UNITED STATES DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION In the Matter of: ) ) MSHA'S PUBLIC HEARINGS HEALTH ) STANDARDS FOR OCCUPATIONAL NOISE ) EXPOSURE IN COAL, METAL AND ) NONMETAL MINES ) Pages: 1 through 257 Place: Washington, D.C. Date: May 30, 1997 UNITED STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES In the Matter of: ) ) MSHA'S PUBLIC HEARINGS HEALTH ) STANDARDS FOR OCCUPATIONAL NOISE ) EXPOSURE IN COAL, METAL AND ) NONMETAL MINES ) Frances Perkins Building Room N5437B 200 Constitution Ave., NW Washington, D.C. Friday, May 30, 1997 The hearing in the above-entitled matter commenced, pursuant to notice, at 9:28 a.m. BEFORE: JIM CUSTER Moderator APPEARANCES: JIM CUSTER, Office of Metal and Nonmetal Mine Safety and Health PATRICIA SILVIE, Director, Office of Standards, Regulations, and Variances MIKE VOLOSKI, from the Office of Technical Support ROBERT THAXTON, from MSHA's Office of Coal Mine Health and Safety SANDRA WESDOCK, from the Department of Labor's Office of Solicitor VICTORIA PILATE, Office of Standards, Regulations, and Variances ADDITIONAL APPEARANCES: ROSLYN FONTAINE, Office of Standards, Regulations, and Variances WILLIAM AMENT, Organization Resources Counselors, Inc. TERRENCE DEAR, DuPont Engineering JOE MAIN, United Mine Workers JAMES WEEKS, United Mine Workers of America LINDA RAISOVICH-PARSONS, United Mine Workers ED PLOWCHA, United Mine Workers JON HITCHINGS, United Mine Workers JIM MILLER, United Mine Workers JIM LAMONT, United Mine Workers JANICE BRADLEY, Industrial Safety Equipment Association ALICE H. SUTER, American Speech-Language Hearing Association KEVIN R. BURNS, National Stone Association BRUCE WATZMAN, National Mining Association BOB GLENN, National Industrial Sand Association WILLIAM W. CLARK, Central Institute for the Deaf TOM B. SHADE, Teamster's Local Union 992 RICK WAUGH, Teamster's Local Union 992 HARRY TUGGLE, United Steel Workers ROBERT J. BLAYLOCK, Arch Mineral Corporation MIKE SPRINKER, International Chemical Workers Union, Council of USCW ADDITIONAL APPEARANCES: KELLY BAILEY, Manager, Occupational Health, Vulcan Materials Company; Chairman, Safety and Health Committee, NSA CURTIS SMITH, Audiologist, Auburn, Alabama DAVID HUDSON, Electrician, Vulcan's Graham Quarry, Virginia WES ING, Chairman, Noise Task Force, National Mining Association TIMOTHY RINK, President, HDI, Incorporated KEN VORPAHL, Unimin, National Industrial Sand Association KLAUS LEIDERS, New England Stone P R O C E E D I N G S (9:28 a.m.) MS. SILVIE: Good morning. My name is Patricia Silvie. I am the Director of the Office of Standards, Regulations, and Variances. Welcome to MSHA's public hearing on its proposed standards for occupational noise exposure in coal and metal and nonmetal mines. The members of today's panel are, to my immediate left, Mike Voloski, from the Office of Technical Support; and to his left, Robert Thaxton, from MSHA's Office of Coal Mine Health and Safety; and then on the far end, Sandra Wesdock, from the Department of Labor's Office of Solicitor; to my right, Jim Custer; and to his right, Victoria Pilate and Roslyn Fontaine, both from my office. The moderator for today's hearing will be Jim Custer, and Jim is from the Office of Metal and Nonmetal Mine Safety and Health. We are here to listen to your comments on the December 17, 1996 proposed rule revising certain provisions of the existing health standards for occupational noise exposures in coal and metal and nonmetal mines. The hearings are being held in accordance with Section 101 of the Federal Mine Safety and Health Act of 1977, and as some of you know, as is the practice of this Agency, formal rules of evidence will not apply. Let me give you some background into the noise proposal. MSHA published an Advance Notice of Proposed Rulemaking on December 4, 1989, as part of the Agency's ongoing review of its safety and health standards. The Agency's existing noise standards, which were promulgated more than 20 years ago, are inadequate to prevent the occurrence of occupational noise-induced hearing loss among miners. In the Advance Notice of Proposed Rulemaking, the Agency solicited information for revision of the noise standards for coal and metal and nonmetal mines. The comment period closed on July 15, 1990. On December 17, 1996, in response to information received on the Advance Notice of Proposed Rulemaking, MSHA published a proposed standard. The Agency has developed a proposal that it estimates can reduce by two-thirds the number of miners currently projected to suffer a material impairment of their hearing, but which it estimates can be implemented at a cost of less than $9 million to the mining industry as a whole. The focus of the proposal is on the use of the most effective means to control noise -- engineering controls to eliminate the noise or administrative controls, for example, rotating miner duties, to minimize noise exposure whenever feasible. The proposed standard would retain the existing permissible exposure level, which I will refer to as the "PEL." It would establish a new "action level" of an eight-hour, time-weighted average of 85 dBA. If a miner's exposure exceeds the PEL, the proposal would require that the mine operator use feasible engineering and administrative controls to reduce the noise exposure to the PEL. If engineering and administrative controls do not reduce the miner's noise exposure to the PEL, the operator must use those controls to lower exposure to as close to the PEL as is feasible or achievable. In addition, the operator would have to provide any exposed miner with annual audiometric examinations, properly fitted hearing protection, and ensure that the miner takes the annual audiometric examinations and uses such protection. The comment period was extended from February 18, 1997 to April 21, 1997, due to requests from the mining community. MSHA has received a broad range of comments from over 60 different interests, which included mine operators, industry trade associations, organized labor, college and universities, and noise equipment manufacturers. The comments addressed the primary provisions of the proposed rule, such as the action level, the PEL, methods of compliance, exposure monitoring, and audiometric testing. I will now discuss major provisions of the proposed rule. Exposure to noise is measured under proposed Section 62.120. The proposed section would require that miner's noise exposure not be adjusted for the use of hearing protectors, that a miner's noise exposure measurement integrate all sound levels from 80 dBA to at least 120 dBA during the miner's full work shift and that the current 5 dBA exchange rate to measure the level of a miner's noise exposure would continue to be used. An action level of 80 dBA during any work shift, or, equivalently, a dose of 50 percent, would be established under the proposed rule. For miners who are exposed to the 85 dBA action level, the proposed rule does not require the use of engineering and administrative controls. Rather, operators would be required to provide personal hearing protection upon a miner's request, annual employee training, and enrollment in the hearing conservation program. The proposed rule would also retain the existing PEL of 90 dBA, requiring that no miner be exposed to noise exceeding a TWA of 90 dBA during any work shift, or, equivalently, a dose of 100 percent. While the PEL would not change, the actions required if noise exposure exceeds the PEL are different from the current requirements. MSHA's existing metal and nonmetal noise standards, for example, already require the use of feasible engineering or administrative controls when a miner's noise exposure exceeds the PEL. The existing standards, however, do not require the mine operator to post the procedures for any administrative controls used to conduct specific training or to enroll miners in a hearing conservation program. Under MSHA's current coal mining standard, a citation is not issued when a miner's exposure exceeds the PEL if appropriate hearing protection is being used by the miner. In the event of a violation of the coal-mining standard, operators are required to properly institute engineering and/or administrative controls and to submit to MSHA a plan for the administration of a continuing, effective hearing conservation program. The proposed rule would establish a hierarchy of control for all miners when exposure exceeds the PEL. In addition, other aspects of the rule increase protection for miners and further reduce the potential for hearing loss. Under the proposal, mine operators must first utilize all feasible engineering and administrative controls to reduce the sound levels to the PEL before relying on other controls to protect against hearing loss. Furthermore, an operator would be required to ensure that a miner whose exposure exceeds the PEL takes the hearing examination offered through enrollment in the hearing conservation program. Under Proposed Section 62.120(f), MSHA would require operators to establish a system of monitoring which effectively evaluates each miner's noise exposure. The proposal would also require that within 15 calendar days of determining that a miner's exposure exceeds the action level, the PEL, the dual-hearing protection level, or the ceiling level, the mine operator notify the miner in writing of the overexposure and the corrective action being taken, pursuant to Section 103(c) of the Mine Act. The proposed rule also provides for hearing protection and training. Under Proposed Section 62.125, miners would be given a choice from at least one muff-type and one plug-type hearing protector. Under Section 62.130, miners would be given required training. Additionally, under Proposed Section 62.140, operators would be required to offer baseline audiograms to miners enrolled in a hearing conservation program. That is, when a miner's exposure exceeds the action level. Prior to conducting the baseline audiogram, operators would be required to make certain that miners have at least a 14-hour period when they are not exposed to work place noise. Use of hearing protectors as a substitute for this quiet period would be prohibited. The proposed rule would also require mine operators to offer a valid audiogram at intervals not exceeding 12 months for as long as the miner remains in the hearing conservation program. Proposed Section 62.150 would require the operator to assure that all audiometric testing is conducted in accordance with scientific, validated procedures. MSHA would also require that audiometric test records be maintained at the mine site for the duration of the affected miner's employment, plus at least six months thereafter. Under Proposed Section 62.160, operators would have 30 days in which to obtain audiometric test results and interpretation. Additionally, under Proposed Section 62.180, MSHA would require that unless a physician or audiologist determines that a standard threshold shift is neither work related nor aggravated by occupational noise exposure within 30 calendar days of receiving evidence of a standard threshold shift or results of a retest confirming a standard threshold shift, the operator must do the following: retrain the miner, allow the miner to select a hearing protector or a different hearing protector, review the effectiveness of any engineering or administrative controls to identify and correct any deficiencies. Proposed Section 52.190 would require that within 10 working days of receiving the results of an audiogram or receiving the results of a followup evaluation, the operator notify the miner in writing of the results and interpretation of the audiometric test, including any finding of a standard threshold shift or reportable loss and, if applicable, the need and reasons for any further testing or evaluation. Finally, the proposed rule would require that the operator provide the miner, upon termination of employment, with a copy of all records that the operator is required to maintain under this part without cost to the miner. This is the last of six hearings. The hearing was scheduled to begin at 9:00 a.m. -- well, you know what happened about that -- and to end at 5:00 p.m. If necessary, however, MSHA will continue this hearing until all persons have been heard today. At this point, let me note that the Agency has received several requests for a 60-day extension of the post-hearing comment period beyond the now-scheduled time of June 20th. The record is now scheduled to close on June 20th. We have evaluated those requests in light of the extensions that have already been given, including the number of hearings held, and believe that a 60-day, post-hearing comment period is both adequate and reasonable. MSHA is, therefore, expanding the time for the record for an additional 42 days until August 1st, which results in a post-hearing comment period, that is, a comment period from today's date of an additional 60 days. This extension will be put in the Federal Register for notification to the mining community. We will be making this announcement several times throughout this hearing for all members of the mining community. Now, I will turn the hearing over to the moderator, Jim Custer. MR. CUSTER: Thank you, Pat. As Pat said, I'm Jim Custer, and I'm with Nonmetal Mine Safety and Health Division in MSHA, and I will be the moderator for this public hearing. The Mine Safety and Health Administration views these rulemaking activities as extremely important and recognizes that your participation here today is a reflection of the importance that you, the mining community, attach to the rulemaking. Presentation of public statements will be as follows: William Ament, Organization Resources Counselors, Inc.; Terrence Dear, DuPont Engineering; Joe Main, United Mine Workers; Dr. James Weeks, United Mine Workers of America; Linda Raisovich-Parsons, United Mine Workers; Ed Plowcha, United Mine Workers; Jon Hitchings, United Mine Workers; Jim