UNITED STATES OF AMERICA MINE SAFETY AND HEALTH ADMINISTRATION + + + + + PUBLIC MEETING TO DISCUSS USE OF OR IMPAIRMENT FROM ALCOHOL OR OTHER DRUGS ON MINE PROPERTY + + + + + MONDAY, OCTOBER 31, 2005 Sheraton Suites, Lexington 2601 Richmond Road Lexington, Kentucky 40502 + + + + + The above-entitled public meeting convened, pursuant to notice, at 9:03 a.m., EDWARD J. SEXAUER, Chief, Regulatory Branch, Office of Standards, Regulations and Variances, MSHA, presiding. PRESENT: GENE AUTIO, Metal/Nonmetal Division, MSHA, BILL BAUGHMAN, Regulatory Specialist, Office of Standards, Regulations, and Variances, MSHA, ELENA CARR, Drug Policy Coordinator, Department of Labor Drug Policy, BILL CROCCO, Accident Investigation Program Manager, Coal Mine Safety and Health, MSHA, JENNIFER HONOR, Attorney, Solicitor's Office, Department of Labor, TOM MACLEOD, Directorate of Educational Policy and Development, MSHA. Received OSRV/MSHA 11/08/05 AB41-HEAR-4 P-R-O-C-E-E-D-I-N-G-S (6:59 p.m.) MR. SEXAUER: Good morning, my name is Ed Sexauer, I'm the Chief of the Regulations Development Division in the Office of Standards, Regulations, and Variances for the Mine Safety and Health Administration. On behalf of David Dye, the Acting Assistant Secretary of Labor for Mine Safety and Health, I welcome you to this public meeting. This meeting provides an opportunity for you to comment on the topic of the use of or impairment from alcohol or other drugs on mine property. With me this morning are other individuals from the Department of Labor. On my left is Elena Carr. Elena is with the Department of Labor Drug Policy -- well, she is the Drug Policy Coordinator for the Department of Labor and directs the DOL Working Partners for an Alcohol and Drug-Free Workplace program. To her left is Tom MacLeod, who is with the Directorate of Educational Policy and Development, Mine Safety and Health Administration. And, to his -- well, Bill's not up at the table yet. Bill's at the back of the room but will be coming up shortly. Bill Baughman, who is a Regulatory Specialist with the Office of Standards, Regulations, and Variances for MSHA. On my immediate right is Bill Crocco, who is the Accident Investigation Program Manager for Coal Mine Safety and Health, for MSHA. On his right is Gene Autio, Industrial Hygienist in the Metal/Nonmetal Health Division. And, to Gene's right is Jennifer Honor, an Attorney with the Solicitor's Office, Department of Labor. This group at the panel will be following up at this meeting and developing whatever options or recommendations, regulations, and so on ensue as a result of -- if any, as a result of these meetings. This is the fourth of seven public meetings. These meetings were announced in an Advanced Notice of Proposed Rulemaking, published in the Federal Register on October 4, 2005. We held meetings last week in Salt Lake City, Utah, St. Louis, Missouri, and Birmingham, Alabama. We will hold other meetings this week in Charleston, West Virginia and Pittsburgh, Pennsylvania, and we'll follow up with our final meeting in Arlington, Virginia next week. The Federal Register document has detailed information about the dates and exact locations for the meetings, and it also discusses MSHA's reasoning behind the ANPRM. There are extra copies of the document in the -- at the table in the back of the room. The purpose of these meetings is to gather information about the use or impairment from alcohol and other drugs on mine property. We will use this information and any written comments that you or others may submit to help us make decisions about whether we need to change our existing regulations, develop new regulations, or provide training or other assistance to the mining community. We believe there may be a variety of approaches to addressing problems of alcohol and other drugs, and we're seeking information relating to both regulatory and nonregulatory solutions. The information we obtain from these public meetings and written comments will help us to develop a more informed understanding of the problem and it's solutions. Our preliminary review of our fatal and nonfatal mine accident records revealed a number of instances in which alcohol or other drugs, or drug paraphernalia, were found or reported, or in which the post-accident toxicology screen revealed the presence of alcohol or other drugs; however, our accident investigations do not routinely include an inquiry into the use of alcohol or other drugs as a contributing factor. Consequently, there may be many instances in which alcohol or other drugs were involved in accidents, and either are not reported to us or we do not uncover them during investigations. Because we are concerned that alcohol and other drugs can created risks to miner safety, we have initiated a number of education and outreach efforts to raise awareness in the mining industry of the safety hazard stemming from the use of alcohol and other drugs. They include alliances with four international labor unions, production of awareness videos on the hazards of alcohol and other drugs, monetary grants to States to provide substance abuse training, and stakeholder meetings at the local level to discuss these issues and raise awareness of the problems. Additionally, during a one-day summit we conducted with the States of Kentucky, Virginia, and West Virginia, in 2004, several coal mine operators described the effectiveness of their drug-free workplace programs and expressed their concern that such programs were not universal in the industry. The significance of the problem of alcohol and other drugs in the workplace has been recognized by the federal government. A number of programs have been implemented and various statutes enacted with the goal of reducing the use of alcohol and other drugs in the workplace. For example, the Anti-Drug Abuse Act of 1986 allows the Secretary of Labor to initiate efforts to address this issue. The Omnibus Transportation Employee Testing Act of 1991 requires the transportation industry employers to conduct drug and alcohol testing for employees in safety-sensitive positions. The Drug-Free Workplace Act of 1998 establishes grant programs that assist small businesses in developing drug-free workplace programs. And, DOL's Working Partners for an Alcohol and Drug-Free Workplace, of which we are a partner, is a public outreach campaign, raising awareness and assisting employers to implement these programs. On the regulatory side of the issue, we currently have a safety standard for metal and nonmetal mines that addresses the use of alcohol and narcotics at these mines. The language is the same for both surface and underground metal and nonmetal mines, and simply states, "Intoxicating beverages and narcotics shall not be permitted or used in or around mines. Persons under the influence or alcohol or narcotics shall not be permitted on the job." Between January 1, 2000, and June 30, 2005, we issued 75 violations of the metal/nonmetal surface standard and three violations of the metal/nonmetal underground standard. We do not have a similar standard for coal mines. Using drugs or alcohol in a mine can impair a miner's judgment significantly at a time when a miner needs to be alert and aware. Even prescription medications can affect a worker's perception and reaction time. Mining is complicated and a hazardous occupation, and a clear focus on the work at hand is a crucial component of workplace safety, therefore, through these public meetings and written comments, we're seeking data and information about six general topics that we've outlined in our Register notice. They are as follows: A, the nature, extent, and impact of substance abuse at the workplace, including how to measure the extent of the problem; B, the types of prohibited substances in use and the problems they present; C, the impact of effective training to address substance abuse; D, how our investigation of accidents could address alcohol and other drugs; E, the aspects of a drug-free workplace program and how well they work; and, F, the costs and benefits of addressing substance abuse at mines. The Federal Register document poses several questions about each of these issues that I just mentioned, and we encourage you to respond to these questions specifically, either in written comments or today, if you'd like. The procedures for each of these public meetings is the same. Those who have notified us in advance of their intent to speak, or who have signed up today, will make their presentations first. After all scheduled speakers have finished, others are free to speak. We'll conclude this public meeting when the last speaker has finished. This meeting will be conducted in an informal manner and formal rules of evidence will not apply. The panel may ask questions to clarify statements for the record, but there will be no cross-examination of the speaker. If you wish to present any written statements or information today, please clearly identify your material and give it to me before the conclusion of the meeting, and then I will identify the material for the record by the title that you've submitted, and you may also submit comments following the meeting, but you must submit them by November 27, which is the close of the comment period. You may submit comments to us by electronic mail, fax, or regular mail at the addresses listed in the Federal Register notice, again, at the back of the room. A transcript of this meeting will be made available on our website within several days. Thank you for your patience and attention to these introductory remarks. We will now begin with persons who have requested to speak. To ensure an accurate record, please state your name and organization clearly, and then spell your name. Our first speaker this morning will be Elaine. MS. OZMENT: I was hoping to go later. MR. SEXAUER: Welcome. MS. OZMENT: Thank you. My name is Elaine Ozment, E-L-A-I-N-E O-Z-M-E-N-T. I'm with Prevention Research Institute, here in Lexington. Looking over your paper, it was interesting that item E is drug-free workplace programs, because I(m going to talk to you about education, which also starts with an E. When I was -- first heard about the problems in Kentucky, I was familiar, a little bit, with the problems, because I worked for the railroad. The transportation industry, the mining industry, and the construction industry all seem to have an environment where alcohol and drugs are extremely prevalent, so to address this issue, I think that we -- the kind of education that we are preventing is not meeting the need. In this statement, it says that a lot of the education evolves around awareness, raising awareness, and that's good, but raising awareness is not necessarily going to motivate a person to make changes in their personal alcohol or drug use, so I'm suggesting a kind of education that will help miners, their families, and the community, and eventually, hopefully the entire work environment, to make low risk choices when it comes to alcohol and drugs. If a person's going to operate heavy mining equipment, they're very carefully trained, and they're qualified on that machinery before they can operate it, because safety is a primary concern. People are not given education about how to use alcohol and drugs, and as a result of that, they make very high risk choices and the environment in which they work is very unsafe. I have -- the Prevention Research Institute has developed a curriculum called Prime for Life, and Prime for Life is a lifetime risk reduction model that addresses all of the issues that would be involved in your needs, so I would just like to ask you to rec -- consider having a kind of education where the person can make choices that will make them safer employees and have better consequences for themselves, for their lives. Thank you. MR. SEXAUER: Wait a second, don't go away yet. MS. OZMENT: Okay. MR. SEXAUER: Does anyone -- Tom, do you have a question? MR. MACLEOD: First, thank you for coming, we do appreciate that. In looking at the issue of education, do you have any statistics that would suggest that training, in and of itself, is a significant deterrent? In context to my question, what we've heard in the last week or so is that, essentially, various forms of drug testing seem to be the -- you know, the more important methodology for controlling and keeping people from doing drugs, and I'm hearing you talk a little bit about training. Can you talk a little bit more about maybe what research has been done to show that this type of training, actually is, you know, producing a positive effect, in terms of people not utilizing drugs? MS. OZMENT: Probably, the best way to do that would be to look at DUI recidivism rates, and there's quite a bit of statistics involved. We have, just in our company, Georgia, Iowa, Tennessee, South Carolina, Ohio, who have been using Prime for Life in their DUI programs. The five-year recidivism rate for the people who have completed Prime for Life was 13.5 percent. So, we know that if you want long-term results, people have to make this decision internally, and they have to understand that the things they value, they can protect and it becomes a lifestyle in which they make low-risk choices. In Nashville, three-year recidivism rates for first-time offenders using Prime for Life, they had a 7.78 percent rearrest rate and a 4.47 rearrest rate for DUI, so recidivism can be reduced, which means -- this is the population, you know, most people who get DUIs are also employed, so that means that this would directly relate to your workers that you're trying to address. MR. MACLEOD: Is this program connected in any way to, like, the Workers' Comp rules and regulations of Kentucky? In other words, if you were to use Prime for Life, are you given, you