1 1 PUBLIC HEARING 2 30 CFR PARTS 70, 71, 72, 75, AND 90 3 LOWERING MINERS EXPOSURE TO RESPIRABLE COAL MINE DUST, 4 INCLUDING CONTINUOUS PERSONAL DUST MONITORS 5 6 7 JANUARY 13, 2011, BIRMINGHAM, ALABAMA 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 APPEARANCES 2 3 APPEARING: 4 GREGORY R. WAGNER 5 GEORGE NIEWIADOMSKI 6 ROBERT THAXTON 7 JENNIFER HONOR 8 RON FORD 9 SUSAN OLINGER 10 11 PRESENTING TESTIMONY: 12 TED SARTAIN 13 TOM MCNIDER 14 RANDY CLEMENTS 15 ADAM RITCH 16 DALE BYRAM 17 LARRY MCGIBONEY 18 MATTHEW LITTLE 19 NOBLE LINN 20 PHILLIP WHITLOW 21 DWIGHT CAGLE 22 GARY JOLLY 23 JOE CRAIG 24 25 3 1 PRESENTING TESTIMONY (CONTINUED): 2 TED NICHOLS 3 FRED ENGLAND 4 THOMAS WILSON 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 I, Lauren H. Deerman, a Court Reporter of 2 Birmingham, Alabama, and a Notary Public for the State 3 of Alabama at Large, acting as Commissioner, certify 4 that on this date there came before me on the 13th day 5 of January, 2011, at Sheraton Birmingham Hotel, 2101 6 Richard Arrington, Jr. Boulevard North, Medical Forum G 7 Meeting Room, Birmingham, Alabama, commencing at 8 approximately 9:00 a.m, testimony in the above cause, 9 whereupon the following proceedings were had: 10 GREGORY R. WAGNER: My name is Gregory 11 Wagner. I'm the deputy assistant secretary for labor 12 for Mine Safety and Health, and I'm also a physician. 13 Before we get started on the formal hearing, I'd like 14 to speak a little bit about those factors that have 15 motivated the Agency to try to work on the issue of 16 black lung and brought us to the point of proposing a 17 new set of regulations. I'd like to thank everybody 18 who has come here this morning and recognizing you're 19 braving the cold and the unusual weather and also 20 bring you greetings from Joseph A. Main the deputy 21 assistant secretary that leads the Mine Safety and 22 Health Administration. 23 Many of you recognize this photograph. 24 It is of the Farmington No. 9 Mine in West Virginia, 25 1968. Fire explosion at the mine resulted in the 5 1 deaths of 78 miners. It also created a public focus 2 that resulted in the 1969 Coal Mine Health and Safety 3 Act. That act made significant improvements towards 4 improved safety and the prevention of fires, 5 explosions, and injuries and death from mining, but 6 it also was developed at a time that there was a lot 7 of tension being paid to the lung diseases that 8 miners get, known collectively as black lung. That 9 act not only created new rules in order to prevent 10 acute injuries and fatalities but also made a 11 commitment. In the 1969 Federal Coal Mine Health and 12 Safety Act, Congress mandated that respirable coal 13 mine dust exposures be reduced to a level they said 14 which will prevent new instances of respiratory 15 disease and the further development of such disease 16 in any person. 17 Following the Scotia Mine Disaster in 18 1976, another set of legislation was passed, The 19 Federal Mine Safety and Health Act of 1977, and in 20 that, Congress said that the secretary shall set 21 standards which assure on the basis of the best 22 available evidence that no miner will suffer material 23 impairment of health or functional capacity even if 24 such miner has regular exposure to the hazards dealt 25 with for such standard of the period of his working 6 1 life, no miner shall suffer. 2 Well, what's happened? 1995, the 3 National Institute for Occupational Safety and Health 4 did a comprehensive review of the world's scientific 5 literature. Their analysis was published -- 6 published in this document. The criteria document 7 that made a series of recommendations for how to get 8 rid of black lung. They noted that black lung was 9 continuing beyond that that was expected and that new 10 information could be brought to bear on it. The 11 secretary of labor, at the time, set up an advisory 12 committee made up of labor industry and independent 13 experts, and they reviewed the NIOSH criteria 14 document and any additional scientific information 15 that they could. 16 They came out with a series of 17 recommendations and conclusions. What we're doing 18 today is a logical continuation of the 19 recommendations from the National Institute for 20 Occupational Safety and Health and from the 21 Secretary’s Advisory Committee. Let me spend a 22 minute to tell you about black lung. You can see in 23 these pictures a normal lung, piece of a normal lung, 24 that's over on the left side. In the middle, you see 25 what happens is coal mine dust begins to be 7 1 deposited. You see the black areas that coal mine 2 dust is there. The lungs begin to scar. Holes begin 3 to form. 4 And you see on the right side the most 5 advanced form of Coal Workers' Pneumoconiosis called 6 progressive massive fibrosis and that lung scaring, 7 distortion, the loss of lung tissue interferes with 8 the ability of the oxygen to get to the body through 9 the lungs. There are a number of diseases caused by 10 coal mine dust. You have Coal Workers' 11 Pneumoconiosis, the pictures that I just saw, and if 12 you have silica in the dust, there's silicosis as 13 well. 14 In addition, you have diseases that 15 don't necessarily show up on X-rays. You have 16 breathing diseases, air flow diseases that cause 17 obstruction of the airways and destruction of the 18 lung issue. Emphysema and bronchitis were much more 19 common in miners who breathe coal mine dust. You 20 have tuberculosis increased in miners who have high 21 silica exposure. These diseases aren't just a 22 problem because they kill you. They're a problem 23 because they cause an extended period of disability, 24 aggressive, progressive. They don't cause an acute 25 problem. They're the gradual buildup of significant 8 1 problems. 2 So what's happened since 1969? 1969 3 imposed new dust limits in U.S. coal mines and ways 4 to enforce those dust limits and sample for them, and 5 they resulted in a gradual reduction in Coal Workers' 6 Pneumoconiosis and other lung diseases from dust, 7 starting in the 1970s and then going down to the year 8 2000. After the year 2000, it started to rise again. 9 This information is from the NIOSH X-ray surveillance 10 program. 11 There's a lot of thoughts as to why that 12 rise may have happened. They started rising in 13 people who had only been exposed during the current 14 era of dust limits. NIOSH did studies in certain 15 areas of the country, not everywhere, but in certain 16 areas they found rapidly progressive Coal Workers' 17 Pneumoconiosis and clustering of these effects. 18 Let me give you a couple of examples 19 here: A set of X-rays from a roof bolter in West 20 Virginia. On the left-hand side, by 1997 when he had 21 only spent 19 years underground, he already had 22 advanced form Category 3, there are only three 23 categories, advanced category of Coal Workers' 24 Pneumoconiosis, and just three years later, at the 25 age of 40, he had progressive massive fibrosis 9 1 collapsing the lung and destruction of the lung 2 tissue, 19 years underground, 40 years old. 3 Another example: From Virginia, in 4 2002, a 42-year-old with only 22 years underground 5 experience was found to have the most advanced stage. 6 It was a lung that, if you had been able to slice 7 through, it would have looked like the one on the 8 right-hand side that I showed earlier, Category 3, 9 Stage C. It isn't just the changes on the X-ray or 10 the diseases people have, it causes some much 11 disruption in people's lives. Gradual loss of 12 breathing, inability to do the things people like to 13 do in their middle age and as they grow older, the 14 things people expect to do no matter what their 15 workplace exposures are. 16 It also has created a tremendous 17 financial burden. Through the Black Lung Benefits 18 Program, over $43 billion worth of benefits have been 19 paid out since the beginning of the program, and 20 that's only a slice. That's the federal program that 21 relates to people who have been totally disabled from 22 all coal mine employment as a result of their lung 23 disease, $43 billion. That doesn't count state 24 compensation. It doesn't count the medical costs 25 that individuals face. And it doesn't count the loss 10 1 of earnings. So there's a lot of scientific evidence 2 that says we ought to do something. We see that 3 after years of going down, Coal Workers' 4 Pneumoconiosis, one of the diseases miners get, is 5 going up. The cases of severe disease are being seen 6 in some miners that are young, as young as 40 years 7 old, that when you go back to the original 8 assumptions in the 1969 act, when the original dust 9 limit was set, it made assumptions about the 10 protection of miners, and it's been found in the 11 scientific reviews, in the 1990s and beyond, that 12 those assumptions were faulty. And we also learned 13 that miners are at a greatly increased risk of other 14 diseases, not just Coal Workers' Pneumoconiosis but 15 emphysema and bronchitis. 16 Here's the bottom line: Black lung is 17 caused by excessive exposure to coal mine dust. 18 That's it. If you breathe in too much dust, that's 19 what causes these lung diseases. Our goal is to 20 reduce miners' exposure to respirable coal mine dust 21 in order to prevent black lung. It's a simple goal. 22 It's what we were told to do in 1969. 23 We proposed a rule that we're here to 24 discuss today. It addresses certain problems. 25 Currently sampling is for eight hours, but miners 11 1 work shifts that are typically longer than that. The 2 proposal would require sampling for the entire work 3 shift. Currently, the exposure determination is 4 based on an average of five samples. But averaging 5 could mark individual high exposures, and the 6 proposal would make determinations based on each 7 shift sample. 