Miller, United Mine Workers; Jim Lamont, United Mine Workers; Janice Bradley, Industrial Safety Equipment Association; Alice H. Suter, American Speech-Language Hearing Association; Kevin R. Burns, National Stone Association; Bruce Watzman, National Mining Association; Bob Glenn, National Industrial Sand Association; William W. Clark, Central Institute for the Deaf; Tom B. Shade and Rick Waugh, Teamster's Local Union 992; Harry Tuggle, United Steel Workers; Robert J. Blaylock, Arch Mineral Corporation; and Mike Sprinker, International Chemical Workers Union, Council of USCW. It is intended that during this hearing anyone who wishes to speak will be given the opportunity to do so. Anyone who has not previously requested to speak should indicate their intention to do so by signing the list of speakers, which is under the care of Ms. Fontaine, at the extreme right of the table. Time will be allocated for you to speak following the scheduled speakers. The Chair will attempt to recognize all speakers in the order which they are requested to speak. If necessary, however, the moderator reserves the right to most of the order of presentation in the interest of fairness. Also, as the moderator, I may exercise discretion to exclude irrelevant or unduly repetitious material. in order to clarify certain points, the panel may ask questions of the speaker. Also, you asked to refrain from asking questions of the presenters during this hearing, but you may question the panel. All comments are important to the Agency. MSHA will accept written comments and other appropriate data on the proposal from any interested party, including those who will not present an oral statement. Written comments may be submitted to Roslyn Fontaine during this hearing or sent to Patricia Silvie, Director of MSHA's Office of Standards, at the address listed in the hearing notice. All written comments and data submitted to MSHA will be included in the rulemaking record. Should anyone desire to modify their comments or submit additional comments following the hearing, the record will remain open, as stated this morning, until August 1, 1997, to allow for submittal of post-hearing comments and data. If possible, the Agency would appreciate receiving a copy of your comments in electronic file on computer disk. The comments are essential in helping MSHA develop the most appropriate rule that fosters health among our nation's miners. We appreciate the constructive criticism and the hard work and careful thought which your comments represent. Personally, and on behalf of the Assistant Secretary of Labor for Mine Safety and Health, J. Davitt McAteer, I would like to take this opportunity to express our appreciation to each of you for being here today and for your input. MSHA looks forward to your continued participation in the Agency's rulemaking activities. Before we begin with the first speaker, you are reminded to sign the attendance sheet that we have located on the table outside of the auditorium whether or not you choose to speak. Also, once again, if your name does not yet appear on the list of speakers, you will still have an opportunity to present your testimony by notifying Mrs. Fontaine of your intent. For each speaker, before you begin your statement, please come to the podium, state your name and organization, and spell your name for the reporter. If you have copies of your prepared testimony, please present copies to the panel as you begin. Thank you. Our first speaker this morning is William Ament. MR. AMENT: Good morning. It's an unexpected pleasure to be leading off this morning. I was not aware that that was going to be the case. I do have copies, as well as a card, that we can give to the court reporter. My name is William Ament. That's A-M-E-N-T. I am an attorney and consultant with Organization Resources Counselors, Inc. In that capacity, I am responsible for reviewing all governmental regulatory initiatives that address a wide variety of occupational safety and health issues, including occupational exposure to noise. The purpose of this statement is to present the views of ORC in response to the December 17, 1996 request for comments on the MSHA rule on occupational exposure to noise in coal metal and nonmetal mines. We are pleased to have this opportunity, and we will respond with post-hearing comments to both the issues I've raised here, as well as those raised by other participants in this hearing. ORC sponsors occupational safety and health groups that include more than 150 mostly large companies from a wide variety of industries, including some with mining interests. These companies have a strong commitment to responsible and effective employer occupational safety and health programs. This statement, however, is solely the responsibility of ORC and may differ from comments submitted by individual member companies. We urge our individual company members to participate in all the rulemaking hearings and present whatever views they have. In fact, we encourage them to contrast their views with ours if that is appropriate. In this forum, we will limit our comments to ORC's view of an effective and responsible regulatory approach addressing occupational exposure to noise, as well as the philosophy underlying regulation of the subject. ORC's post-hearing comments will expand on these issues and, if appropriate, will address issues raised by other participants. Traditionally, ORC's regulatory concerns are limited to those that address hazards in general industry and sometimes construction and maritime. Some issues, occupational exposure to noise being one, transcend industry classification if not only because of the ubiquitousness of the hazard, but because the widespread and interlocking concerns of the interested parties. In addition, some regulatory initiatives such as this one deserve comment because they mark a deep departure from current approaches embodied in other regulations. The change in the ACGIHTLV, the proposals made by NIOSH in its April 16, 1996 draft criteria document on occupational exposure to noise, and this MSHA rulemaking initiative have raised the issue to a level that should be of concern to all employers. The regulatory agencies, such as OSHA and MSHA, we believe, have the responsibility to develop their regulations so that they not only meet the technical requirements of the agencies' enabling legislation, but do so in manner that takes into account the following concerns, among others. The rule should be cost effective. In today's regulatory atmosphere, agencies such as MSHA and OSHA have responsibility to focus on the effectiveness of regulations rather than allowing final regulations to merely be a reflection of the authority given the agencies by Congress. We are not talking about strict cost-benefit considerations, although we believe that those issues are appropriate regulatory concerns, but about the responsibility of regulatory agencies to select the least costly regulatory solution that can arguably meet the agencies' requirements and its legal mandates. And a particular issue that I'm going to be discussing here, rules should be consistent across industry lines. I know there are differences from industries. I know that MSHA exists because of a view, and an appropriate one in many cases, that mining is an unusually dangerous industry, but nevertheless we would like to see the consistency be an important goal to the extent possible. We recognize that the current situation of having different regulatory requirements addressing exposure to noise for metal and nonmetal, as compared to the coal industries, needs to be addressed. This piecemeal regulation of occupational exposure to noise by agencies in the same executive department is not in the public interest, in our view. In correcting this unfortunate situation, we urge MSHA to recognize the well-accepted and successful OSHA model, especially its approach to feasibility and the use of hearing protection if the exposure is less than 100 dBA as an acceptable alternative to the MSHA proposal. We recognize that incorporation of these concerns into the MSHA approach to the regulation of exposure to noise requires substantial change to the regulatory solution, especially as it addresses the concept of feasibility currently being considered by MSHA, but we believe that such an action is important enough to support such changes. MSHA has the responsibility, in our view, to exhaustively examine the OSHA model before proceeding with any alternative approach. Consistent, cost-effective regulations that make sense in the real world of employer implementation, in our view, can go a long way toward achieving the goals MSHA has set for this rulemaking. We support the decision of the Agency to defer consideration of the proposal included in the NIOSH draft criteria document. It is ORC's view that such consideration of the proposal would be premature, and there are several serious concerns as to whether the NIOSH recommendations take into account the pragmatic and legal limitations placed on MSHA as those limitations are placed upon OSHA by both its enabling legislation and court decisions. We believe that Section 22 of the Occupational Safety and Health Act of 1970 supports this view by stating that as an important part of NIOSH's mission, the director is, one, to consider such research and experimental programs as the director determines are necessary for the development of criteria for new and improved occupational safety and health standards, and after consideration of the results of such research and experimental programs, make recommendations concerning new or improved occupational safety and health standards. Although she does not address the MSHA regulatory process in NIOSH Director Linda Rosenstock's foreword to the criteria document, she described the OSHA rulemaking process and the limitations on OSHA in its authority to promulgate standards. Without such a recognition, NIOSH's efforts would be of little practical use to OSHA or, similarly, MSHA. Historically, reactions to employee exposure to noise have generated emotional as well as scientific responses to such an extraordinary extent that productive dialogue has often been difficult, and I'm sure you have found that to be true in many cases. There are two areas of concern about the criteria document and NIOSH's approach to the development. The draft document was not prepared or reviewed by a broad spectra of interested parties needed for the development of a criteria document addressing such a controversial subject. The expert panel, for example, which reviewed the document and appeared at the public hearing desperately needed additional viewpoints. Whether or not NIOSH staff wish to think in these terms, NIOSH is so closely related to OSHA and MSHA that its activities are regulatory in consequence. For these reasons, ORC supports MSHA in its decision to defer consideration of the NIOSH proposals. It is appropriate, we believe, that the debate over the provisions of the NIOSH regulations addressed in this rulemaking focus on the OSHA model and the differences between the metal, nonmetal, and coal regulations in terms that reflect traditional thinking about noise regulation. The remainder of these comments will address selected provisions in the MSHA proposal we believe are important elements in the debate over a standard that will effectively regulate occupational exposure to noise. In addition to the deferral of consideration of the NIOSH proposals, ORC supports the following MSHA proposals. One, maintaining the exchange rate at 5 dB. The earlier NIOSH criteria document on employee exposure to noise recognized that a 5 dBA exchange rate was a real-world descriptor of the effect increased noise levels have on hearing. Even the 1996 criteria document, which recommended a 3 dB exchange rate, notes that that rate would be overly protective in some cases. Also, the 5 dB exchange rate is consistent with the OSHA model. Two, maintaining the age-adjusted, 10 dB standard threshold shift at 2, 3, and 4 kHz and a reporting requirement at 25 dB. As a referral mechanism, the 10 dB requirement can arguably be a part of an effective hearing conservation program. OSHA, in ORC's view, has erred in proposing a reduction of the recording criteria -- that's OSHA's recording criteria -- from 25 to 15 dB at 2, 3, and 4 kHz levels. The proposed STS is consistent with the OSHA model. ORC particularly opposes the feasibility approach described in the proposal. This approach is dramatically inconsistent with the OSHA model on occupational exposure to noise and ignores substantial industry experience with the use of hearing protection and the effectiveness of properly implemented, OSHA-mandated, hearing conservation programs. Although arguments about the effectiveness of the OSHA model are an appropriate line for inquiry, rejection of the model and implementation of a more stringent approach should not be undertaken until any unresolved questions about the OSHA model are answered. It is our view that unless a definitive response and examination of the OSHA model can show that it does not meet the needs of the requirements of MSHA, that MSHA has the responsibility to create a consistent exposure to noise regulatory policy and to do so by adopting the OSHA model. We believe that this is the important OSHA rulemaking that may set a pattern for the regulation of occupational exposure to noise. We approach having the opportunity to participate in the rulemaking and will be available to MSHA for further comments in response to questions. And as I mentioned, we do intend to file post-hearing comments. Thank you. MS. PILATE: On page three of your written comments you discuss -- MR. AMENT: Yeah. I'm sorry. I can't hear you. MS. PILATE: On page three of your written comments, you discuss the agencies' responsibility to select the least cost regulatory solution that can arguably meet the agencies' requirements and