know, 10 percent, 15 percent off your Workers' Comp? I mean, is there a nexus between those two? MS. OZMENT: Not yet, but it's a good idea. MR. MACLEOD: I was just wondering. Thank you. MR. SEXAUER: Do you want to -- MS. CARR: The prime for Life program, could you describe, in terms of intensity, is this a multi-day type of thing? One of the issues, certainly, in training miners is that they -- there are a lot of things they have to be trained on, so time is of the essence. Is this program -- is this something that would be -- parts of it, appropriate for all miners, or is it targeted, specifically, to high-risk populations? And, how long in duration is it? MS. OZMENT: It can be adapted. It can be a six-hour program, it can be -- an eight-hour program would be the most effective for the training you're talking about, because what we do is prevention and intervention, and it's also used as pre-treatment. The program shows people what they value, how they protect the things that they value, and it also shows the four stages that progress people from what you would call a social drinker up to addiction. So, there are four phases of this addiction, and the program shows them those four phases, and a person is allowed, then, the opportunity to see, then, where they are and make a self-assessment, and in making that self-assessment, that's part of the process where real change occurs and behavior does change. MS. CARR: So, it sounds like though it's for targeted high-risk populations, primarily? MS. OZMENT: We've also used it, though, with nursing programs and with people who work with addicts or people who work in recovery. I've heard many people in recovery say that they wish they had had this sooner so that they could help friends and family members. There is a biological factor to addiction, and so, many times, the person that is caught with the DUI, for instance, is coming out of an environment, a family environment where there's a lot of high-risk, either alcohol or drugs, so this program can be adapted to peer prevention and it can be used for -- like I said, it's used in Kentucky for the under-21 program, and so it can be used in prevention, it can be used for intervention, and there is a 20-hour intensive program, and that's what, in Kentucky, the DUI offenders go through, a 20-hour program, and Prime for Life is one of those programs that we use, one of the two programs we use in Kentucky. MR. SEXAUER: Do you have any written material you could submit to us that could describe the program -- MS. OZMENT: Yes. MR. SEXAUER: -- in some detail? MS. OZMENT: Certainly. In fact, I have a packet I'd be glad to leave with you. I have three of them, so I would like for Elena to have one too, anyone else, and I would be glad to send you more. MR. SEXAUER: Great, could I -- could you let me have that right now, and I will just get it into the record? Thank you. This is a document entitled Prime for Life, developed by -- MS. OZMENT: Prevention Research Institute. MR. SEXAUER: -- Prevention Research Institute. Okay, thank you. Okay, our next speaker is Ed Elliott. MR. ELLIOTT: My name is Ed Elliott and I'm the Director of Safety and Health for Rogers Group, Incorporated, and that's, of course, E-D E-L-L-I-O-T-T. Rogers Group is a mining and construction company. We've been in business since 1908 and it is a privately held company, and it's still held by the family members, the direct descendants of Ralph Rogers, the founder of Rogers Group. Give you a little bit of background about Rogers Group to kind-of tell you where I'm coming from, we have approximately 1,500 employees and we're in five different states. Our corporate headquarters is in Nashville, Tennessee. Many of our operations will be somewhere in the neighborhood of anywhere as few as three people at an operation to as many as 50, but in most instances, it will be a very small operation that will be somewhere between three and 20 employees, and of course, the government looks at small businesses a little different than it does at MSHA and the mining industry. But, I wanted to, if I could, to take just a few minutes and use the document that you put out, and I would like to kind-of go through that document and comment on some points. First of all, about the State grants program and the money that is provided to that State grants program for training and education. I use every opportunity for the forum that I can, that the Mine Act provided for a certain amount of money for funding of the State grants program and that money has never been fully funded -- has never been fully requested by MSHA to be fully funded, and in my estimation, one of the most critical parts of any substance abuse program is education, and funding needs to be put in the State grants program and have it to be mandatory that that money be utilized for substance abuse education, similar to the programs -- there are many great programs out there already. It's not something that has to be reinvented, but I think that's an important aspect of -- the Department of Labor needs to see that that State grants program is fully funded. Another aspect, under item 4, talk about issues, about helping to evaluate whether there's a need for additional federal action to address safety risks stemming from alcohol and other drug use by miners, and if so, whether this should involve rulemaking and what that regulation should include, and I'll talk a little bit more about that as I go through my presentation, but it is -- it's important that -- I don't what regulation that's produced by the government, that's not going to make the difference. It has to be people that make a firm commitment, because it's the right thing to do. We are, in my estimation, in a struggle, societally, to address the substance abuse issues, and if we don't make a commitment, each individual company, because it's the morally right thing to do, then regardless of the number of regulations, you're not going to be able to prevent this from happening. So, that's important to consider, that any regulation that be put forth can't be something that is all-encompassing, because it's just not practical, but there are some fundamental concepts, I think, to reinforce the need for companies to provide some forms of substance abuse prevention in their companies, and I'll talk about that in just a little bit later. But, as far as the nature and extent of the impact and the problem, the first question, "What specific substances are most prevalent and pose the greatest threats to mine safety and health?" And, I think that's basically what we have found, it's marijuana and cocaine. You have a number of other substances, and I'll talk a bit about those later, but those are the two that seem to be the most prevalent problem. Then, second, "Based on your experience and knowledge of the industry, how widespread is the use or misuse of alcohol or to her drugs in the mining workplace?" And, I'll tell you a little bit, to start with, about my personal background. I've been in the metal/nonmetal mining industry with Rogers Group for 20 years. Prior to that, I worked five years in a surface coal mine in Indiana. So, I have little bit of a background of 25 years of looking into this issue, and I think you've -- we've seen a gradual movement, more and more, toward -- alcohol used to be the thing. I can remember, there were some operations that Rogers Group has had the good fortune to make an acquisition, and we went into the operation and surprisingly, when we tested, and I know this will -- it shocked me, but we tell the operation that we're going to test and we have an orientation meeting where we bring everyone in. It was on a Saturday -- brought everyone in and go through training, talk about what we do and they even brought -- some of them brought their families with them, and then, we tested for alcohol, and then, other substances, through urinalysis at the end of that meeting. Everybody knew we were going to do that, and it was amazing to me that one of the employees came back legally intoxicated for alcohol, and it's quite amazing, because we had to ask that person, of course, to leave and they wouldn't be hired, but they brought their wife and teenage daughter with them. That just tells you where the problem is pretty pervasive, and some people, we found in this operation, that actually, at lunch time, it was not uncommon for them to shut down, come down to the office, and the owner of the place and the people that wanted to, they'd have a few beers at lunch time and then go back to work, and then one of the employees told us that actually -- he operated the plant, the primary crusher, and he said that generally speaking, he brought two or three beers with him every day to have in the afternoon to kind-of make the day go by. So, it's out there. And, that regulation, as you rightly pointed out, has been in nonmetal -- metal/nonmetal mining for a number of years, but it goes back to the core beliefs of the operators, themselves. It is widespread, but I don't think it's any more widespread than the general population. I think it would stand that statistics, there have been a lot of studies that have come out, but about 75 percent of the people that use drugs work -- are in the workplace. They're working to maintain that habit, and I think you'll find a positivity rate, in general instances, of about 15 percent in most workforces. I don't think it's any -- it's really any different in the mining community. "How severe a risk does the use or misuse of alcohol and other drugs pose to miner safety?" I think it is significant not only for the user, but unfortunately, for the people that that user may impact during the workday, and one very significant aspect concerning alcohol use is not just the fact that the person might be drinking on the job or would be legally intoxicated, but the sickness coming from a hangover can dramatically affect a worker's performance. So, you have a number of different factors that are in place there. "What accidents or injuries at your mine in the last five years have involved alcohol or other drugs?" Honestly, we have a very, very low positivity rate. One of the reasons for that is because, since we have been instituting a drug-free workplace program since 1989. It has evolved, and I will tell you, in 1989, there were not that many people in the mining industry that had any kind of program, and we had the debate, yes we did. This is going to cost us a lot of money. We don't have that many people that use drugs. But, I will guarantee you that I don't care how any expert that you see, they will not be able to tell you who is using drugs and who isn't. You can look at the person and they can be a person in a suit and a tie, they can be someone that's just a person in a t-shirt and a pair of jeans. You can't tell. You cannot tell, and the only way to determine that is through testing, and that's critical. But, it's -- we have -- right now, we did 1,076 tests so far this calendar year, and that's through October -- excuse me, through September, and in those tests, we had 54 positives, and 90 percent of those were post-offer, or new hire. And, I think the biggest -- one of the most important reasons that people will stay off drugs or not use drugs is because they know you test, and they need that job. People need the job, and they don't want to lose their job. It's amazing that people will -- a lot of things they may consider losing in their life, as far as material things, but when it gets down to it, they don't want to lose that job because they need that to continue living. The next section, prohibited substances and impaired miners, "Should we revise the existing metal/nonmetal standard and establish a standard for coal mines? If so, how?" And, I honestly believe that it's -- it's no different in coal mining or in metal/nonmetal mining. The material we mine is a different color, but the people that are in that mining operations, they are all basically the same kind of people, and I think there should be some type of rulemaking that provides a standard that a coal operator could use as a fundamental basis for why they need to test, if they had no other reasoning behind it. But, I also believe that it is very important that if you look at the circumstances, I think, surrounding the DOT testing, the DOT testing levels today are, I believe, antiquated in that they miss, somewhere around, I would say, 10 to 12 percent of regular drug users through the DOT tests. The DOT test is a five-panel test. It was an initial stab at doing this, and I know that it was tremendous resistance when it came to many quarters with respect to establishing standards for testing. Rogers Group, and I will provide you a little bit later on, our -- a copy of our substance abuse policy and procedures, which give the levels that we test at. We use low-standard testing, which is significantly lower than DOT, but it meets all of the forensic requirements and legal standing, and it is a -- it does catch approximately 10 percent additional people that are in that range between where the low-tolerance standard is and where the DOT standard is. And, drug users, today, are much more sophisticated than the drug users of 15, 20, 25 years ago, and you can go out on the internet and find -- you can purchase urine, you can purchase all sorts of adulterants that can be used, you can purchase, at many of the local health stores in -- around any locality, materials that will clean your system, and they will double your money back guarantee that if you take this, then you will pass a standard, or DOT, drug test. So, the desperation and the technology has been keeping up with it, but I think those standards -- as I say, those initial standards, the DOT