UNITED STATES OF AMERICA DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION * * * * * * * * * IN RE: LOWERING MINERS’ EXPOSURE TO RESPIRABLE COAL MINE DUST, INCLUDING CONTINUOUS PERSONAL DUST MONITORS BEFORE: Gregory R. Wagner, M.D. Susan Olinger Ronald Ford Jennifer Honor Robert Thaxton George Niewiadomski HEARING: Tuesday, January 11, 2011 9:00 a.m. LOCATION: Marriott Evansville Airport 7101 Highway 41 North Evansville, IN 47725 WITNESSES: William Eschenbacher, M.D., John Stachura, Jeff Messel, Mark Fridley, Gerome Thomas, Tom Benner, Butch Oldham, Edwin P. Brady, Tony Wright, Chuck Burggraf, Bill Risinger, Mark Eslinger, Gary Fritz Reporter: Amanda Kennedy Any reproduction of this transcript is prohibited without authorization by the certifying agency. I N D E X OPENING REMARKS By Dr. Wagner 5 - 25 TESTIMONY By Dr. Eschenbacher 25 - 33 TESTIMONY By Mr. Stachura 34 - 53 QUESTIONS BY PANEL 53 - 66 TESTIMONY By Mr. Messel 66 - 73 QUESTIONS BY PANEL 73 - 83 TESTIMONY By Mr. Fridley 84 - 88 QUESTIONS BY PANEL 88 - 91 DISCUSSION AMONG PARTIES 91 - 93 TESTIMONY By Mr. Thomas 93 - 97 QUESTIONS BY PANEL 97 - 109 TESTIMONY By Mr. Benner 109 - 115 QUESTIONS BY PANEL 115 - 117 TESTIMONY By Mr. Oldham 117 - 120 QUESTIONS BY PANEL 120 - 123 I N D E X (Continued) TESTIMONY By Mr. Brady 124 - 145 QUESTIONS BY PANEL 145 - 163 TESTIMONY By Mr. Wright 164 - 167 QUESTIONS BY PANEL 167 - 172 TESTIMONY By Mr. Burggraf 173 - 174 QUESTIONS BY PANEL 174 - 175 TESTIMONY By Mr. Risinger 175 - 178 QUESTIONS BY PANEL 178 - 179 TESTIMONY By Mr. Eslinger 179 - 200 QUESTIONS BY PANEL 200 - 208 TESTIMONY By Mr. Fritz 208 - 211 DISCUSSION AMONG PARTIES 211 - 212 CERTIFICATE 213 E X H I B I T S Page Number Description Offered NONE OFFERED P R O C E E D I N G S ------------------------------------------------------ DR. WAGNER: Good morning. My name is Gregory Wagner. I'm a physician. I'm also Deputy Assistant Secretary of Labor for Mine Safety and Health. I'd like to welcome you here today and express my gratitude for those of you who traveled through the snow and some of you traveling long distances, I think reflecting the importance that the proposed rule that we're talking about today has to all of us. I want to bring you greetings from Mr. Joe Main, the Assistant Secretary of Mine Safety and Health, who's made ending black lung a significant focus of his work at MSHA and previously. Before we go into the official hearing, I want to speak a little bit about why it is that the Agency has the concerns that we do, that we're trying to address through this proposed rule to lower miners' exposure to respirable coal mine dust, and also to discuss a few of the key provisions that are in the proposed rule. Many of you will recognize the picture from the Farmington Mine disaster in West Virginia in 1968 that provided the stimulus for the 1969 Coal Mine Health and Safety Bill. You may recall that 78 miners lost their lives in this explosion. There was an outpouring of concern about safety conditions in the mines, but it wasn’t only safety conditions. There was also concern about the health consequences of miners breathing in excessive levels of coal mine dust. There was an effort to have --- the law that resulted from the public response to that event covered not only safety, but also health. In fact, Congress mandated in the 1969 Federal Coal Mine Safety and Health Act that respirable coal mine dust exposures be reduced to a level which will prevent new incidences of respiratory disease and the further development of such disease in any person. It's quite clear that Congress intended in 1969 that the government move forward to end black lung. As consequence of the Scotia Mine disaster that occurred, I believe, in 1966 (sic), the Federal Mine Safety and Health Act of 1977 passed. And that Act instructed --- Congress instructed the Secretary of Labor to set standards that ensure on the basis of the best available evidence that no miner will suffer material impairment of health or functional capacity, even if such miner has regular exposure to the hazards dealt with by such a standard for the period of his working life. Again, no material impairment of health as resulted for the place of exposures that hazards, including the hazard of coal mine dust. Fast forward from the mid '70s to the mid '90s. The National Institute for Occupational Safety and Health did a comprehensive review of the world's scientific literature about the health effects of coal mine dust, summarized and came up with series of recommendations. And their recommendations concerning occupational exposure to respirable coal mine dust included conclusions that said that people were still getting disease, that the dust limits were defective and that there were a number of things, including lowering the dust limit, that should be done in order to be able to protect miners effectively. That was followed up by a Blue-ribbon panel of scientific experts and representatives of labor and industry, indeed by the Secretary of Labor looking both to NIOSH, reporting anything that they may have missed. This Blue-ribbon panel presented a report of the Advisory Committee on the elimination of pneumoconiosis among coal mine workers. And it provided first endorsement of the NIOSH findings, endorsement to follow the NIOSH recommendations and its own recommendations for eliminating black lung. So what are we talking about with black lung? You can see over on the left, a normal lung --- or a normal lung from somebody who's died. And in between you can see the beginnings of deposition of black coal mine dust and the reactions of the lung to the dust. And then you can see on the right, a piece of lung where the reaction to the dust has created shrinking holes and an inability to breathe. There are a variety of lung diseases that come from exposure to coal mine dust that this rule is intended to address. First, coal workers' pneumoconiosis. The x-ray diagnosed condition, that you see spots on the lungs, and that creates a progressive respiratory impairment that can lead to death in its advanced forms. But there are also air flow diseases that don’t necessarily show up on x-ray. Chronic obstructive pulmonary disease. Miners that are at a substantially increased risk to lose their breathing. They have an inability to climb stairs, to hunt, to go out and do what they would normally have been able to do had they not had the exposure to excessive levels of dust. Bronchitis, emphysema and miners who are exposed to high levels of TB --- of silica also have increased risk of tuberculosis infection. What happened since the passage of the first 1969 Act? This slide from NIOSH shows that when the Act was originally passed, if you look for example up here, miners with 25 years of experience in the mines had over 30 percent chance of having some black lung showing up on their x-ray. The dust limits imposed in the early '70s resulted in a progressive decrease in the number of miners, percentage of miners, that showed up with disease. But around the year 2000, perhaps as a result of variety of changes in mining, disease incidents started to go back up, as identified in the X-ray Surveillance Program from NIOSH. Miners who had experienced exposure only under current working conditions, only under the current dust limit had begun to show up with more disease and, in fact, more advanced disease. NIOSH, which is part of the Centers for Disease Control, took a look at the information that they were getting on who was getting this, and found that in some areas of the country where they were doing surveillance, that there were people who were showing rapidly progressive disease. Let me give you some examples. Here's a chest x-ray from somebody, a 37-year-old with only 16 years underground experience. In 1997, he already had advanced disease as a 37-year-old. And three years later, with less than 20 years of experience, he was showing complicated pneumoconiosis, which is a life-shortening, devastating condition. He was a roof bolter. Another example that came out of their survey. Here's a miner, 42 years old, 22 years of underground experience. In 2002, he was found to have the most advanced form of coal workers' pneumoconiosis and black lung, where his lungs, if you sliced through them, would have been like the picture that I showed on the far right-hand side with the replacing of the lung by holes and by the deposition of coal mine dust. It's a condition that’s not only devastating for families and the individuals who have it, but it’s also economically devastating. This is a chart that shows that over the years, through the benefits program --- and I think many of you in the room know that these are not lavish benefits. But through the benefits program for people, only looking at those who have been found to be totally disabled from all coal mine work as a result of their black lung, over $43 million --- billion, excuse me, $43 billion have been paid out since the beginning of this program. And the payouts are continuing. The Agency is being pushed to intervene because pneumoconiosis is rising in miners with greater than 20 years of tenure. Cases of severe disease are being seen in young miners, even those less than 40 years old. The prevalence of pneumoconiosis exceeds that which was predicted in 1969 based upon the best available scientific evidence. And what we found out since then, and confirmed in numerous studies, is that miners are also suffering from other forms of chronic lung disease, like emphysema and bronchitis. Here's the bottom line, here's what we know. Black lung is caused by excessive exposure to coal mine dust. It's simple. That’s the only thing that’s causing it. Our goal is to reduce the miners' exposure to respirable coal mine dust in order to prevent black lung. So how are we going to do this? The proposed rule addresses a number of problems. Problems that people have discussed in trying to explain why it is that black lung went down and went back up. Miners are working longer shifts than they'd been working in 1970, '71, '75. The current sampling program samples a miner for eight hours, but as someone told me when we met previously, you don’t turn your lungs off after eight hours. You just turn the dust pump off. This proposal would address that concern and sample for the entire shift. Right now, the dust limits are based upon an average of five shifts. The new proposal would say each shift counts, that averaging masks potential exposures of three and four milligrams, and the proposal would make determinations based on each single shift sample. Right now the way the rules are, the bimonthly samples for dust may not be collected --- may be collected at times that are not representative of normal mining conditions. I think that many of you know the dust samples can be collected if it's like over 50 percent of what it was during the last bimonthly cycle. That may not reflect the normal mining conditions, the day-after-day exposures. The proposal would require representative samples of normal production levels. As I showed in the earlier slide, miners are getting disease at the current standard and younger miners are developing the most severe forms of disease. And in order to address this, the permissible exposure limit would be reduced. Black lung affects breathing. Right now miners have a right to periodic chest x-rays that don’t really measure breathing, and they can act upon that chest x-ray information. The proposed medical monitoring would involve not just chest x-rays but also a breathing test so that miners could have the additional information about their health to be able act on it. And currently, dust sample results are delayed. They're only available after a one to two-week delay. By use of the continuous personal dust monitor as proposed in the rule, there can be immediate feedback as to the amount of dust that the miner is being exposed to, so that working conditions can be adjusted then in order to control that day's exposure rather than waiting for information down the line. This proposed rule is part of an ongoing commitment that MSHA has been working on in conjunction with Labor & Industry, other government agencies. It's our commitment to end black lung. This is one action that we feel is important in order to progress in that direction. And in order to do that, in addition to our efforts at education, outreach and engagement, we have proposed the rule that we are here to discuss today. What I'd like to do is invite our panel to come up to the front. I'll introduce them and then we'll get started on the formal hearing. As I mentioned, my name is Gregory Wagner. My panel members include Robert Thaxton and George Niewiadomski from the Coal Mine Safety and Health part of the Agency. Starting at the far right, Susan Olinger and Ronald Ford are here from the Office of Standards, and Jennifer Honor from the Office of the Solicitor from the Mine Safety and Health Division of the Department of Labor. The proposed rule for lowering miners' exposure to respirable coal mine dust is an important part of the Agency's Comprehensive Black Lung Initiative. Our initiative to End Black Lung, Act Now. The Secretary of Labor considers ending black lung disease as one of the Department's highest regulatory priorities. The proposed rule was published in the Federal Register on October 19th, 2010. In response to requests from the public, MSHA is extending the comment period from February the 28th, 2011 to May 2nd, 2011. All comments and supporting documentation must be received or postmarked by May 2nd, 2011. This meeting here is the second of seven public hearings on the proposed rule. The first public hearing was held on December 7th, 2010 at the MSHA Academy. Five others will be held. One will be held this coming Thursday, January 13th, 2011 in Birmingham, Alabama. The next, January 25th, 2011 in Salt Lake City, Utah. The next on February 8th, 2011 in Washington, Pennsylvania. The next, February 10th, 2011 in Prestonsburg, Kentucky. And the final on February 15th, 2011 at the MSHA headquarters in Arlington, Virginia. Before we start --- we're now going to proceed with the public hearing. As many of you know, the purpose of these hearings is to allow the Agency to receive information from the public that will help us evaluate the proposed requirements and produce a final rule that protects miners from the health hazards that result from exposure to respirable coal mine dust. MSHA will use the data and information from these hearings to help us craft a rule that responds to the needs and concerns of the mining public so that its provisions can be implemented in the most effective and appropriate manner. MSHA solicits comments from the mining community on all aspects of the proposed rulemaking. Commenters are requested to be specific in their comments and submit detailed rationale and supporting documentation for suggested alternatives submitted. At this point, I would like to reiterate some requests for comments and information that were included in the preamble to the proposed rule. Number one, the proposed rule presents an integrated comprehensive approach to lowering miners' exposure to respirable coal mine dust. The Agency is interested in alternatives to the proposal that would be effective in reducing miners' respirable dust exposure and invites comments on any alternatives. MSHA solicits comments on the proposed respirable dust concentration standards. Please provide alternatives to be considered in developing the final rule, including specific suggested standards and the rationale. The proposed rule bases the proposed respirable dust standard on an eight-hour work shift and a 40-hour workweek. In its 1995 Criteria Document on Occupational Exposure to Respirable Coal Mine Dust, the National Institute for Occupational Safety and Health, NIOSH, recommended lowering exposure to one milligram per meter cubed for each miner up to a ten-hour work shift during the 40-hour workweek. MSHA solicits comments on the NIOSH recommendation. MSHA included the proposed phase-in periods for the proposed lower respirable dust standards to provide sufficient time for mine operators to implement or upgrade engineering or environmental controls. MSHA solicits comments on alternative time frames and factors that the Agency should consider. Please include any information and detailed rationale. In the proposal, MSHA also plans to phase in the use of CPDMs, continuous personal dust monitors, to sample production areas of underground mines and Part 90 miners. MSHA solicits comment on the proposed phasing in of CPDMs, including time periods and any information with respect to their availability. If shorter or longer time frames are recommended, please provide the rationale. MSHA understands that some work shifts are longer than 12 hours, and that dust sampling devices generally last for approximately 12 hours. MSHA solicits comments on appropriate time frames to switch out sampling devices, whether gravimetric samplers or CPDMs, to ensure continued operation and uninterrupted protection for miners for the entire shift. The proposed single sample provision is based on improvements in sample technology, MSHA experience, updated data and comments and testimony from earlier notices and proposals that address the accuracy of single sample measurements. The Agency's particularly interested in the comments on new information added to the record since October 2003 concerning MSHA's quantitative risk assessment, technological and economic feasibility, compliance costs and benefits. MSHA's interested in commenters' views on what actions should be taken by MSHA and the mine operator when a single shift respirable dust sample meets or exceeds the Excessive Concentration Value known as ECV. In this situation, if the operators use the CPDM, what alternative actions to those contained in the proposed rule would you suggest that MSHA and the operators take? MSHA's particularly interested in alternatives to those in the proposal and how such alternatives would be protective of miners. The proposal includes the revised definition of normal production shift, so that sampling is taken during shifts that reasonably represent typical production and normal mining conditions on the MMU. Please comment on whether the average of the most recent 30 production shifts specified in the proposed definition would be representative of dust levels to which miners are typically exposed. The proposed sampling provisions address interim use of supplementary controls when all feasible engineering or environmental controls have been used but the mine operator is unable to maintain compliance with the dust standard. With MSHA approval, operators could use supplementary controls, such as rotation of miners or alteration of production schedules in conjunction with CPDMs to monitor miners' exposures. MSHA solicits comments on this proposed approach and any suggested alternatives, as well as the types of supplementary controls that would be appropriate to use on a short-term basis. The proposed rule addresses, one, which occupations must be sampled using CPDMs, and two, which work positions and areas could be sampled using either CPDMs or gravimetric samplers. MSHA solicits comments on the proposed sampling occupations and locations and the proposed frequency of sampling. For example, please comment on whether there are other positions or areas where it may be appropriate to require the use of CPDMs, and whether, for instance, sampling of other designated occupations should be more frequent than 14 days each calendar quarter. Also, comment on whether the proposed CPDM sampling of other designated occupations on the MMU is sufficient to address different mining techniques, potential overexposures and ineffective use of approved dust controls. The proposal would require that persons certified in dust sampling or maintenance and calibration retake the applicable MSHA exam every three years to maintain certification. Under the proposal, these certified persons would not have to retake the proposed MSHA course of instruction. MSHA solicits comments on this approach to certification. Please include specific rationale for any suggested alternatives. In the proposal, MSHA would require that the CPDM daily sample and error data file information be submitted electronically to the Agency on a weekly basis. MSHA solicits comments on suggested alternative time frames, particularly in light of the CPDM's limited memory capacity of about 20 shifts. The proposal contains requirements for posting information on sampling results and miners' exposures on the mine bulletin board. MSHA solicits comments on the lengths of time proposed for posting data. If a standard format for reporting and posting data were developed, what should it include? The periodic medical surveillance provisions in the proposed rule would require operators to provide the initial examination to each miner who begins work at a coal mine for the first time and then at least one follow-up examination after the initial examination. MSHA solicits comments on the proposed time periods specified for these examinations. The proposed respirator training requirements are performance-based, and the time required for respirator training would be in addition to the time required under Part 48. Under the proposal, mine operators could, however, integrate respirator training into their Part 48 training schedules. The proposal would require that operators keep records of training for two years. Please comment on the Agency's proposed approach and whether the final rule should specify the content and format of the training record. The proposed rule specifies procedures and information to be included in the CPDM plans to ensure miners are not exposed to the respirable dust concentrations that would exceed the proposed standards. For example, the proposed plan would include pre-operational examination, testing and setup procedures to verify the operational readiness of the CPDM before each shift. It would also include procedures for scheduled maintenance, downloading and transmission of sampling information, and posting of reported results. Please comment on the proposed plan provisions and include supporting rationale with your recommendations. The Agency has prepared a Preliminary Regulatory Economic Analysis which contains supporting cost and benefit data for the proposed rule. MSHA has included a discussion of the costs and benefits in the preamble. MSHA requests comments on all estimates of costs and benefits presented in the preamble and the Preliminary Regulatory Economic Analysis, including compliance costs, net benefits and approaches used and assumptions made in the preliminary economic analysis. A commenter at the first public hearing suggested that the time frame for miners' review of the CPDM Performance Plan be expanded. I want to clarify MSHA's position in the proposed rule. In developing the proposed rule, MSHA relied on the time frame and process in the existing requirements for mine ventilation plans. In the proposal, MSHA did not intend to change the existing time frame and process and stated that the proposed rule is consistent with the ventilation plan requirements and would allow miners' representatives the opportunity to meaningfully participate in the process. As you address the proposed provisions, either in your testimony today or in your written comments, please be as specific as possible. We cannot sufficiently evaluate general comments. Please include specific suggested alternatives, your specific rationale, health benefits to miners of your proposals and any technological or economic feasibility considerations, and please provide data to support your comments. The more specific your information is, the better it will be for us to evaluate and produce a final rule that will be responsive to the needs and concerns of the mining public. As many of you know, this public hearing will be conducted in an informal manner. Cross Examination and formal rules of evidence will not apply. The panel may ask questions of the speakers. Those of you who have notified MSHA in advance of your intent to speak or have signed up today already to speak will make your presentations first. After all scheduled speakers have finished, any of you who wish to speak may do so. And if you wish to present written statements or information today, please clearly identify your material and give a copy to the court reporter. But you may also submit comments following the public hearing. Comments must be received or postmarked by May 2nd, 2011. Comments may be submitted by any method identified in the proposed rule and certainly comments can be submitted well before May 2nd as well. MSHA will make available transcripts of all the public hearings approximately two weeks after the completion of the hearings. You may view the transcripts of the public hearings and comments on MSHA's website at wwww.msha.gov. We ask everybody in attendance please sign the attendance list in the back of the room. I'd say that we aren’t imposing any specific time limits on the individuals who will be testifying, but given the number of people in the room and the number of people hoping to testify, I'd ask that the speaker please be mindful of the speakers who will be coming after you. I’d like to begin the hearing. And I'm going to ask each person to clearly state your name and organization, spelling your name for the court reporter so that we have an accurate record. Our first speaker will be William Eschenbacher, a professor of pulmonary medicine at the Cincinnati VA Medical Center, who, I believe, is presenting remarks on behalf of the American College of Occupational and Environmental Medicine. So Bill, please come up and make sure that the microphone is on. And again, state your name, organization, and spell your name. DR. ESCHENBACHER: My name is ---. DR. WAGNER: It's on. DR. ESCHENBACHER: My name is William Eschenbacher, E-S-C-H-E-N-B-A-C-H-E-R. And as Dr. Wagner stated, I am representing the American College of Occupational and Environmental Medicine, providing these comments as the Chair of the Lung Disorders Committee. Inhalation of excessive amounts of respirable coal mine dust results in several lung diseases, including coal workers' pneumoconiosis, CWP, silicosis and occupationally-induced chronic obstructive pulmonary disease. Satisfactory control of dust inhalation can entirely prevent coal miners from developing impairment, disability and death due to these diseases. The Coal Mine Safety --- Health and Safety Act of 1969. The Act was passed in part as a response to periodic mine disasters which plagued U.S. coal mines, including the 1968 Farmington Mine explosion, and addressed multiple ongoing mine safety issues as well as the increasing recognition that important respiratory health problems resulted from coal mine dust exposures. The Act was landmark legislation. It established the first U.S. national mandatory mine dust exposure limits, provided specific approaches to ongoing workplace exposure monitoring and established an agency with the authority to enforce compliance with the law. Congressional intent for the Act was clearly stated. Congress declares that the first priority and concern of all in the coal mining industry must be the health and safety of its most precious resource, the miner. And the existence of unsafe and unhealthful conditions and practices in the nation's coal mines is a serious impediment to the future growth of the coal industry and cannot be tolerated. Operators of such mines have the primary responsibility to prevent the existence of such conditions. A major objective of the legislation, based upon the scientific evidence available at the time, was to eliminate severe and disabling occupational lung disease in all U.S. underground coal miners. In addition, a medical surveillance program was initiated under the Act with the goal of enabling increased preventative measures among miners whose chest x-rays showed evidence of early dust-related lung disease, as well as providing a mechanism to track progress in disease prevention. During the first 30 years of the Act, after the Act was passed, as anticipated, participants in the radiographic surveillance program demonstrated an 89 percent decline in the tenure-related prevalence of abnormalities consistent with pneumoconiosis. After full implementation of the dust control measures in the Act of 1973, the years of potential life loss from pneumoconiosis, this is a measure YPLL, a measure of mortality attributed to CWP, coal workers' pneumoconiosis, decreased 91.2 percent between the years 1968 to '72, and it rose in 2002, 2006 among U.S. coal