Legislature(1995 - 1996)
03/13/1996 01:14 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 311 REPEAL LIMIT ON HOURS EMPLOYED IN MINES Number 2419 CHAIRMAN PORTER announced that the next order of business to come before the committee was House Bill 311. REPRESENTATIVE VEZEY introduced the bill, and explained that current laws regulating underground mining have been rendered obsolete by mechanization and new health and safety standards. TAPE 96-34, SIDE B Number 2396 REPRESENTATIVE VEZEY further explained that most states have already repealed their 8 hour underground mining laws. He asked that the sponsor statement be entered into the record, as follows: "HB 311 "An Act repealing the limitation on the hours a person may be employed in a mine," ... was introduced to correct the current statutes that contemporary, advanced underground mining technology have made obsolete. The source of the original legislation is found in 43-2-1,2&3 ACLA 1949. "At the time this legislation was introduced, underground mining was performed by people using hand tools, pneumatic drills and push cars. There were no state or federal safety or health laws like we have today. There were also no wage and hours laws in those days. The explosives used in those days produced large amounts of noxious fumes and ventilation was almost non existent. Air operated drills used without water and wetting agents produced large amounts of dust. Silicosis was a serious occupational hazard. The methods used to prevent cave-ins and inhalation of foreign material were primitive, at best. "Times have changed and so have the methods used to mine underground. Today's underground mining activities are performed by machines with the operator supervising the operation. The health safety standards are among the highest in the world. Accident and injury rate are among the lowest for any industrial occupation in Alaska. They are almost half that of the norm for the construction industry. The engineering methods of insuring safety have also dramatically improved. "HB-311 will result in increased wages for miners, increased profits for mining companies and more miners working in more mines for all Alaskans." Number 2354 REPRESENTATIVE VEZEY noted that while reasonable restraints on mining operations are needed, the industry has great economic potential, and should not be subject to unreasonable regulation. He further noted that miners themselves do not oppose the bill. He reiterated that the mining industry is one of the safest in the United States. He stated that in the past five years, there has only been one fatality related to underground mining in the state of Alaska. He emphasized that the fishing, logging, and construction industries are not subject to any similar constraints on number of hours worked. He further emphasized that the jobs provided by the mining industry are high paying jobs. He stated that last year, many of the committee members toured the Green's Creek mine, and observed the working conditions. He reiterated that there has been no opposition to speak of from the miners themselves, and that various surveys indicate people working in mines overwhelmingly support working more than 8 hours per day. He noted that while the original HB 311 totally repealed the work hour limitations, the Labor and Commerce Committee substitute does not give the industry due credit. Representative Vezey stated that he would propose an amendment to CSHB 311. Number 2308 CHAIRMAN PORTER announced that three witnesses were present to testify regarding HB 311. He also noted the presence in the committee room of Ramona L. Barnes, former Speaker of the House. Former Speaker Barnes declined Chairman Porter's invitation to testify. Chairman Porter then invited Ed Flanagan, of the Department of Labor, to testify. ED FLANAGAN, Deputy Commissioner, Department of Labor, testified that the Department of Labor opposes HB 311. He stated that the long and productive mining history of the state of Alaska was accomplished under the present law. He recognized that there is always some part of the world where an industry can work with less regulation, or with no regulation, but the state of Alaska is fortunate that the productivity of our workers and the wealth of our resources has allowed us to counteract those forces. Mr. Flanagan noted that none of the mining projects coming on line have been recognized as being contingent upon this change in the law. He further stated that the Commissioner of the Department of Labor was opposed to the original HB 311. The department does appreciate the considerable amount of time the House Labor and Commerce Committee spent on the bill. Because CSHB 311(L&C) addresses the concerns raised by the department, the department has