standards, although excellent at the time, are probably a little antiquated today, and we have found -- I can't quote any statistics here today, but we have found a number of people that, as I say, would have passed the DOT test, but would not pass our low-tolerance testing procedures. "What substances should be prohibited? Please include comments on controlled substances, alcohol --" and that, I think it's pretty common, when you look at the five-panel test, of course, and alcohol -- or, you have marijuana, cocaine, opiates, amphetamine, and phencyclidine, but also, think barbiturates and benzodiazepines, the seven-panel test, should be recommended. It will catch more drugs, not only the drugs that I mentioned, the most prevalent marijuana and cocaine, but also prescription drugs, and that is coming into the forefront and becoming more popular for people using those in an illegal fashion, and we have a section in our policy that addresses improper use of prescription drugs, and I'll refer to that just a little bit later. "How should impairment be determined, and who should make the determination?" And, when we talk about the impairment, there should be some automatic triggers for impairment, and those, generally speaking, are going to be those levels that I've mentioned to you. Of course, when I think the levels that are in the DOT, we use a -- an alcohol level of .08. I know there are triggers lower than that in the DOT, .04, and I think those, though, are in circumstances where someone is in a position to where they would just be removed, and I -- I'm not going to quote it directly, but in general terms, they would be removed from service for a period of time and then could go right back to work. What we do if a person tests at these levels of .08, then there are much more severe actions that take place to address that, and then I mentioned to you, concerning our low-tolerance standard tests, and I will provide you those numbers of what we use as the cutoffs, which are somewhat different from -- or, significantly lower than the DOT standards. "What actions should operators be required to take once an impaired miner is identified?" And, this is something that -- I think you have to look at it from two perspectives. One, you have to look at it prior to test results. If you consider the possibility of a circumstance where an individual might be under the influence, we have approached it two different ways. A person can either be suspended, pending the outcome of the investigation, and a part of that investigation would be a substance abuse test, or we have taken the tack of suspending people with pay. It would depend on the circumstances of the event, the severity of the event, the investigation, and whether it would appear to be something that is directly related to substance abuse. For instance, if you found, let's say, a truck driver in a haul truck, property damage, a pretty significant incident, and the person, you found a bottle of beer in the cab of the equipment, I think our approach would be, we would suspend them without pay, pending the outcome of the investigation. There could be other circumstances where there was nothing seen, the person had an excellent performance record, good attendance, and there was nothing that would cause us to suspend them without pay, but then, in turn, we might -- depending on the circumstances, suspend them with pay. It's just -- each instance, you have to take on it's own merits. But, the manager of the location has to be able to articulate the reasons for the approach that they would take. We would not, at that instant, terminate someone, because most cases, you do something based on the emotion of the moment, chances are, it's probably wrong. So, we try to do a thorough investigation and look at all the factors. "What policy or procedures do you have regarding employees who are using legally and properly prescribed drugs that may cause impairment?" And, I will read directly from our policy: Prescription drugs may be taken only under the direction of and personal prescription by a Physician. It is the responsibility of the employee to discuss with the prescribing Physician and understand the potential side effects of medication. Any potential impairment of the safe and efficient performance of assigned duties caused by the medication must be discussed with supervision prior to beginning work. First of all, the prescription, we're not talking about something that is Workers' Comp related, now, we're speaking of something that is not work-related requirement for prescription. That is your own personal business. That is nobody else's business what prescriptions you are taking, but we make sure that we convey to our employees, in annual refresher training and at other opportunities, that if they are taking prescription drugs, it is their responsibility to discuss that and what their work requirements are with their personal Physician, to determine how they may be affected in the workplace by taking that prescription. We would say to our supervisors, in supervisory training, "If an employee comes to you and says to you, 'The Doctor said I need to take this medication for the next two weeks and an hour after I take it, I'm not supposed to be able to drive a truck,' and that person's assignment may be operating a truck," well, we tell our supervisors that, "it's your responsibility to make sure that that person (1) doesn't drive a truck during that time, but give them some other activity to perform." There's always something that could be done. Our objective here is not to put the employee in a position to where they would take a prescription drug and feel like they can't tell us about it because we would send them home. You've got to treat that person like you would want to be treated. Now, if the individual came to you and said, "The Doctor said I cannot operate my truck at all for the next two weeks," I think you'd look at circumstances in that case and determine whether you can provide work over that period of time, or whether the employee could go back and say, "Okay, if you can't drive a truck, can you do this task? Can you clear that with your Physician?" But, we try to place the primary responsibility with respect to prescription -- excuse me, prescription drugs on the employee themselves to discuss with the Physician -- with their Physician, and then, to discuss with their supervisor if there needs to be any accommodations made. Now, I want to say, there are circumstances that we have had employees tested, and they will come back positive for a prescription drug, and we ask them to provide documentation of that prescription, and they're unable to do so, and we say, "If they are not able to provide the prescription, that is an illegal drug." It's -- there's no two ways about it. There are circumstances to where they may say, "Well, my wife went to the Doctor and had this drug prescribed for her, and then I just took it because it was the same problem that my wife had." Well, we can understand the circumstances that may dictate that. I would venture to guess that many of us sitting here, and those of us in this room, have maybe done that at some point in time. What we would do is require that person to provide a copy of that prescription, and we would also require that person to go to their personal Physician and dictate -- or, indicate to the Physician what they had done, and would the Physician have potentially prescribed this drug for them to use in this circumstance? And, in that case, depending on what the Physician would say, or -- and the reasoning behind it, and the degree to which the person was using an improper -- a prescription in a proper manner, we would address that on a case-by-case basis, but there's no question, that is just as much a violation of our substance abuse policy as it is, using any other illegal drug. Talking about training, "Should our regulations address training and the prevention of alcohol and other drug misuse? If so, how?" If you want to talk about changing regulations, in my estimation, part 48 that the coal industry is under is ridiculously antiquated. Fortunately, the metal/nonmetal mining industry, several years ago, developed what is now known as part 46, which allows a significant amount of flexibility in what can be used in training, and in my estimation, the coal industry should have the similar flexibility. There's no question there should be recommended subjects that should be in any -- whether it be part 48, 46, or whatever other number you would want to call it, but it is very restrictive under part 48 as to what the operator can use in their training, and any modification, whatsoever, in their training plan has to be approved by the District Manager. So, if a mine operator, working hard, they've sent in a training plan and it fits, they've got to say, "Hey, I can't change, I can't deviate from this training plan, or I'm going to have to go all sorts of -- through approval processes. We just do whatever's on our plan," and I think it is a roadblock to allowing operators to be more flexible in their plans, and I would encourage the Agency to look at that as a possible rulemaking in the future that could indirectly help address this issue as well. "Who should receive this training?" It's obvious. Everyone -- every person, and you would receive a little bit different types of training. I think it's important that hourly employees receive general training about substance abuse, and also, supervisors need to receive training, that same training, but also some additional training in dealing with the recognition of the problem and how to deal with it, and that is tough. When you're in a workplace and you suspect an employee that works for you, that may be under the influence, it's not always easy to go up to them and say, "Hey, I want you to go for a drug test." So, giving supervisors some additional training on that, and also giving the supervisors an opportunity to be able to go to some other person to assist them within a company. For instance, the supervisor may go to the Mine Manager, or they might go to the Human Resources Department, depending on how large their company is, or maybe to the safety person, to help them do the right things when it comes to that. "What topics should be included in the training?" And, I've mentioned some of those. EAP, your substance abuse policy, about the drug hazards, and there's tons of educational information, so I'm not going to go back over that again. "What training do you provide to address alcohol and other drug misuse?" New hire training, we go over -- that's a part of it, and our annual refresher training, we cover it each year. We also emphasize our Employee Assistance Program, the EAP, and I think you can't have a substance abuse policy without an EAP program, and that EAP program needs to be administered by a professional organization, and it's not that expensive. There are many of them out there today that will help you for a nominal fee, but I think that's an important part of making sure the employees know that that information, also, is confidential. The -- in our company, there is one person that has knowledge with respect to what goes on within our EAP program and how it's accessed, because there are circumstances in our policy where if a person were to need some type of lengthy counseling or lengthy time away from work, you have to make a provision for their leaving work, so you have to know that they may be involved in the EAP program. You don't have to know, specifically, what for, but we would work that -- tell the supervisor this individual is in the EAP program, they are excused from work for a period of time, and so forth, but any access to the EAP needs to be confidential with the employee and the EAP provider. Talking about investigations, and I won't go into the section as you list in those things that are required in an investigation on -- I think that's mostly coming from the -- what is it, 7001 form that must be filled out on any reportable injury, but in the second part, here, it says, "What type of alcohol and other drug use inquiries should be made after accidents?" And, I think there ought to be a requirement for an immediate test, and that test could be required through regulation, although it would be better that the test be required by the company itself. "What degree of accident or injury should trigger an inquiry?" In my estimation, a person should be tested for any reportable injury, not just an accident as MSHA defines it, but for any reportable injury. We have a tendency, I think, in the -- in this industry to look at fatalities, and that's the -- there are really not as many fatalities today -- there's not enough of a statistical measure to tell you what kind of problem might be out there, but I think if you did reportable injuries and people knew that if they had a reportable injury, that they were going to be tested for drugs, and there would be other implications if they were positive, I think that will cause people a deterrent factor. "How should the information collected in the inquiry be used, and by whom?" I think first and foremost, if a company has a policy, then I think that policy, they would have the information, and then, that information should then be shared in an appropriate way, even just the -- maybe just the specific results, with the Mine Safety and Health Administration, Department of Labor. And, I know this is -- this may sound a bit controversial, but I am going to say, I think, similar to smoking in mining, I believe that if an employee has a reportable injury and tests positive, I believe that employee should be cited. They are cited with respect to use of tobacco products in/around explosives or in