miners. However, as the number of new research results became available over the last 40 years, it became clear that the 1969 dust limit would not fully eliminate advanced pneumoconiosis. Also, newer scientific literature established that inhalation of air with concentrations of coal mine dust at or below the permissible exposure limits of two milligrams per cubic meter in the Act also caused clinically significant losses in ventilatory lung function in a proportion of exposed miners, irrespective of any radiographic changes. In the face of these findings, in 1995, the National Institute for Occupational Safety and Health, NIOSH, issued a Criteria Document which was shown previously, which formally recommended that respirable dust exposures in coal mines be limited to a time-weighted full-shift average of one milligram per cubic meter, or half the previous limit. As part of that recommendation, NIOSH indicated that respiratory health monitoring for miners should be expanded to include spirometry, symptom questionnaires and occupational history information. This was recommended in order to assure the early recognition and control of all adverse respiratory health effects, in recognition that dust-related lung dysfunction has been demonstrated to occur in the absence of the radiographic abnormalities. The Criteria Document also affirmed an earlier 1973 NIOSH recommendation that occupational exposure to respirable silica be limited to 50 micrograms per cubic meter. A number of relevant studies and reports that have been published since 1995 reinforce the earlier recommendations. Over the last five years, the American College of Occupational Environmental Medicine is aware that there have been a number of peer-reviewed scientific studies and public health reports, the references are attached, that document a partial reversal of 30 years of improvement in coal miner occupational health. A number of these reports have demonstrated an increased prevalence of radiographic evidence of pneumoconiosis among groups of miners who participated in national coal miner health surveillance program. Lung function deficits have also been documented among coal miners, along with recognition of increasing morbidity in coal miners, annual years of potential life loss from CWP have been increasing since about 2002. In particularly worrisome findings, severe and fatal dust-induced lung disease has recently been documented among many U.S. coal miners, including young miners that have worked entirely under current permissible limits and enforcement regime. In the face of these advanced cases of preventable occupational lung disease among currently employed miners, ACOEM strongly encourages the implementation of actions to assure that both respirable silica and mixed mine dusts are continuously controlled to healthful levels at all coal mines. The College strongly endorses the following section of the proposed MSHA rulemaking, RIN 1219-AB64. Number one, the dust standards. Thirty (30) CFR, Parts 70 and 71, Subparts B. That the adoption of the current science-based NIOSH recommended exposure limits monitored over an entire work shift of one microgram per cubic meter for respirable dust and establishment of a separate limit for respirable silica. MSHA also is committed to future rulemaking addressing the permissible limit for respirable silica exposures. ACOEM takes note of the thousands of measurements of respirable dust levels which have been reported from active coal mines over the last several decades. These dust measurements on average are well below the proposed limits, including many performed by MSHA inspectors as well as those completed by coal mine health and safety personnel, and thus fully support the feasibility of implementation of the reduced dust standard. ACOEM also stresses the importance of MSHA identifying, retaining and training the competent professional staff required to assure effective and equitable enforcement of protective standards, and thereby to assure that all working coal mine environments provide continuous and universal adherence. ACOEM further supports the MSHA proposals that aim to assure that airborne measured respirable dust levels be maintained at or below a safe level by, A, measuring samples during each individual work shift, rather than the current strategy of averaging samples over multiple shifts, B, requiring appropriate application of real-time continuous dust monitoring technologies that permit timely actions for controlling dust, and C, establishing a weekly permissible accumulated exposure limit to reduce the likelihood of excessive dust exposures among miners who work extended hours. Number two, medical surveillance. Thirty (30) CFR, Part 72, Subpart B. The addition of spirometry, symptom questionnaires and occupational histories to the performance of chest radiographs for the ongoing monitoring of respiratory health for all coal miners at both surface and underground mines. We firmly concur that all such testing be done only by competent personnel using equipment and procedures as approved by NIOSH. NIOSH has been using such personnel, equipment and procedures as part of their Enhanced Coal Workers' Health Surveillance Program. Medical surveillance for occupationally-induced COPD, including chronic bronchitis and emphysema, requires the complementary findings of lung function testing, that is screening spirometry, and respiratory symptoms. Either modality alone is not sufficient for the accurate detection of these diseases. We also encourage continued efforts to recognize and overcome barriers to participation in health monitoring, through approaches such as the Miner's Choice Program and NIOSH's Enhanced Coal Workers' Health Surveillance Program. Program statistics indicated that participation in the Coal Workers' X-ray Surveillance Program declined after the initial rounds. The recent increased levels of participation stimulated by these programs broaden opportunities for early interventions and secondary disease prevention, provide more accurate estimates of the population burden of disease and should permit better evaluation of the impact of regulatory efforts on disease prevalence. Three, scope. Thirty (30) CFR, Part 90. In addition to extending the definition of a Part 90 miner to include surface coal miners, we also recommend that miners who have developed occupational obstructive lung disease, COPD, due to mine dust exposure be included as Part 90 miners with the option to be transferred to areas of the mine where the concentration of respirable dust is documented to be at or below 50 percent of the permissible level. Since it is known that, in addition to the interstitial dust diseases, obstructive lung diseases can also be caused and worsened by mine dust exposure, miners who have been shown to develop these diseases will also benefit from transfer rights, to facilitate secondary prevention and reduce the risk of worsening lung disease. Four, silica. Current science clearly demonstrates important risks to workers exposed to the 100 micrograms per cubic meter of respirable silica limit proposed in this announcement, and ACOEM supports MSHA's intention, stated in the NPRM, to promulgate a silica PEL that is more protective than the current rule. That’s the end of my comments. DR. WAGNER: Thank you. I'm going to turn to the panel first to see if there are any questions. Thank you very much. MS. HONOR: Thank you very much. DR. WAGNER: The next speaker who registered in advance was Joe Thomas. Is he here? The next was John Stachura. MR. STACHURA: Good morning. DR. WAGNER: Good morning. MR. STACHURA: Everybody hear all right? Okay. My name is John Stachura, S-T-A-C-H-U-R-A. I am here as the Chairman of the Underground Committee for the Indiana Coal Council. To begin, the Indiana Coal Council, Incorporated is a trade association representing Indiana coal producers and related business entities. Our association was formed to foster, promote and defend the interest of Indiana coal producers. All of our members will be affected by this rule proposal. It is the desire of the Indiana Coal Council and all of its members to see coal workers' pneumoconiosis, CPW (sic), eliminated from coal mining in Indiana. Obviously, CPW is a serious issue. It is one that the Indiana Coal Council, and frankly, anyone associated with the coal industry is committed to eradicating. As we gather today for this meeting, no one disputes that the health and safety of miners is paramount. In 2009, miners spread across nine counties in Indiana produced more than 35 million tons of coal. In fact, over the course of the past decade, Indiana's miners have mined more than 30 million tons of coal every year. Consequently, any issue impacting the welfare of these miners deserves scrutiny and consideration, and on behalf of the Indiana Coal Council, I thank you for providing today's forum to candidly discuss the general issue of CWP as well as the more specific issue of MSHA's proposed rule, lowering miners' exposure to respirable coal mine dust, including continuous personal dust monitors. After careful consideration, the Indiana Coal Council cannot and will not support the proposed rulemaking and joins the growing number of commenters who respectfully request the proposed rulemaking be withdrawn in its entirety. Is it our belief that this is the only course of action which achieves our stated goal of eradicating CPW and maintaining the wellbeing of Indiana miners. Our objections to the rule are numerous and specific; however, the basis of our complaint is with the recipe used by MSHA in its rulemaking procedures, which begins with a noble cause being combined with faulty assumptions, technical misapplications, convoluted science and inconsistent enforcement policies and results in a rule that Indiana miners and mine operators will have to ingest for years, taking precious resources away from the real objective of eliminating CWP. Any proposed rule should be based upon facts and rationality. MSHA's current proposed rule is based upon neither. As a starting point, MSHA's proposed rule does not even rise to the level of junk science. In junk science, underlying statistics and facts relied upon by their advocate are manipulated. Still the underlying statistics and facts are revealed. Here MSHA and NIOSH have alluded to prohibit the disclosure of the very information necessary to perform the serious scientific critique of the conclusions relied upon by MSHA to justify the move to the one milligram standard. Perhaps MSHA believes that the data is so clear that revealing it would unnecessarily complicate the validity of this rule. The Indiana Coal Council encourages MSHA to humor its critics and reveal the underlying data, rather than pass a rule that hasn’t been subjected to the light of day, let alone scientific peer-review. It is ironic that this rule emanates from an administration that has, from its first day in office, touted itself as the most open in governmental history. Even after taking at face value the information MSHA actually has revealed as part of its rulemaking process, it is abundantly clear that CWP is not the easily explained and nationwide problem that MSHA claims as reason and justification for implementation of the one milligram standard, okay, along with a host of 30 CFR, Part 75 changes which appear to bear no relation whatsoever to preventing CWP. It should be recognized that mines located in Indiana and Illinois have the lowest prevalence of CWP in the nation. Whether this decreased prevalence is the result of thicker seams of coal with decreased silica concentrations or the decreased prevalence is the result of specific mining methods utilized throughout the region, the justification for a nationwide rule has not been adequately demonstrated. In fact, a nationwide rule would disproportionately impact MSHA districts, such as MSHA District 8, where higher concentrations of respirable dust have been found, but CWP is actually decreasing without any intervention of MSHA. This proposed rule also fails to recognize the improvements that have been made in respirable dust concentrations as operators implement advanced dust control technologies and improve work practices. In 2006, the average dust concentration for continuous miner operators in District 8 was 1.21 milligrams per cubic meter of air. In 2010, this number was reduced to .84 milligrams per cubic meter, a 31 percent reduction in four years. This recent downward trend demonstrates that operators are already committed to lowering miners' exposure to respirable coal mine dust, which is the stated purpose of this rule. Meanwhile, the proposed rule claims to advocate for health and safety of miners while at the same time ignoring personal protective equipment as the singular most effective means of reducing an individual miner's exposure to respirable dust. Additionally, a proposed rule that claims to advocate for health and safety of miners fails to acknowledge the serious burdens and risk this proposed rule would place upon MSHA, miners and mine operators alike. As a point of perspective, a single coal mine will be required to produce and comply with 17,000 samples each year. The notion that the industry and MSHA can administer a program that increases from the industry-wide 25,000 respirable dust samples per year to 750,000 compliance samples per year is blatantly absurd. It is the equivalent of Chapter 30 of the Code of Federal Regulations expanding by 3,000 percent and expecting mine operators to comply and MSHA to administer it over the course of a single year. While the Indiana Coal Council is certainly not advocating for such a drastic expansion of MSHA's authority, under this hypothetical paragraph, one could imagine that MSHA's expansion of power might involve a provision or two of which operators have a realistic shot at compliance. Under the proposed rule, however, MSHA has made faulty assumptions about any operator's ability to comply on a consistent basis. And the most notable of these faulty assumptions is that the CPDM was and is designed as a compliance tool that can be consistently and accurately used as a single shift sampler of respirable dust. In short, it's not. Earlier it was mentioned that the rule also appears to include a variety of 30 CFR, Part 75 changes that bear no rational relationship whatsoever to preventing CWP. One such proposal under the rule is the revision of the current 30 CFR, 75.332(a)(1), which currently requires that each working section and each area where mechanized mining equipment is being installed or removed shall be ventilated by a separate split of intake air directed by overcast, undercast or other permanent ventilation controls. Aside from the fact that there is no apparent or explained correlation between the proposed change to this section in preventing CWP, the proposed rule change also suggests there could be additional costs. Interestingly, there is no specific discussion that outlines the benefit of such costs or how much such costs would be. From a practical standpoint, this proposed rule change provision would result in most cases in the installation of additional overcasts and an additional intake stopping line to deliver intake air to each individual MMU within a single working section. Of course, this would also require, in many cases, the mine's installation of additional airshafts. Perhaps this was not the intent of the proposed rule with regard to this provision, but the current proposed revision to the 75.332(a)(1) standard could certainly create ambiguity, uncertainty and the possibility of arbitrary and capricious enforcement in situations where these types of additional permanent ventilation controls had not been installed. While the Indiana Coal Council does not want to belabor this point, the problems with the proposed revisions of 75.332(a) is indicative of the apparent sloppiness and lack of cogent thought that has been put into this proposed rule as a whole. Consider for a moment that many underground coal mines in the United States successfully operate two independent and separate MMUs within the same working section. In these cases, two separate production crews and two separate sets of mining equipment are used. Each MMU is ventilated with a separate split of intake air. This process is accomplished by using permanent ventilation controls to direct an intake air split to the working section. Then the intake air split is near the working places inby the section loading point using approved temporary ventilation controls so that the two separate and distinct splits of intake air ventilate the working faces with enough volume to comply with an MSHA-approved ventilation plan for the mine. This method of fishtail ventilation provides a separate split of intake air for the mining equipment associated with each individual MMU. Notably, the separate intake air split provided to each MMU is not used to ventilate any other working section. This fishtail ventilation method for two MMUs operating on the same working section was outlined in the Federal Register dated May 15, 1992, and was intended to provide miners with a separate intake air split uncontaminated with gasses or dust from another set of mining equipment. As a result of the health and safety success of this type of ventilation scheme, many mining operations have designed their coal mines to operate two MMUs within the same working section. And the benefits of the current 75.332(a) are clear. As revisions of the 1992 ventilation regulations were proposed in the Federal Register dated March 11th, 1996, commenters suggested that 75.332(a)(1) be revised to permit the installation of mechanized mining equipment in either the return or intake air sources of a working section. However, the risk of introducing potential mine fire explosion hazards resulted in the final rule ignoring that suggestion. Instead, MSHA stayed the course of enjoying the safety benefits of using a separate split of intake air as established in 1992. Now, despite no apparent relationship to CWP or any indication that this 19-year ventilation scheme presents a problem, MSHA proposes a change to the standard. In the process, underground coal mines would engage in the expensive and completely unnecessary exercise of completing overhauling and redesigning their ventilation systems. Not a single recent mining disaster has related to fishtail ventilation. Permanent ventilation controls have proven effective in delivering a separate split of intake air to the working section, and the approved temporary ventilation controls have proven effective in splitting the air near the working places to provide each set of mining equipment with a separate and distinct split of intake air. No scientifically-supported data suggests that fishtail ventilation presents a hazard to the miners or contributes in any way to CWP. Quite simply, all this is is to say that the proposed revision of 75.332(a) is just one of many examples throughout the proposed rule of an Agency proposing a change without any apparent logical basis for doing so. Another prime example of such a change, also completely unrelated to CWP, is the proposed change related to 30 CFR, 75.363 and the posting, correcting and reporting of hazardous conditions. My examiners are highly trained certified safety professionals who evaluate certain areas for mine hazardous conditions on a mine-by-mine and case-by-case basis. The proposed change to this standard is quite possibly the clearest example in recent history of MSHA's micromanagement of the work coal miners do every day in this country. To dictate through a regulation that a respirable dust concentration of a one milligram standard constitutes a hazardous condition regardless of circumstances is inconsistent with a historical deference paid to the experience and judgment of qualified mine examiners. Furthermore, there is no scientifically-supported data that a hazard exists at the current respirable dust standard, let alone at a one milligram standard. There has been no quantitative risk assessment and no exposure response relationship based on appropriate risk characterization. In other words, MSHA has failed to prove the basis for its own generalized assumptions. Adding these type of requirements to Part 75 adds a burden, costs and complication to MSHA's plan approval process that is already overburdened and inefficient with only discretionary expedited hearings when good faith negotiations reach an impasse. And now MSHA's proposed rule creates a new plan for dust control that would add to an already broken system, another duplicative plan process which would clearly be subject to frequent changes, particularly when, as mentioned earlier, compliance based upon a single shift sample fails to occur. No mechanism exists for effective and timely resolution of disputes. Insufficient staff exists to process the plans. And the end result is an arbitrary process based on the District manager's whims or on written or unwritten across-the-board policies that cannot be reasonably challenged. Of course, all of this from MSHA's failure to release and subject its conclusions to peer review to MSHA's underestimation of the size, scope and impracticality of the proposed rule result in yet another example of MSHA underselling the potential costs of a proposed rule as a way of avoiding the scrutiny that comes with what this rule in all actuality may do. Increased compliance costs by more than $1 billion a year provide additional means for government officials to exercise de facto control over day-to-day operations of coal mines and ultimately result in increased coal costs with reduced wages for miners with no discernable guarantee that CWP will be reduced, let alone eliminated. As a side note, the technology mandated for implementation under the proposed rule is proprietary. MSHA's proposed rule, particularly without the information necessary for a critical review, forces an entire industry to bow down before a single manufacturer who would have little incentive to further the development of the technology and/or engage in reasonable pricing practices. In short, this proposed rule runs the risk of becoming a government-sponsored boondoggle. We understand the previous commenters, including the West Virginia Coal Association, as they indicated that they intend to submit a series of recommendations for MSHA's consideration prior to the final deadline for comments on the proposed rule. The Indiana Coal Council may or may not do the same. Frankly, this proposed rule is so fraught with problems that offering alternatives on a point-by-point basis seems an exercise in futility. However, for the basis of making many of these problems clear in the administrative record, the Indiana Coal Council offers the following specific questions for answering by MSHA. Number one, with regard to the proposed rule regarding 30 CFR, 70.2, will the equivalent concentration of a sample shift less than eight hours in duration be penalized for considering that exposure to be 480 minutes? Secondly, with regard to the proposed rule regarding 30 CFR, 70.100, upon what analysis and/or statistics is MSHA basing its premise that CWP is such an acute cause of death or illness among underground coal miners in MSHA Districts 8 and 10, that a 50 percent reduction in respirable dust exposure limit is warranted? Number three, additionally with regard to 30 CFR, 70.100, upon what analysis and/or statistic is MSHA basing its conclusion that a reduced respirable dust exposure limit will result in fewer cases of CWP? Number four, with regard to the proposed rule regarding 30 CFR 70.201, which CMDPSUs and CPDMs were considered to be approved sampling devices for the purposes of conducting an economic analysis of this rule and what were the prices of each sampling unit used in such calculations? Furthermore, if the technology used in the devices considered is proprietary, how did MSHA factor in increased demand for such units and monopoly-driven price increased in projecting the economic impact of requiring all underground coal mines to purchase such equipment? Number five, with regard to the proposed rule regarding 30 CFR 70.202 and 70.203, in the course of conducting an economic analysis of the proposed rule, what were the numbers, data and calculations used for verifying the accuracy of the training and testing costs of certifications required for dust sampling and maintenance/calibration personnel? Number six, with regard to the proposed rule regarding 30 CFR, 70.206, in the course of conducting an economic analysis of the proposed rule, what were the numbers, data and calculations used for determining the economic impact of underground coal mines developing and maintaining the CPDM performance plan? Number seven, with regard to the proposed rule regarding 30 CFR, 70.206, in the course of conducting an economic analysis of the proposed rule, what were the numbers, data and calculations used for determining the economic impact of all procedures required to be conducted as part of an approved CPDM performance plan? Number eight, with regard to the proposed rule regarding 30 CFR, 70.207 and 70.208, in the course of conducing an economic analysis of the proposed rule, what were the numbers, data and calculations used for determining the cost of developing corrective action plans to lower the concentration of respirable dust and for making subsequent changes to the CPDM performance plan reflecting control measures used to abate violations, including the cost of respiratory equipment available to affected miners and production delays associated with the plan preparation, submittal, review and approval process? Number nine, with regard to the proposed rule regarding 30 CFR, 70.210 and 70.211, in the course of conducting an economic analysis of the proposed rule, what were the numbers, data and calculations used for determining the economic impact of the cost of transmittal that requires data and posting of received data for at least 46 days? Number ten, with regard to the proposed rule regarding 30 CFR, 72.100, in the course of conducting an economic analysis of the proposed rule, what were the numbers, data and calculations used for determining the economic impact and projected costs of periodic examinations? Number 11, with regard to the proposed rule regarding 30 CFR, 75.332, is the language in the proposed rule intended to modify and/or eliminate the practice known as fishtail ventilation by changing the rule to apply to each MMU on each working section rather than the current language referring to each working section? If so, can you provide numbers, data and calculations used to support the correlation between the need for a proposed rule change to this provision and the prevention of CWP? Furthermore, what were the numbers, data and calculations used for determining the economic impact and projected costs of implementing ventilation changes associated with providing additional stopping lines, overcasts and fans required to deliver intake air to each individual MMU in underground coal mines? Number 12, with regard to the proposed rule regarding 30 CFR, 75.363, in the course of conducting an economic analysis of the proposed rule, what were the numbers, data and calculations used for determining the economic impact of additional examinations required by certified persons and the costs of recording the results of such examinations, including mine foreman or equivalent mine officials' time in countersigning each such examination record? Thirteen (13), with regard to the proposed rule regarding 30 CFR, 75.371, in the course of conducting an economic analysis of the proposed rule, what were the numbers, data and calculations used for determining the economic impact of developing and maintaining additional information required in the mine ventilation plan? Fourteen (14), what were the numbers, data and calculations used for determining the economic impact and burden upon rural communities negatively impacted by mines closed as a result of the burden of this rule upon the operators? Number 15, what were the numbers, data and calculations used for determining the economic impact of the projected monetized benefits of the proposed rule, considering the additional unemployed workforce that will be created as a result of mine operators closing due to regulations with which they cannot reasonably hope to comply? Number 16, assuming projected monetized benefits of the proposed rule are based upon reduced healthcare costs for retired underground coal miners and a longer life expectancy of the same, can you provide the numbers, data and calculations used for verifying how said miners are projected to provide