8 Right now, the bimonthly samples may not 9 be collected at times that are truly representative 10 of normal mining conditions, or they may be collected 11 at unrepresentative times, such as the low production 12 proposal to require representative samples at normal 13 production levels. Right now, as I showed, miners 14 are getting disease and developing the most severe 15 form of disease. This isn't just a few. 16 Over the last decade, the decade of the 17 90s and into the 2000s, over 10,000 miners have died 18 with dust diseases of the lungs, 10,000. That's an 19 awesome number. We're reducing -- proposing 20 reduction of the permissible exposure limit to coal 21 mine dust consistent with the NIOSH recommendations, 22 and also, the advisory committee of the secretary of 23 labor in the mid 90s suggested that MSHA consider 24 this as well. 25 There is also an effort to improve 12 1 medical monitoring. Black lung affects breathing, 2 not just the X-ray spots. And the proposed medical 3 monitoring includes measuring lung function. Right 4 now, dust samples are only available a week or two 5 after they're taken, and mining conditions are 6 constantly changing. The proposal would encourage 7 the use of the continuous personal dust monitor, and 8 eventually, mandate it, and would permit rapid 9 adjustment dust controls in response to realtime 10 conditions. 11 This is a part of our comprehensive 12 effort to end black lung that includes: Education 13 outreach, improved enforcement, and now, the proposal 14 for an improved set of rules to reduce miners' 15 exposure to coal mine dust. 16 I'm going to now call our panel forward. 17 We're going to begin the formal part of this hearing. 18 (Panel takes their seats.) 19 GREGORY R. WAGNER: For those of you who 20 walked in a few minutes late I'll, again, say my name 21 is Dr. Gregory Wagner. I'm deputy assistant 22 secretary for Mine Safety and Health. Appreciate 23 your coming, your interest in discussing this rule, 24 and also bring you greetings from Joseph A. Main, the 25 Mine Safety and Health assistant secretary who leads 13 1 the Mine Safety and Health Administration. I want to 2 introduce members of our panel. Robert Thaxton and 3 George Niewiadomski are from Coal Mine Safety and 4 Health. Ron Ford and Susan Olinger are from the 5 Office of Standards. And Jennifer Honor, to my 6 right, is from the Office of the Solicitor, Mine 7 Safety and Health Division. 8 The proposed rule for lowering miners' 9 exposure to respirable coal mine dust is an important 10 part of the Agency's Comprehensive Black Lung 11 Initiative to End Black Lung -- Act Now. The 12 Secretary of Labor considers ending black lung 13 disease as one of the department's highest regulatory 14 priorities. 15 The proposed rule was published in the 16 Federal Register on October 19th, 2010. And in 17 response to requests from the public, MSHA is 18 extending the comment period from February 28th, 19 2011, to May 2, 2011. All comments and supporting 20 documentation must be received or postmarked by 21 May 2nd, 2011. 22 This is the third of seven public 23 hearings on the proposed rule. The first was held 24 December 7th, 2010, in West Virginia; the second, 25 January 11th, 2011, at the MSHA Academy and in 14 1 Evansville, Indiana. And after this, four additional 2 hearings will be held: One on January 25th in Salt 3 Lake City, Utah; one February 8th in Washington, 4 Pennsylvania; one on February 10th in Prestonsburg, 5 Kentucky; one in Arlington, Virginia. 6 As many of you know, the purpose of 7 these hearings is to allow the Agency to receive 8 information from the public that will help us 9 evaluate the proposed requirements and produce a 10 final rule that protects miners from the health 11 hazards that results from exposure to coal mine dust. 12 MSHA will use the data and information from these 13 hearings and responses to help us craft a rule that 14 responds to the needs and concerns of the mining 15 public so that its positions can be implemented in 16 the most effective and appropriate manner. 17 MSHA solicits comments from the mining 18 community on all aspects of the proposed rule. 19 Commenters are requested to be specific in their 20 comments and submit detailed rationale and supporting 21 documentation for suggested alternatives. I want to 22 reiterate some requests for comment and information that 23 were included in the preamble to the proposed rule. 24 The proposed rule presents an integrated 25 comprehensive approach for lowering miners' exposure 26 to respirable coal mine dust. The Agency is 15 1 interested in alternatives to the proposal which will 2 be effective in reducing miners' respirable dust 3 exposure and invites comments on any alternatives. 4 MSHA solicits comments on the proposed 5 respirable dust concentration standards. Please 6 provide alternatives to be considered in developing 7 the final rule, including specific suggested 8 standards and your rationale. 9 The proposed rule bases the proposed 10 respirable dust standard on an 8-hour shift and a 11 40-hour workweek. In its 1995 Criteria Document on 12 Occupational Exposure to Respirable Coal Mine Dust, 13 the National Institute for Occupational Safety and 14 Health recommended lowering exposure to 1 milligram 15 per meter cubed for each miner for up to a 10-hour 16 work shift during a 40-hour workweek. MSHA solicits 17 comments on the NIOSH recommendation. 18 MSHA included in the proposed phase-in 19 periods for the proposed respirable dust standards to 20 provide sufficient time for mine operators to 21 implement or upgrade engineering or environmental 22 controls. MSHA solicits comments on alternative time 23 frames and factors that the Agency should consider. 24 Please include any information and detailed 25 rationale. 16 1 In the proposal, MSHA also plans to 2 phase in the use of CPDMs to sample production areas 3 of underground mines and part 90 miners. MSHA 4 solicits comments on the proposed phasing in of 5 CPDMs, including time periods and any information 6 with respect to their availability. If shorter or 7 longer time frames are recommended, please provide 8 your rationale. 9 MSHA understands that some work shifts 10 are longer than 12-hours, and that the dust sampling 11 devices generally last for approximately 12 hours, 12 that the batteries last for a 12-hour charge. MSHA 13 solicits comments on appropriate time frames to 14 switch out sampling devices, whether gravimetric 15 samplers or CPDMs, to assure continued operation and 16 uninterrupted production for miners for the entire 17 shift. 18 The proposed single sample provision is 19 based on improvements in sampling technology, MSHA 20 experience, updated data, and comments and testimony 21 from earlier notices and proposals that addressed the 22 accuracy of single sample measurements. The Agency 23 is particularly interested in comments on new 24 information added to the record since October 2003 25 concerning MSHA's quantitative risk assessment, 17 1 technological and economy feasibility, compliance 2 costs, and benefits. 3 MSHA is interested in commenters views 4 on what actions should be taken by MSHA and the mine 5 operator when a single shift respirable dust sample 6 meets or exceeds the Excessive Concentration Value 7 known as the ECV. In this situation, if an operator 8 uses the continuous personal dust monitor, what 9 alternative actions to those contained in the 10 proposed rule would you suggest that MSHA and the 11 operator take? MSHA is particularly interested in 12 alternatives to those in the proposal and how such 13 alternatives would be protective of miners. 14 The proposal includes a revised 15 definition of normal production shift so that 16 sampling is taken during shifts that would reasonably 17 represent typical production and normal mining 18 conditions on the MMU. Please comment on whether the 19 average of the most recent 30 production shifts 20 specified -- recent production shifts specified in 21 the proposed definition would be representative of 22 dust levels to which miners are typically exposed. 23 The proposed sampling provisions address 24 interim use of supplementary controls when all 25 feasible engineering or environmental controls have 18 1 been used, but the mine operator is unable to 2 maintain compliance with the dust standard. With 3 MSHA approval, operators use supplementary controls, 4 such as rotation of miners, or alteration of mining 5 or production schedules in conjunction with CPDMs to 6 monitor miners' exposures. MSHA solicits comments on 7 this proposed approach and any suggested 8 alternatives, as well as the types of supplementary 9 controls that would be appropriate to use on a 10 short-term basis. 11 The proposed rule addresses which 12 occupations must be sampled using the continuous 13 personal dust monitors, and which work positions and 14 areas could be sampled using either CPDMs or 15 gravimetric samplers. MSHA solicits comments on the 16 proposed sample occupations and locations and the 17 proposed frequency of sampling. For example, please 18 comment on whether there are other positions or areas 19 where it may be appropriate to require the use of 20 CPDMs and whether, for instance, sampling of other 21 designated occupations should be more frequent than 22 14 days each calendar quarter. Also, comment on 23 whether the proposed CPM sampling of ODOs on the MMU 24 is sufficient to address different mining techniques, 25 potential overexposures, and ineffective use of 19 1 approved dust controls. 2 The proposal would require the person 3 certified in dust sampling or maintenance and 4 calibration retake the examination every three years 5 to maintain certification. Under the proposal, these 6 certified persons would not have to retake the 7 proposed MSHA course of instruction. MSHA solicits 8 comments on this approach to certification. Please 9 include specific rationale for any suggested 10 alternatives. 