0001
 1
 2
 3
 4           HEARING OF MAINTENANCE OF INCOMBUSTIBLE
 5                   CONTENT OF ROCK DUST IN
 6                   UNDERGROUND COAL MINES
 7
 8
 9
10                        HEARING DATE:
11                      NOVEMBER 16, 2010
12                       COURT REPORTER:
13                         ANNIE BAUER
14
15
16
17                           PANEL:
18                       PATRICIA SILVEY
19                       MARIO DISTASIO
20                        GREGORY FETTY
21                         KEVIN BURNS
22                        DEBORAH GREEN
23
24
25

0002
 1
 2                            INDEX
 3                                               Page
 4
 5   PROCEEDINGS                                   4
 6
 7
 8
 9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

0003
 1
 2                         STIPULATION
 3
 4        The Hearing of Maintenance of Incombustible
 5   Content of Rock Dust in Underground Coal Mines taken at
 6   Hilton Suites Lexington Green, 245 Lexington Green
 7   Circle, Lexington, Kentucky on Tuesday, the 16th day of
 8   November, 2010 at approximately 9:08 a.m.; said
 9   deposition being taken pursuant to Notice for use in
10   accordance with the Kentucky Rules of Civil Procedure.
11        It is agreed that Annie Bauer, being a Notary
12   Public and Court Reporter for the State of Kentucky,
13   may swear the witness.
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25

0004
 1
 2                         PROCEEDINGS
 3
 4             PATRICIA SILVEY:  Good morning.  My name is
 5   Patricia W. Silvey, and I'm the director of the Mine --
 6   Mine Safety and Health Administration Office of
 7   Standards, Regulations and Variances.  I will be the
 8   moderator of this public hearing on MSHA's emergency
 9   temporary standard on the maintenance of incombustible
10   content of rock dust in underground coal mines.  On
11   behalf of Assistant Secretary of Labor for Mine Safety
12   and Health, Joseph A. Main, I want to welcome all of
13   you to this hearing today.  At this point, I'd like to
14   introduce the members of the MSHA panel.  To my left is
15   Gregory Fetty, and Greg is with the Office of Coal
16   Mine Safety and Health.  To his left is Kevin Burns.
17   Kevin is with the Educational Policy Development
18   Office.  To my right, Deborah Green, and Deborah is our
19   attorney in the Office of the Solicitor, the Division
20   of Mine Safety and Health.  And to her right is Mario
21   Distasio, and Mario is Chief Economist in my office.
22   This is the third of four hearings on the emergency
23   temporary standard.  As many of you know, the first
24   hearing was in St. Louis on October 26th.  The second
25   hearing in Birmingham, Alabama on October 28th.  And

0005
 1   the fourth hearing will be in Charleston, West Virginia
 2   on November 18th.   The purpose of these hearings, as
 3   those of you who participated in MSHA's rule making
 4   over the years know, is to receive information from the
 5   public, that will help us evaluate requirements in the
 6   ETS, emergency temporary standard, and develop a final
 7   rule that protects miners from hazards associated with
 8   coal dust explosions.  We will also use this data and
 9   information gained from these hearings to help us
10   develop a final rule that responds to the needs and
11   concerns of the mining public, so that the requirements
12   of the final rule can be implemented in the most
13   effective and appropriate manner.  The ETS was issued
14   in accordance with Section 101(b) of the Mine Act.  On
15   this Section 101(b), the ETS is effective until
16   superseded by a mandatory standard.  And in accordance
17   with the Mine Act, the Mandatory Standard must be
18   issued no later than nine months after publication of
19   the ETS.  The ETS also serves as the purposed rule and
20   commences the regular rule making process.  Mine
21   operators supply rock dust in underground bituminous
22   coal mines to reduce the explosion potential of coal
23   dust and other dust generated during the mining
24   process.  Effective rock dust application is essential
25   to protect miners from the potential of a coal dust

0006
 1   explosion, or if one occurs to reduce it's severity.
 2   MSHA established this standard based on the Federal
 3   Coal Mine Safety and Health Act of 1969, that required
 4   operators to maintain and at least 80 percent incombustible
 5   content of combined coal dust, rock dust and other dust
 6   in return airways.  In all other areas of the mine, the
 7   combined dust needs to contain at least 65 percent
 8   incombustible content.  MSHA determined that revising
 9   the standard for maintenance of incombustible content
10   of rock dust is necessary to immediately protect miners
11   from hazards of coal dust explosions.  This
12   determination is based on MSHA's accident investigation
13   reports of mine explosions in intake air courses that
14   involve coal dust, and that -- and those reports are in
15   Dubaniewicz report 2009; the National Institute for
16   Occupational Safety and Health, or NIOSH, Report of
17   Investigations 9679, written by Cashdollar and others
18   2010: "Recommendations for a New Rock Dusting Standard
19   to Prevent Coal Dust Explosions in Intake Airways;"
20   and, MSHA's own experience and data.  MSHA has
21   estimated the economic impact of the ETS and has
22   included a discussion of the cost and benefits in the
23   Preamble.  As stated earlier, we will use the
24   information provided by you, to help use decide how to
25   develop the final rule.  The Preamble to the ETS