underground mining, and in my estimation, the individual employee should also be subject to a citation for use of illegal drugs or alcohols to levels which would make that -- it illegal use. Also, you have aspects of this that have to be considered, then. There may be a person who is actually under the influence of drugs may not be injured. They may be the person that inflicted injury upon someone else, and that's where you would potentially look at if a company were to not have a policy, then I think that should be an administrative violation. I think there should be a requirement to have a -- whether you call it a substance abuse policy or drug-free workplace policy, I think there should be a requirement that they have some type of a policy. Then, you get into the drug-free workplace programs. We do have a drug-free workplace policy, and I -- as I mentioned earlier, I will share that with you for -- you can peruse that at your leisure and make copies of it, or -- and can include it verbatim in the record, as far as that's concerned. We've shared this with any number of people, and one of the things, when any company tries to develop a drug-free workplace program, it sounds easy and there are a lot of boilerplate ones out there that put together, and I want to give a little bit of a plug, here, to the NSSGA/MSHA alliance, the core principles of a safety program. This is something that is being -- it has been approved by both the National Stone, Sand, and Gravel Association and the Mine Safety and Health Administration, and I(m sure all of those here that work or know the Agency, to get something like this approved, there are so many hoops, including the Solicitor's Office that it has to go through, it's a pretty monumental undertaking, but one of the parts of core principles of a safety program is a substance abuse prevention program, and this is going to be available to all mine operators, and it would be available regardless of this applies, whether it's coal or metal/nonmetal, but this is being printed and is going to be distributed in the very near future, both by enforcement personnel and metal/nonmetal, and I think it should be the same with the coal. I don't think, even though the -- we look at coal as being on the dark side sometimes, we won't -- but that's a -- it's something that's out there for the boilerplate programs, but it takes years to really develop the nuances of your program to fit the culture of your organization, and our substance abuse policy has gone under a myriad of changes over those -- now, almost 16 years that we've had it in place. As a matter of fact, we had a minor change just in the last few months to try to make it more effective. And, the thing -- in our company, it's a -- it's kind-of interesting, generationally speaking. If you get people that are in the baby boom generation, it was kind-of the philosophy, if somebody's using marijuana or cocaine, you know, kill them all and let God sort them out-kind of approach to things. If they're on it, fire them. Now, alcohol, that's a different story. That's just kind-of the thing. It was more of an accepted trait in mining that people, you know, drank alcohol. So, it's something that we have had to work through, and in my estimation, people will -- well, I know, statistically speaking, and I've mentioned this earlier, people will do almost anything to keep their jobs, and telling them they have to get off drugs, it's a good thing, and most people will do whatever they have to do to get off drugs or stay off drugs and not be tempted by them, because they know they're going to be tested. But, what we have done is instituted a program where if someone does test positive and has been with Rogers Group for a given period of time, then they get an opportunity for a second chance. Now, the second chance, it's not three strikes you're out, two strikes, you're out. But, they do give that second chance, and there are people that will argue that the rate of recidivism is significantly high, but we heard some statistics this morning, through proper education, then, that can be greatly reduced, and we've had about a 50 percent rate of recidivism when a person has tested positive and gone through an EAP program, which we do mandate, that they must go through the EAP program. So, this is a part of a drug-free workplace program. I continue to emphasize the EAP program, and that's an important part of it. And, every -- and something also, too, I think it's important that any kind of substance abuse program you have must apply to every employee in your company, and that includes the president and CEO through to the newest-hired person, and there can not be any compromise in that. I won't go over the components of the program, because they're in this document. "What program's components do you feel are most critical and are affective?" Testing is an important part. That's the most important part. You can give all the education and training, that's a critical part, you can't take anyone out of context, but if you have all the training in the world and no testing, it won't work, and you have to have some teeth behind that testing, and I think it's important that you have to do testing at a low-tolerance level and not just a DOT level. "Have you been able to document any improvement as a result of your program?" We first started this in '89. We were getting about 15 percent for positives, and today, as I mentioned to you, we're probably getting about, maybe, four percent, five percent, and the majority of those are new hires. It is amazing how the sophistication of people that you hire today. We tell them upfront we're going to test, and we tell them we have a low-tolerance test, and we say, "Don't waste our time." And they say, "Well, you know, I don't use drugs," and then, invariably, they -- we still have a fairly high rate of new hires that will test positive. "Please provide any data to demonstrate the extent of the problem at your mine," and I've touched on that just a moment ago. "What issues or problems have you encountered in implementing your program, and how have you resolved them?" People will say that what I do off the job is my business. It's just what I do on the job that you should be concerned with. Well, we've heard that, time and time again, but our concern is the effect of what you have done off the job and if it affects on-the-job performance, then that is our responsibility to address that. So, we've gone through that aspect of it, we've also gone through where there were some unions that did not want to use our low-tolerance testing standards, and most of them today have agreed to go along with it, because we've been able to demonstrate and show to them why we are doing it and what we try to do. We try to provide a second chance for people, we want to give them -- help them with EAP, we want to get them off any kind of drugs that they may be using, so, most cases, people have -- unions have gone along with us. "What actions are taken for miners who violate the terms of the policy?" And, I'll just touch on that just for a minute. I'll tell you what the -- fundamentally, what we do as far as our policy is concerned, when we have somebody to test positive. A positive test result for illegal drugs or alcohol impairment, according to testing levels in this policy, or refusal to follow applicable provisions of this policy, if a first-time offense, after the first 180 days of employment, will result in a 15-day suspension without pay. If prior to the first 180 days of employment, the employee will be terminated, and, if in otherwise good standing, allowed to reapply after 60 days. So, if a person has been with us 180 days, we give them suspension without pay for 15 days, then they can return if they are clean. If they are not clean, the suspension would be extended. They must test clean when they come back. And then, there are other aspects that they must comply with an EAP program. The following situations will result in immediate discharge: possession, use, or sale of illegal drugs, or possession of drug paraphernalia, or possession, use, or sale of unauthorized alcohol on or in company property, or at company-sponsored events. If a -- I am fortunate enough to have a company vehicle, and that company vehicle is subject to search at any time, 24 hours a day, because that's company property. And, if I am operating that vehicle and I am stopped and found in violation of this policy, it could be by police test or something of that nature, the provisions of the policy would apply. Non-employees violating this policy will be denied further access to company property for a period of 60 calendar days. We subject any contractor that comes on our property to our substance abuse policy. You can not, as Ms. Honor will tell us, I -- we can not force them to take a substance abuse test, but we can deny them access to our property, which we would do, and we have tested contractors and -- in the past, not recently, and found them to be positive, and have removed them from the site and not allowed them to continue work. So, those are just some fundamental things we went from initially, our policy in 1989, if they tested positive, they were fired with no chance for rehire. Then, we went through an evolution to where we've fired them, and then gave them a chance, after so long, to be rehired. Then, we've kind-of evolved to where we are today. And, I think it -- in all honesty, if you really care about your employees, you want to give them a chance, and I think that's a morally right thing to do, but it's also -- from a business perspective, it's the right thing to do, because today, you invest a tremendous amount of money in training and giving them -- the people, you know, the benefits, and all the time that you've spent with them, and they've become a part of your family, and then, just to throw them out, I think you're -- that's -- it's not a good business decision, either, because you've got to retrain people. I mentioned about supervisory training and we probably don't do as much of this as we should, to educate supervisors on how to recognize substance abuse, but we do, on an annual basis, cover this in refresher training, but probably not as much as it should be, and we do have an Employee Assistance Program, and that Employee Assistance Program, I think, is -- it's not just for substance abuse. It's used more for other things than it is, substance abuse, but it can also be used for a supervisor if they're not sure how to handle an employee, they can call the EAP and say, "Listen, I suspect my employee is under the influence of drugs. How should I approach that?" And, they will provide them that kind of training, so it's not something that's just a life ring you throw to somebody if they're using drugs, it can be very helpful in supplementing your entire program. Talking about costs and benefits, this is probably -- "What costs have you incurred from your efforts to reduce or eliminate drugs or alcohol from the workplace? Please provide the costs by type, personnel, training, equipment." I can't tell you -- I can't go into a lot of stuff as far as -- just because I don't have the information on the amount of training that we provide with this, but we look at it as a part of our overall comprehensive system-safety training. That's a -- it's just a part of good business, whether it be safety or productivity, but I found, it was quite fascinating that the Navy ahs done some pretty good studies over the year about the costs, and they have estimated that a cost of an abusing employee is about $6,600.00 annually. Now, if you take the national average of the people that are using drugs and you're in a company and you do not have any kind of substance abuse program, let's say, 15 percent, and you have maybe 100 people working for you, that means that 15 of them are substance abusers and they are costing you a bout $7,000.00 a year. So, it's costing you $100,000.00 a year in productivity through that. So, I think it's a -- when you -- we have a system now, with our testing procedures, that we have a laboratory that we work with that has both the collection, they have -- it's included in the cost, the collection, the analysis, the potential for it to have a secondary analysis, a gas chromatograph confirmation test, and also a MRO, a Medical Review Officer, and it costs us about $40.00 to $45.00 per test. That includes collection, analysis, and MRO, and in that case, it's really pretty inexpensive when you think about it. Now, each company would be a little bit different, but there are laboratories that will do that. Another thing in our business that is tough, we may be in a very remote -- a very small location and we do not do the sampling ourselves, we do not collect the sample, the people at the operations. That can be done -- people can be trained very easily and very simply to do the collections on-site, and then the things can be -- the chain of custody maintained. They can be overnight delivered to wherever the laboratory is, and then it can be handled that way, but we've -- have different facilities that we will take our employees to for the collections of the tests, so -- but, as far as the costs are concerned, we feel that it is a very cost-effective way to improve efficiency and productivity when you eliminate, or at least, attempt to eliminate the substance abuse policy -- or, substance abuse problems through your policy. And, I mentioned, there, about what these costs -- about this developing an EAP program, and also, a substance abuse/drug-free workplace program, would it be borne disproportionately by small mines, and I don't really see that -- it's going to be a little bit more difficult, because you have a person, maybe, that