11 In the proposal, MSHA would require that 12 the CPDM daily sample and error data file information 13 be submitted electronically to the Agency on a weekly 14 basis. MSHA solicits comments on alternative time 15 frames, particularly in light of the CPDMs limited 16 memory capacity of about 20 shifts. 17 The proposal contains requirements for 18 posting information on sampling results and miners' 19 exposures on the mine bulletin board. MSHA solicits 20 comments on the lengths of time proposed for posting 21 data. If the standard format for reporting and 22 posting data were developed, what should it include? 23 The periodic medical surveillance 24 provisions in the proposed rule would require 25 operators to provide an initial examination to each 20 1 miner who begins work at a coal mine for the first 2 time and then at least one follow-up examination 3 after the initial examination. MSHA solicits 4 comments on the proposed time periods and specified 5 in -- for these examinations. 6 The proposed respirator training 7 requirements are performance-based and the time 8 required for respirator training would be in addition 9 to that required under part 48. Under the proposal, 10 mine operators could, however, integrate respirator 11 training into their part 48 training schedules. The 12 proposal would require that operators keep records of 13 training for two years. Please comment on the 14 Agency's proposed approach. 15 The proposed rule specifies procedures 16 and information be included in CPDM plans to ensure 17 miners are not exposed to respirable dust 18 concentrations that exceed proposed standards. For 19 example, the proposed plan would include 20 pre-operational examination, testing and set up 21 procedures to verify the operational readiness of the 22 CPDM before each shift. It would also include 23 procedures for scheduled maintenance, downloading and 24 transmission of sampling information, and posting of 25 reported results. Please comment on the proposed 21 1 plan provisions and include supporting rationale with 2 your recommendations. 3 The Agency has prepared a Preliminary 4 Regulatory Economic Analysis which contains 5 supporting cost and benefit data for the proposed 6 rule. MSHA requests comments on all estimates of 7 cost and benefits presented in the preamble and the 8 Preliminary Regulatory Economic Analysis, including 9 compliance costs, net benefits, and approaches used 10 and assumptions made in the preliminary economic 11 analysis. I point out that if you want to see the 12 complete economic analysis, the methods used, the 13 data available, you should go to the links on this 14 the Web site. All of that information is available, 15 and we would appreciate your review and comments and 16 any recommendations you have that result from your 17 review. 18 A commenter at the first public hearing 19 suggested that the time frame for miners' review of 20 the CPDM Performance Plan be expanded. I want to 21 clarify MSHA's position in the proposed rule. In 22 developing the proposed rule, MSHA relied on the time 23 frame and process in the existing requirements for 24 mine ventilation plans. In the proposal, they did 25 not intend to change the existing time frame and 22 1 process and stated that the proposed rule is 2 consistent with ventilation plan requirements and 3 will allow miners' representatives the opportunity to 4 fully participate in the process. 5 As you address the proposed provisions 6 either in your testimony today or in your written 7 comments, please be as specific as possible. We 8 cannot sufficiently evaluate general comments. 9 Please include specific suggested alternatives, your 10 specific rationale, health benefits to miners, and 11 any technological and economic or feasibility 12 considerations and data to support your comments. 13 The more specific your information is, the better it 14 will be for us to evaluate and produce a final rule 15 that will be responsive to the needs and concerns of 16 the mining public. 17 As many of you know, this public hearing 18 will be conducted in an informal manner; 19 cross-examination and formal rules of evidence will 20 not apply. The panel may ask questions of the 21 speakers, and those of you who notified MSHA in advance 22 of your intent to speak, or have signed up today to 23 speak, will make the presentations first. After all 24 scheduled speakers have finished, any others may do 25 so. We're not going to impose any specific time 23 1 limits, but I would ask that all of you that are 2 speaking please be mindful of the many people that 3 have requested the opportunity to speak. Everyone 4 has an opportunity to submit detailed written 5 comments. So please permit everyone to get a chance. 6 We will stay here until the last person has spoken. 7 After all speakers, if you wish to present written 8 statements or information today, please identify your 9 material, and give a copy to the court reporter. You 10 may also submit comments following this public 11 hearing. Comments may be submitted by any method 12 identified in the proposed rule. 13 MSHA will make available transcripts of 14 all public hearings approximately two weeks after the 15 completion of the hearing. You may view transcripts 16 of the public hearings and comments on MSHA's Web 17 site at www.msha.gov. 18 We ask all of those in attendance to 19 sign the attendance list in the back of the room. 20 We're going to begin today's hearing. And please 21 begin by stating your name and organization, and 22 spell your name for the court reporter so that we can 23 have an accurate record. 24 The first person to sign up is Ted 25 Sartain from Chevron Mining. 24 1 TED SARTAIN: Good morning, Doctor, 2 Panel. My name is Ted Sartain, T-E-D, S-A-R-T-A-I-N. 3 I am a technical services manager for Chevron Mining, 4 North River Mine. I have participated in the rule 5 making process many times in the past and would like 6 to thank the panel for conducting this hearing here 7 in Birmingham and giving me the opportunity to speak 8 today on behalf of Chevron Mining. 9 My comments will be brief and general in 10 nature. I know you requested for specifics. There 11 are some specifics, and if you do have questions, I 12 will -- if I can't answer them today, I will 13 certainly jot those down. We do intend to submit 14 written comments that will provide more detailed 15 rationale for our positions. 16 We do appreciate the fact that you 17 extended the comment period. This will afford us the 18 opportunity to better understand and predict the 19 effectiveness of the proposed changes and project the 20 impact of these changes to our operations. We ask 21 the Agency to give careful consideration of our 22 written comments that will be submitted at a later 23 date. Let me start by saying that at Chevron Mining, 24 the health and safety of our employees is paramount 25 in everything that we do. We strive to provide our 25 1 employees with a safe and healthy workplace every 2 shift, every day. 3 While we agree with MSHA that black lung 4 and silicosis are dreadful diseases that need to be 5 eradicated, we do not agree with the approach the 6 Agency has taken. As you stated earlier, Dr. Wagner, 7 I believe the language in the preamble is a 8 comprehensive integrated approach. This proposed 9 rule, in our opinion, is too complicated and complex. 10 It addresses ventilation plans, ventilation 11 requirements, exposure reductions, production 12 requirements, introduction of personal dust monitors, 13 increased examinations, a mandatory medical 14 surveillance program, and a host of recordkeeping 15 changes or issues. So it definitely is a 16 comprehensive complex approach. 17 We believe the rule will be simply 18 impossible to administer and enforce in its current 19 form. This rule reduces the current exposure limit 20 by more than 50 percent, which may be achievable -- 21 may be unachievable by many of our U.S. operations. 22 If I understand correctly, by simply changing from an 23 8-hour sample to a 10-hour full-shift sample, the 24 current 2-milligram-per-cubic-meter standard 25 automatically becomes a 1.6-milligram-per-cubic-meter 26 1 standard. And I guess I'm asking that in the form of 2 a question. Am I understanding that correctly? 3 ROBERT THAXTON: Close, yes. 4 TED SARTAIN: Okay. Likewise, a 5 1-milligram standard in a proposal for the future 6 would become a 0.8 standard for a 10-hour full-shift 7 sample. Furthermore, I venture to say that this rule 8 would assuredly eliminate work shifts greater than 9 8 hours and workweeks greater than 40 hours for our 10 employees. The question is: Will this rule 11 effectively reduce or limit occupational related lung 12 disease in the U.S. coal industry? 13 My second question is: Does MSHA have 14 an adequate scientific basis for establishing 15 exposure limits in this rule? A perceived problem in 16 one region of this country should not be the basis 17 for applying such drastic regulatory changes to the 18 U.S. coal industry. I ask how confident are you that 19 miners who have developed these diseases have been 20 working -- that you mentioned in your introduction, 21 Dr. Wagner -- how confident are we that those that 22 have developed these diseases in recent times have 23 been working day in and day out in environments less 24 than 2 milligrams? Is there sound science behind 25 these conclusions? 27 1 And does the Agency have an accurate 2 understanding of the dose/response relationship 3 between coal dust exposure and chronic lung 4 dysfunction. Regardless of the standard and the 5 sampling device used, we believe all samples should 6 be personal samples. An adequate sampling frequency 7 of individuals determined to be at risk will 8 eliminate the need for occupational or area-type 9 sampling. It would also provide accurate personal 10 exposure which can be compared to the results of a 11 medical surveillance program. 