for themselves financially until retirement if they become unemployed due to mine closures caused by this proposed rule? Additionally, what numbers, data and calculations were considered in the economic analysis of the proposed rule related to the financial impact upon mining families whose miners see a reduction in work hours and pay as a result of lower respirable dust standard exposure limits? Furthermore, under any such analysis, what consideration was given to the need of mining families to secure additional childcare as a result of couples having to work additional jobs in order to maintain their current standard of living? Finally, did the economic analysis consider the loss to the government of the federal, state, locality income tax revenue as a result of the reduction in miner earnings created by the proposed rule? Number 17, in conducting its economic analysis of the proposed rule, what data, statistics, numbers and calculations were considered by MSHA regarding the increased costs to the American consumer and/or the increased reliance upon foreign energy sources in the event that the underground coal mines in the United States close as a result of the costs and regulatory structure of this proposed rule? In closing, it is apparent that without any actual scientific analysis and forethought, MSHA has proposed a conglomeration of mandates in the hopes that something will help reduce CWP. The whole proposed rule should be scrapped and MSHA and NIOSH should begin again with the instruction to prepare rules that are, number one, based upon scientific facts and analysis, two, share openly with industry and other interested individuals, three, based upon the application of proven technology, four, designed to reduce and/or eliminate CWP, and five, have a wellbeing of this nation's miner as the central focus. Thank you. DR. WAGNER: Thank you very much. I'm going to turn to the panel first. MR. FORD: I have a couple questions. One's a comment in the economic analysis, to answer one of your questions, the price that we used for the continuous personal dust monitor, the CPWM --- CPDM, excuse me, was $10,000 as an average price. And then we also included to each unit that $2,875 for a five-year warranty. So that’s close to $13,000. There's other portions of costs that you’ve asked for the numbers that are contained in the economic analysis. We did estimate some value to loss of production for the issue for 75.332, split of air. It did note that there would be a few mines that could and may incur huge costs, such as, you know, installing additional shafts, and it could be in the millions of dollars. But my one question to you is that, can you help us in that area of the split of air by maybe crystallizing what those costs might be right now, or you know, some time in your written comments? MR. STACHURA: We could do that in the written comments. MR. FORD: Thank you. MR. NIEWIADOMSKI: Can you hear me? I think you made it clear that the Indiana Coal Council supports MSHA's goal to eliminate CWP; is that correct? MR. STACHURA: That’s correct. MR. NIEWIADOMSKI: You also made it clear what you don’t like about this rule. Is there anything that you like about this rule that you support? MR. STACHURA: No. MR. NIEWIADOMSKI: Which tells me that you felt that the current program that’s in place is adequate to prevent CWP? MR. STACHURA: Yes, I do. MR. NIEWIADOMSKI: You wouldn’t change anything about it? MR. STACHURA: No. And I'm speaking on behalf of the Indiana Coal Council that represents every kind of coal miner in the State of Indiana. We don’t have a problem in District 8. We really don’t have a problem in District 10. And even your own slides project where the problem is. But we're a one-size-fits-all country. That’s what we have a problem with. MR. NIEWIADOMSKI: Miners in the State of Indiana are still developing black lung; isn't that true? MR. STACHURA: No. MR. NIEWIADOMSKI: No miner had developed CWP? MR. STACHURA: Not that we're aware of. MR. NIEWIADOMSKI: Thank you. MR. THAXTON: I just have a couple of follow-up questions for you. On the '92 regulation for ventilation, you indicated that the design of the 332 was to provide intake air to each section so that it's not contaminated by another work group. Is that correct? Can you describe how your sections are set up with your section dump points and your intake air to indicate how you operate them so that no pieces of equipment from one MMU is encroaching upon the intake air of another MMU? MR. STACHURA: If it's all right with you, I'd like to defer to some of our members that are actually using the fishtail air. MR. THAXTON: You want to wait until they come up to speak or ---? MR. STACHURA: No. I'd defer to them now. Is there anybody who wants to address that? I would prefer to put it in our written comments then. MR. THAXTON: Okay. On 75.363, you indicated that it is not appropriate for --- you didn’t feel that the overexposure or the fact of having a dust control design in place at the beginning of a shift does not rise to the occasion of being a hazardous condition. The regulation's actually written that it only requires a record similar to those required for hazardous conditions. It's not saying that you record it as a hazardous condition. Does that make a difference to your comments in that we're only saying use that as your guide of how to record that situation, not that it’s being recorded in your hazardous condition book? It is a separate book designed to actually maintain and track the availability and maintenance of your dust controls on each and every shift? MR. STACHURA: What we have an issue with is recording anything of that nature because it's --- the long arm of the law seems to come in and want to take a look at all that and then start writing citations right off the bat. MR. THAXTON: So that it's not that you're opposed to the fact of having the dust controls, it's that you're afraid that it's going to result in additional citations for a failure to maintain those controls? MR. STACHURA: No, that's not it. We don’t think that having these new controls are necessary, period. MR. THAXTON: It's not requiring new controls, it's only asking you to record --- MR. STACHURA: To record. MR. THAXTON: --- the controls that you state in an approved plan that are necessary, so the miner already knows that these controls are required. The only thing that this is requiring is that you record that you actually do the check that you're doing now. MR. STACHURA: Right. MR. THAXTON: It's not adding a check. It's only that you have to record the results of that check, so that it can be seen if there's anything that happens routinely over and over or if it’s not being done. MR. STACHURA: We have a problem of having to record everything. MR. THAXTON: Okay. MR. STACHURA: Like you said, it's in the law. We're supposed to do it. If we don’t, we get a citation. So why do we have to record it again? We either follow our plan or we don’t. MR. THAXTON: You also indicated that MSHA has not made available the data that we have utilized or it relied on. Can you be specific as to what data you don’t think --- other than the cost data, what data you're talking about? MR. STACHURA: Not at this time. We could put that in our comments. I’d like to have everybody's input into that. MS. HONOR: First, I'd just like to say thank you for your comments. And at this point, there's only one thing that I wanted to add to the comments that have been made so far by the other panel members. In the early portion of your statement you said, essentially, that operators should just be permitted to use PPEs to help reduce miners' exposure to dust. And I just want to clarify that the Mine Act does not permit that. It seems like an easy fix. But the Mine Act doesn’t permit that. And we've heard that comment also going back, so I wanted to clarify that the Act does not permit that to be a primary control. MR. STACHURA: And that is where we’re coming from. We're here taking a look at possibly changing the regulations as they presently are and lowering the dust standard. This is the type of thing we need to take a look at. You know, under OSHA, if you're in dusty atmosphere, you put on a dust mask. Under OSHA, if you're in a noisy environment, you wear ear protection. We're not allowed to do that. We kind of wonder at times, are we protecting the equipment or the people? DR. WAGNER: On the PPE issue, I'd also like to thank you for your comments, particularly the specific comments that were scattered within your testimony. You stated that the personal protective equipment is the singular most effective means for protecting miners. Do you have any data on which to base that? And if so, I would hope that you would present that data to us. MR. STACHURA: We would have data on that. We can present that in our comments. DR. WAGNER: Great. I'd appreciate that. In the course of your remarks, you noted that in 2010, the average dust sample was at .8 milligrams per cubic meter in Indiana. Did I hear that right? MR. STACHURA: .84. DR. WAGNER: .84. So that would be below the dust limits that would be proposed by MSHA with this rule; is that correct? MR. STACHURA: That’s correct. DR. WAGNER: So what you're basically communicating is that this is a feasible dust limit to achieve and that, in fact, you are already achieving it; is that right? MR. STACHURA: But I also refer to the fact that it could be due to our coal seam. It could be due to the roof structure, the outside rock that you get into versus the rest of the country. DR. WAGNER: But Indiana, your area achieving the dust limit that would be enforced under this regulation? MR. STACHURA: Yes. But there again, it's not necessarily on a minute-by-minute basis. Overall, yes. DR. WAGNER: Thank you. You expressed substantial concern about the scientific basis upon which the rule was based. Have you had an opportunity to read through the NIOSH Criteria Document from the mid '90s that I showed earlier, this? MR. STACHURA: I haven't personally, no. The people on the Committee have. DR. WAGNER: Okay. I'd encourage you when you read through it or when the members of the Committee read through it, to please pay attention to the approximately 400 scientific peer-reviewed references that were included in the document in order to be able to provide specific information about the basis of your concerns that these recommendations were not scientifically based. In addition, there are probably an additional 100 or 200 publications that were examined in addition to those that were referenced. And again, we'd appreciate information about those about which you have scientific concerns. And finally, within the proposed rule, there is a table five that lists the epidemiologic studies and reported effects from 1997 to the present that were also examined in addition to the NIOSH Criteria Document that provides a peer-reviewed scientific basis for the proposed regulations. And if there's specific concerns that you have about the science that’s included in those peer-reviewed publications, we would appreciate learning what that is, rather than being just general expression of concern about the scientific problems. MR. STACHURA: We intend to do that in our written comments. DR. WAGNER: Excellent. And in addition, I noted that the initial speaker mentioned that the American College of Occupational Environmental Medicine was also providing scientific references on which their scientific recommendations were being based, and I'd appreciate, once we’ve posted their comments on the website, that if you have concerns about that, that you provide specific indications as well as any additional scientific information that’s peer-reviewed and available to the Agency that the Agency may have ignored in preparing its proposed rule that you feel we should be taking into consideration. MR. STACHURA: All right. DR. WAGNER: Thank you for that. You expressed concerns about a lack of industry involvement. I wondered whether you or your Committee have had the opportunity to look at the report of the Secretary of Labor's Advisory Committee on the elimination of pneumoconiosis among coal miners that was comprised of individual scientific experts as well as experts from industry and labor? Were you able to read and reflect on this and take into consideration of that in your comments? MR. STACHURA: Yes, we did. DR. WAGNER: Okay. And do you have any thoughts about whether this did or did not reflect the involvement of people who have the expertise to be able to review the scientific literature and come up with recommendations? MR. STACHURA: Our feeling was that on several fronts the actual people that can make those types of comments and statements were not necessarily represented by the industry or otherwise. But, you know, it's like a lot of things. Take global warming. I go out and I canvas 100 scientists, 50 said it exists and 50 said it doesn’t. That’s our issue with the scientific data. We need to have a chance --- you put it --- you know, once you put it out there, we need to digest it and see if in fact it's accurate, and we don’t feel that we have that. DR. WAGNER: So the information that’s been available from the mid 1990s that provides a part of the scientific basis for the Agency's actions, you feel that it has not been available to you for sufficient ---? MR. STACHURA: It's been available. We felt that a lot of it was faulty. DR. WAGNER: Okay. We would appreciate specific information that you have on --- that identifies the faulty information that's included in those documents. MR. STACHURA: Okay. DR. WAGNER: I end with, again, a repeat of what I said earlier. In order to be the most effective in having the Agency analyze and respond to and improve the work that will result in approval, we would appreciate additional information, additional data and any specific critique of data that has been relied upon by the Agency in order to come up with its proposed rule. I'd like to thank you for your time, Mr. Stachura. MR. STACHURA: Thank you. DR. WAGNER: We're now moving to individuals who signed up today. The first is Jeff Messel. MR. MESSEL: Good morning. My name is Jeff Messel, spelling of last name, M-E-S-S-E-L. I am here representing myself. However, I do work at Gibson County Coal. Many people in this room I have worked with and recognize me by the name of Twinkie (phonetic). I graduated from Vincennes University with Honors in 1976 with a degree in distributing marketing. I worked in sales for several years, but for 20 years I worked in the coal mines in JR Coal in Bicknell, Solar Sources Underground in Monroe City and now Gibson County Coal. Thank you, John, for hiring me some 20 years ago, and also for stealing the thunder. I should have went first. I come from a great family history of miners. My two greatparents were coal miners. My two grandfathers were coal miners. Five uncles were coal miners. My entire family has followed me into the coal mining business. My son, Donald, come to work at Gibson County Coal, got into mine rescue. And in 2009, was the national champion in the men's competition. He has since went on to work for Kennametal. My youngest son, Keith, is a surveyor, coming to work at Gibson County Coal. He has moved onto Sunrise Coal in Carlisle in the engineering and surveying department. My daughter, Amy, is a registered nurse, but she married a coal miner. And low and behold, his dad and his uncle were already coal mining. My wife, which many of these people here know, Ruth, works at the Peabody Midwest Training Center as an administrative assistant. And my sister, Jan, is in purchasing at Peabody's Bear Run Mine. So I do have a vested interest in these standards that are being proposed. I will be blunt with you, I do not like the Obama-Biden administration. They are tax and spend liberals, and I am a conservative. They speak out of both sides of their mouth. On one side, they want us to be not dependent on foreign oil. And on the other side, they're making it virtually impossible to mine our coal. And we are the Saudi Arabia of coal. I personally think that they're trying to eliminate my job. Quite frankly, all in the name of a hoax called global warming. I come to you today in my mining attire. Quite frankly, I didn’t know who I'd be addressing, whether it'd be doctors or lawyers or secretaries, MSHA officials. So I wanted you to know what a real coal miner looks like. And I bring my attire because I don’t think I represent the thousands of men and women that go down in the hole every day to produce coal. But I will tell you that I work with 16 great men at my mine. And they are extremely happy that I have taken my time to come here to speak today. Let me explain some of the equipment that I wear. Obviously my hardhat, my self-rescuer, my hammer, my life pouch. Now, many of our fellow employees wear a lot more than I wear. They have pouches for their radios, pouches for an anemometer, nail pouches. We wear steel-toed metatarsal shoes. And now you want me to wear a personal dust pump. I will tell you that two months ago, they brought one of those things underground for me to wear. And it’s about two and a half times the size of this life pouch that I have. And I'm a shuttle car operator. And it made it practically impossible for me to run my shuttle car. This thing is bulky. It's noisy. It gets in the way. The cord ripped the back of my --- on my hardhat, and I had to get it fixed. I got it caught on the steering arm on my car. I got it caught on all the switches in my panel. Now, I wear my self-rescuer. Many of my fellow coal miners take their rescuer off and put it on the ledge of their car so it makes it a little bit easier for them to move. I do not. I never have taken this thing off in 20 years. But it made it impossible for me to lean out of my car to see the loads coming into my car, and virtually impossible to turn around in my car. So it's certainly a very big pain to be wearing that piece of equipment. Let's get to the heart of the matter, which is this. And I reiterate what John said. I really don’t believe that we have an issue with dust. I'll leave all the facts and figures to the safety department and to the administration. But I honestly don’t think we have a problem with the dust. As a young man, I worked on farms, putting up hay and putting up straw, working in the loft of a barn. Now, there you had dusty jobs. I honestly believe that we do not have a dusty job. Let me explain, because I think we do everything humanly possible to control the dust at this stage. We have water sprays in our transfer points in our belt. We have water sprays in the feeders to stop the dust from getting stirred up with the chunk breaker. We use calcium on the roadways and walkways. At our mine, we have a 500-gallon water wagon that a guy takes around all night long, putting water on the roadways to kill any road dust. On our particular unit, we have hoses and we spray down the entire unit to kill any dust. As we’re moving the miner from face to face, we leave the water sprays on to knock down any dust that might be in the air or the dust that’s on the ground. And let alone, we have the ventilation plans that MSHA approved, that carry the dust off. However, my best defense for dust is this (indicating), this respirator. I operate a shuttle car, I wear it all the time. Now, it is very difficult to wear it if you're a roof bolter. That is a hot, dirty, sweaty job. And I did it for three years. And I did without a respirator. But I do use it all the time operating my shuttle car. It's just like a seatbelt, ladies and gentlemen. If you don’t use it, it can't help you. I do participate in the NIOSH chest x-ray program. And after 20 years, I'm glad to say there is no black lung. Now, let's get to the heart of the matter here. I think the problem is not outby. If you have a problem with the dust, it's not outby, but it's at the point of attack. Where that bit strikes that coal and strikes that rock, that’s where we need to focus. And as I said before, I think we have done everything we can do. I think now we must depend upon technology to lower the dust. Here we're talking about monitoring the dust. But let's talk about lowering and getting rid of the dust in the first place. I think that through technology, with companies like Joy and Bucyrus, with Fletcher, with Kennametal, with SANY, anyone that’s involved at the point of attack, that is where we need to focus our attention. A wise man once said to do the same thing over and over and over again and expect a different result is foolish. We want to go from a 2.0 to 1.0 standard, but we're not doing anything to change the dust that’s being developed. We need to eliminate that dust at the point of attack. And I don’t believe we can do it without improvement in technology. Lastly, as John mentioned, quite frankly, I fear for my job. I work between 50 and 60 hours a week. Out of all that 50 to 60 hours a week, I think I have 25 percent tax, there's state tax, there's local tax, there's Social Security. There's 17 percent for my 401(k), there's $75 a week for driving back and forth to get to work. There's ten percent for my church. There's all the utilities and the living expenses and the rest I have as discretionary income. By implementing these standards, I think it's possible that my work may be cut to six or seven hours a day, maybe less than 40 hours a week. That, quite frankly, would make me a part-time employee and not eligible for benefits or healthcare. I guess I just join the Obama healthcare plan, since I'm already paying for it. So in closing, I’d like to thank you for allowing me to speak to you this morning. From a coal miner's perspective, I don’t believe we have a problem. But if we do, let's use technology to improve the creation of the dust. I don’t want to be burdened with this personal dust device that made my job nearly impossible to do. But I certainly don’t want to lose my job that I love so much. I thank you. And I'll take your questions. DR. WAGNER: Thank you very much. MS. OLINGER: Have you --- I don’t think this is on right. Have you operated the CPDM? MR. MESSEL: I wore it. I wore it for a whole shift. It was a burdensome piece of equipment to use. MS. OLINGER: And what features of the CPDM did you like or find useful? MR. MESSEL: Quite frankly, I just wore it. I didn’t look at it. I didn’t want to wear it to begin with, quite frankly. But I wore it because the safety department wanted me to, to just get my feedback on how it worked and how it would impede or how it would help my work. So how it functions, quite frankly, I don’t really know. MS. OLINGER: So you weren't looking at the displays --- MR. MESSEL: No. MS. OLINGER: --- and what capabilities it had? MR. MESSEL: No. No. MS. OLINGER: Okay. Thank you. MR. FORD: I just have one question. When you were --- the company gave you this to wear, did they give you any training beforehand on how to use the unit or look at it? MR. MESSEL: You know, I don’t remember. I don’t remember such. We had to put it on my belt, and that was quite a problem to begin with. He may have went over the function. I know it had the suction hose come up here by the light. But no, I really don’t know. I don’t remember anything in that regards. MR. NIEWIADOMSKI: Mr. Messel; right? MR. MESSEL: Messel, M-E-S-S-E-L. MR. NIEWIADOMSKI: It appears that you are concerned about your health, because you say you wear your respirator? MR. MESSEL: That's correct. MR. NIEWIADOMSKI: Then would it be important for you to know --- apparently you want to make sure you protect yourself, what the dust levels are in your environment at all times? Are you concerned about that? MR. MESSEL: Well, I'll tell you what --- and I was discussing this with my son on the way down here. You know, about the only time that I'm in any dust of any magnitude is when we're over in the far left entry. Our air comes up. We're at this tail unit, the air comes up at Number Five and swings across to Number Nine. The only time that I really see any dust in the air is whenever I come around in the last to the next to the last crosscut with my car. And the dust actually has no place to go other than down that last entry. When I'm running at Six or Seven or Eight, you can --- as you're going up the face, you can see the clear air coming through the curtain side of the entry and any residual dust coming out and poof, going right in that direction. So I'm in the dust for very little time. The only time that I'm really in any dust at all is in the last entry because that’s where the air has to go out. But other than that, I see no issue with the dust. MR. NIEWIADOMSKI: I'm sure that dust you're talking about, of course, is coal dust. Okay. Now, the respirable portion, you don’t really see that? MR. MESSEL: I understand, yes. MR. NIEWIADOMSKI: So the air might be clear to you, okay, but you still could be overexposed to respirable dust. Now, this device will tell you what you're being exposed to. So it appears you are concerned about it because, in fact, you wear that at all times; correct? MR. MESSEL: That’s correct. MR. NIEWIADOMSKI: Now, the gentleman behind you probably couldn’t do that. MR. MESSEL: Oh. MR. NIEWIADOMSKI: Okay. MR. MESSEL: Well, that could be. MR. NIEWIADOMSKI: I mean, the problem is --- I don't know if anyone mentioned earlier is that the Act of '69 recognized the burden if you wear a respirator because it is very --- becomes very --- if you have any problems with it, it's very difficult. You have to be fit tested, whatever. And that’s why the rules have been in place. Okay. It's an environmental standard. What Congress realized is that they want to make sure that everybody in this room, okay, is being protected. Okay. And so that’s the intent of --- and we're continuing that practice, policy of implementing an environmental standard. MR. MESSEL: I would like to reiterate what John said, though. I don’t believe it's a one-size-fits-all. I don’t think the size fits everywhere. I don’t think what works in West Virginia works in Indiana. And I don’t believe what works in Indiana may work in Alabama. I think that you have a system that says this is the way it is, is not the way it is. I think if you're going to do that, you need to adjust for certain areas, whether it be out east or here or elsewhere. I don’t think a one-size-fits-all rule will work. I think it's entirely inappropriate. MR. NIEWIADOMSKI: Thank you for your comments. MR. THAXTON: I have one question for you. MR. MESSEL: Okay. MR. THAXTON: You indicated that you wore the CPDM for the one shift. MR. MESSEL: Yeah. MR. THAXTON: Was that all you wore it, one shift? MR. MESSEL: Yeah, just the one shift. They were actually spreading it around. My miner man wore it one day. The roof bolter wore it one day. The utility man, the scoop man. We were just kind of getting a sense of what it would feel like, what it would be like if in fact we have to wear one. And I cannot speak for the other gentlemen, it'd be speculation on my part. But I can tell you on my part, I don’t like it one bit. MR. THAXTON: Okay. Given that you had that experience with the CPDM, have you worn the current gravimetric sampler in the past? MR. MESSEL: Dan, what do we have? UNIDENTIFIED SPEAKER: L/min pump. MR. THAXTON: ELF pump, yeah. MR. MESSEL: Okay. MR. THAXTON: That’s the only approved unit, --- MR. MESSEL: All right. MR. THAXTON: --- is the ELF pump. MR. MESSEL: There you go. MR. THAXTON: You have worn it in the past? MR. MESSEL: Okay. Yes, I have. You're getting into some technical stuff that this guy doesn’t know anything about. MR. THAXTON: I'm just going to ask you if you have a big problem with wearing that? Did it interfere with your work and stuff? And if there was a --- would you recommend then, if we're not able to --- miners are not able to wear the CPDM, would you agree that wearing the current sampler would be less intrusive and you'd be able to do that, in order to be able to find out what your exposures are? MR. MESSEL I'll try whatever they want me to try. I'll be their guinea pig. I'll try whatever they want me to try. MR. THAXTON: Okay. Thank you. DR. WAGNER: Thanks. I have just a couple questions also. You said that you are choosing to wear the respirator all the time now for respiratory protection. And when you were a roof bolter, you didn’t wear the respirator. Can you describe a little bit more what kept you from wearing the respirator protection at that point? MR. MESSEL: Let me ask you, have you ever worked in a coal mine? DO.R WAGNER: I have not worked in a coal mine, no. MR. MESSEL: Well, let me tell you. On the face, it's a hot and dirty-ass, nasty job. And I sweat profusely. And I just couldn't wear it. I mean, you're sweating, you're