is -- has multiple tasks, but there are so many programs available today that are boilerplate programs. I mentioned this one has a good one in it, and there are also many of them out there, the government provides you tons of them that you could put together a program pretty easily. Now, going out and finding the laboratory, that would take some up-front work, but today, there are many laboratories throughout the United States that can handle that, and the EAP programs, I think it's the same way. Any association -- the National Stone, Sand, and Gravel Associations, many of the State associations would have -- Kentucky Crushed Stone Association, and I'm sure there's a coal association -- they would have people that could provide names for mines to be involved with a program and be able to provide you names to use if you were a small mine operator. But, I've pretty well gone through the things. I would like to just touch on a few other little minor points, and I think what's going to happen, there is an evolution in the industry. The larger companies do testing. The smaller companies don't. Now, there are exceptions to that, but the smaller companies have a tendency to maybe not feel like they have the funds or don't need to, or whatever the case may be, and what we find is that the employee that doesn(t come to work for us goes to work for someone down the road. They are going to find work to support their habit. If the operators test, the chances are, they know they're going to have to get off to keep a job, so they may -- they will do that. The -- it was interesting, too, the U.S. Postal Service, they did a study and they said users were 55 percent more likely to have accidents, or 85 percent more likely to have on-the-job injuries, and had a 78 percent higher rate of absenteeism, and when we look at some of the factors that not only does it affect directly with -- through injuries and absenteeism, but if you have secondary benefits for employees, that they are -- drug users are three times more likely to access the health insurance than nonusers. So, there is a significant ripple effect throughout an organization that's not always considered. Turnover, typically, users -- there was a study where 37 percent of the users were three or -- had three or more jobs in the last year. Fifty-three percent had two or more jobs in the last year. So, if you hire somebody that is using, you're likely to have -- that person's not going to stay with you very long, probably, because their absenteeism rate goes up and something happens on the job, and either they may be run off or they just decide they don't want the hassle, and -- or, they hear somebody's going to test. Users are one-third less productive, so a person you think you're going to hire -- and just because you hire them, if they're a drug user, they're going to be less productive. And, many studies have shown that a person that is a substance abuser or user of illegal drugs or alcohol, they're going to be three to four times more likely to be involved in a workplace accident, and I want to emphasize "be involved," not necessarily, be the person injured, but they may be the one to cause another to be injured, so that's important. In -- and I just -- in closing, I'd like to say that this is a difficult problem in the mining industry, overall, and MSHA should be credited for being willing to look into this and address this, and I want to thank the Agency for doing that, and the -- both the coal industry and the metal/nonmetal industry, all the mines in the United States are vital suppliers of the products that are necessary to drive our economy and to drive the engine of this country, and the coal industry, I know, where I live in Indiana, is projected to almost double the employment in the next few years, but we have to send the message to people, whether they be in coal or metal/nonmetal, that we want drug-free people to work in this industry. If every industry in the United States, if every company in the United States tested and were aggressive in testing and had appropriate disciplinary action for positive tests, I think we would, basically, eliminate the drug problem in this country, but there's still a lot of places that don't do it. But, I think I(m always hesitant to want the government to get involved and to regulate industry, because invariably, the honorable intentions of a group that puts together a regulation, at one point in time, it's amazing how the interpretation down the road can be changed and it's used to almost, in some cases, looked at as punishment to the operators, because it's tough out there, what's going on, and so trying to find a way through education and training, I think if there were requirements in training, that would be an important way to go, requiring operators to -- that mandate that they have to have substance abuse training, I think that's a very productive way to do it, but having a lot of additional regulations wouldn't be. One aspect you have to consider, if you were, too, to have a regulation to where operators and operators did test, in many States, if an employee is found to be under the influence of drugs, illegal drugs, or alcohol, Workers' Comp does not pay for it, health insurance does not pay for it. That employee would be responsible for paying for it. So, I think a little more education about things like that can make a difference, also, but the idea I want to emphasize about the potential for there to be a citation to the individual employee should be considered, just like it would be for smoking. Okay, now I've talked way too long, and I haven't -- I've been afraid to look back and see how many people are asleep, so -- MR. SEXAUER: Actually, several have come in since you started. MR. ELLIOTT: I know I haven't heard too many people fall, so I figured they -- but any questions you might have? MR. SEXAUER: Ed, you've provided a lot of specific and good information. Let me just see if I can wrap my hands around what you've said. You've indicated that drug programs can be effective, that it's better that if -- that mining companies can develop these programs and implement them on their own, but if the federal government determines that it should be involved, then it should have a program that's flexible and that's not a gotcha, and the program would include training, it would include something that addresses an Employee Assistance Program, and include testing. You did not talk, specifically, about random drug testing. We've heard at the earlier meetings, some strong advocates that favored random drug testing as being effective. I wondered whether you might say something about your view of random drug testing? MR. ELLIOTT: I think that is a critical component of testing, and in our program, we do have that, and we will run somewhere probably around 30 percent of our population, annually, in random testing, and we have a computer program that generates that. We don't -- it's not an individual that does it, and even in our random testing, and usually, we'll do pretty large quantities. We may do 100 to 150 at a time will be selected for random testing, and it will still be five percent or less, is basically what we will find in those positives. MR. SEXAUER: In terms of costs, we've heard some -- I guess an association that represents small mine operators indicates that it would be costly for small mine companies to do random drug testing. Following the meeting, as I was walking out the door, someone grabbed me and says, "Well, couldn't they do a consortium, where a number of small individual companies get together and shared the costs of a random drug test, which would also spread the testing among a number of companies?" And I wondered whether you have any view on that, or whether anyone in the audience has any comment on that? MR. ELLIOTT: Well, I would think there should be. If there were a number of small operators, just as you said, an association could select a vendor, a laboratory, and go through the process of establishing that, and quite honestly, other than it being somewhat -- sometimes people is a little bit uncomfortable if they had to get a sample or collect a sample from an individual, but in all honesty, it is very easy to do, and the operator could, themselves, be trained very easily to take that collection, and what it amounts to at that point, you would be sending an overnight package to a laboratory, and then, whatever the cost of that laboratory analysis, and they would fax back to you the results of it. So, I wouldn't think -- you would probably be talking about somewhere, $50.00, $60.00 a person, but if you suspect that someone might be using it, well, the DOT requires you, I think it's 50 percent of your total population that come under DOT have to be tested, that number, annually, and so I think that's -- sometimes, it's a part of doing business, but if you don't test and that person could be costing you, basically, $6,000.00 or $7,000.00 a year, you're just throwing money out the window, so I would agree, it should be done, and it could be done that way. MR. SEXAUER: You've mentioned the DOT program. This has come up at other meetings as well, and some in the audience, who are not familiar with the DOT programs, so just for general information, I think what we'll do is, we'll take the DOT program and put it onto our webpage with a link, probably, in -- where we do the rulemakings, we have a section for comments, and we'll probably refer to it somewhere in there, so if anyone is interested in looking at the DOT program, they can find it through our webpage in some fashion. I think there are some other comments up here? MS. CARR: Yes, Mr. Elliott, as someone that spends a lot of time preparing educational materials and policy advice for employers, I appreciate the detail into which you went. And, particularly, I'm interested in the evolution of your program. You confirmed some theories I had that programs start out one way and they do evolve based on your responsiveness. I'm particularly interested in what you said to open up with, you know, that these programs should be done because it's the right thing to do, but you did indicate that there might be a role for federal regulation in this area. So, kind-of two questions to that. In 1989, when Rogers implemented their program, did the existing standard -- and quite frankly, I don't even know whether it was in effect at the time, but did the metal/nonmetal standard on this have something to do with your implementing the program, and if not, what did compel you to consider it? Two, you mentioned the decrease in the testing positives. Have you also been able to notice any decrease in accidents that -- or injuries that you might attribute to the program? And then, finally, given all of that, what would you recommend that might help encourage employers to do the right thing? MR. ELLIOTT: Well, several things, and if you'll refresh my memory if I don't touch on all of them, but what drove us, initially, it really had nothing to do with the regulation, and it had nothing to do with the regulation at all, but I think when the -- I can't recall the exact date of the Drug-Free Workplace Act, or whenever it was -- MS. CARR: I think, 1988, yeah. MR. ELLIOTT: Just right in that time, and I think our -- we are self-insured, and we have a certain level that, once we get over a certain amount, then the insurance company kicks in, but it's several million dollars, whatever the case may be, but we try to communicate with our insurance brokers and our carriers and look at, okay, what are things that make your company more attractive to insurance brokers and people that want to sell you Workers' Comp insurance? Well, one of the things was to have a good, strong substance abuse policy and procedures, as well as an EAP, and what happens with that, it's -- and, the small operators would find themselves the same way, they would -- the insurance companies know, they know that, I think, if I've got one -- the National Counsel on Compensation Insurance reported that an estimate of 50 percent of all Workers' Comp claims involve substance abuse. Well, they would say, if there's a company that does a good job with substance abuse and testing, then there's going to be a direct correlation to reduction of injuries and accidents, and not just the injury accidents, but property damage and so forth, and so they would look upon us -- they looked upon us as being kind-of groundbreaking in our area of what we were doing, and it was -- I think it had a very positive effect. As far as injuries are concerned, we've had a gradual decline in injuries over the years. I don't think that's attributable directly to our substance abuse program, but it certainly adds to it, because there's a reduction in the number of people that are likely to have injuries, but our injury rate right now, as a corporation, is, like, I think, 1.35, as it would be calculated by MSHA, and that includes our construction industry and aggregate industry. We're just about the same in both of them, of the number of injuries we have, so that number is fairly low. Our objective is to try to get below 1.00 this year, and we've been -- last year, we ended up at 1.43. The year before, 1.37. And so, we've done a number of other things to improve that, but this is a part of it as well. And, I did not -- did I cover the -- was there more -- anything -- MS. CARR: I guess, just the final one was, you know, given all that, and you've given, you know, a lot of detailed information, what do you think, like, the single most important thing that MSHA could do to encourage businesses to do the right thing? MR. ELLIOTT: That's an interesting question. I think there are a number of things. Going to -- one