12 In fact, routine day-to-day sampling of 13 individuals who work in selected occupations could 14 conceivably eliminate most of the other requirements 15 in this rule. For example, outlier sampling, 16 production requirements, ventilation requirements, 17 engineering controls. The mine operator would be 18 responsible for having all of those things intact to 19 ensure that the miners were below the standard. We 20 are asking for a performance-based rule that 21 establishes the appropriate minimum exposure limit 22 and provides the operator with the responsibility and 23 flexibility to determine how best to meet or exceed 24 that objective. 25 Personal protection equipment and 28 1 administrative controls should not be constrained, 2 and sampling should include the effectiveness of 3 these controls. I ask what is the basis of the 4 30-day average turn-in requirement? This will 5 probably double the number of samples that we 6 currently take for compliance purposes. It will be 7 difficult to achieve the tonnage each and every day 8 that you're sampling that is required in this rule. 9 As you stated earlier, mining is dynamic and 10 production -- also the production -- day-to-day 11 production rates are dynamic as well. 12 Neither the CPDM or the gravimetric 13 sampler provides the necessary accuracy to reliably 14 use single-shift samples for compliance. Chevron 15 Mining has and continues to support the development 16 of the personal dust monitor for sampling miners' 17 exposure to coal dust. The current version of the 18 PDM appears to be a great engineering tool for 19 evaluating engineering and administrative controls, 20 and the device has a potential to be a good 21 compliance sampling device to replace the gravimetric 22 sampler. It will afford miners the ability to 23 monitor their exposure in realtime and make 24 adjustments to their work habits and lower their 25 exposure to respirable dust. 29 1 Also, the data logging capabilities will 2 provide useful information to associate exposures 3 with specific tasks and provide an exposure history 4 for the individual worker. While we do not currently 5 employ PDMs at our operations, Chevron Mining has 6 participated in the NIOSH field studies of the 7 device. We have closely monitored the development of 8 the PDM, and we have collaborated with mine operators 9 who have experience with PDMs. And we plan to 10 purchase some when we believe them to be proven to be 11 accurate and reliable. However, this has not yet 12 been demonstrated. 13 Today, approximately, 200 PDMs have been 14 purchased by co-operators since they were approved 15 for use underground. It is my understanding that 16 most all of these units were returned to the 17 manufacturer at least once for repair during the 18 first year of operation. In 2006, NIOSH stated that 19 the PDM is more accurate than the gravimetric 20 sampler. Now, that does not appear to be the case. 21 In a recent stakeholders meeting at the 22 NIOSH Pittsburgh Research Center, a NIOSH official 23 was asked if the PDM provided the accuracy needed for 24 a single shift sample for compliance purposes. He 25 hesitated at first, and then he said he believed the 30 1 device to be as accurate as the gravimetric sampler. 2 And we know the gravimetric sampler to be -- accuracy 3 of the gravimetric sampler is plus or minus 4 25 percent. 5 The current design of the PDM is bulky, 6 heavy, and is not adaptable to the modern technology. 7 And also, the PDM software continues to have 8 unresolved issues. North River Mine has three MMUs, 9 one longwall, and two continuous monitoring sections. 10 We anticipate that at least 55 PDMs would be 11 purchased and deployed to comply with this rule. If 12 you extrapolate these numbers across the industry, 13 thousands of units will be needed to fulfill the 14 needs of the industry. Thermo Fisher's the only 15 manufacturer of this device, which raises the 16 questions of delivery, service, and future pricing. 17 By our estimates, in addition to the 55 18 PDMs, North River Mine would need to add 12 certified 19 people to administer the proposed sampling program 20 and monitor compliance. There are many issue that 21 need to be resolved before the Agency imposes 22 industry-wide use of the PDM. Premature imposition 23 of a new standard can be unnecessarily costly. For 24 example, in response to the 2006 Miners Act, North 25 River Mine was the first mine in District 11, and 31 1 possibly the nation, to obtain an approved emergency 2 response plan. 3 In 2007, North River Mine purchased and 4 installed a leaky feeder electronic communication and 5 tracking system at a cost of approximately 6 $1 million. Two years later, MSHA changed the 7 coverage area requirements for electronic tracking, 8 and North River Mine was required to purchase and 9 install a second electronic tracking system and scrap 10 the first one, again, at a cost of, approximately, 11 $1 million. 12 Also, some mine operators purchased 13 approved refuge chambers that MSHA later rejected due 14 to issues with climate control. So I urge the Agency 15 to be cautious when imposing these costly standards. 16 We need to get it right the first time. We urge MSHA 17 to support further development of the personal dust 18 monitor that will be accurate, reliability, and 19 ergonomically friendly to the miner prior to 20 mandating routine use of this device. 21 A reduction of the current 8-hour, 22 2-milligram standard to a 1-milligram full-shift 23 sample is simply too aggressive and burdensome 24 without adequate evidence that a 1-milligram standard 25 is scientifically justified. This is a reduction of 32 1 more than 50 percent, and quite frankly, may be 2 unachievable in the allotted time frame. When quartz 3 is present, further reducing the exposure limit, many 4 operators will assuredly be unable to comply under 5 the proposed sampling strategy. And we believe that 6 we need a silica standard that is independent of the 7 coal standard. 8 As I stated in the beginning, these are 9 general comments outlining some of Chevron Mining's 10 concerns, and we plan to elaborate on each of these 11 issues in our subsequent written submittal which will 12 be forthcoming. Again, I'd like to thank the Agency 13 for extending the comment period which will afford 14 the industry time to provide a more reasonable 15 approach to monitoring exposure and reducing the risk 16 of respirable illness in this country. 17 GREGORY R. WAGNER: Thank you very much 18 for your comments. I'm going to turn to the panel 19 first for any questions or responses they may have. 20 Susan, do you want to -- 21 SUSAN OLINGER: Morning. I just wanted 22 to point out that, in the preamble, we do address the 23 basis of the 30 days for normal production shift. 24 Part of its basis is both from the NIOSH criteria 25 document and the advisory committee report, and I'd 33 1 also like to point out that 30-day period would be 2 used during a limited amount of time while the 3 gravimetric sampler is used. Once the CPDM is in 4 use, it would be running continually, so you wouldn't 5 be taking that 30-day average. 6 I think -- the standard is an 7 environmental standard, and the act also prohibits 8 that PPE be used as a substitute for environmental 9 controls. And I think Jennifer will probably address 10 that as well. 11 JENNIFER HONOR: Not necessarily. Susan 12 explained it well in that the act doesn't permit 13 operators to use PPE as a primary means of 14 controlling dust, so we are stuck with what we have 15 in the act. So that's the basis for using 16 environmental and engineering controls as your 17 primary means of controlling dust. 18 TED SARTAIN: I was not suggesting that 19 PPE be used for a primary control, but it could be 20 used in certain circumstances, I think. 21 JENNIFER HONOR: Okay. Thank you. 22 GEORGE NIEWIADOMSKI: Mr. Sartain, I 23 have a couple of questions for you. At one point, 24 you had mentioned you had asked the Agency how 25 confident is MSHA that miners with CWP were exposed 34 1 to dust levels or below 2 milligrams; is that 2 correct? Am I paraphrasing that correctly? 3 TED SARTAIN: (Nods head.) 4 GEORGE NIEWIADOMSKI: Can you elaborate 5 exactly what you're getting at? What are you getting 6 at? 7 TED SARTAIN: It appears that the Agency 8 believes that the standard needs to be reduced to 9 something below 2 milligrams because people are 10 currently working in environments day in and day out 11 in an environment below 2 milligrams, and they are 12 still contracting these diseases. And my question 13 is: Is our sampling regiment in its current form -- 14 I think, Dr. Wagner said it earlier that, you know, 15 bimonthly sampling may not necessarily be 16 representative of what workers are being exposed to 17 on a day-to-day basis. 18 So with that said, we appear to be 19 taking compliance samples, which is the dose, and 20 comparing it to the NIOSH surveillance program which 21 is the response, and from those two things, we are 22 deducting that we need a lower standard. 23 GEORGE NIEWIADOMSKI: I'm glad you 24 clarified that because the law is very clear that 25 these particular sampling requirements were 35 1 promulgated back in 1980, and they asked for the 2 samples to be representative of five shifts. 3 Remember, prior to 1980, the sampling scheme was 4 somewhat different. We asked for more sampling to be 5 conducted. However, that was changed based on 6 information that was gathered in the past decade that 7 indicated we could reduce the frequency of sampling 8 to five shifts provided if those five shifts were 9 representative of what normally happens. 