So but I hear what you are saying. 20 Thank you. 21 MR. WELDON: Yes, ma'am. Thank you. 22 MS. SILVEY: Next speaker, please. 23 MR. BOLDEN: Deandre Bolden, B-o-l-d- 24 e-n. 25 I basically have one question. As an 279 1 American taxpayer, I just want to know how will 2 this be funded, this program that you implement? 3 MS. SILVEY: It will be funded by the 4 mine operator. 5 MR. BOLDEN: It's being funded by who? 6 MS. SILVEY: No, it would be funded, 7 the costs would be - would go to the fall on the 8 mine operator. 9 MR. BOLDEN: The company? 10 MS. SILVEY: The company, that's 11 right. 12 MR. BOLDEN: Okay, with that being so, 13 our company has a pretty good standard on not 14 using drugs at the workplace. I mean who is - 15 excuse me. 16 MS. SILVEY: That's good then. 17 MR. BOLDEN: Yes, yes. And we stand 18 fully for that. We stand at all on our premises. 19 With this coming into effect, why should you 20 regulate what a company already has in place? 21 It's like you don't have a trust in a company 22 that is doing something that is good for America 23 that is producing coal. Like you don't have 24 faith in other Americans, you're taking over. 25 MS. SILVEY: No, what we did is, we 280 1 gave - we recognized in the proposal companies 2 that have - many companies have good existing 3 programs, and we recognize that companies with 4 those programs, as long as those programs met the 5 requirements of the proposal, they would be 6 deemed to be in compliance with the proposal. 7 So we understand that a lot of 8 companies do have good programs, and programs 9 that work. 10 MR. BOLDEN: Okay. Another question. 11 When is the rule on this law that you are trying 12 to pass, when are you trying to pass this law, 13 what date? 14 MS. SILVEY: We don't have a certain 15 date. There is a - this is - we are in the 16 public comment phase. And then generally you 17 dealt with me with rulemaking before. And what 18 happens then, we'll go back and we'll review and 19 evaluate the comments and develop a final rule. 20 That is the process. 21 MR. BOLDEN: Excuse me, do you feel 22 like this policy is in good review? Do you think 23 it needs to be reviewed, you personally? 24 MS. SILVEY: What do you mean? We 25 have to review the comments. That's part of this 281 1 public rulemaking process. 2 MR. BOLDEN: Okay. One more question. 3 Have you ever been discriminated against 4 personally? The reason I say that, I don't mean 5 to put you on the spot, the reason I say that, 6 this company - not this company, but this United 7 States of America, we have been discriminated 8 against through white, black, Hispanic, Africans, 9 whatever you want to call it. This policy I 10 think right now would leave a big window for it. 11 Like my other brothers came up here and said 12 before, you have never worked in a coal mine 13 before. I haven't worked in a coal mine February 14 of this year. There is nothing like it. 15 And what they are trying to explain 16 to you, I mean you have to be in that coal mine 17 to understand. This leaves a wide open space for 18 discrimination, and I think y'all need to review 19 it. Thank you. 20 MS. SILVEY: Okay, I appreciate it. 21 Thank you. 22 Next speaker, please. 23 MR. KIMBRELL: My name is Ned 24 Kimbrell. I work for Jim Walter Resources, UMWA 25 2937. 282 1 MS. SILVEY: Can you spell your last 2 name, please? 3 MR. KIMBRELL: K-I-M-B-R-E-L-L. 4 MS. SILVEY: Okay, thank you. 5 MR. KIMBRELL: One of the previous 6 speakers up the drug that you would be testing 7 for. I have the proposal in front of me on page 8 52142, or I guess that maybe page number what 9 have you. 10 MS. SILVEY: That's right. 11 MR. KIMBRELL: The list of the drugs 12 that you have in here or that you are proposing 13 to test for, I think there are a few issues that 14 a lot of miners have, and one being that you are 15 willing to test for prescription drugs. And I 16 understand that as far as the prescription drugs 17 it will be up to the licensed medical physician 18 and that sort of thing to determine whether you 19 are taking those drugs properly; correct? 20 MS. SILVEY: That's correct. 21 MR. KIMBRELL: You also stated that 22 the drug program is going to be paid for by the 23 mine operator; correct? 24 MS. SILVEY: Correct. 25 MR. KIMBRELL: So the doctor that's 283 1 going to be taking a look at your case is going 2 to be paid for by the mine operator; correct? 3 MS. SILVEY: Might not. Could be. 4 MR. KIMBRELL: Could be? 5 MS. SILVEY: Yes. 6 MR. KIMBRELL: Who else would be 7 paying the doctor to take a look a look at your 8 drug test that the company paid for? 9 MS. SILVEY: Well, you say paid for. 10 Could be an employee of the mine operator or it 11 could be a personal contract. It depends on how 12 the program is set up: directly paid or in some 13 other manner. 