legal mandate. Are you aware that the agencies did do an analysis? MR. AMENT: Yes, I am. MS. PILATE: And you still believe that we did not select the least-cost alternative? MR. AMENT: I think that to match this with my view of your examination of the OSHA model, I think that there is always a question whether a regulatory agency fully examines all of these issues in a way that is straightforward, consistent, and absolutely complete, and I urge that the agency go to extraordinary lengths to make sure that the OSHA model is not rejected without extraordinary concern about its effectiveness. If the agency has come to the conclusion that, in fact, it has done that, then so be it. That's the responsibility of the agency, but I think evidence is going to be presented by the testifiers, and probably has been, that maybe that conclusion shouldn't have been reached yet. But I understand that you have made such studies, and we will probably comment on them further in our post-hearing comments, because that is an issue we are very concerned with. MR. CUSTER: Thank you, Mr. Ament. The next scheduled speaker is Terrence Dear, DuPont Engineering. MR. DEAR: My name is Terrence Dear, D-E-A-R. I am a principal mechanical engine from the DuPont Company, Wilmington, Delaware; and I will submit my written comments sometime later. I would like to address the MSHA proposed rules of 12/17/96, in the priority order of concerns, and first to say that the Agency has made a correct decision in maintaining the 90 dBA, eight-hour criteria level, and having said that, have concerns about the basis that it has used in particular in terms of the pertinent legal requirements at page 66447, column three, where the Agency is required to use the best available evidence, the latest scientific data, and the experience of other regulations. I think the risk analysis that comprises Section I(5) of those proposed rules does not in any way reflect either the best available evidence or the latest scientific data or experience under current regulation. It must be realized that the proposed rules contain a risk analysis that is really dated to the preregulatory era, that is to say, even before the Walsh-Healey Act of 1969. And this is noted by the use of the terms "damage risk criteria, percentage risk," and the history of this is well known. It's documented in a book by Olshifksi & Harford called Industrial Hearing Conservation, published in 1975, the National Safety Council, that those percentage risk and damage risk criteria came from the Intersociety Committee deliberations in the sixties. That is to say that MSHA and others, such as NIOSH in its criteria document, that preceded these proposed rules in draft form, have failed to recognize that there is more than 25 years of longitudinal, epidemiologically sound data of industrial hearing conservation program efficacy of preventing occupational noise reduced hearing loss in industry and that in concept MSHA's proposal is to say that there is zero credit for such intervention, for example, as is required by its own regulation. That is to say, we don't know of anybody in the insurance industry around the world who could survive, based on doing that kind of risk analysis and saying 25 years later that it is still valid. It is also like saying that the risk of getting polio in 1996 is the same as it was in 1941, providing you exclude any benefit of the Salk vaccines. In addition, the bases for MSHA cost estimates do not address any of the stated requirements that override all other requirements, and this also affects this concept of PEL and cost benefits, and I just want to address your attention to what the proposed rules actually say in an overriding standpoint. Regarding, for example, cost impact on the mining industry at page 66350, beginning at line 31, column one, and let's now go and look at the facts at page 66454, where it says: MSHA will require mine operators to consider all possible controls, so as to find a combination that will, in fact, reduce noise as much as possible, underlining the word "possible" for emphasis. "Possible" is not "feasible." Possible is open ended. Possible defies anyone's ability to enforce a regulation that would overemphasize the capability of such enforcement. I would like to refer to the fact that when considering the PEL at this point in time, MSHA, like other involved agencies, should have considered not only the reduction or change of PEL, but the increase of PEL. And MSHA, in fact, within the proposed rules, gives its own reasons for why the numbers of dose, for example, just from a numerical standpoint, have been increasing. And I just wanted to point out that there has been a de facto lowering of criterion level in PEL since the advent of the noise dosimeter, which I might add, I was a co-inventor of the first one in industry back in the late-1960's of the system, and it's for the following reason. First of all, dosimeters operate totally differently than hand-held, sound-level-meter instrumentation, both in principle and protocol. They handle impulse and impact noise in an undamped manner, and also there is little control at the present time over the frequently range of interest. For example, in the MSHA criteria document, you will find a line item suggesting that noise-dose recording should include the 16 kHz center frequency of that octave band. Further proposed de facto reductions in the MSHA regulation include lower integration threshold to 80 dBA, which the Agency admits will just increase the numbers and put more people, more miners at apparent risk. They propose to increase the dynamic range, propose to change the response time characteristics, or at least examine that possibility. And by the way, one of the concerns I have throughout this proposed rule set is that there are not hard-and-fast decisions made, but much wavering, for example, in terms of the PEL and some of these other exchange rate and some of these issues. They were not clear, concise decisions. These are well-known methods of arbitrarily increasing does numbers, and it's a situation of raising the bridge and lowering the water simultaneously, apparently later on to be combined with derating of personal hearing protection, the elimination of personal hearing protection device effectiveness from dose assessments, and possibly changing the exchange rate. The conclusion on that regard, they are unnecessary and inappropriate requirements. And this is deja vu all over again for me, having participated in the 1975 OSHA hearings on many of these same subjects, and I would refer you to absolute conclusions to OSH Dockets 10 and 11, where these matters have been discussed in a lot more detail than I have time to pursue today. My second priority is to make sure that the Agency understands the valid reasons for retaining the 5 dBA exchange rate. And by the way, I'm not going to be able to get into it, but I would point out that in the definitions within the proposed rules the only place where the exchange rate is properly identified in terms of the appropriate designation, "dBA," is in the definition. Elsewhere in the document that definition, for whatever reason, is not used. I saw 5 dB, 3 dB, 5- dB, 3- dB; only in the definitions did I see anything near an appropriate definition. Also, we had the Burns and Robinson study revisited. I should point out that that was originally eliminated from consideration by MSHA in its criteria document of 1972 as reference 127. And the problem with the Burns and Robinson study is they found it extremely difficult to examine a case between what they called "equinovicity" and equal energy hypotheses when they couldn't identify or determine the dose for any individual in their study plus or minus 5 dBA. And I think those of us that do this for a living can understand that. I'd also point out something that has not been recognized heretofore, I don't think, and that is that the original exchange rate basis that was picked by the Intersociety Committee, which, by the way, considered exchange rates up to and including 9 dBA, for good reasons, but those original intermittency arguments were based upon establishing a known relationship between temporary threshold shift and permanent threshold shift. And when that was abandoned, people continued to say that those criteria demonstrate that intermittency requirements cannot be met in the industrial work place. Let me go back to Burns and Robinson and tell you what the essence of their study was that they did prove, and that was the emission concept. The emission concept said you need to look at those not only arbitrarily convenient intraday basis, but on a weekly, monthly, and even yearly basis. And I'll tell you what intermittency aspects are for those, in case you are interested, and that is on a weekly basis there are 120 hours of well-spaced intermittency in 168 hours minimum on a monthly basis, 530 hours of well-spaced intermittency in 720 hours. And MSHA's claim in the proposal that we have to make an assumption about intermittency is, therefore, incorrect. Moreover, there is one assumption that has to be made to justify the equal-energy hypothesis, and that assumption is that there is zero emittency in every day a worker works in the United States of America. The probability of zero emittency existing in the U.S. work place is, of course, close to zero, if not zero. So that assumption has gone. I say intermittency of exposure is the rule, not the exception. And there is also a fact that governing agencies, regulatory agencies have chosen to ignore the fact that there is in situ intermittency that is based on the use of personal hearing protection, particularly where those personal hearing protectors are used properly in an OSHA-type hearing conservation program -- never been credited by any agency. Furthermore, longitudinal, epidemiological studies prove that the 5 dBA exchange rate works extremely well in preventing occupational noise-induced hearing loss well below historical damage-risk criteria and percentage-risk criteria used by MSHA and others, and I would maintain if it ain't broke, don't fix it. Other claims include, in the absence of fact, that the equal energy hypothesis is convenient, appealing, makes instrumentation easier, and a whole a lot of other things that in today's world are not true. Finally, I would point out that the three-versus -five issue is clearly resolved by NIOSH in its criteria document of April 23, 1996, in the following way. And I was a little surprised, I must say, interject, that MSHA did not pick up on this specific technical error of some magnitude. And that is to say, NIOSH attempted to use an intensity analysis to prove the equal energy hypothesis, and when one corrects their flawed intensity analysis, one finds that they are recommending the 6 dBA exchange rate as the proper choice, which is further underscored by Vice and Hanson, and it is, in fact, the latest scientific and best available evidence that their widely acclaimed reference of 1996 provides. I urge you to maintain the 5 dBA trading relationship and not to get caught up in the 25-year-and-more controversy of the equal energy hypothesis. Remember, we won World War I, World War II, and we are not much interested in the problems that Europeans have in their noise regulation, because unlike a comment that I've also found in the MSHA proposed rules, we have to realize that there is very little-to-zero enforcement of these principles in Europe and other countries. My third priority is to establish the overall primacy of the hearing conservation program per OSHA 3883 regulation, the current standard. And I would point out that the hearing conservation program comments within the proposed rules are not very true to what the real program should be like, and, in fact, MSHA finds itself in the awkward position of saying, in essence, a program that it doesn't have doesn't work; and that's, I found, an awkward position to take. The hearing conservation program also does not appear in either the benefits-of-cost charts on page 66350, and there is no total annual cost representing all required elements of an effective hearing conservation program. We recommend that MSHA change its hierarchical approach of the proposed rules to give due primacy to the hearing conservation program as the best proven, best available evidence of the overall method of preventing noise and induced hearing loss for individual miners, which should be the overriding and preeminent objective of the proposed rules. I find the fractions being discussed about who will be protected, who will not be protected, who will be saved, to quote MSHA, and who will not be saved, very, very disconcerting, and one would hope at this juncture, as we enter the next millennium, that MSHA and other agencies would catch up with what's actually going on out there in industry in regard to hearing protection and the context of a hearing conservation program and what that difference implies. My fourth priority is to require that economic feasibility should reflect the cost to meet the PEL and not what has heretofore been discussed and proposed even 25 years ago as lowest-level feasible. I don't have time to go through all the reasons for discussing this problem, but it should be brought to MSHA's attention that the standard and the PEL should be one and the same, even in context of the requirements of the Mine Act. In fact, as most of us who work in this field know, in actuality, the standard is a device with which you make the measurement, and that's what determines all of the facts and consequences to those facts that -- according to these kinds of regulations. The fifth priority I have is that we should require in all applications of personal hearing protection, and I didn't see it mentioned in the MSHA requirements, but it's most important, that the MSHA I method be used, particularly versus arbitrary derating of person hearing protection