10 So if the compliance samples indicated 11 compliance on those five shifts and mine operators 12 did everything during the non-sampling periods as 13 what they did during those five shifts, one would 14 assume that people are being protected, okay? And as 15 a result, I just wanted to point out, because that's 16 the best information that we have. That's the best 17 information that NIOSH has is the millions of 18 compliance samples that mine operators have presented 19 to MSHA as being representative as what miners are 20 being exposed to. That information basically tells 21 us, since 1983, the average concentration -- I 22 realize there's going to be some concentrations above 23 that -- but the average concentration is at or above 24 1 milligram since 1983. 25 TED SARTAIN: It's at or below what? 36 1 GEORGE NIEWIADOMSKI: 1 milligram per 2 cubic meter. I just wanted to mention that that's 3 the best available information. Even though we may 4 suspect that those samples at times are not 5 representative, there's no way for us to actually 6 determine, okay, quantify what is the actual 7 concentration based on the bimonthly samples. 8 TED SARTAIN: Okay. And I guess my 9 question is simply, recognizing that that is the best 10 available information, the question is: Is that 11 information sufficient to take these drastic -- make 12 these drastic reductions and exposure limits? 13 GEORGE NIEWIADOMSKI: That's duly noted. 14 Let me ask another question. You mentioned that you 15 would suggest that the Agency pursue a more 16 performance-based rule. What do you use -- are you 17 going to be providing more additional comments what 18 that would consist of? 19 TED SARTAIN: Yes, sir. 20 GEORGE NIEWIADOMSKI: Okay. Thank you. 21 The one thing that you had mentioned and you were 22 opposed to taking enforcement action on the results 23 of a single shift sample. 24 TED SARTAIN: (Nods head.) 25 GEORGE NIEWIADOMSKI: Citing on the 37 1 sample, correct? I believe you indicated you feel 2 it's not accurate enough to make a determination 3 based on a single shift? 4 TED SARTAIN: Yes. 5 GEORGE NIEWIADOMSKI: What is your 6 position on, we have -- also, of course, we have a 7 single shift -- but we also have a weekly permissible 8 accumulative exposure limit. What is your position 9 on that? That's looking at the exposure accumulative 10 over a full workweek? Any comment on that? 11 TED SARTAIN: Yes, sir. I would be more 12 agreeable to a weekly exposure than a single shift -- 13 GEORGE NIEWIADOMSKI: But, you know, 14 that is part of this rule also. We have two 15 provisions, and as Dr. Wagner had mentioned, one is 16 to provide protections for extended work shifts, and 17 the second is to provide protection for extended 18 workweeks. I have no further comments. 19 ROBERT THAXTON: I only, actually, have 20 a couple of questions to ask you, and one of them is 21 in relation to what George was asking you. I 22 understood you to say that you actually don't think 23 that either sampler is accurate enough to actually 24 make a single statement determination from it? 25 TED SARTAIN: Exactly. 38 1 ROBERT THAXTON: Would you be willing 2 and can you provide us your analysis and your 3 determination from that data or analysis to indicate 4 to you that neither sampler is actually accurate 5 enough to make that determination? We'd like to see 6 that information if you could provide it to us. 7 The second area is that you gave us an 8 estimate. 9 TED SARTAIN: Can I speak to that? 10 ROBERT THAXTON: Sure. 11 TED SARTAIN: I guess I'm repeating 12 myself, but I base that position on two things. 13 Early in my career, I did a lot of work in the area 14 of dust control. A lot of -- took lots of samples. 15 In fact, I built boxes where I could take 16 side-by-side samples, three samples from the same 17 area, hung from the same roof bolt on the same 18 shield, and you see, you know, quite a disparity 19 between the results of these samples. They don't all 20 read 1 milligram. One might read 1 milligram. One 21 might read .8. And one might read 2.5. So these 22 devices are not extremely accurate. There are 23 excursions, and we've taken many dust samples over 24 the years, recognize that you get excursions. 25 From time to time, we'll get a notice 39 1 for noncompliance where most of the -- four of the 2 samples will be in the 1-milligram range, well below 3 the 2-milligram standard. And you might have a 4 sample that's 3- or 4- or 5 milligrams. Some people 5 in the Agency take the position that's what that 6 person is exposed to during that day. We need to 7 find out what that problem is. I maintain that it's 8 more likely that that's an erroneous sample when you 9 have four that average one and an excursion one 10 particular shift, that's in the 3-, 4-, or 11 5-milligram range. 12 And I guess that's part of my concern 13 when we talk about a single-shift sample and then, as 14 I stated earlier, when you have one of the higher 15 officials at the NIOSH research center in Pittsburgh 16 that knows, that has worked with this PDM for 10 or 17 15 years, however long they've been working on it, he 18 hesitates to say that the PDM -- I was talking about 19 the gravimetric earlier, now the PDM -- they have 20 reservations about the accuracy, day in and day out, 21 of the device. Particularly, when you talk about 22 single shift compliance. 23 So I think we would be better served to 24 look at five days or a week than we would be to, you 25 know -- we'll be looking at -- we'll use the PDM and 40 1 be looking at it in realtime, but when you're talking 2 about compliance purposes, I don't think there's 3 enough accuracy in these devices to write citations 4 based on one sample. 5 ROBERT THAXTON: NIOSH has published a 6 couple of documents that do go to the accuracy of 7 both instruments, and their work is peer reviewed and 8 stuff, and that's why I'm only asking, can you 9 provide the data that you're relying on? 10 TED SARTAIN: Since they published those 11 documents, like I said, there's 150 to 200 more units 12 that are out in the field during the past year used 13 by operators. And now, they're getting feedback, the 14 operators give feedback to Thermo Fisher and NIOSH. 15 So I think they're rethinking the accuracy and the 16 reliability of the current -- of the PDM and its 17 current design. 18 ROBERT THAXTON: And like I said, if you 19 can just provide us as much information in your 20 analysis, we'd really appreciate it, because that 21 gives us something to work from. 22 The second question I had for you was 23 that you indicated that the calculation of the 24 estimated number of CPMs that you would need for your 25 operation and the number of certified persons you 41 1 would have to have. Can you provide the analysis 2 that you used to determine those numbers for the 3 number of CPDMs as well as the number of certified 4 persons to us to see how you actually came to that 5 conclusion on those numbers compared to what we would 6 actually expect you to use? I have nothing further. 7 GREGORY R. WAGNER: Few things. You 8 started by noting your concerns about the complexity 9 of the proposed rule. I'm not asking you to do it 10 now, but in your comments, I hope you'd suggest ways 11 to simplify the rule that would receive the same goal 12 of adequate protection of miners from respirable dust 13 in order to eliminate black lung. 14 You raised questions about the -- really 15 what a normal production shift should be for use of 16 the gravimetric sampler, but you also raise questions 17 as to whether or not current sampling endeavor does 18 reflect normal conditions. We appreciate your giving 19 information as to what it is that you believe would 20 be representative conditions during which sampling 21 should be taking place. 22 TED SARTAIN: I'm tempted to answer that 23 now. 24 GREGORY R. WAGNER: Please if you want, 25 go ahead. 42 1 TED SARTAIN: I need to collaborate with 2 others in my company before I take a company 3 position. 4 GREGORY R. WAGNER: But I think the 5 issue for us and for you is: What's normal? Miners 6 are exposed day after day to variable working 7 conditions. How do we decide? And I think the 8 proposal reflects the belief that average over a few 9 weeks production is a reflection of normal and -- 10 TED SARTAIN: I can tell you what I 11 personally think with regard to a sample strategy 12 that would accurately represent what miners are being 13 exposed to, and that would be to wear a dust monitor 14 every shift, every day. 15 GREGORY R. WAGNER: Is this your 16 recommendation to the Agency that we -- 17 TED SARTAIN: I'm not making that in the 18 form of a recommendation. I'm just saying, that's an 19 approach or an option that I think should be looked 20 at, and I think if you set a standard -- or let me 21 suggest that we leave the standard where it is; do 22 full shift, that reduces the 2 milligrams to 1.6 as 23 people are typically working 10-hour shifts on 24 production units; sample every day and then a more 25 rigorous surveillance program will give you response 43 1 information. 2 If you sample every day, you don't have 3 to worry about production, averaging production or 4 capturing production. You don't have to worry about 5 area sampling. You don't have to worry about 6 ventilation requirements, plan requirements. We're 7 going to know at the end of every day, at the end of 8 the week, at the end of the year, what each of these 9 individuals are exposed to. That's truly the way you 10 get a full understanding, a representation of what an 11 individual is exposed to. 12 GREGORY R. WAGNER: Thank you. That's 13 very helpful. And if you could also in your comments 14 when you submit them, give us information about the 15 economical and technical feasibility of that kind of 16 an approach or any other alternative approaches that 17 you might be recommending. Any other questions or 18 comments? Then I want to thank you once again for 19 your thoughtful and comprehensive comments. We look 20 forward to having the specific and detailed 21 information, data on which you base your 22 recommendations available to the Agency as we move 23 forward here. Thanks again. 