14 MR. KIMBRELL: So it's being paid for 15 by the mine operators. Someone has to take a 16 look at the test. Who is footing the bill? The 17 mine operator. 18 Who is that doctor going to be loyal 19 to? The one that's paying his paycheck. 20 Second issue is, I was reading this 21 and it says although the proposed rule requires 22 mine operators to provide one opportunity for 23 those violating the rule to get help and retain 24 their job, it leaves it to the mine operator to 25 determine the disciplinary consequences for 284 1 violations. 2 That's giving too much power to the 3 mine operator, lay a man off who tests positive 4 for hydrocodone because he wore his back out 5 workings 6X12s a week and he is taking his 6 medicine like he's suppose to, but it's giving 7 too much power to the mine operator to lay that 8 miner off for 30 days. What is that miner 9 supposed to do when the operator can determine 10 his consequences for the disciplinary action? 11 What is that man going to do for 30 days when 12 he's laid off? He was taking his medication 13 properly, but he still violated the rules, so 14 therefore he still gets consequences imposed on 15 him. 16 MS. SILVEY: But if he was taking this 17 medicine properly - you said he was taking it 18 properly, right? 19 MR. KIMBRELL: Yes, ma'am. 20 MS. SILVEY: Well, then he doesn't 21 violate the rule. 22 MR. KIMBRELL: According to a paid 23 physician or a physician that is being paid for 24 by the mine operator, correct? 25 MS. SILVEY: Well, I wouldn't - if 285 1 he's taking it properly? 2 MR. KIMBRELL: Ma'am, who pays your 3 bills? Who do you work for? The taxpayer, I 4 heard somebody say, that's funny. But actually 5 who writes your check is who, the U.S. government 6 or MSHA. You are very loyal to them aren't you? 7 UMWA writes my paycheck. That's who 8 I belong to. And believe me, I'm very loyal to 9 them. If they are paying my bills I'm loyal to 10 them. 11 Do you understand what I'm saying? 12 The simple fact is a lot of people have brought 13 up the fact of being discriminated against. And 14 that's a big problem with this proposal because 15 it says, testing also be required for any 16 additional drugs designated by the security of 17 labor, and nothing in the rule restricts mine 18 operators from testing for additional drugs 19 beyond those for which the rule requires testing, 20 meaning, if I'm being discriminated against 21 because of whoever I may have pissed off down at 22 the mine site for whatever reason, bringing up a 23 safety issue or what have you, they can take drug 24 testing to the walls for anything. 25 Well, I have a heart condition - I'm 286 1 sorry, I have high blood pressure. I have high 2 blood pressure medicine in my system. What if I 3 done broke the rule, I get laid off for 30 days 4 even though I take it as I'm supposed to, the 5 determination comes down from the doctor who is 6 ultimately going to be loyal to the company 7 because he's paying for his mansion. 8 Do you understand what I'm getting 9 at? Do you understand the problems in your 10 proposal when you start linking illegal drugs and 11 prescription medication? 12 Do you understand the problems there? 13 MS. SILVEY: I appreciate - I hear 14 your comments. 15 MR. KIMBRELL: Okay. Are you going to 16 answer any of my questions? Talking about the 17 current program, is that correct? 18 MS. SILVEY: We want to ask you some 19 questions about your current program. 20 MR. KIMBRELL: I'll answer them to the 21 best of my knowledge. 22 MS. SILVEY: I know you will. 23 MR. KIMBRELL: But I just want to know 24 if you are going to answer any of my questions, 25 because you haven't done that yet. You didn't 287 1 even tell me who you work for, or who pays your 2 check. 3 MS. SILVEY: Well, we work for the 4 U.S. Department of Labor. You know that quite 5 honestly. 6 MR. KIMBRELL: No, actually, I didn't. 7 I'll be honest with you, I was ignorant on that 8 subject, and I didn't know. 9 MS. SILVEY: Okay, well, let me answer 10 it for you. 11 MR. KIMBRELL: Okay. 12 MS. SILVEY: We work for the U.S. 13 Department of Labor, and the taxpayers pay our 14 pay. The federal government is funded by the 15 American taxpayers. 16 MR. KIMBRELL: So are you voted into 17 office, or were you hired by somebody or were you 18 voted in? Your company is funded by the American 19 taxpayer, but you do not take your money from the 20 taxpayer because you weren't voted in; you were 21 hired, is that correct? 22 So don't try to tell me that you 23 actually get your paycheck from me. I can 24 guarantee you one thing: you are very loyal to 25 the Department of Labor, aren't you? 288 1 MS. SILVEY: You say I was hired by 2 what now? 3 MR. KIMBRELL: Someone, by someone. 