devices; and, moreover, that MSHA should retain the personal hearing protection device adjustments of exposure levels. And in the context of an effective hearing conservation program, as I said, not of the type that is outlined necessarily in this particular set of proposed rules, but in a strict accordance with the OSHA noise regulation of March 8, 1983, that these kinds of performance of personal hearing protection are best evaluated by that process, and that all the other processes are mere speculation. Whether it's the laboratory data, field data, performance data, the real performance is what's going on with the individual miners that have to wear these devices, and how is the best way to evaluate that on an annual basis? The other priority that I have, which is my sixth priority, is it's essential to maintain mine operator flexibility of choice of how they pursue occupational noise-induced hearing loss prevention and related compliance methods. I have written a piece which is far too long to accommodate at this time, but MSHA has included within the proposed rules what I call a paradox of inflexible flexibility, and that has to do with this process whereby engineering controls are actually placed first, even though there is said to be no hierarchy, and administrative controls second, and there is a consequence of engineering controls required that says basically -- and administrative controls that says basically you try what is agreed by the agency to be feasible regarding engineering controls; and then if that doesn't work, then you go over to the administrative controls. So there is a definite hierarchy in this process, and you can find that hierarchy at pages 66453 through 66456. My seventh priority is that MSHA should provide realistic cost-impact estimates that address the requirements stated in the proposed rules, that is, for example, as I've already said, at page 66454, column one, line 31, the all-possible, as much as possible requirements for which it may be extremely difficult to put cross numbers on them, and also at page 66356, column one, line 54, where MSHA says it generally considers a reduction of 3 dBA or more to be a significant reduction of sound level -- hear me, sound level. Remember, the Commission, in the paragraph immediately preceding that, was quoted as talking about exposure level. Of course, the difference between noise and noise level, sound and sound level, exposure level and noise permeates this document. In fact, I could direct you to many, many instances where the word "noise" is used where the "noise exposure" should be used, where "sound level" where "noise exposure" should be used, and this is another example. And it brings up some very serious questions because if, in fact, the Agency is struggling with a determination or the difference between noise and noise exposure and sound levels and exposure to sound, then one wonders how, when at page 66454, at line 43, column two, MSHA, the knowledgeable, I quote, and active partner, can, in fact, go back and forth between noise exposure and the sound levels measured at sources. This requires some very, very sophisticated modeling. I don't know whether it's appropriate to ask now or not. May I ask a question of the panel? The question I would like to ask is the following. Can MSHA describe the models, software codes, protocol, whatever that it uses in the presence of multiple sound-source environments to evaluate the existing exposure determined by measurements, presumably statistically valid measurements -- we can get into that as well -- and then what process, what models, specific models are used to deconvolute those exposures back to required noise reductions for each and every one of the contributing noise sources. We are in an age of design by analysis. The next millennium we will address and continue with those kinds of procedures. So I would like to know how do you go back and forth between exposure levels and sound levels and make a determination about individual sound-source reduction in the face of a given exposure determination. MR. CUSTER: The question has been noted in the record and will be addressed after the post-hearing conference. MR. DEAR: I understand it's a complicated question. I just wanted to make sure that we are all aware of what those statements on those pages actually imply. What they imply is that the technical support, I believe is the quoted group within the agency, has all these capabilities, and my interest is to know what those capabilities are, and I can tell you, the world will beat a path to your door if you have these advanced capabilities, and they involve very sophisticated technical models, and I would like to know exactly what MSHA is talking about and, in essence, what is the backup for the claims made on page 66454, 66455. I don't know where I am with the time. Ms. Silvie, could you help me? MR. CUSTER: How close are you to the close of your statement? MR. DEAR: Well, I could go on quite a while, but I could close by saying, and if necessary, I could come back. MR. CUSTER: Okay. If you would help us out here because of the number of speakers we have, in order to give others an opportunity, if you would close out soon -- MR. DEAR: Yeah. I'll agree to stay as long as necessary and come back as required. MR. CUSTER: We would certainly appreciate that, sir. MR. DEAR: Fine. My tenth priority was going to be to identify and correct a number of technical errors, false claims, and oversights that I saw in the proposed rules. I gave NIOSH a grade. I teach acoustics and noise controls as some of you know. I have done so for many, many years. And I chose to grade the NIOSH definitions, and there were 32 definitions, and I could only come up with a grade of about 45 percent, being very, very liberal. I realize that MSHA had the opportunity to copy over those definitions, and I'm really glad you didn't. However, I would just like to point out that there are problems with the definitions that have been presented, detailed technical problems. For example, there is one that talks about the A-weighting network. It's gotten right the first time, wrong the second time, but the key is, I'll point out to you now, that the MSHA definition does not state what goes on at a kilohertz correctly. At a kilohertz, the A-weighting is plus or minus zero. That is not what's in the definition that MSHA has presented, and I wanted to point that out to say that's where I would start, and now I'm going to conclude. Thank you very much. MR. CUSTER: Thank you, Mr. Dear. The next scheduled speaker is Joe Main of the United Mine Workers. MR. MAIN: Good morning. My name is Joe Main, M-A-I-N. I'm with the United Mine Workers of America, and the first thing I want to do is commend the Agency for moving forward to revise a rule that has needed revisions for quite some time, and that is the noise rule that we are discussing today. It won't be long until you're sitting down and writing that final rule, whatever it may be, but I think as you do that, you do need to understand that you pick this up through the comment period, that there are some shortcomings to the rule that you have proposed. If the Agency issues a final rule that will, in fact, prevent the occurrence of occupational noise-induced hearing loss among miners, significant changes in the current rule will have to occur, and, moreover, improvements will be necessary beyond those that were proposed in the December 16, 1996 Federal Register. It should be pointed out that some of the standards proposed by MSHA ignore protections contained in the 1977 Mine Act and Title 30, C.F.R. Since these rules are being developed for the purpose of miners from hearing loss a the work place, MSHA needs to understand what miners want and need to accomplish that. First and foremost, miners do not want to suffer hearing loss as a result of their occupation as a miner, and I think that is the first thing that everyone has to understand is the primary hope of these rules in the minds of miners. Now, they have a right to expect that, and employers have an obligation to make sure that miners are protected against such damage to a special and critical sense placed in the human body. Mine operators have the responsibility to factor that in as they design the work places for miners, and we think that's a lost equation in the way that the mining industry has been structured over the past several years. A loss of hearing has a long-term repercussion to miners. God gave human beings a sense for reason, and I think we need to all understand that, and anyone who has become hearing impaired knows quite well what the difficulties of life are. Being hearing impaired creates difficulties in just carrying on communications with people in a social environment or other environments. If you go to an event or an activity where listening is part of the event, it's difficult to function socially, to understand what's going on. For the hearing impaired, "What did you say?" or "What happened?" becomes part of their normal vocabulary. They have to keep seeking from someone else in a different way of communicating what's going on in the world, what's going on in their environment. Ask the hearing impaired how difficult it is to move around in the world's environment. Like in a coal mine, the ability to hear in the general environment is important to enable one to keep out of harm's way. Loss of hearing puts people in danger. So it's very important that these rules serve to protect miners against a loss of hearing in the work place. Secondly, miners don't want their hearing intentionally impaired in the work place as the means to achieve protection against occupational hearing loss, and what that simply means is, don't put me in an environment, cut off my ability to hear to protect my hearing as a means to prevent me from being hearing impaired. That's not what they are looking at as a solution. Having one's hearing obstructed in a work environment is a last resort, not a first step to fixing a problem. When the numerous hazards that can harm you in the work place are being placed in confined spaces where equipment and machinery is moving around, taking away this sense of hearing is not a wise idea. Placing workers in locations where they are subject to being crushed by equipment or materials in cutting off their ability to hear noises that may warn them of impending harm is not the proper choice of solutions for protecting miners against the risk of hearing loss. The proper choice is to reduce the noise level at a source. In the coal-mining industry, these principles somehow became like a lost ball in tall weeds. As a result, controlling noise levels at their source as a method of protecting miners from occupational hearing loss was conveniently replaced by simply handing miners ear plugs, accompanied with work rules to wear them, regardless of the hazards of the work place. Miners deserve better than that. Congress, in the passage of the 1969 act, recognized this concern. The legislative history of the '69 Coal Mine Health and Safety Act points that out. As a result, Congress placed a requirement in Section 206 of the Mine Act which would guard against the use of personal protection to control miners' noise exposure where they would pose a hazard to the miners. That's currently in Section 206 of the Mine Act. That congressional concern seems to be forgotten in the proposed rules. It is also unfortunately ignored with the application of the current rules. Many miners believe that mine operators ignore noise-reduction solutions and work place hazards by simply handing them a cheap set of ear plugs. They don't check to see if that even results in a hazard to the miner. It's time to end this negligent approach. Emphasis in the rule must be geared toward requiring operators to pursue meaningful engineering controls to reduce noise levels at its source. The final rule should be technologically forcing. Although it is the responsibility of the operators to develop noise-reduction controls, I would urge that all sectors of the government that have some responsibility to protect miners from hearing loss be called upon to help. The Mining Research Center of NIOSH should be called upon to identify noisy mining environments and help find solutions to engine those out. MSHA needs to be more diligent in identifying noisy work locations in the mining industry and providing guidance on solutions to engine those out. Our organization is willing to join that effort. The Agency also needs to be more mindful of the current law requiring mine operators to employ protective systems to reduce noise as opposed to personal protective devices that may cause a hazard to miners. Miners want a noise exposure level set that protects them against hearing loss. When MSHA issues the final rule, they must be able to tell miners that they should expect to spend a career as a miner and not suffer hearing loss as a result of their occupation as a miner. MSHA needs to tell them that they have not increased the risk of injury or illness from other factors as a result of the rules that they will employ. Miners want quality surveillance of the work place to assure that noise levels are maintained at levels that will not impair their hearing. They also want a system in place that will require immediate corrective action if noise levels exceed established levels. Surveillance by the mine operators and government agencies are important to achieve this. Congress recognized this important part of assuring that miners would be protected against harmful noise levels at the mine as they constructed the 1969 Coal Mining Health and Safety Act. The legislative history on that Act shows that they were insistent on requiring mine operators to conduct tests of noise levels of the mine and both MSHA and NIOSH certification of those results. Congress placed a requirement in Section 206 of the Mine Act that was very straightforward. That section