perspiring. It made it virtually impossible to work. And the biggest problem I had was the fogging up of my glasses. DR. WAGNER: Uh-huh (yes). MR. MESSEL: So I just couldn’t wear it. It was just impossible to wear it. DR. WAGNER: So it sounds like the job where the exposure is possibly greatest are the ones where it's going to be most difficult to wear respiratory protection? MR. MESSEL: I would agree with that. I would concur with that. Now, I don’t think that the miner man, he's always staying back here behind the curtain, so he's got fresh air to his back all the time anyway. So I'm not sure that his dust exposure is very great. The miner --- we have a double-boom roof bolter. And they're up there. They’ve got the air, the curtain up to the back of the bolter with the air coming across. But still, it's just a hot job. It's not particularly dirty. People ask me, how is my job. I say it's dark and dirty. I never tell them it's dusty, because I don’t believe it's dusty. But it's just --- you know, you're up there sweating profusely. Some places in our mine have four-foot coal. I'm lucky enough to work in an area that has nine-foot coal, so at least you could stand up. When there's four-foot coal, these guys are on their hands and knees, and sometimes in water and sometimes in mud. So, you know, to ask them to burden themselves with more equipment is just way too much. DR. WAGNER: Any more questions? MS. HONOR: One last question before we let you go. You said that you had participated in the x-ray program in the past. MR. MESSEL: Yes, I do. Last June, matter of fact, was my last x-ray. MS. HONOR: And I'm very happy that, you know, your results so far have indicated no health effects. But I wanted to know if you’ve had an opportunity to read the provisions of the proposal related to the x-ray program? MR. MESSEL: No, ma'am. MS. HONOR: Okay. All right. DR. WAGNER: Thank you, once again, for taking the time to share comments. MR. MESSEL: Yeah, thank you. DR. WAGNER: I apologize if I can't read your writing, but it looks like Mark either Fridley or Findley. MR. FRIDLEY: Fridley. DR. WAGNER: I'm sorry? MR. FRIDLEY: Fridley. DR. WAGNER: Fridley. Thank you very much. MR. FRIDLEY: My name is Mark Fridley, F-R-I-D-L-E-Y. I work at White County Coal, but really I'm here representing myself. I heard about this hearing and proposed changes from the bulletin board and I thought it'd be kind of interesting to see what the rationale was to cut the dust standard in half. That's really the main part that I was aware of. I wasn’t aware of a lot of the other things that are proposed in this, whatever's going on here. I'm a coal miner. I've been a miner for 20 years. I started out as a loader helper, cutter, cutting machine helper, rail loader a little bit, run roof bolter, ran shuttle car. And I did that for about nine years. And then I became a surveyor helper and a surveyor. And still go underground day-to-day doing that. My main interest in being here today, the reason I'm here is to find out a little bit about the rationale behind lowering --- lowering it from two to one. I'm not sure that I'm completely satisfied with all the --- with the rationale going from two to one, as far as how they came up with that number. But I'm not a scientist. I'm not a professor. I'm not somebody who's made a real deep study of this. All I know is that my job, as well as the job of all the other guys underground, is a lot of hard work and we have a lot of equipment on. And I wouldn’t want to have to carry around that big --- that big dust pump, the new one that you guys are proposing. I have not had to wear it, but I seen the guys who did have to wear it, and they said it was a royal pain. Quite a bit more than the regular dust pump. I want to say that I know a lot of coal miners, and I don’t know any that have black lung. I know that there --- some are out there, but I don’t know of any. I don’t know of any at our mine. None of the old guys that have worked at other places that have been in our mine have had problems with black lung that I know of. But I'm not a scientific guy. That’s just my exposure to different people. I do want to say that I know that it is a problem, but especially has been a problem in the past. And certainly my heart goes out to those people and their families. And I wouldn’t wish it on anyone. I just --- I don’t see that it's a problem in my personal exposure. And that’s all I can do is come up here and tell you my personal experience with it. There are a lot of other more expert people than I am. But I do know that it would make my job very difficult to have another bulky piece of equipment hanging off my belt or strapped to my suspenders or hung around my neck or wherever it would go. And I'm not sure that it would make that much difference, at least in my experience. In my experience, because I have --- I don’t know of anybody who has had black lung in my area, which is a blessing. I think it says that the standards that exist are doing the job. Now, not only did I come here on my own curiosity to see what this was all about, but as I thought about it more, I think I'm here, too, for the younger guys that haven't been working in the coal mine for 20 years and have the benefit of the lifestyle that the income and benefits a coal mining career gives. I live in a small town and I know that there aren’t very many jobs anywhere around that provide the lifestyle that mining coal does. And I get very concerned when I see the regulatory environment getting so incredibly burdensome that it starts to really make me wonder if it’s going to start affecting the existence of the underground coal mining industry and that’s a lifestyle --- a job that’s been awfully good to me. And for these younger guys, I would hate to see that taken away from them. And the way it sounds is with listening to the previous speakers, including your introduction, it sounds like the regulatory overhead on this thing is going to be enormous. We might have to build a Super 8 on mine sites to house our MSHA staff. Really, though, I am concerned. You see the regulatory overhead getting huge, and it's a big concern. So that’s simply my take as a personal take, as a miner, somebody's whose livelihood depends on this job. And I have serious concerns about it. DR. WAGNER: Thank you very much for your comments. I'm going to start with Susan. MR. FRIDLEY: Oh, I do --- I'm sorry, I do have one more comment. And that is I understand that there are drawbacks to using a dust mask or a respirator. I have worn one quite regularly, ever since I started in the coal mine. I wore one before I started working in the coal mine. I'm a woodworker and when I --- when there's dust, when I'm in a dusty environment, I wear it. It's kind of like when it's raining, I wear a raincoat. Now, I know that that --- it was mentioned before that OSHA includes that as part of its procedures, and you gave the rationale as to why MSHA doesn’t count it as a part of the dust control procedure. And I don’t know --- I don’t know what the absolute best solution is. I do know that personally the dust mask is a pretty obvious choice, and I think it makes an enormous difference. One of the previous speakers was asked about do you have data to show that the dust mask is going to be so effective. And my data is if it's raining, when I put on a raincoat, I stay dry. And if it's dusty and I wear my dust mask, I feel a whole lot better than if I don’t wear it. So there's my data. DR. WAGNER: Thank you. MR. NIEWIADOMSKI: Well, you know, we commend you for taking care of yourself and being concerned about your health. And we're not opposed to miners wearing the respirators. We certainly, you know, --- I mean, it's something that if you feel it protects you --- as I said before, you can't see respirable dust. Okay? If you see a lot of dust in the air, then certainly you have probably a lot of respirables, you really need to protect yourself. But it’s kind of the point that while we don’t oppose the use of respirators, the law is very clear that they want operators to control the environment. Okay? And so we do not give any credit, all right, for use of respirators. And this is for obvious reasons. Okay? We want the environment controlled, because some people can't wear respirators. We want to make sure that everybody is being protected, and in fact, you're controlling the environment. A respirator will only protect an individual if it's properly worn. That’s my comment to you. Thank you very much. DR. WAGNER: Since I was going to ask the question about the respirators, this actually had to do with the specific broad statement that it was the most protective --- provided the most effective protection. And I note that the speaker immediately previous to you got no protection from his respirator while he was working as a roof bolter, and that is part of the concern about respiratory protection. Under certain circumstances there really is not a very feasible or acceptable form of protection. But again, to your credit and to his, no one's keeping anyone from wearing a respirator. And if they find to choose protection using a respirator, that’s great. I don’t think that anybody out there would discourage the use of the respirators. All right. And other than that, I just want to thank you again for taking the time to come over here. The scientific basis for the reduction in the dust level, which is what you started your remarks asking about, is really included in the scientific review in the literature. Basically it is a pretty straight line issue. The more dust you're exposed to, the more likely you are to get disease. The less dust, the less likely you are. Indiana miners have shown black lung and it's possible to go, for example, on the NIOSH website and do a state-specific search and find out about the numbers of miners that participated in the X-ray Surveillance Program whose x-rays have been positive. No one feels --- or at least no one has told us that Indiana miners themselves are more resistant, but I think the interesting information that we have gotten today is that dust controls that are in place here have resulted in an average dust level that’s below the level that MSHA's imposing that all miners be exposed no more than. So already in Indiana, we've been told that the average dust level is at .84 in 2010, not above the one milligram that people would be limited to in Indiana and the rest of the country. So I have to say that in the efforts to control exposure and risk within Indiana, it sounds like there's been a successful effort to keep dust under control here. And I think, again, that’s, you know, something that’s already in place, so a mandate to keep it below one milligram would already be in place. So with that, I again thank you for coming and sharing your thoughts. MR. FRIDLEY: Thank you for your comments. DR. WAGNER: I'm going to now, since I've seen sufficient shuffling in my crew up here --- it's 11:03 by this thing, and let's take a break until 11:10. We'll reconvene and the next speaker will be called. Thank you. SHORT BREAK TAKEN DR. WAGNER: Is Gerome Thomas in the room? Before we get started, I wanted to make a couple points of clarification from the earlier discussions and some of the information coming from here. I want to make sure the --- that I clarify the difference NIOSH in the mid '90s recommended that occupational exposure to respirable coal mine dust be reduced to one milligram. The Advisory Committee unanimously said that MSHA should consider lowering the levels of allowable dust, exposed to coal mine dust, and recommended that there be a phase-in period to allow allocations for sufficient resources for the compliance of that. So they didn’t recommend a specific reduction, but their suggestion that MSHA consider it was based upon their review of the coal mine Criteria Document. The other issue that may have been confusing, but there was a request from, I believe, Mr. Stachura for information about the data and the processes, the procedures, the methods that were used in the quantitative risk assessment and the economic analyses that were performed. All of that is included in links to the proposed rule. Is that right? MR. FORD: Yes. DR. WAGNER: Okay. Go ahead. MR. FORD: There is a summary of the cost analysis in the preamble that accompanies the proposed rule. But the full economic analysis is --- that accompanies the rule can be found on a link to the MSHA website, or they can get it directly from us by contacting MSHA. DR. WAGNER: Yeah. So it's both the economic analysis and the quantitative risk assessment. So I know there were concerns that were raised about the availability of this. And what we would appreciate is after anyone who has concerns about this does look at it and reviews it, if there are problems or concerns, better alternative methods or approaches, improved data that would help us reach better conclusions, please be as specific as possible and provide that, because we have, in fact, provided comprehensive information about the approaches and methods that we've used and the data that we relied upon. So with that, I'm going to ask Mr. Thomas to please give us his remarks. MR. THOMAS: Thank you. My name is Gerome Thomas, and that’s spelled G-E-R-O-M-E, Thomas, T-H-O-M-A-S. I'm an hourly employee at River View Coal Mine. I started mining in 1981. I've worked at three different coal companies. I've been at Alliance for almost six years now. Three of which I've worked at the face on extended mine sections. I've operated a roof bolter, scoop, and I've drove a shuttle car. I was an examiner for about a year and a half, making belt and preshifting the mine. In April 2010, I started out in the safety department at River View. My primary job is to run dust. Part of the job is working with the personal dust monitors which we know as the PDMs. River View has purchased ten of the first PDMs that Alliance has. Whenever we run dust with the L pump, we also run a PDM with it. We have taken over 350 samples with the PDMs. We probably have taken more PDM samples than anybody else in our region. As a result, we have found that there are problems with the PDM. One of these problems that we have seen is the PDM doesn’t distinguish between coal dust, rock dust or any other dust that may be in the air. One example I can give you is in our staging area, when we require a person to wear the dust monitor, we have had spikes up to 2.5 or higher just by somebody walking by and maybe kicking up dust off the floor or one of his buddies sitting there beside him and putting on a dusty jacket or whatever the case may be. We have seen a lot of spikes in it. The PDM is not that accurate when compared to the data numbers we receive from MSHA on our actual dust concentrations. The average difference between the cassette and PDM readings that we have seen have been a 0.18 difference. We have also seen problems in our PDM, as far as having to send five of our ten PDMs back for warranty repairs in the last ten months. Also, the PDMs will show errors, errors of outflow range, the high filter velocity and the outflow frequency, the mass offset, all of which will affect the final outcome of our PDM readings. As of December --- from July of last year to December, we had 499 cassette samples, including company and MSHA dust. We have had over 200 PDM readings with that. We've got an average PDM reading of 0.59. The average difference between and L and PDM is 0.19, which is a 32 percent difference. When I say that PDMs are not that accurate, we've also noticed that, like I said, in our mailers that come back, we've had PDM readings as low as .44 when actual cassette dust come back have been as high as 2.87. We very seldom get a PDM reading that’s over one. But we've seen a lot of our cassettes come back greater than one. So I don’t feel that our PDMs are what we need to go to to actually monitor our dust reduction. At River View alone, with the 16 MMUs and all the car drivers, roof bolter operators, anyone else down in the mine will have to be sampled. This could result in River View taking over 17,000 samples in one year. 17,000, that's a lot of samples. With an accuracy rate of 95 percent, that alone could result in 850 inaccurate readings. And we haven't even got into the cost part of it. It was stated earlier that PDMs will cost nearly $13,000 a piece. And with the amount of PDMs that we would be required to have, which would be approximately close to 200, you're looking at $2,600,000 just on PDMs. As a result of the new standard that MSHA's wanting to implement here, with the one milligram for each eight-hour shift, it lowers as it goes along. A nine-hour shift, it goes down to 0.89. A ten-hour shift goes to a 0.80. And if one sample comes out of compliance, then we're --- we'll be cited. Okay. Under this proposal, at the standard rate right now, zero to six months, we're still at a standard of two at eight hours. The shift average level is 1.78 for a nine hour. And a ten hour goes to a 1.60. After the 24-month period, it goes down to a one. That same action from eight hours to one. The nine hour is 0.89 and the ten hour is a 0.80. Under the shift, single shift average citation level, right now with the eight hour, we’re allowed 2.26. After the 24-month period, we'll go down to a 1.13 before we're cited. I've seen a lot of these PDMs in use. I've heard the comments from the people that wear them. All the miner men and all the car drivers do not like them. They are very heavy. They're awkward and very hard to wear. If this one percent goes through, the amount of hours that is worked in a day will be less, the amount of hours that’s worked in a week will be less, overtime will be affected, jobs will be affected for a problem that a lot of us here doesn’t feel that exists in western Kentucky or Indiana. If there's a problem somewhere else, let's work to find solutions to that problem. Please don’t penalize us. That’s all I have. Thank you. DR. WAGNER: Thank you very much. MR. NIEWIADOMSKI: I've got a couple comments. One of them you mentioned is that the PDM doesn’t distinguish between coal dust and rock dust. MR. THOMAS: Yes, sir. MR. NIEWIADOMSKI: Well, the current sampler that you use doesn’t distinguish either. It's coal mine dust. Remember, it's a coal mine dust standard. What that PDM sees and what the conventional sampler sees is the respirable dust, whether it's coal dust or rock dust or whatever, it's respirable. It's bad for your lungs. Okay? And that’s really what we're measuring. MR. THOMAS: Correct. MR. NIEWIADOMSKI: It was never designed --- even the current sampler doesn’t distinguish between different types of dust. That's why we have coal mine dust standard. MR. THOMAS: Yes, sir. MR. NIEWIADOMSKI: The other comment is that you indicated that the PDM is inaccurate because you’ve seen differences between what you get on the cassette and what your --- or what the unit is displaying; correct? MR. THOMAS: Yes, sir. MR. NIEWIADOMSKI: All right. Well, I think it's important to recognize that --- you know, that this unit was tested by NIOSH. You know, quite a bit of testing was done in underground mines, and they determined that unit to be accurate, okay, based on the NIOSH accuracy criteria. So, you know, they basically did all the testing to say that it, in fact, is accurate. You're going to see differences --- and this is kind of important, you're going to see differences when, in fact, you have a sampling point over here, okay, that’s on a PDM, --- MR. THOMAS: Yeah. MR. NIEWIADOMSKI: --- and you have a sampling location over here, which is your current sampler, because there's spatial differences. Okay? Dust in the environment is not uniform. So you could have a sampler here, two conventional samplers, you know, a cassette sample on block one, on the right one and the left one and they're going to show differences. And the difference is somewhat more significant than what you mentioned here on the average of .18, which is pretty close. So I just wanted to point that out that if you expect to see exactly the same concentrations, you're not going to see them because concentrations in the readings do vary. Now, you indicate you're a certified sampler; correct? MR. THOMAS: That is correct. MR. NIEWIADOMSKI: All right. Do you think it's important, as a certified sampler, to know what the dust levels are in the air at all times? Is that important to you? MR. THOMAS: Yes, it is. But then as it was stated before, I don’t think that we need to lower our standard as much as we need to --- I think it was Jeff said, go to the point of where it's being impacted at. MR. NIEWIADOMSKI: Now, what's the average concentration in your mine? I think it's, what, about --- .6, is it? MR. THOMAS: Yes. That’s our average for our PDM weights. MR. NIEWIADOMSKI: Do you know how many times you’ve exceeded --- you know, if the one milligram standard was in effect, do you know how many times you would have exceeded that? MR. THOMAS: As far as PDMs, I've seen three or four --- MR. NIEWIADOMSKI: That were ---? MR. THOMAS: --- that were over one. MR. NIEWIADOMSKI: All right. Most of the time you're below the permissible --- or the exposure limit that’s being proposed. You're significantly below that. And you’ve indicated that --- well, if that standard becomes effective, as a result of that, people --- the amount of time they're going to spend in the mine is going to be reduced. People are going to lose their jobs. What is that based on? Since you're meeting it right now and you're way below it. It's not that you're ---. MR. THOMAS: It's the fact that as we go along when, this is finally emphasized here as after the 24-month period, that based on the ten hours that we work, we'd have to come under a 0.80. All right. And if you have that difference of a .18, then you have to come in somewhere like .6 something? MR. NIEWIADOMSKI: No. Can you just clarify? You said that if you're at one milligram --- if the limit was what's being proposed, which is one milligram, which would be for an eight-hour standard, okay. MR. THOMAS: Correct. MR. NIEWIADOMSKI: And you said if you're working ten hours, what would happen? MR. THOMAS: As of --- if this proposal goes through, the longer you work, it's prorated and your actual rate has to come down, your actual samples have to be down. So according to this sheet I have right here, if you work a ten-hour shift, after this proposal goes to a 1.0 for a ten-hour shift, you have to be at a 0.80. That’s for a single shift rate. Yeah, for a single shift. Therefore, you know, if you have that difference of that 1.8 (sic), ---. MR. NIEWIADOMSKI: I think it's important to clarify really what we're trying to do with this. We've heard Dr. Wagner talk about the sample before the shift to make sure people are being protected, whether or not you work 8 hours, 9 hours or 10 hours, 11 hours. MR. FORD: We're having trouble hearing you, George. I don’t know if the speakers are on or not. MR. NIEWIADOMSKI: Can you hear me now? MR. FORD: Excellent. MR. NIEWIADOMSKI: Okay. I think it's kind of important to mention that the permissible or the allowable exposure limit that’s being proposed is one milligram. Okay? And of course, that’s something that’s not --- and that’s something that’s not going to change. Okay? We're not adjusting --- there's several --- two ways of actually trying to protect people that work longer shifts. Okay? One is we take the one milligram standard and we reduce it. Okay? Because the intent of the eight-hour standard is to make sure that if you're working 11 hours or 10 hours, whatever, you know, extended shifts, you're going to be provided the same level of protection that if you were working eight hours. Okay? That's the intent. So we want to make sure that the amount of dust that you accumulate, okay, over the 11 hours is the same as you would be permitted under eight hours. Okay? And so what we would be doing, instead of reducing the standard, all right, we sort of raise the concentration to account for that. Okay? And so it's kind of important. That’s what the intent is. We're trying to make sure that you're provided, regardless of how --- what length of shift you're working, you're going to be provided the same level of protection as if you were working an eight-hour shift, because the standard that we've been enforcing since 1969 was an eight-hour standard. We intend to continue to do that. Okay? I don’t have any further comments. I really appreciate your responses to what I've asked. Thank you. MR. THOMAS: Thank you. MR. THAXTON: I just have a few follow-up questions. One, you indicated that you had taken 400 --- or 350 CPDM samples, that you’ve also collected gravimetric samples at the same time. MR. THOMAS: Yes, sir. MR. THAXTON: You indicate that some of them show a very big difference, --- MR. THOMAS: Yes. MR. THAXTON: --- .44 versus well over two milligrams. Would you be willing to share that data with us, provide that to us, so we could actually review the data to see what it consists of? MR. THOMAS: Yes, sir. MR. THAXTON: In addition, you said that for your operation, you did a calculation where you'd have to have 200 CPDMs in order to be able to perform the sampling that this rule calls for. Can you describe to us your operation and how many MMUs? How you come up with that number of 200 units that you would need? MR. THOMAS: Yes, sir. At current right now, we have 16 MMUs. And if you take ---. MR. THAXTON: Sixteen (16)? MR. THOMAS: Yes, 16. MR. THAXTON: Okay. So you're not talking about one single mine? MR. THOMAS: Yes, sir. MR. THAXTON: You have 16 units in one? MR. THOMAS: If you take your two miner operators times eight units times two shifts times 240 run data, 7,680 samples we'd have to run. MR. THAXTON: Okay. You're saying two units --- or 16 units, two shifts of operation? MR. THOMAS: Yes, sir. MR. THAXTON: And then are you doing your other occupations as well --- MR. THOMAS: Yes, sir. MR. THAXTON: --- as part of these samples? MR. THOMAS: The ODOs on eight units with shuttle cars, roof bolters times eight units times two shifts times 14 days and four quarters is another 7,168 samples. MR. THAXTON: I'm not talking about the number of samples. MR. THOMAS: Okay. MR. THAXTON: I'm talking about the number of CPDMs that you're coming up with. MR. THOMAS: Yes, sir. MR. THAXTON: Can you provide us how you calculated the number of units that you actually would need? MR. THOMAS: We can get that to you. That was just kind of a ballpark figure, our average that I would think that we'd have to have for the amount of people that we'd have to run it on. You'd have to have extras in case one goes down or something or you have to send some off, you know. So you are looking at quite a few PDMs to run a mine that size. MR. THAXTON: The last question I have for you is that you indicated a concern with not being able to comply with this regulation if we reduce the standard. Is your concern with the lowering of the standard in general since you're already showing that you're beating that standard? Or is your concern is that the Agency is going to be getting samples upon every day at every shift and that you're not sure that you'd be able to meet that on every day every shift and you're concerned that you'd be cited or be determined a non-compliant situation on a single sample? MR. THOMAS: That is correct, the latter part of your question is what I'm concerned with. MR. THAXTON: Okay. Thank you. DR. WAGNER: Thank you very much. MR. THOMAS: Thank you. DR. WAGNER: Let me add a final question. You expressed concern about the single shift citation. And do you have suggestions for alternatives that would be equally protective? MR. THOMAS: Not at this time. But I don’t see where our current situation is with our L pump, why we couldn’t continue that. DR. WAGNER: Well, if you do think about specific alternatives that would be equally protective as the single shift, we'd appreciate hearing from you. MR. THOMAS: Okay. Thank you. DR. WAGNER: Thank you very much. Tom Benner, please. MR. BENNER: Good morning. DR. WAGNER: Morning. MR. BENNER: My name is Tom Benner, B-E-N-N-E-R. I am here today as a former chairman and current executive board member of the Illinois Coal Association to represent that association. Unfortunately, Tom Austin, our current chairman, was unable to be here this morning due to weather. And I just found out before the meeting --- hearing that I'd be doing this today. We appreciate the opportunity to participate in today's hearing. The Illinois Coal Association is a professional trade association responsible for the promotion of Illinois coal and includes as members all the companies mining coal in the State of Illinois. The Illinois Coal Association