4 You are not an elected official, are you? 5 MS. SILVEY: No, I'm not. 6 MR. KIMBRELL: So you were hired by a 7 superior at the Department of Labor. 8 MS. SILVEY: That's correct. MSHA. 9 MR. KIMBRELL: By MSHA, yes, ma'am, so 10 I understand MSHA. So you're loyal to them, 11 correct? 12 MS. SILVEY: I work for - 13 MR. KIMBRELL: You are loyal to your 14 company, is that correct? 15 MS. SILVEY: I'm a professional. I'm 16 a professional to do my job. 17 MR. KIMBRELL: That's being loyal. If 18 you do your job, that's being loyal. 19 MS. SILVEY: To the best of my 20 ability. 21 MR. KIMBRELL: Hey, I never said 22 differently, I promise you that. 23 MR. BURNS: Just a follow up question. 24 MR. KIMBRELL: Go ahead. 25 MR. BURNS: Do you work for a company 289 1 that has a drug testing program? 2 MR. KIMBRELL: I'm sure I do. 3 MR. BURNS: Who makes the 4 determinations under the current program that the 5 company and the union have? 6 MR. KIMBRELL: What was your question 7 again exactly? 8 MR. BURNS: I mean any good - 9 MR. KIMBRELL: I know when I was hired I 10 was drug tested in a cup, and I also had a hair 11 sample done on me. But I don't believe that was 12 your exact question. What was your question 13 again? 14 MR. BURNS: Right now under this 15 proposal the physician makes that determination 16 in conjunction, if you're talking prescription 17 drugs, in conjunction with talking with your 18 treating physician. 19 Now under the company programs 20 certainly there has to be some medical person 21 that makes these determinations for these tests. 22 I was just curious how that was set up, if you 23 know. 24 MR. KIMBRELL: There is one difference 25 there. That's a preemployment drug testing that 290 1 was - the one I had. So I haven't had a chance 2 to piss anyone off yet for them to have a grudge 3 against me to send me to a doctor that they pay 4 for to piss test me for anything and everything 5 under the sun just to find a way to get me either 6 out of there or laid off long enough to where I 7 keep my mouth shut the next time something comes 8 up. 9 It's like somebody said just before 10 me, you have never worked in a coal mine, and 11 nine times out of ten you have never worked in 12 any type of situation that - or I should say any 13 type of labor-intensive situation, that those 14 kind of things happen in. 15 So until you get somebody on a panel 16 that understands this type of work, this type of 17 environment, you have no reason coming up with a 18 drug - or you actually have no business coming up 19 with a drug policy that mingles illegal drugs and 20 prescription pain medication, or prescription 21 pain medication at all. 22 Because in your own proposal you 23 don't have anything that stops the mine operator 24 from not testing someone for something like a 25 Alleve cold and sinus, or Tylenol, or Aspirin. 291 1 Believe me, those things will get tested - will 2 be tested for when the right person comes along 3 making the right notation on the citation or what 4 have you. 5 It's going to happen, and you have 6 nothing in here to protect someone except a 7 trained medical professional. Even medical 8 professionals get bought out day-in and day-out 9 for enough money. It happens. 10 MS. SILVEY: Let me ask you a 11 question. Under the current testing program at 12 your mine. 13 MR. KIMBRELL: Yes, ma'am. 14 MS. SILVEY: How many drugs are tested 15 for, under the program, how many drugs? 16 MR. KIMBRELL: Nine panel. 17 MS. SILVEY: A nine-panel test? 18 MR. KIMBRELL: Yes, ma'am. 19 MS. SILVEY: Okay, now my question to 20 you is, are some of the drugs on that panel both 21 as you put it, and I'm using your phraseology, 22 illegal drugs and legal prescription drugs? 23 MR. KIMBRELL: Yes, ma'am, they are. 24 MS. SILVEY: They are? Now let's go 25 to the next point. 292 1 MR. KIMBRELL: Okay. 2 MS. SILVEY: Then when it gets to a 3 miner who then is taking legal prescription 4 medicine, who makes the decision in that 5 situation? 6 MR. KIMBRELL: Are you asking who 7 makes the decision on what? 8 MS. SILVEY: On whether the taking of 9 the prescription medication is legal, is - 10 MR. KIMBRELL: Oh in other words, are 11 they taking it properly or are they abusing it? 12 MS. SILVEY: Yes. 13 MR. KIMBRELL: I'll guess a trained 14 medical person like you said. 15 MS. SILVEY: Well, the rule would 16 operate the same way, the proposed rule would 17 operate that same way. Okay? 18 MR. KIMBRELL: Okay. But here is the 19 issue with that. You have nothing in there that 20 is protecting the miner himself. There is 21 nothing in there that protects him being 22 discriminated against for whatever reason. You 23 are opening the doors on people being 24 discriminated against and costing untold amounts 25 of people their livelihood, because you are 293 1 giving this much power to the mine operator. 