removed its opposition to CSHB 311(L&C). Mr. Flanagan further noted that Commissioner Cashen's father and grandfather were both employed during the 1920's in the Alaska Juneau Mine, so he was well acquainted with the issue. He emphasized that the commissioner and the department both support the mining industry. However, both the commissioner and the department feel it is critical that any expansion beyond an 8 hour work day be allowed only on a case by case basis. Number 2045 MR. FLANAGAN further noted that in the seven years since 1989, three underground miners have been killed in Juneau. He explained that sub-contractors must be required to adhere to the same standards as mine operators. Therefore, the Department of Labor & Commerce adopted a provision which would allow up to 10 hours of work per day, in the event that a variance was granted by the commissioner, or a bona fide collective bargaining agreement was in place. He stated that, in his testimony before the Labor & Commerce Committee, the representative of Green's Creek Mine explained that their schedule basically entails 6 hours of travel, beyond the work at the face. With a blanket 10 hour allowance, those miners would be facing a 16 hour work day. The department feels that would be cause for concern. He further stated that Green's Creek would like to get a camp on-site, for the convenience of its workers, and the department supports this. However, a federal permit is required, which may not happen. Number 1970 MR. FLANAGAN reiterated that variances to the 8 hour work day must be granted on a case by case basis. He referred to the "so-called" expert testimony delivered in the Labor & Commerce Committee by Mr. Duchon, a psychologist who had a contract with the Bureau of Mines. According to Mr. Duchon's testimony, extended work days were no problem. Mr. Flanagan quoted from the summary of Mr. Duchon's study, as follows: "The Bureau of Mines reviewed the literature studies related to safety and performance issues of extended work days. The report presents a study of those findings. Studies examined in this review are divided into three sections: laboratory, field, and accident and injury analysis. In general, results are inconclusive. Studies have shown both positive and negative effects. It is concluded, therefore, that in an industry such as mining where accidents are a serious concern, special measures and evaluation in the use of extended work days be considered." He explained that such consideration was exactly what the variance procedure adopted by the House Labor & Commerce Committee would allow for. Number 1909 MR. FLANAGAN further stated that the Department of Labor was opposed to the proposed CSHB 311(JUD). The department does support CSHB 311(L&C). He did note, however, that allowing an exclusion from the provision for mechanics, warehousemen, and electricians was ill-advised. He stated that the current language, which refers only to a person employed underground, is preferable, because there could be situations where a mechanic or electrician could be involved in work at the face. Mr. Flanagan then invited questions from the committee. He urged the members of the House Judiciary Committee to seriously consider CSHB 311(L&C). CHAIRMAN PORTER commented that the bill presently before the House Judiciary Committee was CSHB 311(L&C). The committee has not yet adopted the proposed CSHB 311(JUD), which mandates that the work day limit be raised to 10 hours, with a variance to 12 hours. Number 1838 REPRESENTATIVE TOOHEY asked about the three miners who have been killed in Juneau since 1989. What part of their shift were they killed in, and were they killed underground? MR. FLANAGAN responded that the miners were killed during a regular, 8 hour shift. One fell down a shaft at the Kensington Mine, one was wrapped up in a drill underground, and the other was crushed by a falling slab. REPRESENTATIVE TOOHEY then asked if the prohibitions of the bill would include locations underground, such as the electrical shop, that were not involved in actual mining. MR. FLANAGAN replied that the 8 hour limitation applied to work at the face only. Number 1724 REPRESENTATIVE VEZEY asked if the law actually included the term "at the face." It was his understanding that the law only referred to "underground." MR. FLANAGAN responded that the existing law does reference work "at the face." He read from AS 2310.410, subsection B, as follows: "It is the purpose of this section to limit the hours of employment in 24 hours to 8 hours of actual labor at the face, or other place where the work or labor to be done is actually performed." Number 1672 REPRESENTATIVE VEZEY then stated, the statute reads: "A person may not be employed in an underground coal