24 TED SARTAIN: Like I said, we appreciate 25 you extending the comment period which will afford us 44 1 time. 2 GREGORY R. WAGNER: Great. I'd like to 3 call Tom McNider from Walter Energy, Jim Walter 4 Resources. 5 TOM MCNIDER: Good morning. Welcome to 6 Birmingham. 7 GREGORY R. WAGNER: Thank you. 8 TOM MCNIDER: My name is Tom McNider and 9 that's -- last name M-C, capital, N-I-D-E-R. And I 10 represent Walter Energy. I'd like to thank the panel 11 for giving me the opportunity to comment on the 12 proposed regulation as presented in the Federal 13 Register RIN 1219-AB64. The focus of my comments 14 will be on part 70 and part 75. 15 Walter Energy, through Jim Walter 16 Resources, has been an active participant in this 17 rule making process by working with MSHA and NIOSH in 18 the development and testing of the PDM in our mines 19 on numerous occasions. We were one of the first 20 companies to work with MSHA in testing the 21 machine-mounted continuous dust monitor that later 22 was miniaturized into the personal wearable that we 23 were talking about today. We've taken an active role 24 through the regulatory review and comment on 25 proposed rules and policies prior to publishing of 45 1 this rule. We've commented many times. 2 We have worked through both the National 3 Mining Association and the Bituminous Coal Operators 4 Association in an effort to help direct MSHA in the 5 formation of this proposed rule. It is disturbing to 6 us that MSHA will not move towards a 7 performance-based regulation and embrace new 8 technology, such as the CPDM, that will allow them to 9 do that. 10 Rather than sample the person so that 11 you know what his exposure is and the miner taking 12 ownership in maintaining as dust free an environment 13 as possible, MSHA is to sample the occupation. I 14 know, I sat here, and I heard that MSHA is taking the 15 position that you would sample the environment and 16 that you're deeming the environment to be where the 17 person is, working with the equipment. We deem the 18 environment is from when the person steps on the 19 cage, wherever he goes through the mine. That's a 20 person's working environment, and we believe to 21 protect the environment, you put a monitor on the 22 man, and you sample him from portal to portal for his 23 full shift, whatever that shift may be. That the 24 environment a person is exposed to, the individual. 25 And we believe the act allows you to do 46 1 that. And if not, MSHA should go back to the 2 Congress and try to enact it so that we can have a 3 proper rule that protects the individual, not an 4 occupation. I started in this profession 35 years 5 ago when operators sampled the individual through the 6 use of the gravimetric sampler. The operator was 7 required to take five samples and mail them off to 8 get the results analyzed by MSHA's lab which could 9 take weeks. Realizing that a miner could be 10 overexposed, MSHA elected to sample the occupation, 11 which MSHA defined as multiple people. There was 12 some rationale in this. By being conservative, if 13 the group occupation was in compliance, then there 14 was a very good chance that the individual would be 15 in compliance. In a sense, this builds in a safety 16 factor in an effort to better protect the person. 17 Today, though, with the CPDM, the miner 18 can get his dust exposure as he performs his job and 19 immediately correct his work position or engineering 20 tool that may have caused him to be overexposed. The 21 miner can track his exposure in realtime and 22 immediately know if he's being overexposed. This is 23 what we thought was the primary reason for the 24 development of the CPDM, and we've commented this way 25 many, many times. 47 1 The way this proposal is written, it's 2 not a personal dust monitor. Industry has repeatedly 3 stated that they want to sample the person and 4 monitor his or her exposure. This proposed 5 regulation is even more burdensome to the operator. 6 Just by the very nature of how this regulation is 7 written, there is a high probability that the 8 operator will continually be out of compliance and 9 MSHA continually requiring more and more ventilation 10 plan revisions. MSHA is able to require the operator 11 resubmit this dust control plan that may or may not 12 help. We're repeating the mistakes of the past, and 13 we're not utilizing technology to make it better. 14 MSHA has missed the mark for not 15 allowing for personal sampling. We believe that the 16 focus should be to sample the person, measure his 17 exposure, and in an effort, immediately lower his 18 exposure through doing that. After the CPDM is in 19 place in the workplace, then MSHA should phase into a 20 lower standard. MSHA should start out with 21 2-milligrams-per-cubic-meter standard that is reduced 22 for extended shifts over 8 hours and more than 40 23 hours per week. In effect, the miner will not be 24 exposed to more than 10 milligrams of exposure per 25 week no matter what his work schedule and hours of 48 1 exposure are. Prepared in the way of a miner sample 2 today for 8 hours and no consideration for extended 3 shifts, this would be an immediate reduction to what 4 he is exposed to. 5 As experience is gained with the CPDM, 6 the standard can effectively -- can be effectively 7 reduced to the extent necessary by limiting person's 8 exposure to added people rotation and certain work 9 sites or even by elimination of a person's exposure 10 through automation and time. 11 So in effect, we think you start with 12 the CPDM. You sample the 2-milligram standard as a 13 person actually works. You allow for extended shifts 14 that, if there is a reduction, you allow for a 15 10-milligram standard dose over a week, but that in 16 effect, immediately lowers the standard, and it gives 17 the operator a chance to put the CPDMs in place, see 18 how they're going to function, and give them a chance 19 to comply and move forward into a reduction as time 20 permits. But yet we've got an immediate protection 21 to the worker from the very start. 22 We're also concerned that MSHA's taking 23 the 2-milligram standard and reducing it to 24 1 milligram per cubic meter over a 2-year period. 25 This in itself is concerning, but the impact of the 49 1 regulation does not stop there. MSHA takes the 2 1 milligram per cubic meter standard and reduces it 3 for any time worked over an 8-hour shift. For 4 instance, if a miner is underground for 10 hours, his 5 exposure limit is reduced from 1 milligram per cubic 6 meter to .8 per cubic meter. 7 His exposure can be reduced again if he 8 works more than 40 hours per week, so in effect, 9 we've got a double whammy. The regulation would be 10 shortened for anything over 8 hours. It's reduced 11 again for anything over 40. Now, we've said 12 2 milligrams, we see that, but with 1, that's too big 13 of a bite all at one time. Shifts were -- his 14 exposure can be reduced again if he works more than 15 40 hours as it says. Shifts over 8 hours at more 16 than five shifts per week are routine in the 17 industry, and it's a major shift from today's way of 18 determining compliance. 19 Exposure will also be reduced for 20 silica, over 100 micrograms per cubic meter. 21 Therefore, silica is present and there are extended 22 shifts -- therefore, silica is present, and there are 23 extended shifts and exposure limit as low as .5 24 milligrams per cubic meter or lower as possible. 25 Maintaining compliance at this level, utilizing 50 1 occupational sampling, and today's technology is 2 virtually impossible. 3 If the operator cannot maintain 4 compliance, MSHA has allowed for the temporary use of 5 supplement controls which include worker rotation and 6 monitoring of the miners' exposure with CPDMs to 7 reduce miners' dust exposures. This is what the 8 operators are asking for on a permanent basis, to 9 determine a miner's true exposure. Why do it after 10 he's out of compliance, which this rule, in effect, 11 is forcing you to be out of compliance. Do it from 12 the start. MSHA has missed the mark, one, by not 13 allowing for personal sampling, and two, by phasing 14 in a reduced standard of more than 50 percent 15 reduction. A slower phase, then, of the reduced 16 standard for any time worked over 8 hours per day or 17 40 hours per week would give the operator a 18 legitimate chance to properly administer this 19 regulation. 20 The following are specific regulations 21 we are concerned about: "70.2, definitions, normal 22 production shift. A production shift during which 23 the amount of material produced by an MMU is at least 24 equal to the average production recorded by the 25 operator for the most recent 30 production shifts." 51 1 Just by the very nature of how an average is 2 determined means there will be shifts that are less 3 than the average, and we will be sited. 4 "70.2, definitions, weekly accumulated 5 exposure -- weekly permissible accumulated exposure." 6 Not clear in the standard how these are calculated 7 and how they are used. But with a 1-milligram 8 standard, we feel like for the extending of the shift 9 and this and the silica, that would be a very 10 difficult thing for an operator to have a shot at 11 trying to comply with. 12 "70.100, respirable dust standard. 13 1 milligram per cubic meter within 24 months of 14 effective date of rule." We feel like with 15 occupational samples together with the reductions for 16 extended shifts and silica, this is too aggressive and 17 cannot be achieved. 18 "70.101, respirable dust standard 19 when quartz is present. Reduced standard when 100 20 micrograms per cubic is exceeded." We believe there 21 should be a separate standard for silica and not a 22 reduction to the respirable dust standard. It should 23 stand alone. 