represents 19 coal producers and coal reserve owners, who in 2010 mined 33 million tons of coal while employing 3,500 workers that provided an impact of over $1 billion to the state's economy. The majority of the coal was produced through longwall and fishtail super section methods of mining. Therefore, the proposed rule will have a significant impact on the operations of our member companies. Over many years, Illinois Coal Association members have demonstrated their commitment to working with MSHA to ensure a safe and healthy working environment for all miners. The underground mines in Illinois are large, well-run operations with excellent health and safety records. We share the same goal as our coal operators across the country, to eliminate coal workers' pneumoconiosis, CWP, from our industry. Today our operators work diligently to maintain the lowest possible levels of respirable dust in their operations. Evidence of this commitment is in the reductions in coal exposure that have occurred in the Illinois basin since 2007. Recent studies have shown for all intended --- intents and purposes that CWL --- or CWP has been eliminated in the Midwest due to our combined efforts. NIOSH data states that in the Illinois basin, the incident rate of CWP is one half of one percent. This is compared to the general population who has an OPD incident rate of two to three percent. This is based on over 5,000 x-rays in a sampling. Revising the dust standard may not show affect at all on CWL --- or CWP in the Midwest since it is already so low. Areas in central Appalachia that have much lower overall respirable dust concentrations also have an implicitly high number of low weight samples --- with low weight samples. This is the same three state region of central App that has a resurgence in the disease. NIOSH's own research has stated that the hot spots could be a result of silicosis rather than CWP. The industry supports the development of the personal dust monitor. We have agreed with full shift sampling of the highest risk miners on all production shifts will provide a valuable database to researchers to use to pinpoint areas in need of improvement. These practices alone have effectively reduced dust concentrations that monitors are exposed to without any alteration of the standards. This would also provide monitors with real-time data that they could use to keep themselves from being overexposed. This rule prevents any of these improvements by continuing the antiquated practice of area sampling rather than personal sampling. The Illinois Coal Association has studied your proposal, your proposed rule and concludes it will not further the effort to eradicate CWP in the Illinois basin. We find the rule based on faulty assumptions, technical impracticalities and bad science. Therefore, we strongly urge MSHA to withdraw the rule in its entirety. The proposed rule will threaten the economic viability of the Illinois coal industry at a time when we are just about to rebound from the negative impacts of the Clean Air Act Amendment of 1990. The Acid Rain Program in the 1990 Amendments nearly destroyed the Illinois coal industry. In order to comply with the lower emission standards for sulfur dioxide, nearly every power plant in Illinois switched from Illinois coal to sub-bituminous coal from the Powder River Basin. Our coal production fell from 62 million tons in 1990 to 31 million tons in 2003, a 50 percent reduction. Worse, the employment declined from 10,000 coal miners to 3,500 coal miners, reducing the workforce by two-thirds. In addition, tens of thousands of ancillary jobs were lost. The economic impact to southern Illinois was devastating. Since 2003, the coal production has been in the low 30 million tons per year level with production at --- in closing mines being offset by new mines coming online. Most mines of the Illinois basin make their living on highly productive continuous miner and longwall miner units. As such, they have been able to, again, become competitive against the large Powder River Basin Mines after these 20 years of production decline. As we begin 2011, there are five coal mines under construction, four of which are expected to start production by the end of the year. Expanding markets for Illinois coal are power plants, installing scrubbers, exports out of the country and gasification projects in Illinois. In addition, there are another six permit applications under review by the Illinois Department of Natural Resources. The expected resurgence in the production of Illinois coal will be jeopardized by this proposed rulemaking. The MSHA estimated compliance cost of the proposed rule of $40 million annually to the coal industry is drastically understated. How did MSHA calculate this cost? Did it include the extra cost incurred by MSHA to administer the rule? The proposed rule will penalize underground mining and make it impossible for miners to work more than three to four hours per week. We believe the fiscal burdens caused by the proposed rule would force mines to close. Therefore, we strongly urge MSHA to withdraw the rule in its entirety. The proposed rule is constructed on three data sources, the 1995 National Institute for Occupational Safety and Health Criteria document entitled Occupational Exposure to Respirable Coal Mine Dust, a NIOSH report entitled A Review of Information Published Since 1995 on Coal Mine Dust Exposure and Assorted Health Outcomes and the results of enhanced medical surveillance studies conducted by NIOSH's Division of Respiratory Disease surveillance studies that form the basis of several published articles. All these data sources have deficiencies and are inadequate to support the proposed lowering of coal mine dust exposure by 50 percent. Therefore, we strongly urge MSHA to withdraw the rule in its entirety. Thank you. DR. WAGNER: Thank you very much for your comments. Susan? MR. FORD: I think one question. You stated that as a result of the rule that you believe that it may force mines to close. And could you either tell us now or in written comments, can you detail to us what mines would be closing you believe and the reasons and the dollar cost of why they would be closing? MR. BENNER: Yes. MR. FORD: Thank you. MR. BENNER: We can do that. DR. WAGNER: I have a similar request. You mentioned your concerns about the scientific basis upon which the rule is relying, the proposed rule. And I hope that as you or your group evaluates the scientific basis and the over 400 peer-reviewed scientific articles that were incorporated into NIOSH recommendations that you help provide us a better understanding, through specifics, express your concerns and critiques as to what the scientific shortcomings are, and provide your alternate analysis that would result, perhaps, in improvements in the recommended rule. MR. BENNER: We would be glad to do that. DR. WAGNER: Very good. And similarly, you made a number of other fairly broad concerns that were expressed both from the economic front and the scientific front and on the technological feasibility front. And again, I would appreciate it if you would be able to provide both specific data, analytic methods and any specific recommendations that would improve protection of miners. MR. BENNER: We will do that. DR. WAGNER: Thank you. MR. BENNER: I am assuming we will be getting these requests in writing --- DR. WAGNER: No. MR. BENNER: --- that you gave us today? DR. WAGNER: No. They'll be part of the transcript --- MR. BENNER: Okay. DR. WAGNER: --- which will be on the website, so you'll be able to review it. MR. BENNER: Thank you. DR. WAGNER: Appreciate it. Thank you very much. The next speaker will be Butch Oldham. MR. OLDHAM: Thank you. My name is Butch Oldham, O-L-D-H-A-M. I'd just like to say almost good afternoon. But I'm the health and safety rep for the UMWA here in District 12. I have been in the mining industry for 36 years and I worked underground for Peabody Coal and Consol. I'd like to first thank you for the opportunity to speak here today. And I applaud you for bringing forth this proposed rule aimed at reducing miners' exposure to coal dust. You know, I realize we've come a long way in reducing miners' exposure to dust, because I can still remember operating the shuttle car and you could barely see the tail of the miner through the dust due to the fact that we didn’t have scrubbers on the miners at that time. I can remember having to change my filter on my respirator at least twice per shift. And this was only an eight-hour shift at the time. Yes, we've come a long way, but we're still asking the same question, why are miners' exposure to black lung disease on the increase instead of decreasing? Will this new rule to help reduce miners' exposure, or will people continue to circumvent the system and make the numbers look good on sampling days while miners continue to get black lung disease? We know this happens, because it happened several years ago in this very district. A company was caught tampering with samples they were taking. And they were prosecuted for it. This is why the UMWA has pushed for MSHA to take over the dust sampling program, to ensure miners that this would never happen again. But this proposed rule doesn’t provide for that, even though we are still finding companies doing all those extra things on their dust sampling days in order to come into compliance, such as making sure the roadways are watered down, making sure every water spray is working, keeping the curtains hung properly, making sure all miners stay upwind of where they're mining, among other things. But on non-sampling days, all these things don’t happen. So what makes MSHA sure that operators won't continue to manipulate the system unless they take it over? I am pleased this rule will apply to surface miners also, because they have been left behind for too long. I believe the proposed rule should be expanded to include individuals working at coal loading facilities, such as coal terminals, prep plants and open-belt systems. These individuals are exposed to a lot more coal dust in handling this product than you think they are. Just drive by one of these facilities when the workers are leaving and see the coal dust on their faces. I agree with the use of CPDM to ensure miners are working in an atmosphere that is continuously monitored for dust exposure. This will give the miners a degree of confidence the air they are breathing will allow them to leave at the end of their shift as dust free as possible. The use of the CPDM may not solve the respirable dust issue, but it is a step in the right direction. In closing, I know the UMWA has submitted other comments regarding this proposed rule that I fully support. I know as this rule progresses, there will be other issues to come up, and I look forward to seeing the comments of others and the final rule. I just hope at the end of the day this rule would be something that will allow miners the opportunity to work their entire shift in the mining industry and be able to enjoy the rest of their lives during their retirement. Thank you. DR. WAGNER: Thank you very much. Susan? MS. OLINGER: You were bringing up that the rule should be expanded to coal loading facilities and production facilities, is that what you were saying? MR. OLDHAM: Yes. We have some open belts and coal loading facilities that are not under this rule, and I think they should be expanded, because they are exposed to a lot of dust. MS. OLINGER: Do you have sampling data from positions at those facilities? MR. OLDHAM: They don’t even --- a lot of them don’t even sample. MS. OLINGER: Right. MR. OLDHAM: So like I say, all you got to do is, at the end of their shift, see the dust on their faces and you can see the exposure they're getting. MS. OLINGER: Thank you. MR. NIEWIADOMSKI: A couple questions, Mr. Oldham. You mentioned that you want MSHA to take over the sampling program. That’s what you said in your opening remarks; correct? MR. OLDHAM: Yes, sir. MR. NIEWIADOMSKI: Because of the manipulations and past manipulation during sampling versus non-sampling periods? MR. OLDHAM: Yes. MR. NIEWIADOMSKI: You also indicated that the UMWA supports the use of CPDM, which tells the miner what he's being exposed to and he knows that at the end of his shift what he's being exposed to. Now, do you think that with the way the rule requires sampling to be conducted on a continuous basis, there still could be manipulation? MR. OLDHAM: I think so. I think there's a possibility of it because you can always move people around. And also, the fact of being able to swap people out, we don’t agree with that also. You know, if a person's exposed or overexposed half a shift, then he goes somewhere else and --- on a contractual issue, that’s a problem for us because a lot of those guys bid on those jobs and that’s their job. So for us to say now you got to swap yourself out when that was your job because you're out of compliance, you know, there's an issue there for us also. But just swapping people out to keep in compliance, there’s got to be a better way. MR. NIEWIADOMSKI: One final question. On wearing the CPDM, do you, in fact, support the use of the CPDM, the way it's proposed on every shift? MR. OLDHAM: Yes. MR. NIEWIADOMSKI: Thank you. MR. THAXTON: I just have one quick follow up. When you gave your list of operations that you thought should be included under the protections of this rule, you indicated --- included preparation plants in that. Any facility, shop, prep plant or anything that’s covered by MSHA right now would be covered by this rule. So the prep plants, shops would be included or any belt that’s tied to a mining facility or on mine property, those are already covered. Understand? Are you then asking for the --- like the river loadouts and things like that that are not under our jurisdiction, that they should be included? MR. OLDHAM: Yes, that’s what I'm talking about. We have some facilities, an open belt, that's not tied to the mine that shifts the coal. They're only under basically the state's jurisdiction. And we also have a coal loading facility in Illinois that is under OSHA's regulations. And, you know, those guys don’t have any real protection there. MR. THAXTON: Okay. Thank you. DR. WAGNER: Thank you very much for your time. MR. THAXTON: Thank you. DR. WAGNER: Pat Brady is our next speaker. OFF RECORD DISCUSSION MR. BRADY: Go ahead? DR. WAGNER: Yes. OFF RECORD DISCUSSION MR. BRADY: My name is Edwin P., technically Pat, Brady, B-R-A-D-Y. The microphone. See, you got me so shook up, Mark, I forgot the microphone. Edwin P., Pat, P-A-T, Brady, B-R-A-D-Y. And I do appreciate the opportunity to speak here. Thank you very much. I'm going to make my lawyer shake in their seats a little bit, because I'm going to read this because we prepared it, but I am also going to give you some personal feelings that I have when I try to explain some of these. Your opening introduction today, Dr. Wagner, thank you for the slides. Several of those slides we use in our training, and several of the slides bring back some memories, which I'll try to explain to you when I go through these. That's what I'm going to do. Let me start reading from this, what we're supposed to do with this. It says good afternoon. To Mark's benefit, it is afternoon, I think, now. MR. FRIDLEY: Five minutes. MR. BRADY: One minute? MR. FRIDLEY: Yeah, two. MR. BRADY: It's pretty good planning then. Good afternoon, Dr. Wagner and members of the panel. I am the manager of Safety and Regulatory Affairs for Murray Energy Corporation, the largest privately-owned coal production and sales company in the United States. Murray Energy has subsidiary operations in six states, produces approximately 30 million tons of bituminous coal per year. Over 3,000 employees take tremendous pride in knowing that our work provides affordable energy to homes and businesses throughout this country. We want to thank the panel for the opportunity to present our concerns about the proposed rulemaking. I have spent my entire adult life advocating and working to make coal mines safe. I spent 34 and a half years with the Mine Safety and Health Administration, the past three and a half years with Murray Energy, and I know many of you from my years of working on coal mine safety and health issues. I'm going to take a break here for just a second because I am going to say some things, and I know that it's agreeable to you, but please don’t underestimate that we don’t feel that you have a passion for doing what is right for coal mine health and safety, because those words are strong, but we never question your integrity or the passion that you have in making mines safer and healthier. So please don’t take the words wrongly, and I know there's been some harsh words today. Likewise, we don’t question Joe Main's passion for the health and safety of miners, because he's made it his lifetime also. We just simply believe that there are some things in this rule that are just unacceptable. So please, when I make the statements, don’t underestimate or question our passion for doing what's right either, because we have a tendency to do that, you know, when we give some harsh words, yes. And with that said, I'm here today to request that this rule be withdrawn because, in our opinion, it is unsupported by science and because it will be impossible for miner operators to follow. Let me follow up with that statement a little bit, too. You asked for specifics, and Murray Energy Corporation has employed several scientists to explore this entire rule in its entirety. My testimony to you today is no more than a prelude to introduce some of the things that we’re looking at. Nevertheless, it will lack the specifics that you want, but those specifics will come in other public hearings. And we're going to allow the scientists to speak on their own, present their reports and give you their findings. And that will start happening probably in Salt Lake City. There are some specifics in my testimony and there are some general statements that I'll try get away and pose to you. When I say unsupported by science, again, Dr. Wagner, you helped me I think a little bit this morning, because you, sir, made a statement that it was based on the best available scientific information. And personally, I believe that you used what you had at your disposal. We are questioning whether the best is good enough. And I'm going to try to expand on that a little bit, too, of what I've seen through the industry in time. We understand that nothing was made up, that you had data available to you, but we certainly are questioning whether it is the best data you could come up with. So with that, I have a Bachelor of Science degree in mining engineering from West Virginia University, have a Master of Science degree from Marshall University, and I have used all of those in my career with MSHA and both Murray Energy. Thirty-eight (38) years ago I started working as a co-op student with the U.S. Bureau of Mines, Coal Mine Safety and Health in Morgantown. Part of my duties then was working in the dust lab preparing and taking care of dust pumps and weighing dust samples. Eventually I began training our inspectors in health regulations and dust sampling procedures. In 1976, I began working for the Mining Enforcement and Safety Administration as a mining engineer. I reviewed roof control plans, ground control plans, conducted engineering studies, and handled other matters related to mine safety and health. 1977, I began performing health audits, leading accident reduction teams, judging mine rescue and recovery work and various other safety guidelines I was involved with MSHA in helping develop. In my 34 and a half years with Coal Mine Safety and Health, I was exposed to mines of all types, large mines, small mines, mines with longwalls, conventional mining, mines with different levels of methane, mines with different types of roof support systems. And basically I can say that in the United States, as the mining systems existed, I probably saw and was involved with it to some degree. While with MSHA, I was involved in rescue and recovery operations at serious mine accidents that occurred in the last three decades and I've seen firsthand the reason coal mine safety and health is critical to the industry and for the regulators both. And one of the slides you showed was smoke rising from the main shaft at Consol Number 9. And the first recovery I was involved with in 1974. recovering Consol Number 9. My uncle and a good friend worked there and died in the Consol Mine. So I'm very familiar with the picture and what had occurred at that time. It leads me to the comment that good intentions and efforts are never enough. It’s essential that we get it right. It's essential that we get it right in the year 2011. It's a highly technical endeavor in an industry that has become increasingly complex. And my goal here today is to offer my insights based on experience and knowledge, hopefully helping MSHA to avoid promulgating another unreasonable and unfounded rule. And again, that is based on the scientists that have employed, some of the words that they have used. And you helped me to understand that you were using the best data that you had available. So it's not a criticism. It's just our opinion on what we're looking at at this point in time. During my career with the federal government, I held a number of positions, including a mining engineer, supervisory of Coal Mine Safety and Health inspector and assistant district manager for Technical Programs. I became a district manager in District 9 --- or 4. I was District 4 until the year 2003. In which time I became the manager of the National Mine Health and Safety Academy. As the manager of the National Mine Academy from 2003 to 2007, I was responsible for the training of MSHA inspectors and enforcement of federal health and safety standards. And throughout my three decades with the Agency, I was constantly and deeply involved in efforts to deal with respirable dust that is present in the mine. George, at the last meeting we had, reminded me of a comment that I made to a group that I still believe in and so strongly I believe in, I think the government has forgotten, George, and that the title to National Mine Health and Safety Academy is not Safety and Health Academy, it is Health and Safety Academy. And I think that the government, and I will say it here again, I repeat it, has not done their job. And looking at the scientific data, creating scientific data, creating programs and procedures to really study coal workers' pneumoconiosis to try to find out what the real reasons are. Used the best data. Possibly. I agree and I believe that you did. But have you really studied what we need to study? 1969 that Act was written. I understand the dilemma and the kind of working that was there. This is the year 2011. The Mine Acts have been altered. What has been done to study coal workers' pneumoconiosis? And I will again address those situations. In the early and mid 1990s, I was the chairman of the Regulatory Rewrite Committee charged by the Agency with rewriting portions of the dust regulation to address ongoing concerns of respirable dust exposures. And quite honestly, Dr. Wagner, some of the slides that you put up this morning were some of the things we were working on, some of the suggestions when that rule was rewritten in two or three different versions that address the normal production, that address the exposure and all the things that the science that you put up were addressed in the regulatory rewrite back in the early '90s. We were certainly making progress in this endeavor when NIOSH issued its 1995 Criteria Document. And from that point on, the process of rewriting the dust regulation stopped. Instead, various interested parties continued to push for reduction of a one milligram standard. And many of us questioned that data that NIOSH used in recommending the one milligram standard. In fact, as my memory brings me back, I remember sitting in Cincinnati listening to the disagreements between MSHA and NIOSH over the data that was used for the one milligram standard. MSHA rejected, or at least history proves that it rejected, and did not follow NIOSH's recommendation. And again, I find it strange that it's taken 15 years for MSHA to decide to implement the Criteria Document, especially in the opinion of our scientists, it has very little support. In fact, MSHA apparently did not support that in 1995. My belief is the 1995 NIOSH data was flawed. And again, flawed based on what our scientists are saying. It has been strengthened by the comments that I've received from them in the past few days over studies that they have done. What I do know is that MSHA began showing great interest in the development of a continuous personal dust monitor. This concept at the time was intended to give the mines a tool with which he --- the miner himself, a tool with which he could protect himself from the harms from respirable coal dust. Never did I hear in the discussion that this tool would be used for the enforcement of environmental standard. Its conception was to give an instant real-time measurement to the miner for his individual protection, to help him determine when respiratory protection, such as air stream helmet respirators, moving to a different area was needed. Another hope of the CPDM was conceived ability to evaluate mine systems and to optimize dust control measures. The CPDM today has the potential for accomplishing all these tasks. And I'll just say the word again, potential. But it is like any other new technology that enters the field, we have hardhats and metatarsal shoes, and all those things entered into the mining industry, there was resistance to those. But as time moves on and the value is seen and technology changes, the difficulties of the things of that piece of equipment that needs to be fixed, we see that the technology and the concept of the CPDM is important, and we support the use of the CPDM, and certainly not in its current configuration. We feel it needs a lot of work. MSHA has a legal responsibility, and certainly the industry has a moral responsibility, to honestly and thoroughly evaluate the evidence and thereafter make rules that will protect our nation's miners. We feel it's really irresponsible to resurrect a NIOSH outdated and defective conclusion from 1995 to support a drastic overhaul of the coal dust standard and sampling processes without valid scientific analysis. In fact, after listening to the experts in the health science, I'm appalled that the federal government after being given a directive in the 1969 Federal Mine Safety and Health Act to eliminate black lung, did not develop a game plan put together by experts, from the workers, industries and government, to study and develop an agreed-upon strategy to eliminate black lung from the mining industry. If that plan exists, I would like to have a copy, and I will stand corrected. Now, you're going to tell me that the plan exists in the Labors Advisory Committee. And my point of that is that if it was the document that we think it is, why has it not been implemented? Why is it being resurrected between the coal workers --- or the data that NIOSH had done and then as this resulted in this, the Labors Advisory Committee. There are a lot of good recommendations. And again, we point to a Blue-ribbon panel that was among the people who put this document together. The people, again, had good intentions, without question. They had passion for taking what they had to try to determine the causes of coal workers' pneumoconiosis, but it's no more than a summary of the Criteria Document and some of the things they had seen with enforcement problems in the regulations and that they thought were problems and that they were trying to resolve them to eliminate coal workers' pneumoconiosis. I have to stand here and I have to admit that I was probably a part of that problem when we were trying to rewrite the dust regulations without really being given sufficient information to do so in the early '90s. Maybe that’s why this dust regulation has now been promulgated. But I know that MSHA never did anything to deal with the Criteria Document or with its Advisory Committee until 2011, when both of them were revised or pulled out to look at again. I guess our point is that this problem, it's too important to be haphazard. We've long shared with many of you today the commitment to protect our nation's coal miners from harmful effects of respirable dust. And I do have personal experience with the issue, as many of us do in our careers. My grandfather entered the mines at 13, later told me he had black lung. He left the mines at 28. My father spent 50 years