2 MS. SILVEY: And I earlier said any 3 miner who felt like that person had been 4 discriminated against can file a discrimination 5 complaint under the Mine Act. 6 MR. KIMBRELL: Yes, ma'am, they can. 7 MS. SILVEY: Right. 8 MR. KIMBRELL: So are you robbing 9 Peter to pay Paul here or what? You want to make 10 a situation better, all you got to do is make a 11 situation worse on the other side. 12 MS. SILVEY: Okay. 13 MR. KIMBRELL: Okay is not an answer. 14 MS. SILVEY: No, I'm saying, I'm 15 thanking you for your comment. I've gotten that 16 from a number of people, that comment. It's not 17 okay - it's - I understand your comment. That's 18 what the okay is. 19 MR. KIMBRELL: Well, you guys have a 20 lovely afternoon and thank you very much. 21 MS. SILVEY: Thank you. 22 The next speaker please. 23 Next speaker please. Is there 24 anybody else there in Birmingham? Nobody else in 25 Birmingham? If there is nobody else in 294 1 Birmingham, Mr. O'Dell, do you have comments? 2 Mr. Dennis O'Dell, United Mine Workers, 3 administrator of Occupational Safety and Health. 4 MR. O'DELL: Just real quick if I may, 5 again, Dennis O'Dell from UMWA. 6 You can clearly see some of our 7 frustrations. No disrespect to anybody on this 8 panel. 9 It's tough out there. You can see 10 our frustrations. Our guys are frustrated. You 11 know coal is in large demand right now. Our guys 12 are being overworked. So you kind of see the 13 concerns out there as far as us and our concerns. 14 These guys brought up some key points 15 listening today, some things that we didn't even 16 think about in our department, and I'm sure that 17 they pointed out some things that y'all didn't 18 think about as well. 19 One of the things that I think I kept 20 hearing our brothers and sisters talking about, 21 among a number of things, but one of the things I 22 kept hearing being brought up that I hope you 23 will consider and try to give us an answer to is 24 if - part of the frustration is even though we 25 have come to terms as far as labor and industry 295 1 working together, there is still some distrust 2 out there. And part of it is because of what is 3 going on. If supervisors are random tested, and 4 if those results reported, supervisors tested and 5 the results are reported, how are we to really 6 know that the supervisors are being treated in 7 the manner as what the miners are, because they 8 are going to be privy to that information. 9 Because like I heard a brother and sister say, 10 the operators are paying for this whole thing. 11 So there is really no check and 12 balance in that part of it. I mean the operator 13 pays for it. They are going to know what our 14 test results are, but we are not really going to know 15 what their test results are. You see what I'm 16 saying? It's kind of an unlevel playing field. 17 And if our brothers and sisters in 18 the field suspect a supervisor is impaired, I 19 mean who can they go to that would be impartial 20 and fair about them reporting? 21 I heard you say that there is a means 22 in there to report if somebody felt like they 23 were being discriminated against. But that's not 24 going to take care of the problem right then and 25 there. IF a miner is really concerned about his 296 1 supervisor putting him in harm's way, he may have 2 to go to another supervisor who is his friend who 3 may not really take care of the problem like it 4 should. I mean that's the reality of the whole 5 thing. 6 In some cases the reputable operators 7 are going to take care of problems. But there 8 are some operators out there that aren't as 9 reputable, and they are going to turn a blind eye 10 to it, and it could endanger our brothers and 11 sisters. 12 We're just trying to get some fair 13 and, as Fox Network would say, fair and balanced. 14 I don't know if that's true or not, but that's 15 how they like to put it. 16 So that's all that we're asking. 17 That's all we've ever asked is that the laws be 18 enforced, and that there be a fair treatment to 19 the miners, and that we know that that is being 20 carried out. 21 Training is provided to supervisors 22 to recognize problems, but nobody, no place in 23 this rule does it say that the nonsupervisory 24 personnel or miners get any kind of training to 25 where they are going to be able to recognize if 297 1 one of their foremen are under the influence or 2 if they are impaired. 