24 "70.201(e), sampling devices shall remain 25 with the occupation or DA being sampled and shall be 52 1 operational during the entire shift." This provision 2 is contrary to what the industry has envisioned for 3 the CPM since its conception. We believe it should 4 be used to sample the person and should stay with the 5 individual for the entire shift, and whatever MSHA 6 needs to do to make this happen, that's what we think 7 should happen. We should sample the individual. 8 "70.206(a) and (b), CPDM performance 9 plan." The way the regulation is written there's a 10 good chance the operator will struggle to maintain 11 compliance. Should the operator get out of 12 compliance, MSHA can require a change to the plan. 13 This is one of primary flaws of the way the dust 14 compliance is administered today. Industry has 15 constantly commented how they believe MSHA puts us in 16 a position of putting things in our plan that we 17 don't necessarily agree with, and it's just a club to 18 try to get the industry through an engineering 19 control to a standard that, you know, that we believe 20 that we could meet if we sample the person. And we 21 think we have a legitimate shot at doing that. 22 And here again, we would prefer a 23 performance-based regulation, relies heavily on an 24 individual's exposure and less on the plan. 25 "75.332(a)(1), each MMU on each working 53 1 section and each area would recognize mining 2 equipment being installed or removed, Shall be 3 ventilated by a separate split of intake air directed 4 by overcast, undercast, and permanent ventilation 5 controls." We don't see the logic in this. MSHA's 6 prohibiting more than one MMU being ventilated by a single 7 intake. Each MMU is on a single split of air and 8 would be monitored for dust. This will have a major 9 negative impact to the industry. It will eliminate 10 supersections, setting up longwalls while the section 11 completes the bleeders or any construction project 12 that may have its own MMU. 13 As a summary, Walter Energy endorses the 14 use of new technology and associated regulations if 15 they are used in a proper way. We've commented many 16 times, and we have worked with NIOSH and MSHA on the 17 CPDM. We believe in this new technology. We think 18 it has a good shot of making it where we can move 19 dust control and personal exposure in the right 20 direction in reducing it. The CPDM is an instrument 21 that, by name, implies a personal monitor. We 22 strongly believe this instrument should be used to 23 sample the person and not accumulated dust 24 concentration for multiple individuals. Industry has 25 repeatedly commented in this manner from the concept 54 1 of the personal wearable dust monitor. The 2 regulation should be all about protecting the 3 individual through whatever steps are necessary, even 4 if this means administrative controls or wearing a 5 powered air filter. 6 We'd like to close our comments by 7 thanking the Agency for extending the comment period 8 to give us more time to properly evaluate this rule 9 in more depth and then, you know, give you specific 10 comments. I think I've been fairly specific where we 11 see issues in this, but it goes much deeper than even 12 what I've commented on. 13 GREGORY R. WAGNER: Thank you very much. 14 Appreciate your comments. I'm going to turn to the 15 panel to see whether or not we have any additional 16 questions. Susan? 17 GEORGE NIEWIADOMSKI: Tom, you had 18 mentioned, well, two things, you touted the benefits 19 of the CPDM, continuous monitoring, and so forth, but 20 you also mentioned that under this rule, mine 21 operators will be certainly out of compliance. Am I 22 correctly paraphrasing what you said? 23 TOM MCNIDER: Well, we feel like by the 24 way the regulation is reduced and reduced very 25 rapidly, the way we see it, and you -- occupationally 55 1 -- your sampling the occupation, which is what we've 2 done in the past. That is where we have the huge 3 issue with this rule. 4 GEORGE NIEWIADOMSKI: But with the CPDM, 5 of course, the benefits being that you know the 6 concentrations during the shift, okay, and that, in 7 fact, if they're reaching sort of dangerous levels, 8 the intent is you could take corrective action. Are 9 you implying that the way -- that even though you 10 have that capability but because of the lowering of 11 the standard that the technology is not available to 12 take those corrective actions during the shift to 13 change the environment? 14 TOM MCNIDER: We feel like it needs to 15 be -- the CPDM does give the operator and the person 16 wearing it a chance to see how he should work and 17 monitor his exposure. But if I'm passing that light, 18 and it's a light, and I think it's a safety hazard 19 just by the nature of passing something like that, 20 but if I pass it to you, you have, one, me as an 21 operator. I don't really know, for instance, when 22 you passed, what the issue was, why, with your 23 exposure versus my exposure. You don't buy into the 24 full concept of getting in the best work environment 25 as you, as an individual -- that that monitor's with 56 1 you every day. You're responsible for watching where 2 you work. It's diluted by passing it. Just by the 3 very nature, it complicates it. And it makes it 4 where an operator immediately -- why would MSHA be 5 opposed to sampling the person? 6 You say that you don't believe that it's 7 required through the act. We disagree with you about 8 that. We think the environment is what you, as a 9 worker, sees when you're underground. We want to 10 sample your work exposure, not a group. 11 GEORGE NIEWIADOMSKI: One follow-up 12 question too, when you said, "to sample the worker," 13 in your, Jim Walter's mines, specifically the CM 14 sections, how often do you change the CM operator 15 during the shift? 16 TOM MCNIDER: I don't know. I can't say 17 that. I can get that information for you. 18 GEORGE NIEWIADOMSKI: Would you because 19 that's kind of our -- 20 TOM MCNIDER: We do have an operator and 21 a helper, and they are rotated. But I'd have to get 22 that for you. 23 GEORGE NIEWIADOMSKI: No further 24 questions, thank you. 25 ROBERT THAXTON: I have just one 57 1 question. You had stated several times that you are 2 proposing that we do personal sampling. Do you have 3 an idea or a proposal or something that you can share 4 with us on the number of people that would be 5 required to be sampled, the frequency that each 6 person would be sampled? Is this something you would 7 sample every day, every shift, every miner? 8 If so, whatever scheme you could come up 9 with, if you could provide the data and information 10 where you did that analysis, and also, what's the 11 likely cost and benefits of that? 12 TOM MCNIDER: We worked with a group 13 earlier on BCOA, and we came up with an industry 14 proposal. I don't know that they would endorse that 15 today, but it was to where you would sample at least 16 a DO on a daily basis, and you would be held 17 responsible for that person's exposure. Therefore, 18 it takes the plan out of the -- and production out of 19 the equation. You're sampling 24/7, whatever time he 20 works and however many shifts he works. So 21 therefore, you're looking at the individual, and 22 you're held accountable for the individual. That's 23 what we believe is more -- how we should look at a 24 performance-type regulation. 25 Now, exactly how many people -- but 58 1 that's generally the way we believe would be better 2 than the way we're looking at it today. 3 ROBERT THAXTON: If you could provide 4 the analysis and specifics on it, it would allow us 5 to evaluate it in a better fashion so we could then 6 respond to that. Thank you. 7 GREGORY R. WAGNER: Just a couple more 8 things. You expressed concern about the pace of the 9 implementation. And the recommendations, advice, and 10 the reasoning behind it that would give a different 11 timetable would be quite useful. And also, you 12 expressed concern about the definition of a normal 13 production shift on which sampling for gravimetric 14 samplers can be used. If you could provide suggested 15 alternatives and reasoning behind that as well, we 16 would appreciate that. And once again, I'd like to 17 thank you for taking the time to come up here and 18 share your comments and observations with us. 19 TOM MCNIDER: We appreciate it. 20 GREGORY R. WAGNER: Next speaker will be 21 Randy Clements. 22 RANDY CLEMENTS: Morning. 23 GREGORY R. WAGNER: Good morning. 24 RANDY CLEMENTS: I'd like to thank you 25 for the opportunity to come up here and speak today. 59 1 My last name is Clements, C-L-E-M-E-N-T-S. I 2 represent the Drummond Coal Company at the Shoal 3 Creek Mine. As you stated in opening statements was 4 that the Agency's goal is to provide a safe place for 5 miners to work. That is also our goal. Day in and 6 day out we want our miners to work safe and work in a 7 healthy environment, but we do disagree with this new 8 proposed rule that you have out. This rule is a very 9 complicated and hard rule to understand. 10 To my knowledge, I don't know of any 11 proposed rule that has addressed so many parts of the 12 Code of Federal Regulations at one time. This rule 13 addresses part 70, part 71, part 75, and part 90 with 14 major, major changes. As I stated, it is a very 15 complicated and hard rule to understand. I do 16 appreciate the extension of the comment period. Due 17 to that fact, to allow us the opportunity to really 18 understand and study this rule and to send in 19 appropriate comments. And we will be sending in 20 appropriate comments. 21 Dealing with the CPDM, we had just 22 purchased one just to learn how the unit operates. 