mine, underground lode mine, underground placer mine, underground coal lode or placer workings, or other underground mine or workings, for more than 8 hours in 24." He further noted that current Department of Labor regulations define the work hours as being portal to portal. MR. FLANAGAN responded that the regulation being referred to was a clarification of the term "labor performed," in a different section of the statute. It relates to what is time worked for purposes of pay. He stated that Section A, which Representative Vezey quoted from, goes on to say: "Except on a day when a change of shift is made, excluding an intermission of time for meals or otherwise going to or from the place where the work is actually carried on, whether in going on or off shift or in going to or returning from meals." Mr. Flanagan said it was his understanding that "B" clarified that section. Number 1614 REPRESENTATIVE VEZEY then asked if it was Representative Flanagan's interpretation of the current law that miners could work at the face for 8 hours, excluding travel time. MR. FLANAGAN responded that was correct, so long as there was not another location where work was actually carried on. The actual time worked could not exceed 8 hours. REPRESENTATIVE VEZEY asked about work outside the mine. MR. FLANAGAN replied that work outside the mine was irrelevant to the section in question. REPRESENTATIVE VEZEY commented that people in the industry believed they were restricted to 8 hours of work per day including travel time within the mine. MR. FLANAGAN responded that they had not asked the department. Number 1588 REPRESENTATIVE VEZEY commented that the mining industry in Alaska has been all but dormant for the last 30 years. He asked if Mr. Flanagan would consider it to be robust. MR. FLANAGAN responded that the economics of underground mining, rather than time worked underground, was responsible for the situation. REPRESENTATIVE VEZEY reiterated that mining has been a very small industry in the state for the past 20 or 30 years. He stated that this past year the mining industry has probably tripled in size. MR. FLANAGAN responded that the tripling referred to had occurred under present law. Number 1522 REPRESENTATIVE VEZEY stated that most of the mining presently occurring is surface mining, not underground. He then asked why Mr. Flanagan felt that the state needs to regulate mining more closely than industries such as logging, fishing, aviation, or construction. He stated that during construction of the tunnels at Bradley Lake and Snettisham, the crews worked underground 12 and 14 hours per day. MR. FLANAGAN responded that he was associated with the Bradley Lake project, on site, for approximately 17 months, and that he was not aware of any regularly scheduled shift that exceeded 10 hours. The tunneling crew worked 8 hour shifts. The shaft crews occasionally worked 10 hour shifts. He stated that, at Snettisham, anything in excess of 10 hours was rare. He further stated that the state actually regulates the construction industry more heavily than it does the mining industry, since mining is primarily the purview of the Mining Safety and Health Administration (MSHA). The state has also worked closely with the logging industry to reduce fatalities. Number 1358 REPRESENTATIVE TOOHEY asked if the proposed legislation applied to mines other than underground mines. REPRESENTATIVE VEZEY responded that the legislation applied to any underground mine, but not to open pit or other types of mines. Number 1315 DON ETHERIDGE, Alaska State District Council of Laborers, testified that the district council supports CSHB 311(L&C). He stated the district council cannot justify jeopardizing lives in order to increase company profits. In the Labor & Commerce Committee, miners testified about the dangers of the mining industry. He further stated the district council can not understand why the mining industry is opposed to the Department of Labor's variance proposal. If the company can prove that conditions are safe enough, than the variance would be granted. He pointed out that even the fishing industry has begun regulating itself, in order to increase safety. He reiterated that the district council cannot justify risking working people's lives simply to increase profits. Number 1214 REPRESENTATIVE BUNDE commented that extra hours worked would also translate into extra pay for the miners. MR. ETHERIDGE responded that this was why miners would not voluntarily enforce the 8 hour day themselves. REPRESENTATIVE TOOHEY stated that she believed the legislation had been proposed at the suggestion of the miners. MR. ETHERIDGE replied that workers will often work under unsafe conditions, because they need the money. He stated that is why regulations