3 So, see, it is unbalanced. And I 4 understand that the operators, they operate the 5 mine, they take care of the mine. But when it 6 comes to drugs and alcohol, there should be no 7 discrimination. It should be fair, it should be 8 balanced, it should be - workers are empowered 9 with the same tools and the same education as 10 what supervisors will be empowered with. Because 11 we are all underground together, and we are all 12 being subjected to the same work environment. 13 So that's why you keep hearing this 14 time and time again. There is nothing that 15 breaks that discrimination In fact 105(c)s, and 16 we know how the process takes, and discrimination 17 doesn't - you know sometimes it works, sometimes 18 it doesn't. But for that problem, that needs to 19 be addressed. 20 The other thing I heard them say that 21 was pointed out very well, and I was kind of 22 ignorant to this, because when I testified 23 earlier I said, Sam, a block mason or a belt 24 painter or something like that. I was thinking 25 in my head that's not a non safety-sensitive 298 1 job. But it's not. There are no non-safety- 2 sensitive jobs. So I think that is something you 3 have to go back and look at as far as how you 4 define - because under Part 48, Part 46, all 5 jobs, I don't know of any jobs that, with the 6 exception of maybe a payroll clerk. Of course 7 the payroll clerk drives on and off the property, 8 so are they subject to it too because they use 9 the access road that could endanger someone if 10 they come to work drunk, sharing the same parking 11 lot with the workers. 12 I don't know where you cut that line, 13 if it really is just miners under Part 46 and 14 Part 48, or should it be anybody who is on mine 15 property. Maybe we need to look at it from that 16 aspect, that anybody on mine property is subject 17 to drug testing or alcohol testing, because then 18 everybody has to be on their - you know what I'm 19 saying, they have to be held accountable for 20 their actions. Even a pizza delivery guy if he 21 comes to the mine, and if he's taking drugs or if 22 he's drunk, he could hurt one of our guys who's 23 walking from his car to the other car. 24 So maybe MHSA needs to go back and 25 look at anybody on mine property, not just safety 299 1 sensitive, but anybody and everybody. I mean I 2 think that is fair; I think that is something you 3 should consider. 4 Most policies, to try to clear this 5 up I think, kind of what you said, most policies 6 - see I think that you asked the question - most 7 of the policies that have been associated with 8 our members, they'll have a list of drugs to be 9 tested under their policies. But if they decide 10 that they want to add other drugs to that, they 11 have to renegotiate that with the union. 12 MS. SILVEY: But some of them include 13 prescription medication, though. I think that's 14 what the question was going to. Some of it would 15 include medication that could be given according 16 to a valid prescription, and taken according to a 17 valid prescription. 18 MR. O'DELL: But on the bigger picture 19 in the proposed rule it leaves it open-ended that 20 the operator can add more - anything they want 21 to. See, right now they are held to - okay, 22 you've got a list of 10 drugs that they test for. 23 If they are going to add 11, 12, 13, they have to 24 go back to the union and renegotiate that, and 25 then everyone knows where they're coming from and 300 1 what's going on. 2 And I told you earlier today when I 3 talked about the Pennsylvania miner who got 4 fired who was on a prescribed drug, that is a 5 problem. A guy that is on a prescribed drug can 6 get tested positively, can be fired, and wait to 7 get his job back. That is something that needs 8 to be addressed. 9 Listen, our guys respect the job that 10 MSHA does, and we appreciate MSHA is out there 11 doing their job as far as inspecting the coal 12 mines, take care of business. But this is 13 something that affects - different than any other 14 rule that's been proposed, this affects each 15 individual personally, and that's why - that's 16 why you are getting the feedback that you are 17 getting. Because a lot of proposed rules that go 18 out don't necessarily affect each individual like 19 this one does. 20 So with that I thank you. 21 MS. SILVEY: Okay. 22 MR. BURNS: Dennis, was I just - my 23 question was - I mean there is a lot of attention 24 on this medical review officer being paid by the 25 company. They are always asking if you guys have 301 1 a better way of coming up with - because it does 2 take a medical person to make these 3 determinations. 4 MS. SILVEY: Actually you were asking 5 how is it done now. I assume that it is probably 6 done now quite the same as it is done under the 7 proposal. Because it would be a doctor's 8 determination. It might be a doctor employed by 9 the company. But as we said earlier, that doctor 10 then - if the miner had a personal physician who 11 prescribed the drug, the medical review officer, 12 if that medical review officer happens to be an 13 employee of the company, would have to consult 14 with the miner's own physician. 