thing that I found about the government, they usually have a tremendous amount of information and data. Getting that information out to the different national associations, putting out communications and national publications that deal with the industry, people read those magazines that come to their operations, and there needs to be as much information as possible in those, and I think, also, contacting the different major insurance carriers in the United States and some of the major brokers and educate them in this issue and try to solicit a multi-front approach that, if the brokers were to say, "If you put together a program, then we'll reduce your Workers' Comp insurance X amount of money," it's a win-win situation. It's a win for the operators, it's a win for the companies, the insurance companies. Also, in the different meetings that would go on, I know in metal/nonmetal -- I'm not sure if they do this in the -- in coal or not, but we have what's called the Spring Thaw meetings that try to bring operators together. I think having this as a subject and trying to outline the issues, and then also, national associations that they meet, the NSSGA, I know they have meetings, and the NMA, I'm sure there are other large meetings, and to have presentations at those meetings. So, I'm saying, get the message out, get the word out, give people as many options as you can, both in written and electronic form, and I think it'll just show them, it's a lot easier. Also, if it would be a way for the training, under part 48, that the operations side of MSHA could say, "Hey, this is -- we're automatically going to require this as a part of -- in your training plan, and we'll give you the amended little part that you need to plug into your training plan, that you need to put this in, and it deals with substance abuse, and provide them the information." To me, that's going to do more to make a change and for companies to feel like it's the right thing, because until people see it as a problem, they're not going to do anything about it, and I think the average company, they don't think it's a problem. So, that's how -- that's what I would do first and foremost, and it could be done in the short-term, quite honestly, without a heck of a lot of adversarial relationship between the government and -- I know in the sense -- Dave Lauriski, the former Assistant Secretary, and now, David Dye, who is the Acting, and I think is the Deputy now, he will be -- he's done a good job. I think this has changed the approach a little bit, to more educate the operators. I think that will be the quickest change, will get the attitude changing in the industry about trying to do the right thing. MS. CARR: Thank you. MR. MACLEOD: Just a follow-up on the part 48 issue, you mentioned adding, maybe, a requirement to cover drugs within the existing part 48 framework. A question that has come up on occasion is that the Agency may be putting more stuff in an existing bag, as they say euphemistically. Do you see a problem with taking -- I'll use the annual refresher, the existing eight hours, and requiring some amount of time, maybe not defined, but at least defined by topic or subject, that that would leave less time for other important subjects that are already mandated by that particular rule? MR. ELLIOTT: It could, but I think there are -- some of the things that are in the part 48 refresher training requirements that, of course, specific time requirements and that type of thing, that could be amended, and if a company's really doing the job, you can't train somebody eight hours, once a year, and think -- I was an educator. I graduated from -- it's a plug for my alma mater, Eastern Illinois University, Charleston, Illinois, with a Bachelor of Science in Education, and I went out and taught for a while, and my wife still teaches, as a matter of fact, and you just can't -- it's not something you can stop them, open it up, pour down their head, you know, and it's going to stay in there. You've got to have a multi-faceted approach to training, but in my estimation, you look at a priority of importance, and I think there are some things under part 48 that some of the operators are going to be doing on a daily basis, at how they approach mine emergencies and communication, and some of the stuff that you talk about going over in refresher training is so redundant, I think you could diminish the amount of time spent on it and indicate there should be -- it should be covered in normal procedures that are done throughout the year, and then you could plug something that is of significant issue like this substance abuse. But, part 46 -- it's -- I'm sure you're familiar with it, but it requires two things in refresher training by regulation. One is the history, the accident history of the mine over the past year, and the second is, any change that has occurred at the mine in the last year. Those are the two things, and then it allows the operator the flexibility to establish what things need to be covered. If you're in a mine that has a problem with roof falls, then you want to emphasize that a lot more than you do -- if you have a mine that has a problem with methane, then you want to emphasize that. So, it just depends on the circumstances, but in part 48, there's just no flexibility. There's no flexibility that is provided in 46, and I think the -- today, also, the mining industry is changing. When I first came in the business, people lived to work. Today, they work to live. You get the younger people in the mining industry, and those people, they don't want to get hurt. They want to learn things a little differently than people of my generation, but we've got to provide the mine operators flexibility, and to me, it should be -- this is an important enough issue, they should have the flexibility. Something else could be reduced and this plugged in. MR. MACLEOD: Thank you. MR. CROCCO: Could I ask a question? MR. ELLIOTT: yes, sir. MR. CROCCO: On the contractors, you mentioned denying access, I think, to contractors, and could you say something about that? Would that be for suspicion, or in response to an incident, or how would that work? MR. ELLIOTT: Well, we could, in some circumstances, if we're having a -- we will occasionally do a site-random test, where we'll test everybody at the site. Well, if anybody is working under contract, and now, I'm not talking about the person delivering to the pop machine, okay, they deliver the pop machine and they're gone, but we're talking of someone that has a contract with us or a purchase order with us to do work at the mine, and if they are there at the time, we require -- we test them, just along with all of our own employees. No one is ever forced to take the test. We don(t say, "Up against the wall, you know, you're going to give this urine or else," you -- I'm not going to do that, and that's -- I think that denies their basic right. They can refuse that, but if they do, then it's treated the same as if it were a positive. So, a contractor, we would contact and their supervisor, and they would be required to submit to the test just like our employees. If they refused, then we would have them withdraw, and they could not continue working, whoever refused. Then, if they were positive, it would be the same way. Now, in our purchase order, we go over with the contractor, it indicates in there that they must be willing to comply with our substance abuse policy. MR. CROCCO: Thank you. MR. SEXAUER: Okay, Ed, thank you very much. MR. ELLIOTT: Thank you. MR. SEXAUER: Okay, I've just received a copy of a document I'd like to put into the record. Rogers Group, Inc. and Affiliates Substance Abuse policy and procedures, updated October, 2005. We have no other speakers that have requested to speak. I'd like to open it up at this time to anybody in the audience that would like to address us on any of these issues. MR. DITTY: Good morning. MR. CROCCO: Good morning. MR. DITTY: My name is Stanley Ditty, I'm the owner/operator of a coal business in Harlan, Kentucky. That's D-I-T-T-Y, that's S-T-A-N-L-E-Y. The business is in Harlan. The name of the company is Sequoia Energy. That's S-E-Q-U-O-I-A Energy. I've heard both speakers speak this morning. It's very important to know that education in the business that we're in is very important, but until MSHA and the State Department comes back out and puts a bite behind us as operators that wants to instill a drug policy and to affect -- into our companies that we have, it doesn't make any difference if we send somebody down the road to have a drug test. It costs me $450.00 to have a person drug tested. That's a grade seven. That's at the Harlan Appalachian Regional Hospital, or the Middlesboro Hospital in Middlesboro. When we come back out and we have these people tested, if they test positive, we terminate. We terminate. The people that we are hiring today in the mining industry is probably people that we normally wouldn't have taken applications from, probably, I'm going to say, five years ago, because the demand is there for the people in this business that we have today, there's a greater demand for people that's in the industry. When we come back out here and we take somebody down for a drug test or they refuse to take the drug test, they say, "Well, I don't want to take the drug test," as the gentleman said, from Rogers, you assume that guy -- or, that person, is positive. Well, you terminate that employee. If he's a good employee -- I'll give you a prime example of a company over in Whitesburg that tested two groups of people on two sections. There was 42 people on those sections. Thirty-nine of those people, they were foremen, electricians, and experienced miners. Thirty-nine of those people flunked the test. When these people flunk the test, where do they go back out and find 39 people that have the experience to come back out and replace these people? These people just went down the road and found another job. Until the Agency -- you all can say that you all want to put all the responsibility back on us as operators until you turn blue in the face. Until you come back out and put a bite behind it, until you come back out here and say, "We're going to pull that person's card, that mining card from the State," because MSHA doesn't have a card -- until you pull that State -- man's card, where he's able to mine or be able to work in the mining industry, in the coal mining industry -- I'm not speaking about nonmetal and metal, because that doesn't affect me, I don't know anything about that part of the law, I just -- I've been in this business for 38 years. But, until the Agency comes back out and works with the State and where -- if it's in Virginia, West Virginia, Tennessee, Kentucky, I'm speaking for Kentucky, and I worked in Tennessee, Kentucky, and Virginia. And, until this Agency comes back out and puts an enforcement behind something, to put a bite behind it, that you're going to pull that man's card -- or, person's card a minimum of a year's time, not six months, not three months, pull it for a year, until that Agency -- until this Agency comes back out here and does it, all the training in the world is not going to help. I'm not against training by any means. I'm for training, but we have to put a bite behind it. I went in front of KEMI the week before last and told them the same thing I'm telling you ladies and gentlemen here today. We do have -- MR. SEXAUER: Excuse me, KEMI, for the record? KEMI is -- MR. DITTY: That's the Kentucky Employment Mutual Insurance Agency. There's two people that will actually write Workers' Comp in the State of Kentucky. That's AIG and KEMI. Those are the -- really, the only two people that you can come back out here and get Workers' Comp from in the State of Kentucky for coal miners. For that being said, if -- until -- we can say that we want to train, we want to do all these different things, and I'm not against training, I'm very much for that, we just got through doing our annual one course of our training this past Saturday. You come back out here and you can say the drug problems that we have out here, these people that we're hiring, it's not alcohol-related. It all goes back to narcotics, drugs that's coming from Doctors, and as the lady said, and the gentleman from Rogers says, you can't tell when these people are on drugs. You can't tell. You can look them in the eye. If they're on alcohol, you can smell it, they can take lozenges, or whatever, being -- but you can -- they'll talk with a slur. These people that are on Oxycontin or whatever drug that they're on, you just can't tell until you send them for a drug test. Well, when we send them for a drug test, if they refuse to take the drug test, "Well, I don't want to take the drug test," well, only thing that they're going to do is just go right down the road, if they're electrician, if they're a mine foreman, they -- if they're a good miner operator, they're demand for them all over out there. But, until somebody comes back out here and says that once you take that person and you pull them and do a drug test -- them -- and if you want to make it mandatory for all of us to come back out here and drug test every person that's on that -- but if they flunk it -- they flunk that test, pull that card. Pull that miner's card for a year. Then, we'll get some results from this. But, we can sit here and play games, beat this thing around the bush, train, train, train. Until you put a bite behind it, we're everyone -- wasting our time. Like I said, I've been in this business for 38 years. I've worked hard at it all my life. I'm a Christian. I love God better than anything. He's the number one person in my life. But until we come back out here and do something to put a bite -- to