are needed. Number 1144 REPRESENTATIVE GREEN asked if the fatigue factor was discussed in the House Labor & Commerce Committee testimony. MR. FLANAGAN responded that it was discussed. He stated that Andrew J. "Bear" Piekarski, who worked in the mines, and was injured in a cave-in, testified that an 8 hour shift was all that could safely be worked. REPRESENTATIVE GREEN asked if there were statistics which showed the relationship between hours worked and number of accidents. MR. FLANAGAN stated that there were no new, specific statistics related to mining. Data collected in 1987 shows that accidents do increase after the 8th hour of work. Number 1038 CHAIRMAN PORTER called on the next witness, Clynt Nauman. CLYNT NAUMAN, General Manager, Green's Creek Mine, stated that the discussions in the House Labor & Commerce Committee did not include the statement that people would be working 16 hour shifts at Green's Creek. He stated that Green's Creek supports a change in the number of hours a person can spend underground from 8 to 10 hours, and that they do appreciate Representative Vezey's efforts. If longer shifts were permitted at Green's Creek, they would encourage employees to stay on the island. At the present time, Green's Creek employees are away from home 12 hours per day. In those 12 hours, a miner works 5.7 hours at the face. The remainder of the time is commuting and travel within the mine itself. He explained that this is the real issue. Mr. Nauman further stated that, so far as Dr. Duchon's testimony was concerned, it was his recollection that the studies concerned 12 hour shifts, not the 10 hour shifts proposed by Green's Creek. He stated that Dr. Duchon's testimony also showed a change from 8 to 10 hours was not a safety issue. Number 0863 MR. NAUMAN went on to say he was confused about which version of the bill was being considered. He stated that the variance system proposed in CSHB 311(L&C) was not supported by Green's Creek, because the extension of work hours would then be at the discretion of the Commissioner of Labor. If substantial sums of money were invested in an operation, and the variance was disallowed, then the operation would not be economically feasible. He further stated that Green's Creek anticipates restarting its mining operation later in 1996. At that time they will have 250 employees. They presently have 150 employees, of which 80 percent are Alaskans. He stated Green's Creek intends to implement a strong policy of local hire. If the work day could be extended from 8 to 10 hours, then employment could be offered to appropriately qualified Alaskans. He stated that workers from other communities cannot afford to move to Juneau. He further stated that Green's Creek has to complete in a global marketplace. In order for capital dollars to be invested in the mining industry in Alaska, the law needs to be changed. He pointed out that when Green's Creek originally went into production, the mine's profitability depended upon keeping costs below net revenue realized. In 1993, when Green's Creek shut down, the costs were relatively high. He stated the company wants to achieve as many efficiencies as possible, so that the people working there can remain employed for the next 15 years. Finally, Mr. Nauman stated that he was prepared to offer amendments to the various versions of the bill. Number 0463 REPRESENTATIVE FINKELSTEIN asked Mr. Nauman if he had ever worked an 8 hour shift underground, and if so could he describe his experience. MR. NAUMAN replied that he had managed mines, working 8 hours and longer underground. He stated he had not personally noted, nor had he managed any mines where the safety record had been any different after 8 hours and up to 10. He stated he had managed a deep underground gold mine in the Northwest Territories of Canada, where provisions were in place to extend shifts under special circumstances. REPRESENTATIVE FINKELSTEIN stated that he had toured the Green's Creek mine, and that after 50 minutes underground he was ready to climb the walls. MR. NAUMAN responded that one of the major issues for Green's Creek workers was time off with family. He stated that an underground employee would earn approximately 20 days more time off with his family, if working 10 hours underground at the face, versus working 8 hours underground at the face. Number 0345 REPRESENTATIVE FINKELSTEIN then asked if the miners would not then want to pursue the issue themselves, as part of the collective bargaining process. He asked if the real issue was extending the allowable work day from 10 hours to 12. MR. NAUMAN replied that he did not understand why the table should be tilted for or against organized labor. He stated that the real issue was jobs, and the extension