15 MR. O'DELL: That's what I heard 16 earlier today, for the benefit of these guys that 17 weren't here earlier today, I said that the 18 medical review officer for the - what's the 19 other - substance abuse professional should not 20 be employed by the operator. I only deal with 21 like Oracle 3 under Oracle and Track, which is 22 safety. I'm not a grievance procedure guy. But 23 I think that there is provisions in our contract 24 that if a guy gets fired, that they have some 25 kind of process in place where they can actually 302 1 ask for another doctor's opinion, you know 2 somebody in some way, if they don't agree what 3 that doctor came up with, they can go to another 4 doctor and get another opinion or something. 5 Maybe that's something that needs to be looked 6 at, where a guy if he doesn't believe that the 7 split sample was done properly, or the chain of 8 custody wasn't handled correctly, another avenue 9 for them to go to to get a second opinion. 10 I mean it's just like anything else. 11 My wife had open heart surgery. She went to 12 three doctors before she actually found a doctor 13 she was comfortable with to go to. You know to 14 get open heart surgery. So maybe that's 15 something. 16 MS. SILVEY: We do, we've got another 17 comment from Alabama. I assume everyone is still 18 there. 19 MR. O'DELL: And if you guys that are 20 out there that can hear me, if you disagree or 21 you think there is something else that I need to 22 touch on, please step up to the mike and tell me. 23 MS. SILVEY: The comment that I have 24 goes to the additional, any other drugs that can 25 be added by the operator. And you were talking, 303 1 Dennis, about how they would have to negotiate 2 before - through the collective bargaining 3 agreement before they could add that would be in 4 addition to it. 5 And the rule provides that the 6 operator could add additional drugs. But I want 7 to be clear: it may be that - and I don't want to 8 say this without - it may be that under the rule 9 even if the operator wanted to add an additional 10 one, it might still have to be negotiated through 11 the collective bargaining agreement. 12 MR. O'DELL: Here's what it says: the 13 Secretary of Labor and nothing in the rule 14 restricts mine operators from testing for 15 additional drugs beyond those for which the rule 16 testing - 17 MS. SILVEY: No, I got that. But I 18 want - I'm talking about the effect on the 19 collective bargaining agreement. That still 20 might have to go through the collective 21 bargaining process in that the rule could not 22 constrain the collective bargaining process. 23 But I'm going to look at that, and 24 that's what I was looking for before you left. 25 No, I understand that. But I wanted to see 304 1 whether we said something specific - 2 MR. O'DELL: I do think that our first and 3 foremost is that you take this whole thing off 4 the table, that you remove it. We don't like it, 5 we don't want it. But I'm just saying if you 6 move forward we think these are things that we 7 really think you need to consider. 8 MS. SILVEY: No, I understand that. 9 Okay, thank you. 10 MR. O'DELL: Thank you. 11 MS. SILVEY: Okay. Is it anybody in 12 Birmingham who wishes to make any additional 13 comments? Anybody else - 14 MR. KIMBRELL: Yes, ma'am, this is 15 Nick Kimbrell again. I was taking a look at the 16 proposal that you guys have. And in your 17 proposal I'm trying to rapidly find, so I 18 wouldn't waste any of your time to find the 19 regulations that you are putting forward to not 20 just test the miners but the mine supervisors. 21 And I wanted to know a couple of things. 22 What is the - is there - who is being 23 proposed to be tested as far as supervisors, 24 foremen and that sort of thing? Anyone that is 25 in direct - I'm sorry, go ahead. 305 1 MS. SILVEY: What did you say? I was 2 distracted. 3 MR. KIMBRELL: As far as management 4 within the mines, who are you proposing that need 5 to be tested? Those that are in a safety- 6 sensitive, is that correct, area of the mine? 7 MS. SILVEY: Those are in a safety- 8 sensitive job and the miners who supervise them - 9 and the persons who supervise them. 10 MR. KIMBRELL: Okay. I have a quick 11 question. It goes back to the drug testing 12 itself. Who actually receives the results from 13 the drug testing? Who is privy to that 14 information? 