make these people that are infesting our workforce -- do something to them to make them pay -- because they know, even though that you have a drug policy enforceable at the time that you hire them -- you take them and do a drug test on them, they go down to the drugstore and buy something to pass it. You came back out here and you pull a random test on out here, they know that you're going to come back out here and do it. If you don't do it right dead on the spot with them, there, they're going to take something that they carried in their dinner bucket and they're going to take it. So, but if you come back out here and you take each person and they become positive in it, that's going to show them that the Agency means business -- but, for what that's -- what's happening here. We're not going to correct this problem by just coming back out here and doing training without a bite. You've got to put -- you've got to have a bite behind it. They have to pay the consequences for doing something that they know is wrong. We can sit here and talk about it, beat it to death with a briar stick, if you want to, switch them with their legs out there, come back out there and send them home for three days. They're not going to go home for three days. They're not going to do that. They have to be able to work to come back out here to feed the habit. I didn't prepare anything out here on this thing. The -- had surgery on my hand this past Wednesday, out here, and I forgot, even about the meeting on here, but it's so imperative that we come back out here as operators -- and the guy -- and you said to do the right thing. It's very important, in every decision that I make at the company -- I'm a hands-on person. I live here in Lexington. I drive 360 miles a day to the job. I'm there every day. I'm a hands-on person. Those four gentlemen in the back, back there, that work for me, they've been with me for 20 years. They'll tell you, I'm a hands-on person. There's nothing that happens on that job that I don't know about. I just fought this Agency, here, for five years. I take that on, and you know it's out there, and not bring up to an issue that I had problems with issues with MSHA over on the instance that we had, they tried to get me to plead guilty for something I didn't do. It was a misdemeanor charge. But, that has no relevance on why I was here, but I took this Agency to court. It took us five years to win that case, but it cost me $500,000.00 to win it. But, it's about doing the right thing. It's always -- in my life, no matter what I do, I want to be always -- whenever I stand in front of God, that I come back out here and say that I did the right thing. I don't want to come back out and say, "I know you not, sir." MR. SEXAUER: Stanley, can I ask you a question? MR. DITTY: You can ask me anything, sir. MR. SEXAUER: In the back of my mind, since you started talking, I keep coming back to this incident that you started off with, where you indicated, if I heard you right, 39 out of 42 miners -- MR. DITTY: Thirty-nine out of 42, yes. MR. SEXAUER: -- indicated some evidence of some kind of presence of alcohol or drugs in their system? MR. DITTY: It was all drugs. MR. SEXAUER: All drugs? You know, we here stories back at the Agency, or we hear stories at some of these meetings that are anecdotal, you know, but it's always somebody else's mine where this happened. It's never someone's own mine, so we're not sure -- I mean, what you said is scary, but I don(t know how much credence to give it. I'd be more than happy to discuss it with you off the record, outside the meeting, if you'd like to, but, you know, something like that shouldn't go past without a remark. I mean, our Agency is certainly mindful, but that's -- if that's a situation out there, then it needs to be addressed, but I would like to hear whatever you care to tell me about it afterward. MR. DITTY: The company that -- the majority of the people, not speaking of the company I have been -- and I'll tell you that we do terminate people from our job. I don't give them a second chance like the Rogers Group does. If you come back out and you fail that test on it, I terminate you, because we go in telling them that we don't allow drugs on that, we don't allow it. I don't smoke, I don't drink, and I don't chew, and I don't run women, and I don't allow it -- if they run women, that's fine, but drugs, drinking, that's up to them. I just -- we just don't allow it. I don't give it a second chance. That's a cardinal sin in my book, and three cardinal sins, and you're out, and you know, it's just -- one cardinal sin of flunking their drug test, or refusing the drug test, and we let you go. MR. SEXAUER: Okay. MR. DITTY: But, you know -- but, until this Agency comes back and gets with the State, because you all won't have anything in your affect that comes back out and says -- just, other than the retraining, you all don't even require us to have a card, as this Agency. It does through the State, it mandates it through the State. So, MSHA doesn't. So, you know, until MSHA wants to come back out and put into the policy out here that you're going to have an MSHA card, that's fine and dandy too, but until you put a bite behind what you all are trying to get done out here, instead of coming back out here and saying the operators are going to have to do something with it themselves -- we can't do anything with it, because you have -- you had no recourse to go by, to do anything with it. I appreciate your all's time. MR. SEXAUER: Okay. MS. CARR: I just have one clarification question. MR. DITTY: Yes, ma'am? MS. CARR: If I understood correctly, you had mentioned $450.00 for a drug test? Is that -- MR. DITTY: That's correct. MS. CARR: -- what you're currently paying? MR. DITTY: That's a grade seven. MS. CARR: What -- is that the cost of the person's time, or just the drug test itself? MR. DITTY: The drug test itself. MS. CARR: And, what do you mean by a grade seven? I'm not familiar with -- MR. DITTY: That's the grade seven, that's what we test -- that's what we -- MS. CARR: Seven drugs? MR. DITTY: No, there's seven different parts of that that goes through that, and whenever -- if it comes back positive from each one of these hospitals, it's sent from there to Bethesda Hospital, in Maryland, to verify that, and it takes us almost three to four days, back and -- before -- they come back and tell us it's positive, then they tell us what it's for, then they go ahead and send it off again to make sure that they're -- that it's validated, what they said. MS. CARR: Yeah, I was just -- because the gentleman that spoke before, mentioned a $40.00 per test, and that's quite a -- MR. DITTY: That's not what we operate -- MS. CARR: -- discrepancy. MR. DITTY: If you'd like, I can furnish you the bills and show them to you. MS. CARR: I'm not sure that will be necessary, but, you know, it just seems that, you know, in terms of considering the costs and benefits of it, you know, $40.00 per test, the burden on employers and small employers, versus -- MR. DITTY: That might be urinating in a cup, but urination into the cup is not going to be -- MS. CARR: So, you're talking about the review by the Medical Officer and various confirmations? MR. DITTY: That's -- yes. MS. CARR: Okay. MR. SEXAUER: Okay, let me just note that the individual who furnished the $40.00 figure just stepped out for a second. We may be able to get that information from him, later. MR. BAUGHMAN: You're talking about a blood test? MR. DITTY: No. MR. BAUGHMAN: It is also a urine test? MR. DITTY: It's urine, but it's urine that they go through. MR. BAUGHMAN: Right. MR. DITTY: Okay, thank you. MR. SEXAUER: Great, thank you. MR. DITTY: Thank you for your time. MR. SEXAUER: Would anyone else like to address the panel? Okay, if not, then let me ask -- those of you who came in after the meeting started and have not signed in on the attendance sheet in the back of the room, I might ask if you wouldn't mind if you could just put your name on the list so we have an idea as to everyone who's been here. I'm going to take a break for -- let's say, until 11:30. We'll come back on the record at 11:30 and see if there's any additional speakers. And, if not, we'll adjourn at that time. So, we'll go off the record now, recessed until 11:30. (Whereupon, the proceedings in the foregoing matter went off the record for approximately one hour. MR. SEXAUER: Okay, we'll go back on the record. Is there anyone in the audience who would like to speak? MR. NEASON: Good morning. MR. SEXAUER: Good morning. MR. NEASON: I'm Mike Neason. I work with Hanson Aggregates, based out of Louisville, Kentucky. I'm the Safety Manager for Kentucky, part of Southern Indiana, and Southern Ohio operations. MR. SEXAUER: Could you spell your name, please? MR. NEASON: N-E-A-S-O-N. MR. SEXAUER: Okay. MR. NEASON: I -- you know, first off, I just -- I want to get it out, as long as we're going to be on the record. I wanted to get out and thank you guys for coming to Kentucky to talk about this. This is a pretty big issue for us and we've got a lot of folks that have kind-of passionately gone over this for the past year or so, in trying to look at some of the problems, and I guess a lot of that has come out of some of the Eastern Kentucky operations, but it's a problem that doesn't just exist in one part of this State, or any State, or any one industry. It's a cultural problem that is affecting everybody. I guess I sat in the back of the room and listened to Ed talk this morning. Ed Elliott and I kind-of do about the same sort of thing. We've known each other for a good while, and what he said, you know, I could -- I was thinking about all the things I was planning to say as I was driving in from Louisville say. I heard him talk, and I said, "Well, you know, that's what I was going to say," so -- MR. ELLIOTT: You can pay me after. MR. NEASON: I want that on the record, too. But, you know, what he said is pretty typical. When a business begins to move toward this culture, it's something that happens because somebody makes a business decision that says it's important for us -- if -- to be a kind of an organization that's going to make this an important thing, and so, they make the move, and they institute a program, and like you said when you responded to him, it's exactly something that has to kind-of work in over time. I mean, when you put it out and your intentions are to do one thing, it becomes obvious that, well, it looks like we should make X move or Y move or Z move, which is kind-of how a lot of companies begin to personalize what their things are, and I think we're in just about the same shape. We do, obviously, test people post-offer. We do, obviously, test people post-accident. We do, obviously, do random testing on people. We have a supervisor training plan where it helps the supervisors identify people who have the problem so that they're able to institute a for-cause test, and we have a procedure outlined for that. I would say that in the beginning, when we began this, we were finding far more positives than we are now. I don't have any numbers to show you where that is, but I can say that where -- when I was doing this job, you know, in the early 90s, it was a pretty common thing for me to go and have that talk with employees that were testing positive at something. I rarely do, now, so I see that as a positive thing, and, I think what's borne that is that over time, we've made it pretty clear to the employees that this is an organization that's going to run itself in this way, and we're the kind of an organization that's going to take substance abuse seriously. We will take action for employees, and if you're going to live in that culture, you're not going to work here. I think, over time, that bears out. That's not something that changes overnight, but reinforcement is the key to that one. In looking over this rule, I think I was surprised, more than anything, to see that coal doesn't have anything at all in their standard. I think that's something that I would have expected. I saw the rule that we've got on the metal/nonmetal side, and it's not really been anything that's really driven us, per-se, to do anything different than we would have ever done it before, but I guess I was just surprised to look down the coal side and see that there's never been any action taken from MSHA to address this for that group of people, and I look at this as a positive step, that you guys are looking into doing this and exploring the options to it. But, you know, I -- more than anything, I wanted to come down and thank you guys for coming here and addressing this, and I've -- sitting in the same position that a lot of operators are, so, if you guys have any questions for me, I'm happy to answer them. MR. SEXAUER: Mike, which drugs are the most -- are the biggest source of problems? MR. NEASON: It -- looking for which drugs are the problems, you've kind-of got to look for where you are. I think, generationally, alcohol seems to be more of a problem with older workers, people older than me, and I'm 35, for the record -- but, I think that -- PARTICIPANT: You're under oath. MR. NEASON: Thirty-five and a half, but anyway -- MR. SEXAUER: You're not under oath. MR. NEASON: People older than me, alcohol seems to be the main thing. Regionally, there's also a big effect. East Kentucky has got a pronounced problem with Oxycontin. The Governor, a couple of years ago -- Governor Patton made a pretty big push that said that that's one of the things that he was going to target and move towards, and that's become a pretty big deal. And, that's a prescription drug that somehow gets over-put out, and I guess what's typically done with that is that they take this really high potent time-release