of the work day. Number 0225 REPRESENTATIVE FINKELSTEIN asked if the 10 hour work day could not be achieved under CSHB 311(L&C). MR. NAUMAN responded that Green's Creek is not happy with the proposed bill, because a variance or permit procedure is not substantive enough to encourage investment necessary for the facilities to be put in place. He stated the second issue is that the proposed legislation contains no procedure for the variance to be granted. Number 0152 REPRESENTATIVE GREEN asked if it would be in order for the committee to adopt CSHB 311, version O. CHAIRMAN PORTER asked if there were any further questions for Mr. Nauman. Number 0030 REPRESENTATIVE BUNDE asked if the extended shifts were put in place, how would the schedule work. MR. NAUMAN replied that his proposal would be to place the ferry on a twelve hour rotating basis. (gap due to changing tape) TAPE 96-35, SIDE A Number 0018 REPRESENTATIVE FINKELSTEIN pointed out that the proposed legislation was no different from the way the state regulates other occupations. He stated that if extended shifts can be worked safely, then the Department of Labor would grant a variance. He further stated that CSHB 311(L&C) was a reasonable bill, and recommended that the committee not adopt the proposed Judiciary Committee substitute. Number 0111 CHAIRMAN PORTER asked Mr. Finkelstein if he thought it was fair to ask investors to make substantial investments, when an operation's profitability depended on the granting of a variance. REPRESENTATIVE FINKELSTEIN responded that the proposed legislation would allow an extension under certain circumstances. He stated that the only issue was 8 to 10 hours, versus 10 to 12. He further stated that a case had not been made that 12 hour shifts would ever be safe. He also observed that human beings were not evolved to work underground for long periods of time. Number 0193 REPRESENTATIVE TOOHEY commented it was a shame that no miners were present, as they would totally disagree. REPRESENTATIVE GREEN observed that workers on the North Slope often work 12 hour shifts. He stated that he believed human beings are resilient, and that if employees want to work safely, and are trained to work safely, then the accident rate will be minimal. Number 0259 REPRESENTATIVE BUNDE commented that coal miners he had talked to loved working underground. Number 0259 CHAIRMAN PORTER asked if there was any further discussion on the adoption of CSHB 311, version O. There being no further discussion, a roll call vote was taken. Representatives Toohey, Vezey, Green, Bunde, and Porter voted Yes. Representative Finkelstein voted no. CSHB 311(JUD), version O, was adopted. REPRESENTATIVE BUNDE announced that Amendment Number 1 was being passed out to committee members. He made a motion that the amendment be adopted. REPRESENTATIVE FINKELSTEIN objected. Number 0329 REPRESENTATIVE BUNDE called on Reed Stoops to testify. Number 0332 REED STOOPS, lobbyist, stated he would testify on behalf of Green's Creek Mining Company. He stated that Mr. Jim Clark, who actually drafted the proposed amendments, was also present. He further stated that Mr. Flanagan's testimony may have negated the need for the proposed amendment. He asked if Representative Vezey would agree that the change was no longer necessary. CHAIRMAN PORTER stated he was under the impression that Mr. Flanagan's interpretation of the law was correct, in that the 8 hour day related to time actually worked. Number 0429 JAMES F. CLARK, attorney for Green's Creek Mining Company, stated that there is a regulation which does limit the time underground to 8 hours, as opposed to actual time at the face excluding travel time. He further stated that workers would be paid for all time actually spent underground. CHAIRMAN PORTER asked if a copy of the regulation was available. He then asked if the proposed bill would solve the problem created by the regulation. MR. CLARK replied that it would. Number 0549 CHAIRMAN PORTER asked if Green's Creek still desired the proposed amendment. MR. STOOPS replied that they did not. CHAIRMAN PORTER noted for the record that Amendment Number 1 was withdrawn. REPRESENTATIVE VEZEY made a motion that CSHB 311(JUD) be passed out of the House Judiciary Committee, with individual recommendations and attached zero fiscal note. REPRESENTATIVE FINKELSTEIN announced that he would not object. REPRESENTATIVE VEZEY asked the record to reflect that he invited Representative Finkelstein to visit Fairbanks, and to work in a mine. REPRESENTATIVE FINKELSTEIN declined. CHAIRMAN PORTER announced that CSHB 311(JUD) with individual recommendations and attached zero fiscal note, was passed out of the House Judiciary Committee.
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