15 MS. SILVEY: Who is privy to that? 16 MR. KIMBRELL: Yes, ma'am, a mine 17 operator, a third party, the UMWA, MSHA, who is 18 privy to that information, meaning if I fail a 19 drug test, who gets the paperwork on it? I know 20 the mine operator himself because he's got to 21 discipline me. 22 MS. SILVEY: Right, the mine operator 23 would get it. 24 MR. KIMBRELL: Who else? 25 MS. SILVEY: The - MSHA doesn't get 306 1 it. 2 MR. KIMBRELL: Okay, if a foreman at 3 the mine site failed a drug test, who gets that 4 result? 5 MS. SILVEY: The mine operator. 6 MR. KIMBRELL: The mine operator? 7 MS. SILVEY: Yes. 8 MR. KIMBRELL: Okay, so basically it 9 could happen that a foreman failed a drug test, 10 but because he produces a whole lot of coal for 11 us we're going to overlook it and send him back 12 underground; is that correct? 13 MS. SILVEY: I wouldn't know that. I 14 wouldn't say that. 15 MR. KIMBRELL: You wouldn't say that? 16 MS. SILVEY: I would hope not. 17 MR. KIMBRELL: You would hope not, but 18 it could happen, though, correct? 19 MS. SILVEY: I'm not going to say 20 correct to that, because I don't know that. 21 MR. KIMBRELL: Okay, is there any way 22 that we could actually have the mine foreman's 23 test be privy to the UMWA so they can make sure 24 and ensure safe working environment for their 25 miners? 307 1 MS. SILVEY: Is that your comment? 2 You can make that suggestion. 3 MR. KIMBRELL: No, I'm asking, I'm 4 asking a question. Is there any way that we 5 could have the information or the results of a 6 drug testing be known to the UMWA so that they 7 can assure the UMWA members that are going 8 underground with that supervisor that hey, even 9 though he acts like that, he's actually not on 10 drugs. 11 MS. SILVEY: Well, you are asking me 12 a question. I'm saying to you, you can make that 13 as a comment. But again I would advise you that 14 just as you all have told me all day today since 15 9:00 o'clock this morning, there are privacy 16 considerations, and confidentiality 17 considerations that would pertain. 18 MR. KIMBRELL: Okay. But you are 19 still putting a miner in jeopardy because a 20 supervisor who can produce a lot of coal is on 21 drugs. There is no type of policing of that. I 22 mean one thing you have to understand, and please 23 everyone who is listening understand this, I am 24 insured from the day I was hired for $1 million. 25 If I die at the mine site or anywhere, my family 308 1 might get $160,000. The rest of that money goes 2 to the company. They honestly will probably make 3 money if I die. 4 So if they have a supervisor that is 5 producing a lot of coal for them, they are not 6 going to too much give a shit if he is on drugs. 7 And you have no policing of that fact. 8 But the miner himself, you are almost 9 willing to crucify him if he takes a Loritab 10 because his back is hurting him because he's 11 working six days a week. 12 And those are things that you really 13 need to truly look at with this proposal. 14 MS. SILVEY: Okay. Thank you. Thank 15 you. 16 Anybody else? If nobody - okay, next 17 speaker. 18 MR. McGHEE: Antoine McGhee, Mc-G-h-e- 19 e. Local 2397. I have only one question for you 20 basically. When you do a random drug test, how 21 would it be decided who gets pulled or whatever? 22 Will you do it on computer, or how will they be 23 doing it? 24 MS. SILVEY: That question was asked 25 earlier, and it's a random drug test based on a 309 1 valid statistic sample which could be computer 2 based or equivalent to a computer based, yes. 3 MR. McGHEE: When they do that random 4 test, will there be a union official there to 5 make sure that they are not pulling names out of 6 the hat, or maybe adding one or two here and 7 there. 8 MS. SILVEY: That they are not pulling 9 what? 10 MR. McGHEE: Will there be a union 11 official there to make sure that they are not 12 pulling names out of a hat or adding one or two 13 in or picking who they may? 14 MS. SILVEY: Well, it has to be a 15 valid - there has to be a valid statistical base 16 system for doing random system. 17 MR. McGHEE: Who decides how that 18 system is set up, the company? 19 MS. SILVEY: Well, I mean the company 20 - it is the company's policy and program. 21 MR. McGHEE: So they would basically 22 set up how they want to pull names however they 23 choose to do so? 24 MS. SILVEY: The random program, 25 testing, has to be done in accordance with the 310 1 rule. And the rule sets up the minimum 2 requirements for that. So it has to be a 3 statistically valid sampling process. 4 MR. McGHEE: Meaning that there will 5 be a union official there when they do that 6 process? 7 MS. SILVEY: I didn't say that, no. 8 MR. McGHEE: There will not be a union 9 official there when they do that process? So we 10 don't know if we are doing it fairly or not; 11 we'll just have to go by what they say? 12 MS. SILVEY: What was your last 13 comment? 