working in the coal mines. I joined him when I was about 13 years old handling and carrying explosives working in the mines. At that time, not wanting to give away my age, we wore tennis shoes and baseball caps. And I did see a turtle cap turn into a compo (phonetic) cap. So I'm not old, but I've seen those things in my career. I've seen others suffer from the consequences of exposure to coal dust in the past with dust levels high, but we lacked sophisticated methods to address it. And quite honestly, I remember when I worked in District 4 and going into a mall and sitting and looking at the old time coal miners carrying oxygen behind them. I don’t want to see that, and neither does the industry. That is a slow, painful death that nobody wants. And to be certain we don’t want that for our miners. We want to protect them to the extent that we can. I spent a lot of time in coal mines myself breathing the same air as the workers we employ. I spent countless hours at every Murray Energy underground operation training our miners in the hazards of respirable dust, accepted ventilation and dust control techniques, applicable federal and state regulations. And we have had 12 instructors from the National Mine Health and Safety Academy doing the same to our operations, trying to make this a point of awareness to our miners, explaining to them what it will do to their health and how they have to protect themselves and the things we have to do from an engineering standpoint to make sure that they have a safe working environment. We take this extremely serious. However, after spending three decades working towards safer conditions, I really am disappointed with the proposed rule, and again, I'm going to request MSHA to withdraw the rule in its entirety. Not only is this proposed rule unsupported by relevant scientific data, the compliance does not appear to be feasible for the majority of the coal mines, in our opinion, and based on sampling data. We will give you the specifics of these things. I encourage MSHA to listen closely to some of the scientific and economic experts who offer their expertise at future hearings during this rulemaking period. It is essential that any rule modifying the work environment of American coal mines be based upon sound epidemiological data and fully evaluated in terms of true costs and benefits. One need not dig deeply into the epidemiological studies to see the flaws in MSHA's logic, which our scientists will explain during their testimony in the future. MSHA says that on one hand that the industry is already close to complying with the one milligram standard, but on the other hand, now insists that reducing the standard to one milligram will cause a dramatic reduction on coal workers' pneumoconiosis. I am having trouble understanding the logic to how those two statements go together. We are closely examining MSHA's quantitative risk assessment and cost benefit analysis. We see a number of items that have either been ignored or not given a proper consideration. While we hope to provide a more thorough analysis detailing the flaws in MSHA's analysis at a later hearing, it is apparent that the Agency has largely ignored the additional compliance costs, particularly increased manpower requirements that this new rule will entail. It is beyond dispute that more personnel will be required underground just to monitor the CPDMs and handle the increased sampling. MSHA also needs to give careful consideration to the ergonomic costs of loading further heavy equipment onto the bodies of coal miners that are already burdened with heavy tools and equipment while performing their difficult work. What effect will the addition of the CPDM have upon the worker's body, his day-to-day mobility and his safety? We're not sure, but we are engaged in doing those types of studies, because, to our knowledge, these studies have not been done. We will provide further information on potential ergonomic issues with the CPDM units during the future hearings. Those of us who have been working with CPDM units continue to have very serious doubts about the validity and reliability of those devices when subjected to actual working conditions. We are not reassured by the manufacturer's declarations that the CPDMs are working properly because we have seen them repeatedly fail despite expensive and time-consuming maintenance efforts. We continue to explore these short-comings and will provide MSHA with further details on the technological concerns relating to the essential technology upon which these proposals are in place. That will be coming to you in future hearings and in our written comments. And again, I am not questioning the integrity of the manufacturer in any way. We're seeing some inconsistencies in the lower concentrations. These are the lower concentrations that this rule is asking us to live in and we're seeing the air being compounded by these which will be expanded more in future hearings and studies. I'm going to allow those people to explain that, for they are qualified and all I know is what --- basically what they’re explaining to me. From a logistical standpoint, I have grave concerns about MSHA's ability to keep up with the dramatic increased sampling. MSHA has an ongoing problem with getting plan approvals done in a timely manner now, which has caused extensive production delays through the nation, so we cannot begin to imagine how the Agency will deal efficiently with another series of plans that will be generated with this rule. We predict that many mine operators will find themselves simply unable to comply because the proposed sample --- excuse me, standard is simply technologically impossible, be faced with countless citations and violations and, in many cases, ultimately be shut down. And I mistakenly in this reading put the word citation because, in my opinion, these will not be citations issued against the company. They will be unwarrantable orders given the attitude with which MSHA handles the unwarrantability of situations today. And quite honestly, we are concerned about that and we feel that these citations will be unwarrantable. Very simply, if you have a device that tells you that you're going out of compliance or not, if you put a certified person in charge of that unit, and for any reason they allow that miner to exceed a standard, you will term them being unwarrantable. So these citations won't be citations, they’ll be unwarrantable failure. You'll have numerous, numerous 110 investigations. Your special investigators will be able to retire with this rule given the set of parameters that you're putting in right now. Production delays, shutdowns don’t just cause the industry profits, they cost jobs. They also lead to higher electricity prices for household and businesses already struggling to overcome one of the worst recessions in our country's history. If this rule were effective, and we don’t believe that it is, MSHA should not inflict the onerous and technologically impossible requirements without honestly and accurately evaluating their impact on our coal mining communities and our nation as a whole. And we will give you the costs analysis. Many of us who have been in coal mining since the 1970s fear that the proposed rule will also undermine the industry's ongoing efforts to become more mechanized. And given that the relatively shallow coal reserves have been pretty thoroughly mined, today's operations have to mine even deeper than ever before. Technological advances in the industry, such as longwall mining, have allowed more coal to be produced by fewer employees, thus reducing health and safety risks dramatically. It is felt the proposed rule will make production and effectiveness of the longwall and mine methods less feasible to the operators. OFF RECORD DISCUSSION MR. BRADY: Excuse me. In your economic analysis, you cost out items such as surfactant systems and headgate scrubber systems. And as I looked at the economic analysis, scientists that we have looking at this have created spreadsheets which we will share with you. But these surfactants, there are mines in operation using surfactant systems. And there are scrubber systems that you have crossed out. So I have to suppose, and I assume that you propose including these systems to suggest that these types of controls will effectively control respirable coal dust. I'd like to know how many longwalls employ these and what's the cost analysis, and what types of information is really there to show us that these systems are working effectively. And we have operations using surfactant. We have many operations who don’t use surfactants. And I asked them, you know, why. And they really can't answer. They don’t know whether it's helping them or not. Just the very presence of it makes MSHA feel better, so they put in the cost and expense to do it. What kind of studies do we have to show that they work? What do we have to show that these things really will work and that the cost spent is cost that is effective and will truly protect our miners? We feel strongly that mining, longwall mining, is safer, provide better roof controls, eliminates the need for roof bolting, better ventilation controls, which has a positive impact on respirable dust levels. MSHA should promote the automation of coal mining by encouraging the use of longwall, not promulgating rules that we feel that will possibly make it infeasible in many cases, simply because it's one of the things that we can't do if the rule is imposed upon us. Someone had mentioned a minute ago about the creation of shafts and the separate splits of air for fishtail ventilation. We've asked MSHA, questioned different people from MSHA, about what is actually intended by that rule, that proposed rule. We get different answers. I guess the answer is really in the economic analysis because you do cost out the shafts, you do cost out the stoppage, you do cost out the separate split of intake air. If that is the intent, and that’s what the economic analysis looks like it intended, basically what you're asking miner operators to do is to put shafts in for each MMU, to exaggerate to this extent. Okay. I'll say that’s an exaggerated extent. Bob smiled at me. He'll probably fire a question at me here in a minute. But that is an issue that I think needs to be resolved, that is reflected in your economic analysis. We certainly believe that there is more that can be done to protect our coal miners' lungs from damage. We do not want to see any of our workers contract coal workers' pneumoconiosis or any other coal miner in the United States, whether they work for Murray Energy or not. Murray Energy wishes to be an active participant in the ongoing efforts to protect our workers and will continue to offer, through myself and others, technical, scientific information to assist the Agency in this process. And again, we will provide all the studies in upcoming public hearings and in our final comments. I thank you for your time, sir. And I will answer any questions you might have of me. DR. WAGNER: Thank you very much. We'll start with Susan. MS. OLINGER: I have one follow-up question for you. You said, and I don’t want to steal any thunder from you, Bob or George, when you get to this. But you said that you do support the use of CPDMs but not under the current configuration. Could you just expand on that a little bit more? What do you mean by not in its current configuration? What configuration would be acceptable to you? MR. BRADY: Certainly one that is ---. Certain angle here. Certainly the concept of CPDM I think is very important. We support CPDMs. We support the ability of a miner to look and see what his exposure is. And I think anybody would be foolish not to support that concept. But it needs to be developed. You know, this --- in 19 --- and I'm going to go back. In 1995, the Criteria Document came out. The work on proposed regulations that we were charged to do basically stopped. The concept, everything turned towards the development of continuous personal dust monitors, and there was a reason for that, I'm sure. And I have my feelings of why that occurred. In about 2004 or '05, somewhere in that area, it was brought out that work with CPDMs was progressing, and eventually we got a unit where NIOSH had said that it was accurate and is reading accurate. We're questioning that to some degree, but not as a criticism. We want to get it right. I support the CPDM, but I think it needs further development. I think it needs to be more ergonomically designed. I think it needs to be more friendly to the miner wearing it and I think that we need to look at the accuracy of that unit and in how it is used. So I say its current design. You know, we have it, we're using it. All miners are wearing it. It's the same complaint that everybody else is giving it. But I don’t want to abandon the technology of the CPDM. We think that it's a very valuable tool. But we think that with any new technology, that what we're trying to employ are old techniques with new technology. And the things that the rule proposes are things that the rule has been proposing for years, since 1969. But we now have in our hands technology of the CPDM that could change the way miners are exposed and how they protect themselves, but we're trying to inflict the old ways of doing business on that new technology. So I'm saying the CPDMs, you know, yeah, we agree with it. We want it. We want the technology. We want the unit to be friendly to the miner. We want them to understand it. We want our technicians who are taking care of it being able to put filters on it and not lose the sampling or, for some reason, if you lift one up, and that you have to let another one warm up because that one doesn’t work anymore. Those are all growing pains. They are not criticisms of the manufacturer, but growing pains they need to know. The unit needs to be developed and designed for the miner for his protection. So yes, we are in agreement with the CPDM. We think it needs a lot of development and a lot of things taken care of. Now, how is that done? The manufacturer who is the sole manufacturer in the United States, there are no other people doing it, needs some assistance to make that unit better. And I'm sure that if it takes 200 CPDMs for a mine, and your cost is low, unless the costs come down, because we're finding the cost of the CPDM to be more like $15,000 and $16,000. And I'm sure that supply and demand will dictate the cost of that. That’s America. But with the --- you know, if you're going to make sure --- we just ask that the money be used to make sure that the unit is redesigned to the degrees it can, it becomes miner friendly from an ergonomic standpoint and user friendly. MR. NIEWIADOMSKI: Pat, let me just --- let me comment on you were asking what brought about the development and proposal to use the CPDMs. As you well know, that’s something --- that technology the Agency has been supporting the development since the '70s. Okay. If you look at the preamble in the 1980 rules, the UMWA specifically asked the Agency what the status was because we made promises early on to develop continuous monitoring. Everybody knew that continuous monitoring is the way to --- that’s probably the ideal way to prevent overexposures. In 1992, the task recommended because it determined that the long-term solutions to prevent CPW is continuous monitoring. You know what you're exposed to on every shift and you could take corrective action. And that's why I want to ask a follow-up question to what you said about the compliance costs. That the compliance costs under this proposal would be prohibitive. Is that your words? MR. BRADY: The overall compliance costs with the entire rule. MR. NIEWIADOMSKI: The entire rule, not the CPDM? MR. BRADY: Because if the device gives us what we want, and it is miner friendly, gives us the information to protect the miner, then some of your economic analysis admits that health benefits --- you can put costs when you're dealing with people's lives and health, I understand that. I think the CPDM has that ability to do. So a CPDM that gives us what we want, gives us the technology, the user friendliness, the protection to the miner, that $15,000 is immaterial at this point in time. If it is usable. And if it's used in a scheme, a regulatory scheme, an entire package to where it fits perfectly where the industry can take the information and use it effectively to protect the miner. This package, the way it's put, we're going to be looking over our backs all the time. It's going to turn our attention to protecting the miners and protecting the liability --- to protecting the liability. You know, I don’t hope that you all would want that. But I'm telling you that is what the rule structure is right now. MR. NIEWIADOMSKI: In your comments that you're going to be submitting later on, are you going to be proposing a regulatory scheme for the CPDM? MR. BRADY: We have asked the scientists to come up not only with the strengths and the weaknesses of this proposed rule, but based on sound scientific and industrial hygiene principals, what are your suggestions in some of these things that we're dealing with. And I can certainly come up with a regulatory scheme. And I can propose it if that would be of any benefit. But it would not be in the context of this proposed rule. It would not be within the boundaries that this rule imposes. MR. NIEWIADOMSKI: Thank you, Pat. MR. BRADY: You're welcome. MR. THAXTON: It seems like everybody else is getting the same question that I'm getting to, Pat. Really it's only two areas. I'm trying to get a little better understanding of your concern that you don’t support the CPDM in its current configuration. You alluded to some of the design deficiencies of the unit that you see. Are you also then looking at the --- are you saying that there's deficiencies in how the proposal is addressing the use of CPDMs? MR. BRADY: You're wanting to take the CPDM technology that has, in my opinion, all the chances in the world of protecting our miners, and you're wanting to put it in an enforcement scheme monitoring the environment. And I understand the limits you have with that and I understand the limits you have with the way they're actively written for the environmental standard. But I also think that if we, the government is concerned, that we are protecting the health of the miner, they weren't beside themselves in submitting the 2006 Miner Act and proposing legislation that dealt with everything in the world of trying to put the operator in its place, quote/unquote, where we didn’t have any idea or thought or suggestions on health. And all I'm saying is I understand that your dilemma with MSHA is about environmental standard, but I'm saying that the scheme of the CPDM, the UMWA, BCOA both white paper the other. And they proposed a way of using the CPDM for protecting the miner. And that involved not only the use of the CPDM as an administrative tool and for personal protective equipment. Logically, logically in every area of industrial hygiene that you look at there is a hierarchy of control. And if that hierarchy of control weren't feasible and weren't effective, why isn't anybody calling the hierarchy of control? And I understand your dilemma of how the Act is written about environmental control, but I think you're taking new technology, you're appointing it to an old problem of environmental control, DOs, you apparently are concerned because of DAs that have been created in the past, so you create a ODO, and essentially what you’ve done is create this scheme where everybody will be wearing CPDM anyway for all practical purposes all of the time. So why not develop it, and in these high risk areas have a unit to where they are protecting themselves? If the scientific data --- I'm saying if it points to a reduction in standard. From what I'm being told, it does not. If that is the case, the miner can protect themself. Now some people are concerned about administrative controls and are concerned about grievance. I understand that, and I respect the position. I understand where they're at in their scheme of things with the people who they are representing. But I believe that the time is here that we look at the miner, that we protect them to the best that we can, because hopefully we have. The CPDM being part of that. But recognizing that the concept of that unit was not an environmental control to protect that individual miner. And to give him the latitude and the right to protect himself, whether it be administratively, whether it be through personal protective equipment, whatever the scheme of things might be. But there is a hierarchy that I think should be employed. And I don’t think we need to take the old way of approach for the unit that has potential of doing a lot for the protection of our miners. I don’t know if I answered your question or not. MR. THAXTON: To some extent, but the additional part is then, given your comments and such as it relates to an individual miner, then you know, who will take the unit and make decisions and try to protect themself whichever way they can. Then given that fact that you're looking at it from an individual, then would you agree then that your use of CPDM would have to change from what the Agency has proposed to something more like every miner would have to wear the unit all the time in order to be able to do that? MR. BRADY: I think a scheme in that, in what you just said, is reasonable other than all the time. I'm not sure that every miner needs to wear them all the time. But I think that every miner at some point in time needs to wear it, because that device was also designed to train the miner. The concept behind that is to allow the miner not only to see what generated the source --- and we use that. We use our CPDMs in our mine. We put dust technicians with the designated occupation and we show him where you stand has a lot to do with what you're exposed to, if you put yourself in this position where you're not supposed to be, or you put yourself in this position where you're supposed to be. Now, I think every miner in the mine should be wearing a CPDM at some point in time. It should be used as a training mechanism, and I strongly agree that the environmental standard is a standard that you probably are fenced in by the cap. But I think the government's serious about making the health of the miner the single most important issue. MR. THAXTON: Okay. Let's move on to the second area that I had a question about. You made the comment and I smiled. You said that if we go forward with doing a separate intake split for each section, you thus want to require putting down shafts for every MMU. Are you telling me right now that you don’t have the air for each section? Because if you're using split ventilation right now, you are actually already providing the quantity of air at the last open crosscut for each MMU; is that correct? MR. BRADY: The way our people are interpreting that regulation is that if you have split ventilation on a section that you've done away with, that you can't take the air to the section and split it for two returns. And you usually do that at some point in the mine, your feeder. That you can't share a common feeder and that you want separate stopping line at every MMU with a separate flow of intake air. Not delivering it to the working section and splitting it on section, but you want a stop --- or the air delivered to keep the air by permanent ventilation controls. And you cost it out that way. You ---. MR. THAXTON: But don’t you agree? I mean, if the gentleman that said he had 16 MMUs, that he's not --- it's basically probably maybe eight super sections. But if that's the case, though, all the feeders of his units don’t have separate shafts? MR. BRADY: They do not. MR. THAXTON: No. so I mean, the air is still brought into the mine, it can be a million, two million CFM of air brought in a single shaft, single fan. It's distributed throughout the mine. It doesn’t necessarily mean that you have to have a separate shaft for each MMU. The distribution of the air throughout the mine may change somewhat, but it's not that you actually have to have the expense of the shaft, a separate shaft. MR. BRADY: But then let me ask you the question, does the current ventilation schemes that are being used both --- the question was raised by Illinois and Indiana --- is the current ventilation scheme --- and you were the district manager for a while and then since. Does the current ventilation scheme used in Indiana comply with this regulation? MR. THAXTON: The current scheme, no, it does not. MR. BRADY: What does it ---? MR. THAXTON: There's change there. MR. BRADY: What needs to be done? MR. THAXTON: It means that there would be a separate intake for each mechanized mining unit, whether they had --- they keep the units as they are now and they keep them as two separate units, then, yes, they would have to have separate intakes. But that is still taking the same amount of air and putting it through entries that are separated. MR. BRADY: Where do the entries come from? MR. THAXTON: I'm sorry? MR. BRADY: Where do the entries come from? You said put it in two separate entries. Some of these mines and super sections have one intake that delivers air and then they have two and they need two for the volume to deliver the air into their section. Where do the extra entries come from? Where does the extra air split? How's it done? Other than doing what your economic analysis has cost out? So you have --- there's our questions. Is that you expect to be separate intakes. And then if there's only one intake or two intakes going to a section, you're expecting, under this rule, for more entries to be driven, more stoppings to be put in, more overcast to be put in, and more shafts to be put in. MR. THAXTON: It does --- the rule actually says for provided by a permanent control, not a temporary control. So yes, we did cost out that you would have to establish a separate, physically separate, intakes for each MMU. It's still up to the mine how they set up and design their mine. MR. BRADY: Absolutely. And the only thing I can say to that, Bob, is that does cost money. And that does cost the engineering feasibility of doing those kinds of things. What documentation do you have that shows that that is essential? MR. THAXTON: The cost and the expense of --- MR. BRADY: No. MR. THAXTON: --- is all in the documents that ---. MR. BRADY: The benefit of it? The benefit of it? MR. THAXTON: The benefits are expressed in the preamble of the rule. MR. BRADY: Okay. I'm sorry. DR. WAGNER: Thanks a lot for your comments. MR. NIEWIADOMSKI: Pat, just to clarify. I think you're advocating that the rule should permit that the standard be enforced as a personal exposure standard instead of environmental. Correct? MR. BRADY: I am saying that we have, for decades, because of the way that the Act is written and how we should interpret that, we have created environmental standards. Okay? I'm saying with the advent of the CPDM, that we should look at whether it should be an individual standard where he can protect himself. MR. NIEWIADOMSKI: Thank you. MR. BRADY: You're welcome. DR. WAGNER: I wanted to go back early on in your remarks. I want to make sure that I understood. Were you supporting the idea of having sampling being done during normal production? MR. BRADY: I think that sampling should be conducted for what the miner's exposed to. I don’t think there's a person in here that wants his people exposed to anything that they don’t know what they're exposed to. So that the definition of normal production has been kicked around for years. What is normal production? You all come up with a definition of it, normal production. There are things in the production sequence that will affect the definition that the rule imposes. There are mining conditions at times that will affect that 30-day average. Whatever you come up with, Dr. Wagner, there's going to be controversies and there's going to be pros and cons for it. But I think the definition that defines normal production, the best we can get it, is acceptable. And I have to study for normal production that the Act has given us now and implications of it. But any rule should be able to define normal production and what a working shift is. DR. WAGNER: And I hope that, as you said in your written remarks, and in the additional remarks that others from the company will be providing going forward, that you will be as specific as possible on those kinds of issues where you have, you know, ideas about how best amidst the controversy to define things like a normal production shift, what a complete shift for sampling purposes is. How it is that you get an