0007
 1   discusses the requirements of the ETS and also includes
 2   several requests for comments and information.  As you
 3   address the requirements of the ETS and any specific
 4   request for comment that we have made, either in
 5   comments to us today, or those sent to us in
 6   Arlington, please be as specific as possible, with
 7   respect to the impact on miner safety and health,
 8   specific mining conditions and feasibility of
 9   implementation.  That will be very important.  At this
10   point, I want to reiterate the specific requests for
11   comment and information that we included in the ETS.
12   MSHA solicits comments from the mining community,
13   regarding the increase in incombustible content of dust
14   in air courses where methane is present.  The ETS
15   requires an additional 0.4 percent total incombustible
16   content, or TIC, for each 0.1 percent of methane, where
17   methane is present in any ventilating current.  Please
18   include your rationale and supporting documentation for
19   any suggested alternative compliance matters.  MSHA
20   requests comments on all the estimates of cost and
21   benefits, including net benefits, presented in the ETS.
22   Specifically, MSHA requests comments on the agency's
23   benefit estimates, as well as supporting data.  MSHA
24   solicits information from the mining community that
25   would enable a more specific analysis of cost, which

0008
 1   would include costs of additional rock dust, increased
 2   labor needed to apply the rock dust and any additional
 3   equipment that would be necessary, such as pod dusters,
 4   trickle dusters, finger dusters, and scoop batteries.
 5   For equipment, please include the type, the number of
 6   pieces, cost, and expected service life.  Please
 7   explain whether mining methods would affect costs, such
 8   as longwall mines compared to non-longwall mines.  To
 9   date, the agency has received one comment on the ETS.
10   And you can view comments on the agency's website at
11   www.MSHA.gov under the section entitled Rules and
12   Regulations.  In addition, we have published the two
13   transcripts from the two public hearings so far.  You
14   can review those transcripts on the agency's website.
15   The post hearing comment period for the proposal closes
16   on December 20th, 2010.  And MSHA must receive your
17   comments by midnight, Eastern standard time on that
18   date.  You may submit comments following this hearing
19   by any of the methods identified in the ETS.  The
20   hearing, as many of you know, will be conducted in an
21   informal manner, cross examinations and formal rules of
22   evidence will not apply.  The panel may ask
23   questions of the speakers, the speakers may ask
24   questions of the panel.  MSHA will make the transcript
25   of the hearing available on the agencies website within

0009
 1   one week of the hearing.  If you wish to present
 2   written statements or information, please clearly
 3   identify your material and give a copy to the court
 4   reporter.  We also ask that those in attendance, sign
 5   an attendance sheet in the room.  Please begin by
 6   clearly stating your name and organization.  And to
 7   make sure we have an accurate record, I would ask,
 8   please, if you would spell your name for the court
 9   reporter.  And now we will begin today's hearing.  And
10   our first speaker will be Edgar Butch Oldham with the
11   United Mine Workers of America.
12             EDGAR OLDHAM:  I'm going to pass for now.
13             PATRICIA SIVLEY:  Does -- does -- does
14   anybody else wish to make a statement?  If -- if nobody
15   else wishes to make a statement, then I will -- I will
16   -- we -- we are going to take a break.  Why don't we
17   take a, I don't know, a break right now.
18   (OFF THE RECORD)
19             PATRICIA SILVEY:  At -- at this time, we will
20   reconvene the Mine Safety and Health Administrations'
21   public hearing on the emergency temporary standard on
22   the maintenance of incombustible content of rock dust
23   in underground coal mines.  If nobody else -- is there
24   anybody else who wishes to make a presentation?  If
25   nobody else wishes to make a presentation, I want to

0010
 1   say, again, that the Mine Safety and Health
 2   Administration appreciates your participation in this
 3   public hearing.  I want to remind you that all comments
 4   must be received by midnight, Eastern standard time on
 5   December 20th, 2010.  And I also want to say that we
 6   participate -- I mean we appreciate those of you who
 7   attended and may not have made a presentation, but the
 8   fact that you attended the hearing shows that you have
 9   some interest in this rule making, and we appreciate
10   that.  I can assure you that we will take your comments
11   and your concerns into consideration in developing the
12   agency's final rules on the maintenance of
13   incombustible content of rock dust in underground coal
14   mines.  I want to encourage all of you to continue to
15   participate throughout the rule making process.  As I
16   said earlier, the final and fourth hearing will be in
17   Charleston on this Thursday, November the 18th.  This
18   public hearing is now concluded, and thank you very
19   much.
20   (HEARING CONCLUDED AT 10:09 A.M.)
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25

0011
 1
 2                   CERTIFICATE OF REPORTER
 3              COMMONWEALTH OF KENTUCKY AT LARGE
 4
 5   I do hereby certify that the witness in the foregoing
 6   transcript was taken on the date, and at the time and
 7   place set out on the Title page hereof by me after
 8   first being duly sworn to testify the truth, the whole
 9   truth, and nothing but the truth; and that the said
10   matter was recorded stenographically and mechanically
11   by me and then reduced to typewritten form under my
12   direction, and constitutes a true record of the
13   transcript as taken, all to the best of my skill and
14   ability.  I certify that I am not a relative or
15   employee of either counsel, and that I am in no way
16   interested financially, directly or indirectly, in this
17   action.
18
19
20
21
22   ANNIE BAUER,
23   COURT REPORTER / NOTARY
24   MY COMMISSION EXPIRES: 08/19/2014
25   SUBMITTED ON: 11/30/2010