required mine operators to conduct tests at least every six months of the noise levels at the mine and report and certify the results to two government agencies, now MSHA and NIOSH. Those are currently contained in 30 C.F.R., part 71.803. Instead of strengthening that standard to improve work place surveillance, the proposed rule instead basically abolishes it. That is contrary to requirements of Section 101(a)(9) of the Federal Mine Health and Safety Act. Miners want the opportunity to have their hearing acuity tested to determine if they are being adversely impacted by the noise level in the mining environment. Mine operators should be obliged to provide these tests at no charge to the miner in a way that provides for accurately and integrity. If their hearing is being impaired, they have a right to know. I think it's that simple. I've only touched upon some of the issues of concern today to miners with respect to the rules. During the comment period on these important rules, you have heard from many miners and their representatives about the problems identifying the inadequacies of the current rule and the need to have meaningful fixes to those. You have heard that miners are having their hearing impaired as a result of their occupational exposures. You have heard about mine operators who have ignored fixing noise problems. You need to listen carefully at these comments, which is sometimes something that some of the miners are no longer able to do. You must, in the end, issue rules that really work to end hearing impairment at the work place and in a way that doesn't create other risks to miners. Thank you. MR. CUSTER: Thank you, Mr. Main. The next speaker scheduled is Dr. James Weeks of the United Mine Workers of America. MR. WEEKS: Good morning. I appreciate the opportunity to speak on this set of rules that you all have proposed. My name is Jim Weeks. I'm an industrial hygienist. I worked for the United Mine Workers for about 15 years, and during those 15 years and when I've talked to the members of the union, I've been impressed with how frequently and with such concern miners raise noise exposure as a significant problem. So I think one of the things that you've accomplished with this rule is simply to recognize that noise exposure is a problem in the industry. The second problem is that the current regulations are obviously defective in a number of ways. And, finally, I believe, in general, in the current situation there is inadequate attention given to engineering controls over hearing protection. Let me detail some of the ways in which the current rules are defective. First of all, the 90 dBA exposure limit is excessive. The 5 dBA exchange rate is excessive. The current exposure measurements integrate at 90 dBAs. There is no action level. The provision for hearing conservations are very weak and are only required after a citation which occurs at 130 percent of the PEL. There is allowance for hearing protection in considering the citation, and administrative controls are monitored in very weak ways. The rule that you propose makes improvements in some of these areas, and I wish to recognize them and support them. First of all, you've created the concept of an action level, which didn't exist before in the industry, and I think that is a step forward. Second of all, noise exposure measurements integrate at 80 dBA rather than at 90. Third, the provisions for a hearing conservation program are a significant improvement over what has existed in the past, and the hearing conservation program itself is called -- is required to be implemented after an action level of 85 decibels. You removed the adjustment for hearing protection in determining citation, and the administrative controls are posted for review, so there is more attention given to administrative controls. Those are all steps in the right direction, and we support those; but there are several features of the proposed rule that we do not support. First of all, you've failed to demonstrate that adopting a PEL of 85 dBA and an exchange rate of 3 dBA are infeasible. The requirement for operators monitoring noise exposures is totally inadequate. Third, while the preference for engineering controls is stated in one part of the proposed rules, this preference is significantly weakened throughout the rest of the rule. I'd like to comment on each of these and a few more in the time that I have. First of all, you've failed to demonstrate that adopting a PEL of 85 dBA or an exchange rate of 3 dBA are infeasible. You refer to a couple of review commission decisions that outline criteria for feasibility, and yet you did not apply them in evaluating the 85 dBA PEL. Ironically, in those decisions that you referred us to, the review commission found that the engineering controls that were being proposed by MSHA in those proceedings were found to be feasible by applying the criteria that the review commission had developed. Now, it does not appear that you calculated, in fact, any costs associated with 85 dBA limit, and yet you base your decision to reject it on the question of feasibility, presumably which would address the question of cost, yet you gave no basis for making that determination. Now, there may be some narrow interpretation of the Mine Act that you only have to show feasibility for the standards that you propose rather than infeasibility for the ones that you reject, but given the superiority of the 85 dBA PEL and the 3 decibel exchange rate, first of all; and, second of all, given the requirements of the Act that you are required to show the highest degree of protection available, it would seem to me that you should go back to the drawing board and make a realistic consideration, in fact, really consider the 85 dBA PEL and the 3 dBA exchange rate. It looks like you simply looked at it and said, "It's not feasible; let's go to 90," and you've done your cost calculations based solely on 90. I think that if colleagues of mine or others in the health professions had presented data on health effects with as little documentation, it would have been dismissed as being out of hand, and I think the standards of analysis and presentation that are required in practice of those of us in the health profession should also apply to cost estimates as well. And if we had done what you have done for the 85 dBA exchange rate, nobody would have believed us. All right. Secondly, the requirement for operators monitoring noise exposure is completely inadequate. The rule states, and I'll quote the whole rule minus a couple of prefatory words, that the operator establish a system of monitoring which effectively evaluates each miner's noise exposure. This is vague. It's unenforceable. It creates not basis for accountability. It would almost be better for MSHA to conduct all measurements of exposure rather than to have this language. Let me show you what's missing. First of all, you haven't said what "effective" is. Second of all, you haven't said anything about the frequency of measurements or about the instruments, which instruments should be used, how they should be calibrated. You've said nothing about the qualifications of the person to monitor exposure. You've said nothing about the person's qualifications to calibrate exposure instruments. You've said nothing about calibration. You've said nothing about which occupations to sample or what the operating conditions ought to be during sampling, and you've said nothing about record keeping. So I think in this industry, in coal mining, in particular, we've just gone through a 25-year period that has come to a head over the past several years concerning sampling for respirable dust in which mine operators were given extensive responsibility for measuring exposure to respirable dust under much the same circumstances as this, and extensive fraud has been found in that program, which is regulated more than anything in the noise program. So it would seem to me that this language for exposure monitoring is simply an invitation to abuse. Now, secondly, or third, wherever I am at this point, oh, yes, well, the preference for engineering controls is stated in one part of the proposed rule, in 62.120. This preference is significantly weakened by provisions throughout the rule. In fact, it's mentioned nowhere else in the rule that demonstrate, in fact, a preoccupation with the use of hearing protectors as the principle means of reducing exposure to noise. In fact, it seems like the rule is more interested in documenting the deteriorating of hearing rather than in preventing it. As we stated above, the word "feasible," I think "feasible" should be, in fact, removed from this section, and, in fact, feasible should be considered at the standard-setting stage rather than at the enforcement stage, because if feasibility is a consideration when it comes to enforcement, then in each and every enforcement activity, someone is going to have to consider feasibility. This is an unnecessary burden. I think feasibility should be presumed, and it should be up to if a mine operator is going to claim that something is infeasible, it should be up to him to demonstrate that rather than simply say -- it appears that what the mine operator could do now is say, "Engineering controls are not feasible; therefore, we're going to hearing protectors as the principle means of protecting miners' hearing, and it seems to me that's what the operator could do with this rule, is simply write the rule, write the letter that says it's not feasible; we're going to do hearing protection, and there would virtually be nothing that you could do to prevent that from happening. Now, another matter, as it pertains to engineering controls, is that the way it's currently worded, you write down "engineering controls" or "administrative controls" and put them essentially on the same level, as if they were equivalent. They are not equivalent, they should not be treated as being equivalent, and they should be treated separately. Let's see. Now, I think that support for engineering controls could be written into the rule in several ways. As I mentioned, it should be presumed that engineering controls are feasible. It then should be up to the operator to demonstrate that it's not in any given situation. An operator might have to submit its effort for review, document the situation, give it to the agency for review, have miners and their representatives comment on that, and make a decision based upon what the miner says and what the mine operator says and what miners say about a proposed modification in a way from the presumption of feasibility. Now, this rule, as in many other safety and health regulations, this rule should be a technology-forcing rule, and I don't see any evidence that you're forcing the development of engineering controls for noise exposure. A second place that engineering controls could be supported is by including it in the hearing conservation plan. Now, under OSHA, there are several features under the OSHA hearing conservation plan that are not present in this, specifically monitoring exposure and search for engineering controls to reduce the generation of noise; and I think both of those features in the OSHA plan should be included in the hearing conservation plan here for miners. Now, there are a number of problems which I'll just mention in passing. First of all, I think miners should be given a much broader range of choices for hearing protectors. One plug and one muff is really not much of a choice at all. I would think, given the variability in the performance of hearing protectors, given the variability in miners' preferences and so on, I think there should be a broader range of choices amongst hearing protectors. And, okay, I think that gets me to the end of my comments. Should I wait for any questions? MR. CUSTER: Thank you, Dr. Weeks. I would like to remind anyone who has commenced since the hearing commenced, there is a hearing sheet outside the auditorium. The table would be to your extreme right-rear. We would like for you to sign that sheet, please, if you haven't already done so. We would like to recess for a 15-minute period -- make that 10. (Whereupon, at 10:55 a.m., a brief recess was taken.) MR. CUSTER: Again, I'd like to point out for the latecomers that any of you who wish to offer a statement and have not yet been placed on the speakers list, if you would kindly make arrangements with Mrs. Fontaine at the extreme right of the table, she will be happy to accommodate you, and then you will be given the opportunity to speak once the schedule of the speakers is complete. MS. SILVIE: Let me make another comment right now, too, and that is to reiterate that we are extending the post-hearing comment period to August 1. Now, we are being noticed in the Federal Register to this effect, but as I said earlier this morning at the outset, we are extending that post-hearing comment period until August 1, and I will make such an organization again before the hearing closes. Thank you. MR. CUSTER: A note in passing, that anyone who wishes to have a transcript made available for their own use will need to make arrangements with the court reporter. We are going to have a transcript obviously for our purposes which will become part of the record, but we cannot duplicate that for you. You will have to purchase your own copy through the reporter. The next schedule speaker is Linda Raisovich Parsons of the United Mine Workers of America. MS. PARSONS: Good morning. My name is Linda Raisovich-Parsons. That's spelled R-A-I-S-O-V-I-C-H, a hyphen and P-A-R-S-O-N-S. I'm here today on behalf of the United Mine Workers of America. I'm a third-generation coal miner and have been employed in the coal-mining industry for over 21 years. I began my mining career in 1976 as an underground coal miner with U.S. Steel Mining Company. Later, in 1980, I completed coal mine inspector training at the National Mine Health and Safety Academy, and I worked