accurate sample of the individual's exposure, --- MR. BRADY: Yes. DR. WAGNER: --- so that we'll be able to do that. MR. BRADY: Yes. DR. WAGNER: I note that you either said or implied that the basis of the proposed rule is the 1995 Criteria Document. Yet within the rule, there's the table that lists epidemiology beyond 1995 that was reviewed and consulted in the formation of the rule. I wanted to make sure that you were aware that the examination of the scientific literature, the peer-reviewed scientific literature, didn’t stop in 1995. MR. BRADY: I am aware of that. I believe the number's right. There were 38 epidemiological studies that were reported. And I have three sets from --- Murray Energy has three sets of different scientists who have individually taken all those studies and are looking at it, plus the data that we have been given from 1995 on. Someone mentioned a minute ago that we didn’t have all the data. The National Mining Association has filed a release for information, one from NIOSH and one from MSHA. And that is medical surveillance data that we feel that you have used, that you are holding back from giving it to us. And that’s part of the thing, that’s part of the comments that have been made here by saying that we don’t have all the data to look at, especially this data that apparently is a little more current that we could use to evaluate what we need to evaluate. And we understand that there's HIPAA regulations that the Agency feels is the reason for it. But we also feel that information can be sanitized where our scientists can be given the data where we can evaluate it and accurately look at it without having any indication of violating any HIPAA laws. And we're going to push that issue. We'll push the issue that we want the data. We've given the letters and we'll push further. We'll push to the extent we can look at it. And that’s the simple fact of where we're at with this. DR. WAGNER: And we will look forward to the scientists and economists that you hired and to learn specifically what their critique is as far as the recommendations is for any improvement in the studies and the reviews of the methods and the conclusions that the Agency has drawn. In addition, we'll certainly evaluate any additional information that you or your colleagues are able to provide in order to improve this rule. And I thank you very much. MR. BRADY: Thank you, sir. DR. WAGNER: There are four more people who have signed up in order to be able to present testimony today. My inclination is to just move ahead, because there are a number of people in the room who have travel plans that will be impacted both by the snow and if we have an excessive break for lunch. So unless anybody raises a significant objection, we'll try and get these last four presenters, give them the opportunity that they deserve to be heard by everyone. The next is Tony Wright. If there's anybody who feels the need to leave and come back, nobody's holding you here. But I do want to give everybody the best chance to hear everyone. MR. WRIGHT: I'm Tony Wright, W-R-I-G-H-T. I've been in the mines since 2005. I work for Perry Mine. Spent three years as a mine operator, just about three years. And I know no one with black lung. And I don’t see there being a dust problem where we're at, or at our mine, in our area. I mean, I don’t want to be penalized by wearing this PDM, because of really other people's errors, other people's carelessness. I think our mine --- at our mines, we have --- our main topic is dust. We try to keep the dust down. We got men that sprays it all day long. They come down to follow through with it and make sure our dust is all right. Now, I'd just like to get to this PDM. I don’t want to wear one. They're big, they're heavy. And I'd like to know if any of you all have worn one yet. Is there anybody out here who wore a PDM all shifts? Not very many people have. And I guess I probably wore one probably about 15 times or so. And they're big. You saw the guy's --- you saw the man that was here earlier, you got a light, you got your PDM, you got a spotter, you got a text pager, you got your rescuer, you got a hammer. I mean, I'm a little guy. That takes a whole --- that’s a lot of weight on one man to pack around all day. That kind of goes against --- maybe you get so uncomfortable, now you're worried about your belt, you're worried about this cord that if you kink it up, your PDM's done. And the cord is easy to kink up. I mean, now you're worried about that. So what about these cars pulling in here? I'm not worried about them now. Now I'm worried about my belt, worried about the PDM. What about the rocks over my head? I mean, all that goes into play over an uncomfortable piece of equipment. It's really not that well. It's not a real good tool as far as an all-day-accurate tool. I do agree with it being a good learning tool, protecting young miner men, giving them that tool to let him see where he's supposed to stand, where he's not supposed to stand. It'll show you where your dust is, and then go from there. Get yourself into clean air. And I mean, I've learned --- I've used it. I monitored it as well. And now, I can wear it or I can wear my dust mask if it's a little bit more dusty. Sometimes in a crosscut, I put the dust mask on. Maybe like you’ve got an entry that’s kind of dusty on you, most of them are clear, and wear my dust mask in there. I believe in the PPE from blasts to ear plugs, the dust mask, knee pads. I believe that I'm a safe miner. And this PDM is just not a good tool, I don’t believe, as far as an all-day everyday tool that you need to wear. And the one percent for an eight hour, we usually work nine. Now I got to drop that down. That’s going to cut into money in my pocket really, honestly, and I don’t need that. We're worried about the dust being in, but yet, MSHA wants us to rock dust everything. Earlier I tried to rock dust, and I mean, it didn’t matter. It didn’t go in your cassette, but apparently now that the rock dust is measured. So now you got this thick dust, you're creating more hazard by having that type of dust from being up there at the face. So you're pulling more dust to everybody. And my main thing up here is that I don’t want to wear this PDM. And any of your questions --- I'd like to answer any questions of you guys about wearing or the operation of his PDM. I believe I monitor it well, I've watched it from car to car, from place to place all day long. I'd like to hear any questions you all have on it. DR. WAGNER: Thank you very much. Susan? MS. OLINGER: You say you wore it about 15 times? I'm sorry. You say you wore it about 15 times. Was that for the whole shift? MR. WRIGHT: Yes, ma'am. MS. OLINGER: And did they train you on the use of the CPDM? MR. WRIGHT: Yes, ma'am, as far as all the functions that it had. Is that what you're asking? MS. OLINGER: Yes. MR. WRIGHT: Yes, ma'am. MS. OLINGER: And what functions did you find most useful? MR. WRIGHT: The whole tool is useful to some extent. I mean, it can tell you what dust you're in, basically right now, sitting right here, or as Gerome said, or whenever you put it on and your buddy's putting his jacket on beside you. I mean, it can be an asset, but as far as wearing it all day, I see it being more of a hazard than doing you well. MS. OLINGER: Thank you. MR. NIEWIADOMSKI: I wanted to sort of follow up on what you said. You said it can be, you know, but it's not worthwhile wearing it all day. But it's kind of important to remember that we're talking about average concentration over the full shift. That's kind of important to know what's going on so that you can take some corrective action. Why don’t you think that it's --- are you interested in knowing what your exposed to at the end of the shift or during the shift, to make sure that you're --- if you’re in a dusty area, you can take action? MR. WRIGHT: No, I'm not now. I wore it and I've monitored myself. And I know where my problem areas are and where they're not. That's why I say it's a good learning tool. MR. NIEWIADOMSKI: Okay. But let me ask you this, don’t you think things change every day? MR. WRIGHT: Yes. MR. NIEWIADOMSKI: Whatever you saw yesterday that, in fact, was high could be not high today? It changes every day, so it's kind of important to wear something like that that tells you what you're being exposed to every day so you can take action. Not what happened last week and you worry because it may not work this week. The conditions change. You agree that conditions change every shift? MR. WRIGHT: Yeah. MR. NIEWIADOMSKI: The dust conditions also change? MR. WRIGHT: Yeah. But do they change to that far of an extent? Not that I've seen yet. MR. NIEWIADOMSKI: So you don’t believe that ---? MR. WRIGHT: I don’t believe that they go from a one to a one and a half or from a five to a one and a half all in one day, no. MR. NIEWIADOMSKI: Okay. MR. WRIGHT: I believe it's all in where you stand and how you do your run. You wet down, you do what you're supposed to do with the dust parameter, follow your --- just follow your dust parameter, follow your plan that they set for you. You do that, you're in good hands with your dust. MR. NIEWIADOMSKI: Thanks. MR. THAXTON: I'd just like to follow up a little bit on what you were saying as far as, I believe, in using your personal protective equipment and stuff. But you indicated that you don’t wear the respirator all the time. You only use it when you think you have a high dust exposure? Is that correct? MR. WRIGHT: Yeah. MR. THAXTON: Were you trained on how to use the respirator, how to properly use it, how to properly wear it? MR. WRIGHT: No. I mean, I just put it on. Put it on and breathed through it. How hard can it be? But as far as what I'm saying when I think it's dusty --- that's what I'm saying, I know if I'm sitting in behind my curtain where I'm supposed to be and I had my air at 10,000 that I'm supposed to have it at and I go to wet down, every spray is working, my dust parameters are right, then I know I'm in good air, so I don’t need it. MR. THAXTON: So I mean, as long as you're --- you understand you're looking at your controls, you're seeing that there's a lot of things that have to work together. And we do encourage people to wear the respirators. I mean, contrary to popular belief. The regulation does not accept them as a control. But we do encourage people to wear them. But we like to ask you wear them properly, so there are some things which could be done when you wear a respirator, the correct way. One is facial hair that affects the respirator’s ability. The other thing is being aware to keep it clean and stuff, so that you actually have some --- what worries us is that somebody has a respirator and you just keep laying it somewhere, you get dust inside the respirator, you're really defeating the purpose of the respirator, and it confuses people that you're not getting the protection you think. But it's good that you're looking at not relying on just that as far as looking at your control measures that are provided. And it's true that if you have all of those controls present, then you probably have a good idea of whether you're being protected or not. DR. WAGNER: Thank you very much for your time. MR. WRIGHT: Thank you. DR. WAGNER: Chuck Burggraf. MR. BURGGRAF: Good afternoon. DR. WAGNER: Good afternoon. OFF RECORD DISCUSSION MR. BURGGRAF: I'm Chuck Burggraf, B-U-R-G-G-R-A-F. I'm senior vice president of Peabody Midwest. I appreciate the opportunity to participate in today's hearing regarding the proposed rule lowering the coal mine --- or lowering miners' exposure to respirable coal dust, including continuous personal dust monitors. Peabody does reserve the right to make additional comments at a later public hearing and/or written comments to address this issue and answer some of the questions you may have. We are here today to add a voice of concern to that of the Indiana Coal Council and the Illinois Coal Association and other coal operators in the Illinois basin. We are committed to a safe and healthy environment for our miners, including the elimination of coal workers' pneumoconiosis, CWP. We stand on our performance based on the incidents of CWP in our worker population and respirable dust sampling in District 8. NIOSH data indicates the incidents of CWP among coal miners in the Illinois basin is less than one half of one percent. This is a lower net rate than the general population in the U.S. Much of the success of these results can be attributed to mining practices implemented in the Illinois basin. These include the use of scrubbers on continuous miners, controlling face ventilation, extended cuts, perimeter mining and fishtail ventilation. Yet these mining practices appear to be at risk with these proposed rule changes, despite the lack of empirical data supporting the proposed changes. We have additional concerns, including the use of a single source dust measuring device, the PDM, availability and accuracy, the new sampling methodology and the number of samples to be taken and submitted. We question the estimates of financial impact on the industry and whether it will be --- it will address the targeted health concerns, especially in the region where NIOSH data indicates CWP is not an issue. We support the Indiana Coal Council and the Indiana --- Illinois Coal Association in MSHA --- in urging MSHA to withdraw the ruling in its entirety. Thank you. DR. WAGNER: Thank you very much for your comments. Susan? You note the low incidence of CWP identified by NIOSH in this basin. Have you taken into consideration the other lung diseases that come from exposure to coal mine dust and the impact that they may have on the people? MR. BURGGRAF: No, I'm addressing the CWP incidents. DR. WAGNER: Okay. So yeah, we'll look forward to your additional comments and specific recommendations. Thank you very much. Bill Risinger? MR. RISINGER: Good afternoon. DR. WAGNER: Good afternoon. MR. RISINGER: Bill Risinger, spelled R-I-S-I-N-G-E-R. I started in the coal mine in '03. I've worked at three different mines in western Kentucky. I'm a graduate from Murray State University with a Bachelor of Science degree in civil engineering. I ran a continuous miner for over five years and now I'm section foreman with River View Coal. I also have a son that works at River View Coal, and he's a continuous operator, continuous miner operator. We're both fortunate that we work for a company where dust control is one of our main priorities. I'm currently on the third section that I've helped start up. And each one of these, we been emphasizing the importance of maintaining proper ventilation at all times to our people. And with this new plan, you're asking us to --- you're talking about requiring a miner operator to wear a PDM at all times. Just the weight of this thing, for one person to carry, is a burden. The current device hasn’t proven itself to the industry, to us. And with the new standard, there is absolutely no room for error. And what you're asking us to do, the cost and the effort put into collecting these samples is going to be a tremendous feat. I don’t see how we're going to be able to achieve that. The dust control today is bigger than it has ever been. The standards that we have in place work in western Kentucky. If someone else has a problem in what you call hot spots, then those problems need to be addressed instead of punishing a company that’s in compliance. We maintain, JP said earlier, a 0.66 average. And for us, you know, that’s good. That’s on a --- based on a five-shift average, of course. But when you have a PDM on every day --- and as we talked about earlier, conditions do change, the weather changes it, it affects the section, how the section's wet down. What you're asking for on a daily basis, if you're not in compliance with the one, what are you going to do, send that guy home? How is he going to pay his bills? It's going to be tremendous feat to achieve a one --- day-in/day-out. So with this --- with the new program, the only real way to eliminate dust --- because we do work in a hazardous workplace, hazardous conditions. Truly the only way that you're ever going to eliminate dust is quit mining coal. And people know about the hazards, they're aware of it. You know, there is going to be some exposure at all times. And I don’t see how we're going to be able to achieve this. We're fortunate that we work in an industry where people can make a good living and you have Americans out there that are struggling to make it from paycheck to paycheck. And what we're going to do here is change the way these people live. It's not just reducing black lung, it's --- you're changing their lives with the standard we have in place working. I don’t see how we'll ever achieve that. With the PDM also, it has --- just little things can affect it and it's going to affect the lives of individuals. What we do even with --- even with --- excuse me a minute. I got sidetracked. Even with the standards that we have in place that are working, to require these samples on a daily basis is really just going to be a tremendous feat, and I don't understand how we'll ever achieve that. We are implementing a sampling program, but are we truly going after the problem itself? Are we truly trying to eliminate the dust exposure to these folks? It seems like that all we're doing is putting a sampling program in place. And a huge sampling program that’s going to require a lot of effort from MSHA, as well as the coal operator. So are we really truly addressing the problem? And that’s pretty much all I have. DR. WAGNER: Thank you very much. Susan? The one question that I can ask of you and others who have expressed concern about the amount of sampling, as they provide written comments, is what kind of a sampling program do you feel would be effective in guaranteeing that the exposure to miners is not excessive? MR. RISINGER: The program that we have currently with the five-day average is working. You know, with the PDMs, anything can affect PDM, the weather outside, the humidity. You know, dust from someone's jacket affects it. The current sampling system works. It's showing what our average is. I don’t see why we would change that at this point. DR. WAGNER: Thank you. The last person that has signed up to speak is Mark Eslinger. MR. ESLINGER: My name is Mark, M-A-R-K, Eslinger, E-S-L-I-N-G-E-R. I am a general safety manager for Five Star Mining, Incorporated and Black Panther Mining, LLC, also in contact with the Illinois Coal Association and the Indiana Mining Council. I retired from MSHA in 2009 and have 38 years of experience. I appreciate the chance to comment here today. One general comment. This rule is full of acronyms. It makes it very difficult to read it and understand it. Most likely mine operators can understand, but there's a handful in there. The first comment of concern, the designated area. The practice of sampling in designated areas should be stopped. The concern is for dust exposure to the miner and not the concentrations in some areas. A sampling of designated areas is a burden and a cost to mine operators, and it does little to provide indication of what the miner is exposed to. The practice of sampling in designated areas is a cost to both the operator and MSHA and should be discontinued. The under equivalent concentrations under CMPDSU, the ten-hour shift is worked and this proposal requires the concentrations to be multiplied by 600 over 480 or 1.5. That's a concentration of 1.0 milligrams per cubic meter for ten hours and a concentration of 1.25 milligrams per cubic meter. This exaggerates the dust concentration that the miner's exposed to. The concentrations for shifts longer than eight hours should be the concentration requirement for the dust collected at eight hours. So for a ten-hour, it would be 1.0 when it's collected and it should stay at 1.0. With CPDM, if more than an eight-hour shift is worked, I'm assuming that the same type of T over 480 is used, and I would basically have the same comments that it should be the weight of the sample. If you do the math, if you have four ten-hour shifts, but you work one, you multiply it, it turns into five milligrams for the week. And if you have five eight-hour shifts and accumulated .8, if you had similar work conditions, then you would have five times --- or five times .8 would be 4.0. Actually, the dust that you get for four eights versus the five --- four tens versus five eights would be exactly the same. To me, the multiplication by 1.25 does not make sense. Another thing I do not understand is the creation of multiplying by the number of hours for each shift. You have done this by eight hours times 2.0 milligrams to get 16 milligrams per cubic meter. I think if you just counted the amount of weight on the samples, you wouldn’t have to worry about the number of hours concerned. So whether you worked 40 hours a week, 50 hours a week, 60 hours a week, it would make no difference. To continue to multiply it by the T over 480, you're going to directly affect the length of those shifts that our mines can work. You're actually getting into running the mine when you are saying that you’ve got do it in this fashion. I think that’s a mistake. We've had lots of discussion about 75.332 today. I looked at the definition on MMUs, and it says where two or more sets of mining equipment are used in a series of working places within the same working section, and two or more productions are employed, each set of mine equipment shall be identified by a separate MMU. I don’t understand how the definition is possible when you have said that 75.332 causes you to have separate split of intake air for each individual MMU. So to me there's a conflict between the definition and what you’ve got proposed in 75.332. And to be honest, I didn’t understand why you had to have a separate intake for each MMU. I thought you were going after the red light/green light type mining and not running separate intakes. And Bob, you talked about you have to have the same amount of air if you’ve got the same MMUs, but I think you also forget that you’ve got a belt air course. And you now have to have two belt air courses. And for your CO system and your air quantities over your place for your diesel part equipment, we have to provide it to each neutral to develop air course. So in essence, more air would be needed to run two MMUs on a separate intake than it would on a single when you split it inby the tailpiece. You're increasing the normal production shift from a 50 percent to 80 percent. I just want to point out that will cause more samples to be designated as it’s not, you know, full production, causing more samples to be taken. We've created the term called other designated occupations. And I really think that we need to just sample the miner. We can sample the miner that’s assigned to that occupation, but we need to sample the miner and not pass the pump, as we call it. Passing the pump can create errors. It creates problems. So I think we need to sample the individual miner. On quartz, it talks about the MSHA district manager being able to approve a method of the measurement of quartz. So in essence, you’ve got a rule here that could change when the district manager decides to change the method of analyzing quartz. We need, as operators, miners wherever --- we need to know how you're going to analyze quartz. And as far as I know on a CPDM, I don’t know if there is a method to analyze quartz. The weekly accumulated exposure is a new term. Again, it talks about milligram hours per cubic meter. I think you just need to look at weight gain and forget about multiplying by the number of hours and so on and so forth. Again, the miner is the most important thing. And I sat on the other side of that table often, you know, the Federal Mine Safety and Health Act of 1977, Congress declared that the first priority of concern of all coal and other mining industry must be the health and safety of the most precious resource, the miner. And that needs to be of the individual. We now talk about the standard itself. It says the preamble declares on page 64420, middle column, that, quote, the Committee concluded that there is substantial evidence that there's either a significant number of miners that are currently exposed to coal dust at levels well in excess of 2.0 milligrams at cubic meter or that the current exposure limit for coal mine dust is insufficiently protective, unquote. I think that MSHA needs to know which of those two is true before the exposure limit is lowered. I worked in District 8 for 38 years. We were criticized for having more trouble weight samples time and time again. And as others have said, and the information that I've watched Mr. Thaxton put on the stage from 2009 shows that District 8 has the lowest incident rate of black lung. It has the incident rate of black lung and yet had the highest number of overweight samples. Then the whole methodology is going out the window here. I mean, how can you have the lowest rate of black lung in the country and yet have the most overweight samples? There's a problem with the methodology here. And then preamble on page 64420, middle column says, quote, the proposed rule does adopt this recommendation. This refers to NIOSH's and the best advice and recommendation to use a single full shift sample to determine compliance. However, the rule uses the single shift excessive concentration to determine compliance. So a single shift sample is used. I think that a single shift sample is unfair to be used to determine compliance. You could have an aberration, you could have rock dust that you get accumulated in your sample. There could be a problem for a day. That one-day problem is not an indication that there's a problem with the respirable dust in the mine atmosphere. Black lung occurs as you collect coal dust in your lungs over a lifetime. A one-day one sample, to me, is not an indication. And that triggers that you have to submit a compliant action plan. Once that compliant action plan goes into effect, you have to resample. Resample. You have to get a new ventilation plan. And I'll talk to you about the plan system in a minute. Another thing, there's a standard for the intake air course. Again, the individual miner is of concern here. Why are we wasting resources sampling intake air courses? It's a burden to MSHA. It's a burden to the mine operator. Again, it's the person. You know, and if you really do think that, you need to look at your distances. 