thing and crush it up so that you lose the time-release portion of it, and employees are just taking it, and it's -- getting a pretty big kick out of it. But, that's a big deal in Kentucky. Crystal meth is a big deal. Here recently, we had -- one of our association meetings, we had a State Trooper come in and explain how drugs have changed in this region over time, and he was saying that a while ago, cocaine was a big deal, and now, cocaine has kind-of shifted away, because of drug -- crystal meth does just about the same kind of release for a whole lot less money, and it's a whole lot more of a high, and all of a sudden, that's become their new problem. So, I think the law enforcement people can tell you just as much as anybody can tell you. MR. MACLEOD: Mike, I'm pretty sure that Hanson has a corporate policy for dealing with drugs and alcohol abuse. If, in fact, you do have such a policy, could you provide that to us on the record? We would be interested to see what, actually, Hanson is doing, if that's not proprietary. MR. NEASON: And, that -- yeah, that's actually going to be done. We've -- Hanson has been preparing comments for this that they're going to have submitted before the comment period ends, and, included in that written comment will be our program. MR. MACLEOD: All right, thank you. MR. AUTIO: Mike, can you -- MR. NEASON: Yes? MR. AUTIO: -- do you have any linkage between absenteeism and accident rates with -- since you've had your drug policy in place? Do you have any numbers, or -- MR. NEASON: That are going to be specific to our company, no, and Ed pointed out, a lot of these studies that have been done, but this is, by no means, something that doesn't get looked at a whole bunch, and what drives people to take action is more of that business decision that's based on loss, that's based on accidents, that's based on absenteeism, that's based on productivity. You know, most of the bigger companies, when they look at that, can kind-of sit back from a 30,000 foot view and say, "We really have got to take an aggressive stance about this, as it's such a big factor of what goes on." So, bigger companies focus more on that. A smaller company may focus more on a regulatory requirement that comes out. If the federal government was to come forward and say, "We would like to make a rule that says that everybody has to begin doing some sort of testing or put together some sort of program," then that's going to affect somebody who may only have, you know, five employees and a smaller operation. You know, I think, one of the biggest groups that jumped out of when this came forward was just thinking about the small mines office that MSHA has. That group is probably poised like nobody else to be able to drill down to some of these operators who probably don't have as aggressive programs, or, at least, as together programs, and help them to understand how they can put something together to move forward. I think that's -- that was a great initiative when that started, and I think they're exactly poised to deal with this problem. MR. CROCCO: Could you say something about your post-accident testing, what selection criteria you use for who would be tested, or -- are -- do you test for injury accidents only, or serious property damage accidents? MR. NEASON: Well, that's a good question, because, I mean, that speaks to the equality of it. A lot of times, what you don't want to end up with is, Billy tore up a pickup truck, and Jimmy tore up a haul truck, and I don't like Billy, so Billy's going to go in there and get tested. You know, you don't want a supervisor put in a position where he has to make too many of those judgment calls. It becomes divisive on any one group of employees, and, you know, in this business, that's horrible. So, generally, what we do, any injury accident that any -- that's going to require medical treatment, be that reportable, be that not, if we take somebody to the Doctor to go get something checked out just to make sure, that person is tested. Any kind of property damage that results in $250.00 worth of loss -- which, we set that number kind-of low because that's easy for anybody who just passively goes by, and says, "Well, I guess, if you tore that up, that's probably close." But, you want to have -- and throughout these kinds of policies, you want to have so much standardization that takes it so much out of everybody's hands so that you don't end up with a supervisor using this as a tool for disciplining his people and weeding out folks that he may not want there. I mean, this is something that has to be held above and beyond all that you're doing. It has to kind-of go without reproach that this is a policy, and we're going to stand behind this policy, and it has nothing to do with personal stuff, and it's not me and you, it's just this piece of paper. MS. CARR: So, as I understand it, following a -- an accident of certain descriptions, the injured person gets tested. Do you have any way of determining whether or not that person caused the accident? Is anyone else tested on the site? MR. NEASON: Yeah, and that's -- and, you know, I should have said that, and when we send you the policy, it will say this, but yeah. Whoever's involved in the accident goes. If two trucks hit each other, both of those guys will go. You know, if one guy is holding a pin and another guy swings a hammer and one of them busts a thumb, both of those guys need to go. MS. CARR: Oh, okay. MR. NEASON: And, it's just for that reason. It's so much easier if it's an -- everybody's policy, if it includes supervisors, if it includes whoever on the site. You know, there's no room for anyone to sit back and say that we're just aiming or targeting this at any one person or any one group. MS. CARR: So, as your company does it, drug testing is a part of an accident investigation? MR. NEASON: Yes. MS. CARR: One of the questions that we're asking about is, is there -- I guess, basically, should there be -- how do you feel about that being a standard part of accident investigations? Should that be something that every operator includes? MR. NEASON: If I'm talking to another operator, I'm going to tell the other operator that this is a big deal, that substance abuse is a huge factor in these accidents, and you have to bear this out, and you need to institute a program. It's critical. And, whenever we, you know, acquire a new operation, this is the first thing we -- this is step one. Day one, before you do anything else with us as the new owner of your group, this is what we do, because this is, fundamentally, part of who we want to be. So, yeah, if I(m looking at an operator, I(m going to tell an operator, "That's what you need to do." Do I believe that the federal government should come in and mandate the testing and have the testing, at some point, available so that they can verify that the testing was done and the testing was up to whatever standard it would need to be? My fear is that once you begin to head down that road, it's just a slope that falls of pretty quick, and I don't know where -- I don't know how you draw that in to make that part of something that you can regulate without building such a huge structure for it, that it becomes overly burdensome on somebody who doesn't have the ability to naturally do that. So, talking to an operator, I think it's critical, and we work through our associations to do that, and we work through just talking to other folks, and we work with just making sure that as operators, we're doing what we're supposed to do. It becomes an entirely different deal when I say, "does somebody else need to step in and do it?" because, I(m not sure if the influence it would take to manage that sector with a regulatory means would not hurt all the folks that have set up these programs, and we established them with this in mind, and yet, if you come in and go, "No, it has to look like this," well, then you've taken all the people who were being responsible and doing what they're having to do, and go back and restructure the program to fit whatever mold that would be, while, you know, it's about 80 percent would hit, and the 20 percent group would just kind-of have to deal with what they have after that. So, that's a huge answer to a question that you really didn't even ask, but -- MS. CARR: No, no, I think that is what I was asking. My sense is -- what I(m hearing is that it should be part of an accident investigation, but it should be an operator decision, and that the current requirement to do some type of accident investigation is sufficient, and maybe some education and awareness. MR. NEASON: Exactly. I think it's very fair to say that -- like I said, I was surprised that there was nothing on the books at all on the coal side. I think that what we have on the books on the metal/nonmetal side, though it may benefit from some rewording, you know, years after it was put together, it may help it a lot, you know, to go back through and see if, maybe, something a little more detailed could be put out. But, I wouldn't want to put any huge, burdensome regulation on a group that would have to sit back and look back and say, "Well, how do we manage all of these parts?" I mean, what stands out most is that, you know, we've got a ready-mix division, and so all these guys are under DOT, you know, rules, and so we've got such a huge program, and there are so many rules involved in how you have to do each and every step of the guys that are drivers, who's -- their work actions affect public safety. I understand how big of a deal that is and how important it is that we have something that pervasive. When I look at that and say, "Well, how are you going to put it on --" you know, I've got a sand plant that has two guys and a supervisor. One's in the loader, one guy's out there on the dredge, and then there's the boss who weighs trucks. You know, you go and you look at that place, and you go, "Well, how can you lay this kind of regulation on those folks and expect them to be able to benefit from it the way this other group would?" So, I kind-of like the way that it was addressed in the metal/nonmetal side. I would like to -- you know, I don't have an interest in the coal world, so, you know, other than staying warm and having electricity, but, you know, I don't want to talk for them, but you know, I think giving it some bite, like that gentleman said earlier, from that perspective, would probably benefit everybody. MR. SEXAUER: I guess I've heard at other meetings that people were maybe suggesting that the way the language was worded in the existing rule puts the burden on the mine operator rather than the miner. Now, I'm not suggesting that we're going to do anything to put the burden on the minder, but I'm -- you're actually coming down in support of the existing language on the metal/nonmetal rule. Is that correct? MR. NEASON: Sure. MR. SEXAUER: Okay, that's what I wanted to verify. MR. CROCCO: Would you have any idea what it costs to have one of your tests analyzed, or how many your company has analyzed per year? MR. NEASON: Well, it's -- I could guess at how many my company has -- and when I say I could guess, we're a nationwide company. We're the third largest aggregate group, so while the group I deal with day in and day out is kind-of about the same size as Ed's, what Hanson does, nationwide, I don't know, and I would be guessing at a number. I will tell you that a big factor in the cost of all of that has to do with what kind of testing that you're having done, how specific that you're having that test analyzed, and how many controls are put on it to make sure that you're getting what you're supposed to be getting. If you hear something like our cost, which would be around $30.00 or $40.00 for the way that we have ours set up, ours matches DOT's perfectly. You know, our goal was, let's follow the DOT example, that way, it's pretty well understood, all the labs already know this, there's no extra setup that goes into it. It's just, follow what the DOT set and we'll hit those rules together. But, if you move over and you say, "Well, I want to test for some extra drugs and I want it sent to several different laboratories for double-blind checks and send it to somebody else to get it reverified, then we'll have a Review Officer that does --" these are all great things to do, and if you were going to go in and say, "I want to have it -- all my bases covered," you know, I could understand wanting to buy something on the end of $100.00, $150.00, $200.00. But, you know, just to follow what the DOT says, usually, it's a $50.00 test if you just follow that program, which is what we've done. MR. SEXAUER: Thank you. MR. NEASON: Sure. MR. SEXAUER: Before I ask if there's any other speakers, Jennifer, on the panel here, mentioned to me during the break that she wanted to ask a question of Mr. Elliott. MS. HONOR: It was just a follow-up question to a couple of the studies that you had mentioned, and I think I may have overheard you speaking to Bill Baughman about that, so -- MR. ELLIOTT: Postal Service and the Navy. MS. HONOR: And then, you -- toward the end of your remarks, you mentioned a study that discussed the high turnover rate of users and abusers, and I was wondering, was that part of the USPS study as well? And, if not -- MR. ELLIOTT: I'll verify that and I'll -- I'm going to provide that to you. MS. HONOR: Wonderful, okay, great. Thank you. MR. SEXAUER: Thank you. Okay, is there anyone else who would like to address us? Okay, there are no other speakers, so this meeting is adjourned. (Whereupon, at 11:51 a.m., the proceedings in the foregoing matter were concluded.) ?? ?? NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. (202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com