as an inspector for the UMWA in our former District 29, covering Southern West Virginia. For the past 14 years, however, I've been employed in the Union's Department of Occupational Health and Safety as a legal legislative assistant. Part of my duties in this position is to coordinate the MWA's participation in the rulemaking process. MSHA's original notice of proposed rulemaking for underground coal mine standards appeared in the July 9, 1982 issue of the Federal Register. I took this position in January 1983. Consequently, I've had the privilege of reviewing and responding to nearly every standard the Agency has reviewed. During that time, the Union has on many occasions been at odds with MSHA over some of the changes that it has proposed. However, after reviewing the proposed noise standards, I was quite disturbed by the illusion this proposal creates that improvement has been made. A close look at the rule reveals that any improvement to reduce miners' exposure to noise is quickly defeated by the lack of sound-monitoring and enforcement requirements. Perhaps the most counterproductive part of the proposal is the lack of sound-monitoring requirements. The rule proposes a system of monitoring noise which is "performance oriented," or in other words, self-enforced by the mine operator. The mine operator will be solely responsible for establishing a system of monitoring noise and taking appropriate action under the rule whenever they find themselves out of compliance. I find this quite disturbing, especially after the lessons that should have been learned by the senior system for monitoring respirable dust. Under those rules, mine operators have been perpetrating fraud for 25 years. I would hope the Agency could see that such a proposal is an invitation to abuse, especially when closely engineering or administrative controls are at stake where noncompliance is found. A good analogy to this would be to eliminate the highway patrol and ask everyone who exceeds the speed limit to pull over, issue themselves a ticket, and pay a $500 penalty. I don't think too many speeding tickets would be issued. Similarly, I don't think very many operators are going to voluntarily declare that they have a noise problem and they would spend money for engineering controls. Furthermore, adding to this dilemma, MSHA's role will be limited to taking periodic measurements whenever they deem appropriate and checking the operator's record at the mine site. Since there will no longer be any reporting requirements, the Agency will have to rely on the inspector's assessment of whether the mine is in compliance with the noise standards. I have traveled with MSHA inspectors and know the enormous responsibility they have to complete timely inspection of an operation. They generally have a zillion records to review and a huge amount of territory to cover in a specific time period. I fear that the noise records will become the least of their priorities and will be lost in the shuffle of getting their inspection completed in a timely manner. Consequently, the Agency will have no reliable means of effectively monitoring the noise program. UMWA believes that the only means of reliably monitoring noise levels in a mine will be by MSHA taking responsibility for conducting surveys and enforcement of the standards. There are a number of other problems with the proposed rule. Since my associates have and will be addressing these in more detail today, I will only summarize my main concerns, which include, one, the Agency has proposed the elimination of any reporting requirements for noise survey results. This is one of the main means the Agency has to monitor the noise level at a mine. Elimination of this requirement is in direct conflict with Section 206 of the Mine Act, which requires: "Beginning six months after the effective operative date of this title and in intervals of at least six months thereafter, the operator of each coal mine shall conduct, in a manner prescribed by the secretary of health, education, and welfare, tests by a qualified person of the noise level at the mine and report and certify the results to the secretary and the secretary of health, education, and welfare. The reliance on records kept at the mine will severely limit the Agency's ability to assess noise levels in the industry, especially when they are only kept while a violation exists and thereafter for six months. Two, the proposal ignores several recommendations made by NIOSH. NIOSH recommends that the presbycusis factor not be used because the data on age-related hearing loss describe only statistical distributions in populations and cannot be generalized to the experience by an individual in that particular age group. We also recommended that the rule adopt a 3 dBA exchange rate instead of the proposed 5 dBA exchange rate. A 3 dBA exchange rate has a stronger scientific foundation and is more protective and is used in most other industrial countries. The UMWA agrees with these NIOSH recommendations and urges the Agency to adopt them in these rules. Three, under 62.120(b)(1) of the proposal, the operator must provide training to the miner whenever his or her exposure level exceeds the action level. The Agency goes into extensive argument in the preamble as to why this training should not be included as part of the Part 48 annual refresher training, but the interns -- only permits it in the rule. The annual refresher training does not permit enough time to adequately cover the subjects now that is currently required to be jammed into an eight-hour session. This has, and has been, a complaint about the annual refresher training among the majority of the industry, union and management alike. I don't see how MSHA expects to squeeze the enormous training requirement in this training and expect it to be served justice. And, last but not least, the Agency proposes that all records be maintained at the mine by the operator. Section 62.200(a)(2) proposes that the mine's representative will have access to training records compiled under Section 62.130 and copies of notices made pursuant to 62.120(f)(2). The miner's representative will not have access to audiometric test results without written consistent of the affected miner; however, these records will be maintained by the operator and provided to MSHA without restriction. We would like the Agency to provide explanation for this proposal. If there is a question of medical confidentiality, such a proposal actually promotes the violation of confidential medical records by establishing the mine operator as the record keeper. Audiometric test exams are medical records. Like all medical records, they should remain confidential and released only with the miner's written consent. The mine operator is neither a physician nor an archivist of medical records. His fundamental responsibility is to operate the mine in a safe manner. The only reason the mine operator should know of noise-induced hearing loss is to report under Part 50 rules. This information can be provided to the operator by the audiologist without violating confidentiality. To require the mine operator to be the keeper of confidential medical records is a violation of medical ethics. Noise is a health hazard. Exposure to noise is under the operator's control. The operator should keep the record of exposure to make intelligent decisions about controlling noise and complying with exposure limits and leave the medical records to the medical community. Under Part 90, when a miner shows evidence of development of pneumoconiosis, notice is provided to the miner alone. The operator nor the miner's representative has knowledge that the miner has been determined to be a Part 90 miner until that miner chooses to exercise his option to transfer to a less dusty area. We believe the noise standard should be patterned in a similar fashion which maintains the miner's medical confidentiality. The rules focus on exposure levels in controlling noise instead of miners' hearing impairment. The Union has many other problems with the proposed rule; however, as stated, my associates in our comments will address those. In closing, I'd like to say that being a coal miner, a daughter and granddaughter of coal miners, and raised in a coal-mining community in southern West Virginia, I have witnessed firsthand the tragedy of occupational illness among coal miners. My father, who died at the age of 56, was disabled with black lung and hearing impaired from -- with the stoker. Unfortunately, the loss of lung function and hearing are permanent. The only way to avoid this tragedy is through prevention. I urge the Agency to go back to the drawing board on these rules and make them more acceptable. Thank you. MR. CUSTER: Thank you. Mr. Ed Plowcha. I'd like to point out that the assistant secretary of labor from Mine, Safety and Health is, indeed, in the audience in the rear, Mr. J. Davitt McAteer. The deputy assistant secretary is also in the audience, seated behind Davitt, Andrea Ricoh. All right, sir. MR. PLOWCHA: My name is Edward J. Plowcha. That's P-L-O-W-C-H-A. I've been a coal miner for 22 years up in Homer City, Pennsylvania, the Luzarne 6 extension mine owned by the Helvatia Coal Company, which is a subsidiary of the R&P Coal Company. I'm a member of the local Union 488. I'm chairman of the Safety Committee. I've been chairman for about a year. I've been on the Safety Committee for four years and two years at a previous mine. I want to tell you how engineering controls have resulted in a noise problem at our mine. On July 2, 1996, a MSHA inspector did a supplemental noise survey in the two-left section of the Luzarne 6 extension mine. The results showed a noise exposure level of 173 percent in the environment of the continuous miner operator. The continuous miner was along Air Ducts 525. When the last part of the -- was discovered, it gave off a loud, high-pitched howl or a wail. The first reaction of the company was, of course, to issue everyone ear plugs. The maintenance foreman at the mine decided he could design a scoop or a deflector that could deflect noise away from the workers. It was just metal welded together, welded onto the frame of the machine over the scrubber discharge outlet. It worked very well. The difference was noticeable, very, very noticeable. When the inspector came back on July 11th, he ran another noise survey, and the noise exposure level was 81 percent. This showed that it's possible to engineer out noise problems. This is important because ear plugs not only block out harmful noise; they also block out helpful noises, noises necessary for communication and safety. When I bolted the roof, there was a variety of different types of rock above the seam, above the coal seam, mostly mixes of slate and sand rock. The sand rock would give off a loud, a high-pitched squeal when you drilled it, but if you wore your ear plugs, you couldn't hear the difference of what you were drilling. It was hard to determine exactly what kind of roof you had. If ear plugs would have been required, I don't think we could have been able to detect changes in the roof that could cause roof failure. Ear plugs, in effect, induce a state of temporary hearing loss. It is much more difficult to communicate. A person running a machine with ear plugs may not hear an individual calling to stop him, maybe in an emergency situation. A person with ear plugs may not hear when the roof may warp or chip. He may not hear a machine coming at him. He may not hear a lot of things. In the mine environment there are so many variables, it is impossible to imagine all the things that could happen. Ear plugs are a second best. Why subject the miner to needless hazards by requiring ear plugs when engineering controls are possible. Questions? MS. PILATE: I would like to ask you some questions about the mine where you work. How many employees work at your mine? About how many? MR. PLOWCHA: About 160 union, maybe 25 company. MS. PILATE: Does your mine cover noise on its annual first returning? MR. PLOWCHA: I don't know for sure. MS. PILATE: Does your mine offer annual audiometric exams? MR. PLOWCHA: No. MS. WESDOCK: I just have one simple question. MR. PLOWCHA: Okay. MS. WESDOCK: You said that you developed an engineering control for the continuous mine machine. MR. PLOWCHA: Pardon? MS. WESDOCK: The machine that you were talking about that you developed an engineering control. How long did it take you to come up with that engineering control, and did you have any idea of the cost? MR. PLOWCHA: I don't know what the cost would be. It was designed by the maintenance workers at the mine, and it was less than a week. I'm sorry. MS. WESDOCK: It was less than a week? MR. PLOWCHA: It was less than a week. MS. WESDOCK: Okay. Thank you. MR. CUSTER: Thank you. Mr. John Hitchings. MR. HITCHINGS: My name is Jon Hitchings. That's J-O-N H-I-T-C-H-I-N-G-S. I'm a United Mine Worker for 16 years, Safety Committee chairman at the Early Number 1 Mine. That's Keystone Division, R&P Coal Company. Just a few things I wanted to talk about, like Ed did, that there is ways of maintaining these machines as far as the noise, and it's not -- you know, the cure is not to put hearing protection on the people. I work with people that do have hearing problems, and I encounter dangerous situations with them. At our mine, with the different conditions that we've had over the years like miners out of compliance, machines out of compliance, one problem I always had was the persons affected were always the mine operators, okay, the six people, whatever it is. What about the person that takes his place if that person is off? That could be four months, five months. They are not accounted for. Okay? When you're downsized the way we are in our mine, that happens. You're changing people in and out all the time. These people are affected by that, but yet they are not in the figure, you know, when the test was taken at the time. I feel that