200 feet of the crosscut center is --- 200 feet. You'd have to be in a working place. It talks about under sampling, you know, sampling devices shall be worn or carried directly to and from the MMU or the DA and sampled. The sampling device should be operated should be portal-to-portal. You know, I understand the full shift portal-to-portal, extending the shift, but I really think you need to stay with that person. Designated occupation or designated areas so on and so forth. Again, like I say, you can assign a pump or the instrument to the individual miner. When he goes to lunch, it should go with him. If he goes outby, it should go with him. The preamble on 64423, last column states that, quote, the sampling device must remain with the occupation or DA being sampled during the entire shift to ensure the respirable dust concentration levels are continuing to be monitored. Again, these should go with the miner. Then you want the sampling device switched up for the 13th hour of operation. That necessitates having extra instruments for the CMDPSU (sic), you go through an argument of preamble that says, well, the hours that it can be used go from 8 to 11.5 per the manufacturer, but we know that it will go longer. And yet, in other portions of the regulation, you want us to follow the manufacturer's recommendations on instrumentation. So you ignore it here, but you say use it in other locations. You got to be consistent here. Okay? Passing the pump creates problems. And additionally, if a normal mine shift is ten hours and you have problems in your mine and the miner happens to work over 12 hours and what's planned for, that could put that miner and the mine in a non-complaint situation if they did the sample past 12 hours. That creates a problem. You have a certified sampler that might be somewhere else and may not know that there was a problem. You're also talking about changing up the CPDM prior to the 13th hour of operation. That’s a cost. I mean, that’s a lot of instrumentation that you have to have. You have to have backups. And then you want to show --- you want to record the length of each production shift, okay. Again, if you sample, whether it's nine and a half hours, ten hours, ten hours and five minutes, you don’t have to worry about the length of the shift. You would reduce the burden of the operator by sampling, you know, from the time you went underground to the time they first come up. You almost have to have a health technician or somebody like that to meet the crew coming out, to record length of time. And it takes variable times sometimes to get up from underground. That could be a problem. You all talked today about training and how good it can be for that person wearing the CPDM. But I just want to make you aware that that’s a training burden. It requires certification. That person who is sampling has to be certified. Now, you want to turn around and you also want to train the miner on how it’s used. It becomes a lot of training, you know. Certified person, you want to certify a sampler and you want to certify a person for maintenance and calibration. Certification is the burden of the operator. And you want to redo it every three years. I'm a registered engineer. I took the test back in '72 and '76. Technology has changed. I don’t have to go get retested. I don’t think that a certified person needs to get retested. In fact, because you're certified doesn’t make you any more --- not necessarily even better than a non-certified person. I understand what you're trying to do here. But again, you're putting a burden. And MSHA does not have the people. If you look at the health people right now, they can't get the sampling done. They need help from the regular inspectors. They need help from other districts. And yet what kind of people are supposed to go out and administer tests, do the initial training. You know, I'd recommend doing away with the certification. But I really don’t think you will do that, but we don’t need to retest every two years. And I think you should have one certified person that wants to handle all the duties. The sampling, if a certified person does the sampling, you got to be certified to do the sampling, you got to be certified in maintenance. And also, I'd like to point out that you can do some maintenance as a certified sampler. That's kind of an odd thing. You're mixing roles here. I think it should be one certification. But I figured out that if --- at one of our mines, we're going to have three, hopefully, fishtail units. And you would have to have --- you figure that we’re going to have to have three health technicians to take care of the daily counts. And I want to talk about downloading it after. That will be additional two health technicians. It has to be with a miner, has to have papers. Otherwise, he can go underground. The person's going to have to start --- before the shift starts, he's going to have to interface with the next shift with the technician, you know. And you're going to have to take the counts when they come out from underground. The guy that comes on the next shift has to take them off. There has to be at least three. And we only run two production shifts a day. So I'm going to submit information on estimated people and numbers and all that stuff of what --- this is a burden here. And I think that the health technicians, that's always going to see, especially if you're going to go every shift, every day throughout the year. It's a huge, huge burden. It talks a little bit about approved sampling device with maintenance and calibration. Requiring the device to be maintained in, quote, accordance with the manufacturer's instructions, unquote. To give rulemaking by open-ended incorporation. The rule itself could change when the manufacturer changes its requirements. The manufacturer could do this and it would cost more. Okay. And they say that if a different flow rate is recommended by the manufacturer, it would change the amount of dust that would be collected. You know, there could be problems with this open-ended incorporation as per the manufacturer's instructions. CMDPSU devices shall be examined and tested by a certified person within three hours before the start of the shift. And that would change the requirements for MSHA. We never used to do it that way. We used to grab a basket in the morning, go out the door and go on to people. Now, you want the mine operator to do all the testing within three hours prior to the shift. You can't have a live person the night before fix everything up, get everything ready to go, and when they come in, somebody grab up the pumps and put it on the operator. It says that using a CPDM, a certified person in sampling or maintenance and calibration shall follow the examination, testing and setup procedures contained in the approved CPDM performance plan. It appears that MSHA does not know the maintenance and calibration requirements for the CPDM, though it's requiring it to be put in a plan. MSHA District 8 right now cannot handle the plans. When I was there, we couldn’t handle the day-to-day ventilation plans. Now you're going to require a CPDM plan. All right? We can't get the plans approved in a timely manner now, and yet you're going to put more burden on MSHA District 8. And other districts that I have talked with in the past when I've met with them have voiced similar concerns. I really don’t understand why you're going to have a CPDM plan and a ventilation plan and where the differences are going to be. I mean, I just really don’t understand that. And another thing about the CPDM plan, it talks about it shall be reviewed on a non-complaint situation. If we look at it, if I decide it’s okay, I don’t need --- so I think you're going to get locked in every time there's a violation or a non-compliance that you're going to have to modify that plan. And then there's a caveat --- I don’t even know if that can be called a caveat. But there's that number nine in the plan, other information required by the district manager. You're giving him an open-ended checkbook to ask for whatever he wants. And I've been on that side of the fence. Sometimes when you're district manager you want some stuff, he can ask for that stuff. I think if you're going to have a plan, you have to limit exactly what is required to be submitted. It's open-ended stuff. Like I mentioned before, the appeal process is almost nonexistent on it. And also on that plan it says under the proposal, the district manager would not be required to wait until a miner has been exposed to excessive dust prior to determining that a plan is inadequate, unquote. Now, you got a district manager who thinks he can figure out, well, this plan is inadequate. He proved it in the first place. If you haven't been out of compliance, how'd he make that determination? So in other words, he can just say yeah, I want that plan changed, and that’s done. Then we got a requirement of three days to submit changes to the mine ventilation plan. Under the CPDM you go out of compliance, you got to take action. You don’t download it until the end of the week, you, the operator, may know you'll be out of compliance, or the information is downloaded, the district knows that you got three days to submit it. You're submitting stuff before the district even knows the mine is out of compliance. The time frame up here is really, really difficult for you. And three days when you got three --- all three-day holidays MSHA has, and I love them, you know, you'd be submitting it and there'd be nobody there. I talked about the excessive value --- excessive concentration value. That really puts the mine into jeopardy. Black lung is an average accumulation over time, and if you're using one sample, the limits are very narrow. And one thing, too, when you go out of compliance, it says make approved respiratory equipment available to the affected miners in accordance with 72.700. Now, there you recognize PPE, but you won't let a mine operator use PPE to prevent getting dust in the lungs. You got to have a corrective action plan. Like I said, District 8 cannot process the plans now. I couldn’t when I was there. You know, if it’s not done in a timely manner --- you're going to have to expand MSHA's workforce, clearly. And the people that are working on the plans can't be hired today. You have to take experienced people with plan approval to do it. And I talked a little bit about, you know, recording corrective actions in a manner that’s --- for hazardous conditions required by 75.363. 363 is for hazardous conditions found by the mine foreman or by mine official on and on and on. Okay. Hazardous conditions, there's a distinct purpose for that. It's on the books. You know, when you are out of compliance, it has to go on a bulletin board. It's there for everybody to see. And you have to submit modification plans on the bulletin board. All this information is already posted. Now, you're going to be requiring an additional record to be made in the manner of 363. 363, to me, is sacred. Let's not go there with other stuff, okay. Again, talked about sampling using the CPDM, sampling every designated occupation, every production shift is excessive. 100 percent sample. Sampling every shift, every day is not needed to objectively determine how much respirable dust a miner is exposed to. I don’t see there is any justification. If you get into statistics, you can get a pretty good idea of what the miner is being exposed to without having to sample every shift every day. I mean, if you really want to go over every shift every day, then I think you should follow the Advisory Committee's recommendation that says the Dust Advisory Committee recommended that MSHA should take full responsibility for compliance sampling as to the number and frequency levels required of both the operator and MSHA to ensure liability with the program. If MSHA can't do it, why are coal operators expected to be able to sample every shift every day? Okay. The other designated occupations, you want the sampling by 14 consecutive days. Mines don’t work in consecutive days. I don’t really know how you're --- what you're talking about here. I think you're talking about production days. I don’t know what they're --- you know, there's some problems there. Probably sampling for five consecutive days would give an accurate indication for the other designated occupations. Again, I think it should be only of the individual themselves. The regulation, unless otherwise directed by the district manager, CPDMs shall be worn by The miner assigned to perform the duties of the DO or ODO. If the district manager can direct otherwise, the rules changes every time the district manager, quote, directs otherwise. To me, this is rulemaking without going through the proper procedures. And then on this ODO, you want to sample shuttle car operators on blowing type face ventilation in the mine. If the shuttle car operates on blowing face ventilation system used for the sampling, then a shuttle car that operates on exhaust type ventilation systems should also be done. When the continuous miner uses a scrubber system, much of the dust generated is scrubbed up by the scrubber and the miner is exposed to much less dust than if the air had not been scrubbed. Using exhaust face ventilation for continuous miners, not using scrubbers, the dust generated will flow downwind. If the shuttle car mine operators run through the air of the downwind side of the miner, they are exposed to high concentrations of respirable dust. Downwind roof bolters would also be exposed to greater respirable dust when you're using miners without scrubbers. To me, if you're going to do it for blowing, you need to do it for exhaust. You need to be fair with the system. Don’t penalize blowing type face ventilation systems. Midwest uses it almost exclusively. Again, I think we're being punished for problems that are happening not in our area. Therefore, when valid end-of-shift equivalent concentration meets or exceeds the applicable ECV in 70.2 or weekly accumulative exposure, the weekly permissible accumulated exposure, the operator shall take the following actions before production begins on the next shift. That’s impossible, because the next crew is going in before the other crew is coming out. You cannot comply with this regulation. It's impossible. It appears that you want to penalize long-shift mines. Again, it talks about submitting to the district manager. Again, the district manager of District 8 cannot take on approving plans in a timely manner. I couldn’t when I was there. The last ten years, I didn’t have the people, didn’t have the personnel to do it. You know, you’ve got CPDM plans, corrective action plans, ventilation plans. It's not justified. Then there is this thing about if you cannot maintain compliance with the lower limits, you can submit to the district manager a request for a period not to exceed months, but can go up to 24 months. You know, if that’s the case, why can't you do it at all times? You know, if you're going to let them do it for 24 months, why can't you go past 24 months? If you're going to allow administrative control for rotating out for those six months up to 24 months, why can't you do it otherwise? And it talks about using the CPDM, designated mine official shall validate, certify and transmit electronically to MSHA within 12 hours after the end of the last sampling shift of the workweek. Validating and certifying and transmitting within 12 hours is quite a time frame. And if they do it, who's there to get it? I mean, are MSHA people going to sit there on a Saturday or a Sunday and look at it? I don’t know why it couldn’t be by 6:00 a.m. on Monday morning or 8:00 a.m. on Monday morning. I mean, what's the need for such a tight time frame. 70.211 (sic) says MSHA shall provide operator a report with the following data on respirable dust samples submitted in accordance with this part. Is this a regulation for MSHA? Within one hour after the end of a sampling shift, the daily end-of-the-day shift sampling results of the monitored occupation, DA, if applicable, shall be posted. You know, this is going to require more people to be hired. You're talking to add additional people to be hired. And like I said, I'll talk about estimated people in a moment. And there's another one about within two hours at the end of a sampling shift. Again, that is overly restrictive. I've basically gone through Part 70 and Part 71. I have comments that would be very similar. And I talked a little bit about 75.362 or 332. In discussing with the Indiana Coal Council, I didn't think there was --- you know, fishtailing, this is done in Indiana and Illinois. Air splits for the protection of the tailgate. The air is split on the unit. Each miner would be protected by the intake air. If it's not for the one miner, it's for the other miner. And operators have been going to that system for dust control. And have pushed that way when I was in District 8, that's the way things were going. We never fishtailed air in the '70 and '80s. I can't say never, but in general it was a single split, one miner. Then we put two miners on there. I was part of the Regulatory Committee that said, you know, simultaneously mining on a single split cannot be done. We had problems with the air of one miner going over to the other miner, the dust, the gas. So now they went to fishtail and now you're trying to push fishtail out the window. I guess I'm flabbergasted that that’s being done. I've got comments after comments, but I wanted to hit the high points when I gave you my comments. And that’s all I have. Thank you. DR. WAGNER: Thank you very much. Susan? MS. OLINGER: I just wanted --- sorry. I just wanted to clarify that you mentioned when you’ve exceeded the standard, that PPEs have to be provided and why aren’t they provided all the time, if I understood? MR. ESLINGER: I know that we make them available all the time. I'm saying it's like you recognize to use the personal protective equipment --- MS. OLINGER: On a temporary basis? MR. ESLINGER: --- on temporary basis. If you're going to do it on a temporary basis, you got to do it on a full-time basis. Okay. And I know from the Act, it has to be the environment and not to use the PPE. But in here you're putting in there, it says okay, make it available and it's like encouraging to use it, but you can't use it to say, hey, I want to get away from the dust so I use it and therefore I can become compliant. MS. OLINGER: Okay. Just so you understand that it's for a temporary basis for the dust levels that are right now. The other thing you expressed concern about is the redefinition of normal production shifts. And as you know, right now, it's 50 percent of the last five valid samples. And the redefinition would make it the average for the last 30 production shifts. And you thought that that might make it difficult ---. MR. ESLINGER: I guess I'm saying it increases the burden, because you're now having to track more production shifts. And I realize that almost everybody tracks production. And if you go to 80 percent, then you're doing samples that aren’t even needed. I'm trying to point out the fact of mining. MS. OLINGER: Okay. I just wanted to point out in the preamble on 64418 it does discuss that if there were unique mining conditions encountered, that could be --- the average normal production could be adjusted when you talk to a district manager. There is something in the preamble that addresses that. Thank you. MR. ESLINGER: Okay. MR. NIEWIADOMSKI: Mark, the production requirement, you know, that certainly applies where were using the conventional sampler, but becomes a moot point where we use the CPDM as you're sampling every day. So whatever the production is ---. MR. ESLINGER: So why require all the records and all that kind of stuff? I mean, if you're going to sample --- and I'm --- I encourage you to --- whatever the length the shift is and that’s the weight gain. That's what it is. You don’t have to worry about the length of shift, whether you're working eight hours. And another thing you do is, if you work a short shift, and it's a high-concentration count, if it's less than, you know, going over the limit, you don’t count it. You penalize an operator --- if you have a six-hour shift, he has to go over. But if he works six hours shift and he's under, then you give him credit. I mean, that’s not a fair system. MR. NIEWIADOMSKI: The issue about PPEs, what we have in the proposal, which is make them available when you exceed the standard. It's not a new requirement. Okay. That’s been in place since 1970 is what I want to point out. That’s it's always been the requirement whenever you're in violation, you make them available. So we're not introducing anything new. Okay? The other thing you mentioned about quartz, one of the things I want to point out is that the analytical method, okay, the district manager has nothing to do with saying anything about the analytical method. Okay? What the rule says, that if, in fact, there are changes in analytical methods, new equipment and so forth, more accurate methods, that MSHA can, in fact, adopt it. Okay? But that --- but it's the Agency to make the decision. The district manager doesn’t have anything to do with how quartz is analyzed? Okay? MR. ESLINGER: That says the district manager. MR. NIEWIADOMSKI: No, there's nothing in here that says the district manager. MR. ESLINGER: If there isn't, I stand corrected. But I was reading from the comments that I had. And I don’t like this where the district manager can basically change the rule down the road, okay, or the manufacturer's recommendations, whatever. And there's a flow rate and it talks about 2.2 liters in one instance. And right now the rate they're pumping is at 2.0 liters. Correct? MR. NIEWIADOMSKI: That’s correct. MR. ESLINGER: And you're going to change it to 2.2? MR. NIEWIADOMSKI: Yes. The conventional --- the sampler has been approved. The current sampler that everybody's been using in the past since 1970 is permitted. It's been approved. The CPDM is at 2.2 liters per minute. The manufacturer can't just arbitrarily say, well, I'm going to make it 2.5 right now. Okay? Because it's approved as 2.2, it has to go through the approval process through NIOSH and through MSHA to change the flows. So when we talk about manufacturers, it is the maintenance requirements. Okay? Rather than us spell out certain things, it’s the manufacturer's. And its manual is going to define all the things that need to be maintained, the checks that needs to be made. Because those can change, but as far as flow rates, whatever, no, it's locked in basically. That’s how the system was approved. MR. ESLINGER: But if the manufacturer should say you have to replace the instrument every year or parts of it every year, then you have to do that. He changed his recommendation, you're stuck. The operator is stuck. To me, it's open-ended incorporated. I said that when I was with MSHA, and I'm going to say it today, I don’t like it's in accordance with the manufacturer's recommendations, because those recommendations can change. And when the district manager may require, you know, additional information or he may change, dah, dah, dah, that creates a problem. MR. NIEWIADOMSKI: Well, Mark, thanks. I don’t have any further questions. MR. THAXTON: Mark, there's not a lot of questions I can ask you, but I can help clarify some things. You said it during your comments and you also used it when you were answering the question from Susan, that normal production is going to from 50 percent and we're going to the average of the 30 shifts. You said 80 percent. Eighty (80) percent is what MSHA uses currently right now. The regulation doesn’t reduce the 80 percent. It's the average of the 30 shifts, so it's not 80 percent. So that when you make your comments and submit them, there should --- you actually realize that it is the average of the 30 shifts and not 80 percent of it. The other thing is in relation to your comments on page 64420 of the preamble, you were indicating that the Committee said not --- you know, made the recommendation that --- you said we weren't adopting that recommendation, obviously in relation to one area. That recommendation was that we make no --- it's NIOSH's recommendation that we make no upward adjustment to the standard to account for the measurement uncertainty. The Agency did not adopt that. We did adopt the upward adjustment, that’s why we have the ECV values. So the ECV values actually allow as essentially the single sample where we had before that you --- when you were with us, is that if your rate's two milligrams, we don’t stop until we get to 2.23. So that is --- we did not address it. We did not adopt the recommendation to cite at 2.0 anything above that. We did adopt the upward adjustment, so that’s what that is in relation to. And that comments so that way --- like I said again, when you're submitting your comments, that we get your comments in relation areas that were actually addressed. Lastly is your comment on the three-hour check for the pumps. That’s been in existence since the '80s. That policy interpretation is presented by the Solicitors, because the current regulation says that immediately prior to the shift. We gave the opportunity for the mine operators to define immediately to no more than three hours instead of making it immediately prior to the shift. You're right that does not apply to MSHA, because the regulations don’t regulate the Agency. We do use slightly different procedures, but that’s something we have. Other than that, you now, I make those comments just so that when you're submitting your comments, that they are representative of really what's in the proposal that is proposed before us. DR. WAGNER: First, I want to express my appreciation of the specificity of your comments and we'll look forward to seeing them in their entirety. And thank you very much for your time this afternoon. I want to ask now, whether there are any additional people who may not have signed up originally, who have decided that they want to speak? Please? MR. FRITZ: My name is Gary Fritz. That’s F-R-I-T-Z. I am a third generation coal miner. I've spent over a decade in coal mines mining in Indiana. I am also a trained mine inspector at the Beckley Academy. I completed that course there as well as mine accident investigation. In the course --- after finishing those courses, I have inspected mines in Alabama, Kentucky, Illinois and Indiana and done accident investigations in Indiana. I am here today, not at the employment of any coal companies, any coal associations, or any other organizations connected with the coal industry. I feel that’s important to make that differentiation since I think most everybody that spoke before me has. I don’t have any problem with the lowering of the requirement for the dust sampling. My concerns are about the dust sampling in general. Over the course of my experience, I have seen the dust pumps left in the break room, put in dinner buckets, covered up. I have seen MSHA inspectors come on the property and put the pumps on workers, and then that worker moved to a less dusty environment. Sprinkler systems that have not been in use, all of a sudden were turned on to make sure that the results of that dust pump was in compliance. This wasn’t always at --- management wasn’t the only person guilty here, because it was explained to the miner if the pump came back out of compliance, then you were going to have to wear that pump for an extended period of time. So there was an incentive basically to go along with all of this and don’t say anything to anybody. And of course, then this doesn’t address the cassettes, which were very easily tampered with. Basically the custody of those cassettes is to what the result was, which I think that’s pretty well-established. Those cassettes were not --- were very easily tampered with and the results therefore. I find it very interesting with the comments made by the coal industry, considering this is the industry that used to claim that coal dust was good for you. Matter of fact, coal dust was healthy for you. And now, all of a sudden, we've got this industry saying, well, there's no problems with dust. We've almost eliminated this as a problem. Matter of fact, statistic-wide, if things keep going at the present rate, eventually coal mine air is going to be cleaner than the air outside. If you got lung problems, you should get a job at the coal mine. Now, the issue that there's nobody around with black lung. Coal industry's been very effective in lobbying, so that to prove that you have black lung, most doctors honestly will tell you that the only way to prove you got black lung is an autopsy. I had an uncle that worked in the coal industry here in Indiana, died in the late '60s. He was applying for black lung. He was turned down. The doctor basically said we can't prove it under the present guidelines that he has black lung. Well, guess what? After he dies, his death certificate says he died of black lung. Coal country. In 2002, I went into the doctor for an examination for what I thought was a bad cold, chest cold. The doctor --- this was in Alexandria, Virginia. The doctor came out and said if you ever worked --- after an x-ray, have you ever worked in a coal mine? And I said yes. He said you have the beginnings of black lung. So if anybody wants to know about black lung in Indiana, yes, it does exist. And there is people that have it. I'm available to any of your questions. DR. WAGNER: Thank you very much. Susan? I appreciate your speaking with us today. Thank you. Are there any other individuals who would like to come forward and make a statement at this point? Seeing none, it appears that nobody else wishes to make a presentation. And again, I want to say that the Mine Safety and Health Administration appreciates everyone's participation at this public hearing and everyone who had made a presentation, as well as those of you who haven't presented, but have a continuing interest in this rulemaking. I want to emphasize that all comments must be received or postmarked by May 2nd, 2011, all written comments that anybody wants to present to the Agency for consideration under this rulemaking. MSHA will take your comments and your concerns into consideration in developing the Agency's final rule. I want to encourage all of you to continue to participate throughout the rulemaking process. This hearing is concluded. Thank you very much. Safe travels. * * * * * * * * HEARING CONCLUDED AT 2:00 P.M. * * * * * * * * CERTIFICATE I hereby certify, as the stenographic reporter, that the foregoing proceedings were taken stenographically by me, and thereafter reduced to typewriting by me or under my direction; and that this transcript is a true and accurate record to the best of my ability. 213 Sargent's Court Reporting Service, Inc. (814) 536-8908 Sargent's Court Reporting Service, Inc. (814) 536-8908