14 MR. McGHEE: We would not know if they 15 were doing it fairly or not, we would just have 16 to go by what they say? Because if there is not 17 a union official there, we'll have to go by 18 whatever the company says. 19 MS. SILVEY: When you say if there is 20 not a union official there, what do you mean, 21 there? 22 MR. McGHEE: When they are getting 23 ready to give you a random drug test, and they 24 pull it on a computer, and they say, 590 pop up, 25 when they come to us and say, well, your name 311 1 popped up, will there be a union official or 2 somebody there to say, well, we didn't get your 3 name and put it in the barrel with the rest of 4 them. 5 MS. SILVEY: That is not included in 6 the proposed rule that a union official be there. 7 But there is a requirement for how the random 8 sampling program should be set up. 9 MR. McGHEE: And it should be set up 10 how? 11 MS. SILVEY: Valid statistically based 12 program, computer based or other valid; valid, 13 statistically valid methods such as a random 14 number table or a computer-based random number 15 generator. 16 MR. McGHEE: Okay, so basically the 17 computer would just spit the numbers out, or the 18 names out? 19 MS. SILVEY: That's right. Each miner 20 shall have an equal chance of being tested each 21 time selections are made. So the only thing I 22 would say to you is, whatever random program is 23 set up has to be set up in accordance with the 24 provisions of the proposed rule. 25 MR. McGHEE: Okay, I understand. 312 1 Thank you. 2 MS. SILVEY: Thank you. 3 Next speaker please. 4 BIRMINGHAM VOICE: There's no more 5 speakers. 6 MS. SILVEY: Are you sure? 7 BIRMINGHAM VOICE: No, I'm not sure. 8 MS. SILVEY: Well, let's be sure. 9 MR. WELDON: Ms. Silvey, this is Joe 10 Weldon again. I was just wanting to make a 11 comment. On the random testing. 12 MS. SILVEY: Yes. 13 MR. WELDON: I heard what the 14 gentleman said, and I heard what you said. But 15 again I want to reiterate that sometimes 16 discrimination does come into play. 17 I'd had a pretty heated discussion 18 with a company official, a few months ago, and so 19 it came time for drug testing, and I randomly 20 came up about the next five times that they had 21 it in a row. 22 I questioned them about it, and it 23 just happened. They said that somebody was off, 24 and I just happened to be the next one to take 25 their place. 313 1 I don't feel like the random that 2 they do is fair. I feel like that if somebody is 3 there, specifically a union official, who tries to 4 do his job and do right, sometimes is put ahead 5 of other people to be randomly checked. 6 And I told them they could check me 7 anytime and they could find orange juice and 8 oatmeal. And I got tested as many times as they 9 wanted to. But I don't feel like it's always 10 fair in the way that they do it. 11 And maybe there should be some 12 provisions put in the random testing to assure 13 people that they are not being discriminated 14 against and that it's done properly, it's done 15 fair, straight across the board. 16 And any of the times that I have been 17 in there, I've never had a company man in there 18 any of the times that I have went. So I don't 19 feel like their random testing, any of them that 20 they are doing, is not being done and not being 21 discriminated against. 22 And I thank you for your time, and 23 maybe y'all will look into that as well. 24 Thank you. 25 MS. SILVEY: Okay, thank you. I 314 1 appreciate it. 2 Anybody else? Anybody else who 3 wishes to make testimony? Anybody else in 4 Birmingham? Nobody else in Birmingham? 5 Okay, thank you. If nobody else 6 wishes to provide testimony, then I want to again 7 say that MSHA, the Mine Safety and Health 8 Administration, appreciates your comment and your 9 testimony, your suggestions to us, your concerns 10 about the proposal, and we appreciate your 11 attendance here, and for those of you who have 12 been here from the beginning, this morning, until 13 now, we sincerely appreciate that. 14 I would like to state to you that we 15 will take your comments and your concerns, your 16 testimony, look at that and evaluate that in 17 terms of making a decision, with respect to the 18 final rule. 19 I encourage everybody if you have 20 additional comments that you get them to us 21 before the record closes on November 10th, 22 midnight Eastern Daylight Savings Time. 23 And again on behalf of MSHA we 24 appreciate everybody's attendance, and at this 25 time the public hearing on MSHA's proposed rule 315 1 on alcohol and drug-free mine policy, 2 prohibitions, testing, training, and assistance 3 is concluded. 4 Thank you. 5 (Whereupon, at 6:05 p.m., the 6 proceeding in the above-entitled 7 matter was adjourned.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25