it should be, you know, everyone in that section, not just a certain machine, because you have a lot of things involved. We stagger. Okay? Other people come run the machines; they are involved in that, but yet it might not be an eight-hour day, but they still, over the long haul, they are involved in it. Back then, when I first started in the mines, you had pan lines and things like that. We weren't recognized as having a problem. We were never tested for the noise back then, you know, and over the years it affected you. Now, you have the machines that today that they run so fast that you can't keep the coal chain full of coal in order to keep the noise down. There's a lot of different problems with that, but I think one of the biggest problems is educating the people as far as your miners, regardless of company, union, on wearing the hearing protection. If that's your choice, that's fine. If the company makes that a policy, which we have in our mine, anyone in by the last open cross-cut is to wear the hearing protection. We have older people, I talk to them every day. Their theory is, well, I'm getting older. What's the difference anyway? Well, it makes a lot of difference. Now, if something needs to be enforced on that, if you're going to use that as your option other than fixing the machine, the hearing protection, it needs to be enforced, not that's the cure to keep MSHA from issuing a citation as well; we have them wearing hearing protection. Now, I'm going to be honest with you. When they are around, they wear it; when they are not, they don't. And it's not because they don't feel that they should; it's because there's to many factors against you, you losing that sense of testing the roof or listening to the roof, the roof conditions in the mine. You need those. Whenever certain people are around, they wear it; when they are not around, they don't, and the company doesn't enforce that. They will stand right there beside them. Just a couple of more things. We've had two or three miners, continuous miners in our mine that have been out of compliance. Okay? And it's too costly -- I hear people talking about it's too costly to change them, but yet why when the machine goes out for a rebuild and it comes back, it's in compliance? I don't understand that. There's millions of tons mined over that machine, and we have to wear the hearing protection. It can't be fixed, but yet when it goes out for rebuilding and it comes back, it's okay. There's got to be some way of getting that straightened out before it enters the mine. I don't know how. I'm not an engineer, but I've seen that three or four times. And one last thing, you're going to be listening to a guy I work with, and he does have significant hearing loss, and if he would fall under this changeout, as far as if the person is affected and he is taken out of the area, I think there is a big problem with that because due to the downsizing of your people, what do you do if there's not enough people? Do you just leave them on there? Who is going to enforce that? Who is going to enforce that he is taken out of that affected area at that time? Now, it doesn't happen now, so I think you need to look into that a little bit closer as far as fixing the machines, not moving people around to get them out of the affected area. Go to the source of the problem; don't move the people around. One last thing on this person that you will be talking to, he has been in the mines quite a while, and what I need to know, he is affected by it; he has 58 percent hearing loss. What are you going to do for him? This is under the new rule. What about him down the road? What happens when our mine shuts down, and where is he going to work? Nobody is going to take him. He does fine, he works hard, but nobody is going to take care of him as soon as this mine is done. There should have been something done a long time ago. Thank you. MS. PILATE: I'm curious to know how many employees work at your mine. MR. HUTCHINGS: Approximately 145. MS. PILATE: Does your mine cover noise in its annual refresher training? MR. HUTCHINGS: No. MS. PILATE: Does your mind off an annual audiometric exam? MR. HUTCHINGS: Just to the people that are affected as part of the machines out of compliance. You know, the machine might not be there now, but those are the only ones that still get tested. MS. PILATE: Thank you. MR. CUSTER: Thank you. Mr. Jim Miller. MR. MILLER: Hi. My name is Jim Miller, M-I-L-L-E-R. I'm from the UMWA, and I have over 18 years in the mines, and I have a significant hearing loss. It's real bad and everything. The only thing I hear about is wear ear plugs and stuff like that. Well, that won't help me in the mines, stuff like that, because you've got to be able to hear the booth and stuff working. When you hit that sand rock, like he was talking about, to pull the steel out, if you're in gas, you could blow the place up. So I'm not the only one who is going to be having a problem then. Other people's lives are going to be in danger, too. So instead of wearing hearing plugs and things like that, I think they should try to quiet down the machines so I don't have to wear them or anybody else does. That would help us. And another thing I'd like to talk about, talk about all the machinery and stuff. I was in there for 19 years, and I've been around pan lines, jackhammers and stokers and everything like that. They never protected us from that stuff. Well, my hearing is going now, so what are they going to do for me and people like me that have hearing loss? Are they just done in the mines now? And another thing on the paper, it says about smaller operators and everything like that. It shouldn't matter if the company is big or small; they should try and protect everybody's hearing, not just the ones in the big -- that can afford it and stuff like that. That's all. MS. PILATE: Are you employed at the same mine as the previous speaker? MR. MILLER: I can't hear you. MS. PILATE: Are you employed at the same mine as the previous speaker? MR. MILLER: I still can't hear you. AUDIENCE: Yes, he is. MS. PILATE: Yes. Okay. Thank you. MR. CUSTER: Thank you. Mr. Jim Lamont. MR. LAMONT: My name is Jim Lamont, L-A-M-O-N-T. I work for the United Mine Workers of America. I'm the international health and safety rep. I have 23 years' mining experience, 10 years of which I served as the chairman for the Mine Health and Safety Committee at the mine I came from in southwestern Pennsylvania. In the proposed noise standards, many areas need address and change for the sake and protection of the miners. You just heard Brother Jimmy Miller, a miner with 19 years' mining experience who suffers with hearing loss. How would the baseline audiogram work for him? Where are the standards that pertain to him and people like him? Jimmy has a documented 58 percent hearing loss. He has to wear a hearing aid all the time. Any further deterioration of his hearing would basically render him totally deaf. Had there been engineering controls implemented years ago, there would be a lot fewer folks experiencing what Jimmy Miller has to live with every day. A few weeks ago, I received a phone call from a safety committeeman up in my area. He was at the mine operation. What had happened was that the crew was pulled into the office by the operator. They were told they were going to have a noise survey done in their one particular section this day. They were also told during this shift they were required to wear hearing protection. My question to the committeeman was, do they normally wear hearing protection on a normal basis in the section? He says, No; the operator wanted him to wear it just today. My comment to him was, don't do anything out of the normal. Have them operate the way they normally do, without the protection so you have an accurate survey. It's so easy for the operators just to hand out hearing protection like ear plugs; it's a quick, easy fix. It's been abused and will be continue to be abused until mandatory engineering controls are imposed. It's real easy for someone to put up a side at the last cross-cut and say, "Hearing protection required beyond this point." It's real easy to hand out ear plugs, stuff cotton in your ears, wear ear muffs, or a combination of both. That's not going to take care of the problem. We need to take care of the problem at the source. I've seen people operating pieces of equipment in a mining section. If you are operating a piece of equipment that's noisy and you have ear plugs in and the roof starts working, how would you be able to hear the roof? I don't think you could. This brings back another story that just happened a few weeks ago at another operation. The crew was in the bell entry. They were on a continuous hauling section. There was a major cave, a substantial cave in this bell entry. The cave went from the face out by the three cross-cuts. They lost two pieces of equipment in this cave. We were very fortunate we didn't lose any lives. Nobody got injured. Two bridge operators were on the mobile bridges. The one back-bridge operator heard the news, heard the roof working. He hit the kill switch, which deenergized all the equipment. He was able to alert everybody. He screamed, hollered, "Get the heck out of there. It's coming in." Now, had that been the crew I just talked about a little bit ago who was told they had to wear ear plugs that day, they might not be around today. If they were wearing ear plugs, they might not have heard that roof work. They could very well be dead. It only makes good sense to reduce the noise at the source. The need is to implement engineering controls . It is very possible, and it would behoove everybody. We know it's possible because the operation of the mine that Brother Ed Plowcha comes from, he spoke about the engineering controls they implemented there. It was very simple. It was very inexpensive. From what I have seen and believe, it was only a piece of half-inch metal put on an angle to deflect the noise from the scrubber. Real easy. The other people were not required. They did not have to wear ear plugs. It did not diminish any safety. We feel that ear plugs do diminish the safety. It does diminish the safety of the miners. What we need to do is enhance the safety of the miners, not take it away from them. Hearing what's going on inside the coal mine is very important to the active, working miners. We were always taught, from Day One, when you go into a mine, what you want to do is sight-sound-vibration method of testing the roof. And if you're wearing ear plugs, you're taking away one of your senses, which I believe does diminish the safety of the miner. As I said, for many years I served as the chairman of the Safety Committee on Operation. I worked for an IM, an international representative. One of the proposed rules under access to records would require me to have written permission to see an individual's records. Why is it I would be required to obtain written permission to have access to an individual's records when no one else has the same criteria imposed upon them? This proposal, I feel is unfair. It provides everybody else with an advantage over me, and it limits my ability to provide proper representation to an individual. I do have an obligation to represent these people, and I feel that would help diminish my obligation, my advantage to help represent them. Is this proposal introduced because the records are considered confidential medical records? If that is the case, then no one else should have access to these records without written permission. It's just to make it quick and easy and simple, we would like to see that part deleted. That's all. MR. THAXTON: Mr. Lamont, I'd like to go back to the survey that you mentioned. Was that an operator survey or an MSHA survey that was being conducted? MR. LAMONT: That, I'm not sure, but just guessing, I would feel that it was a supplemental survey done by MSHA. I don't really think the operator would tell him to wear hearing protection if they were doing it. MR. THAXTON: So are you indicating that they got the crew together and was told in advance that they were conducting a noise survey? MR. LAMONT: That's what I understood. MR. THAXTON: Would you care to tell us which mine this was? MR. LAMONT: Not at this moment, no. MR. CUSTER: Janice Bradley. MS. BRADLEY: Good morning. My name is Janice Bradley, B-R-A-D-L-E-Y. I'm the technical director for the Industrial Safety Equipment Association. The is the leading national organization representing manufacturers of personal protective products and equipment. Since its founding 1933, ISEA has been dedicated to protecting the health and safety of workers at all work sites, including factories, construction sites, and in particular mining operations. We appreciate the opportunity to review the proposed rule on health standards for occupational noise exposure in coal, metal, and nonmetal mines and submit the following comments. I agree that feasible engineering controls should be used to reduce noise exposure to as low as reasonably achievable. However, we strongly object to Section 62.120, part 831, which states that a miner's noise exposure shall not be adjusted on account of the use of any hearing protector. We believe that when hearing protectors must be used to further reduce noise exposure, that they should be credited as to the amount of attenuation that they provide the employee. MSHA's proposal to disregard all predictors of hearing protector performance does not assist or benefit anyone who administers or is enrolled in a hearing conservation program. In fact, there are many reliable methods available today for evaluating hearing protector effectiveness, all of which get credit for the use of hearing protector devices. In many cases, the use of hearing protectors is the most feasible method to reduce noise exposure in work places such as mines to discount the protection that these protectors provide creates numerous undesirable effects. Such an approach does not account for the real and appropriate protection that these devices provide when they are used in conjunction with the comprehensive, hearing conservation program. If the reduction in exposure that the hearing protector achieves is not taken into account, then why should they be used at all? We are concerned that MSHA is not properly judging the usefulness of hearing protector devices, and it certainly sends the wrong message to the end user on the effectiveness of hearing protectors. By not accounting for the protection that a hearing protector provides, MSHA is effectively giving all hearing protection devices a de facto noise-reduction rating of zero. Such an approach would put the employers, as well as the manufacturers of hearing protector devices, in a precarious legal position in which plaintiffs could claim that the noise-reduction rating is effectively zero, as determined by a federal agency. In contrast to MSHA's proposed wording, OSHA gives credit for hearing-protection devices when they are used by employees to reduce the overall noise level that an employee is exposed to. Because of the safety factors that OSHA may assign, and it's not always assumed that the protection achieved is equal to the stated NLR, and unlike the proposed MSHA rule, OSHA does not completely discount the benefit of using hearing-protection devices. In summary, some workers rely on the use of hearing-protector devices to reduce their overall exposure. We promote the use of protectors as an effective and cost-efficient method of reducing the overall level of exposure and believe it's an essential part of any noise-exposure-control program in the work place. Thank you for the opportunity to comment. MR. THAXTON: I have a couple of questions for you. First, I'd like to go back to the methods that are used for rating -- MS. BRADLEY: Yes. MR. THAXTON: -- hearing protectors. Do you have a recommendation as to which method is most suitable? MS. BRADLEY: I represent about 12 manufacturers, all of whom totally agree on the best method, except that whether it be the EPA method, the night-fit method, the experimenter-fit method, or there is a new method that the S-12.6 Committee just published in a 1997 standard. My point being not to recommend a particular method of evaluating hearing-protector attenuation, but many of them are available, and all of them give credit to the use of hearing-protector devices. MR. THAXTON: The second question goes to your statement that hearing protectors may be the most feasible method. What are you using to determine the fact that it may be the most feasible method? MS. BRADLEY: Again, it depends on exactly what type of operation you are involved in. Certainly the gentleman that described the efficient and quick engineering control that was implemented at his particular mine is the desired method of reducing a worker's overall noise exposure. However, in some instance, it is not feasible. I am not a miner, so I can't give you specific examples. However, we've supplied comments as well to NIOSH in the occupational noise exposure control to the paving and asphalt industry, and in some instances in that case as well there are cases where a person, maybe not for his whole shift, but while he is working in close proximity to a certain piece of equipment that happens to increase his overall noise exposure, he may choose to wear ear protection. We feel that is an appropriate method. MR. THAXTON: Are you then using feasible as saying that the noise level is not able to be reduced or that the fact that cost involved in lowering the noise level, engineering-wise, is greater than the cost of hearing protectors? MS. BRADLEY: I don't think anyone would argue that, you know, throwing ear plugs on people is probably the cheapest method available, and certainly if that's what miners wanted, our manufacturers of hearing protectors would certainly be happy to oblige them. However, that only protects one individual, and it doesn't account for exposures of all the individuals in proximity to the piece of equipment that happens to be particularly noisy. MR. VOLOSKI: I'd like to follow up on one of your answers to Bob's questions. You said that you have several methods of evaluating hearing-protector effectiveness, but all of those methods having done in the laboratory. How would MSHA test effectiveness of a hearing protector on an individual miner? If they do engineering noise controls, that's a simple process, but it would not be real simple if we tried to do it on hearing protectors. MS. BRADLEY: We agree that engineering controls should be implemented. We're not disputing that at all, but we believe that there is a place for hearing-protector devices, and when they are used, they should be credited as such. MR. VOLOSKI: Do you want us to give credit for hearing protectors prior -- MS. BRADLEY: I didn't say "prior." I said if they are chosen to be part of -- MR. VOLOSKI: -- to making a measurement. MS. BRADLEY: If they are chosen to be part of an overall conservation program and you are relying on them to reduce an overall exposure to noise of a worker, then it should be counted. If you are relying on them as part of your program to reduce overall noise exposure, you should be given credit for that. If you engineering controls are successful in reducing the noise levels below their hearing protection would be required, all the better. MR. CUSTER: Thank you. MS. BRADLEY: Thank you. MR. CUSTER: Alice H. Suter. MS. SUTER: Good morning. I am Dr. Alice Suter, an audiologist specializing in the effects of noise on people. A brief resume is appended to this testimony. I am here to testify on behalf of the American Speech-Language Hearing Association and on behalf of the other member organizations of the Coalition to Protect Workers' Hearing, the Acoustical Society of America, the American Industrial Hygiene Association, the National Hearing Conservation Association, and Self-Help for Hard-of-Hearing People. We represent over 100,000 professionals, audiologists, acoustical engineers, industrial hygienists and scientists, as well as individuals with hearing loss. The Coalition submitted written testimony to MSHA on April 21, 1997, and I will present a condensed form of that testimony now. I have also submitted my own comments separately as an independent professional. I have had nearly 30 years of experience in the field of occupational noise, participated in the process of criteria development at both the U.S. EPA and NIOSH, and as manager of the noise standard at OSHA, I also have experienced the throes of rulemaking. I would like to thank the panel for the opportunity to offer my comments and suggestions, and I would like to express my appreciation for the enormous effort involved in bringing this proposal to fruition. I'll start with the scope of the standard. We support MSHA's proposal to establish a uniform noise standard for coal, metal, and nonmetal mines. A uniform noise standard for the mining industry should facility understanding of and compliance with regulatory requirements. We believe that consistency between MSHA's noise standard and the hearing conservation amendment developed by OSHA is desirable for the same reasons. Because many mine sites are covered by both OSHA general industry and construction regulations. However, we understand the need for and support certain provisions where MSHA's proposed standard may be more protective than OSHA's current standard. In the definitions section, I'd like to address hearing conservation program, the definition of. We recommend that MSHA incorporate the definition of a hearing conservation program used by OSHA which includes the following components: noise exposure assessment and monitoring, engineering and administrative noise controls, audiometric testing, audiogram review and employee feedback and referral, issuing of personal hearing-protection devices with individual fitting and training of wearers, the supervision of consistent utilization, education and motivation of employees, and record keeping. The term "hearing conservation program" has been used in general industry since the 1970's to refer to the components required for compliance to 29 C.F.R. 1910.25, OSHA's general industry noise standard. To redefine the term only within the context of the proposed rule confuses the issue and may be counterproductive to MSHA's endeavors. To equate the term "hearing conservation program" with audiometric testing, as defined in MSHA's proposal is to imply that all that is needed to conserve hearing is to test hearing. Without a knowledge of the miner's noise exposure, application of engineering and administrative controls is needed, and the use of hearing protection devices, all that audiometric testing will accomplish is to document the development of miners' noise-induced hearing loss. MSHA's proposed redefinition of the term "hearing conservation program" to mean simply audiometric testing reinforces the myth that audiometric testing has value in and of itself. As part of a comprehensive hearing conservation program, however, audiometric testing is critical for monitoring the effectiveness of hearing conservation for individual miners and for mining companies' programs. Now, the definition of "hearing protector." The definition should be changed to read: "Any device or material capable of being worn on the head or in the ear canal that is sold solely or in part on the basis of its ability to reduce the level of sound entering the ear that has attenuation values measured according to Method B, Subject MSHA Standard 12.6 1977, "Methods for Measuring the Real Ear Attenuation of Hearing Protectors." Standard Threshold Shift, or "STS." Many mine sites are covered by both MSHA and OSHA regulations, and the individual miners may move between jobs regulated by each agency. For that reason, we appreciate the practicality of using the same hearing shift criterion by both agencies for purposes of recordability and with respect to baseline audiogram tracking and revision. However, research as well as reports from individuals with hearing loss reveals that a confirmed age-corrected STS is not a sensitive indicator of early hearing damage, but rather reflects a very substantial hearing change. We specifically disagree with MSHA's statement on page 66439, that its proposed definition of STS "permits the early identification of individuals at risk so that corrective actions can be taken." An "age-correction STS" as defined by OSHA and proposed by MSHA represents a significant amount of cumulative hearing change from baseline that may affect communication competence. The Coalition has already testified to OSHA about the need for employers to prevent STS by reacting to early shifts in hearing with employee followup actions, including counseling, refitting of hearing protection devices, and retraining in the correct use of these devices. The next section, "Limitations on Noise Exposure," I'd like to address the PEL. In the preamble of the proposed rule, MSHA acknowledges that a permissible exposure level of 90 dBA does not protect at least 15 percent of the mining population who will develop material impairment of hearing if exposed to it in a working lifetime of 85 to 90 dBA. MSHA's arguments for not requiring a PEL lower than 90 dBA are not convincing. The preamble states that an 85 dBA PEL would be more expensive, and about two-thirds of the metal and nonmetal mine operators and three-fourths of the coal mine operators would need to use engineering and administrative controls to reduce noise levels to the PEL. The implementation is that it would be too much trouble. This is not a convincing argument, considering that the intent of the proposed rule is to preserve the hearing health of miners. We recommend that MSHA consider adopting a PEL of 85 dBA and investigate the effect of allowing a longer phase-in period for this change to take place, for example, over a 10-year period. MSHA's consideration of the use of an alternative phase-in period would allow the industry ample time to investigate new and viable engineering control technology that could reduce miners' noise exposure and remove miners from the noise area. Next, the exchange rate. MSHA admits in the preamble that the 3 dB exchange rate is more protected than the current 5 dB exchange rate and that the consensus of scientific opinion supports it. The Agency provides several sound arguments for changing to the 3 dB exchange rate. OSHA's rationale for not promulgating it, or I should say, proposing it, however, is that it may not be feasible. OSHA states that engineering and administrative controls would need to be used much more frequently and that the percentage of miners covered by the proposed rule would double. MSHA also states that the amount of time miners could be exposed to higher, in other words, more hazard sound levels, would be reduced. Once again, this is not a convincing argument for exposing miners to hazard noise levels. Continuing to use the 5 dB exchange rate solely for reasons of feasibility gives this method a false appearance of accuracy. The science is often forgotten once the practice has been established. In the experience of many Coalition members providing hearing conservation programs, a very high percentage of workers in production industries is already included in hearing conservation programs. Therefore, it is unlikely that a change to the 3 dB exchange rate would cause a percentage of miners covered by the proposed rule actually to double. We recommend that MSHA consider adopting the 3 dB exchange rate and investigate the effect of allowing a longer phase-in period for this change to be implemented, for example, over a two-year period. Next, the ceiling level. The concept of a 115 dBA limit was put forward in the 1969 "Walsh-Healey" noise standard, which became an OSHA standard in 1971. In the preamble to the hearing conservation amend