23 We have had that unit for approximately two weeks, 24 and the individuals that we use to take dust samples 25 are still trying to understand that unit. It, too, 60 1 is a hard unit to understand. It's difficult. The 2 unit is a good unit, but by people that I have talked 3 to, but they also have had a lot of trouble with it. 4 We have tried to download the program of this 5 continued personal dust monitor, and we have not been 6 able to do that yet. We're going to contact the 7 manufacturer and see what we're doing wrong or what's 8 wrong with it. 9 Speaking of the -- still talking on the 10 CPDMs, we were concerned about the availability of 11 these because we, in the near future, hope to be 12 operating approximately six units, which is a great 13 deal of these monitors that we will have to purchase 14 should this rule go into effect. I talked to one of 15 the sales representatives for that company, and he 16 told me, as of right now, all they're capable of 17 producing is 100 units per quarter, 400 units a year. 18 That was the statement that was made to me. Whether 19 that's true or false, I don't know. That was one of 20 the sales representatives. He did make a comment, if 21 I ordered now, I could go ahead and get them. So 22 maybe that's just a typical salesperson. 23 We have put this unit on individuals, 24 not for the purpose of dust sampling, just to see -- 25 get their feedback. First comments of these was 61 1 talking about the bulkiness of it, how heavy it is. 2 And one of the problems they see is the part of 3 keeping your hard hat on. Because of the stiffness 4 of the cord, it's got several holes and your light 5 cord, it goes up, and the light cord comes out the 6 side of the light instead of over the top, which 7 poses a problem. But during the winter months when 8 the individual puts on his coat, the cord is so 9 stiff, it pushes his hard hat off his head. That 10 poses another problem. A hazard to the miner. This 11 unit needs, even though it is a good unit, it needs 12 to go back and be changed and make it lighter weight 13 and more user friendly for the miners to wear. 14 As you read through this proposed rule, 15 it seems to me like it is focused on trying to get 16 more people involved in the dust sampling. I say 17 that because even the person that's wearing the pump, 18 you have to train them on the use of it, how to read 19 it, and I think that's a good thing. I think 20 everybody needs to be involved. In order to make an 21 environment safe, everybody's got to be involved in 22 that. That is our goal. We have to get people 23 involved. 24 But again, like I stated, it's very 25 difficult for everybody to understand, and this needs 62 1 to be rewritten to make it more simple and user -- 2 for people to understand, everyone to understand. I 3 have a few questions concerning the certification. 4 As stated in the proposed rule, it says, "Persons not 5 certified in sampling and those certified only in 6 maintenance and calibration procedures in accordance 7 to 70.203(b) are not permitted to collect respirable 8 dust samples required by this part or handle approved 9 sampling devices being used in sampling." The 10 question I have on that is: Does this indicate that 11 the person, the DO or the ODO, are they also 12 required to be certified? Because they will be 13 handling the pump. 14 And if they are required, then that 15 poses another problem. Does MSHA have the staff to 16 certify all of these people? Because we would be 17 looking at certifying several -- 100 to 150 people. 18 ROBERT THAXTON: We can go ahead and 19 tell you now. There is no requirement in the rule 20 making the miners that are wearing the units to be 21 certified. They do have the units on them. They're 22 able to have it on them. They place it on their 23 equipment and stuff. The requirement is only if the 24 pump has to be carried underground to a person or to 25 a location or carried out of the mine. Somebody 63 1 actually has to prep the unit in the morning, to put 2 it on people, or fill out the cards, those people 3 have to be certified in sampling procedures. 4 Maintenance and calibration people are certified to 5 do maintenance and calibration only. So they are not 6 certified to do sampling because they're not trained 7 on the sampling provisions. 8 RANDY CLEMENTS: Well, in that case, I 9 would appreciate it if there were some type of 10 explanation on the handling procedures. Because 11 looking through this, I see coming, in the near 12 future -- an inspector comes up and citing us for the 13 person that's wearing it, because he is handling it. 14 He is toting it, just a definition on the handling 15 procedures. 16 Another question I have, if a person is 17 already certified in sampling and maintenance and 18 calibration, prior to the implementation of this new 19 rule, will they also have to be recertified? 20 ROBERT THAXTON: The proposal says that 21 people that are certified will have to be recertified 22 every three years. If you're certified at the time 23 the rule goes into effect, within three years, that 24 person would have to go through and be retested. 25 RANDY CLEMENTS: Upon the implementation 64 1 of the new rule, three years from that period you 2 have to go through recertification? 3 ROBERT THAXTON: Yes, that's correct. 4 RANDY CLEMENTS: Again, that goes back 5 to my concern of dealing with the instructors at 6 MSHA, which I know that's something y'all will take 7 care of. Will there be enough hands-on staff or 8 instructors to handle the number of people that are 9 going to have to go through these to be certified 10 because you're talking about several people. And I 11 think the time they have to go through it, the 12 periods, the days of the class. That's just a 13 question I have. 14 Has MSHA gave any consideration on how 15 long this course will take as far as being certified? 16 Is it similar to what we do now? 17 ROBERT THAXTON: The recertification 18 doesn't require retaking a class. It's only the 19 initial person, when they get certified, that's 20 required to take the class. So recertification 21 periodically on the 3-year increment only requires 22 the retesting. So it's just the amount of time it 23 would take to do a test. If a person wants to take 24 the class over, they're quite welcome and able to do 25 that. The class right now, though, is basically, 65 1 what you see right now for the current sampler is 2 probably two to three hours, up to a day, depends on 3 the level of expertise of the people that's being 4 trained. 5 RANDY CLEMENTS: Concerning the -- or a 6 question I have. If an individual's certification is 7 revoked, is there any procedure set out -- can that 8 person ever be recertified, or is their certification 9 revoked from now on? 10 ROBERT THAXTON: The decertifications 11 that MSHA has proposed and has done in the past, 12 basically, they're good to be decertified for one year. 13 The person can come back and ask to be recertified 14 after that point. Sometimes, there are other ways of 15 being decertified that eliminate people from the 16 program for life. But our administrative procedure 17 does not anticipate doing that. That is strictly a 18 criminal procedure, but the administrative procedure 19 is basically one year, or it could be less. It's the 20 district manager's call as to -- based on the 21 situation, as to how long the decertification lasts. 22 RANDY CLEMENTS: Another question I 23 have, the new proposed rule says that the CMDPSU or 24 the CPDM can be used for DA sampling. I guess one of 25 the questions I have on that, because of the amount 66 1 of pumps we would have to buy, can the district 2 manager require us to use only the CPDMs on all 3 sampling? 4 ROBERT THAXTON: No. The rule is very 5 specific that it's the operators' choice as to 6 whether you want to use the gravimetric sampler or 7 the CPDM to do sampling. It's your choice. 8 RANDY CLEMENTS: Another question I have 9 is concerning downloading the information or sending 10 it to MSHA at the end of the week. Is MSHA going to 11 come up with a standard form just like we do under 12 7001s electronically and the 7002s? Will they have a 13 standard form that we'll fill out to send in? 14 ROBERT THAXTON: Actually, yes. The 15 Agency is developing and will have ready a 16 computer-based system that will essentially go 17 through the E-Gov program that you do now for diesel 18 equipment that you would be able to access. It would 19 have standard information that's general that's 20 attached to the file and then the two files that are 21 imbedded into the CPDM would actually be uploaded 22 with no changes being made to them. 23 RANDY CLEMENTS: Well, that poses 24 another question because we do have a timetable we 25 have to submit these. If that system is down, what 67 1 are the operators required to do? 2 ROBERT THAXTON: The plan right now is 3 that you would still be able to get on to the system. 4 You would be able to indicate problems that it wasn't 5 accessible to you, or you can also contact the 6 district and be able to report that problem as well. 7 Much like the diesel program, there is a part of this 8 that's built in that provides notification through 9 your local district as to what your attempts are, 10 what you're trying to do. Also, it would provide 11 feedback to you as to whether your files were 12 actually transmitted or received or not and which 13 ones weren't. 14 RANDY CLEMENTS: That's the concern I 15 have is the time frame we have to submit them, and if 16 we don't get them in this time, what the recourses 17 could be as far as the MSHA. 18 Another question or concern or comment, 19 on the posted requirements, can someone expand on the 20 posting within the one hour, on the board, after the 21 date when the shift is sampled, the purpose of that? 22 Because most of the time, after the person gets out 23 from underground, the person that sees or that had 24 this sample is already gone. The people that goes 25 underground are already underground. And just trying 68 1 to understand why the requirement must be posted 2 within one hour after the shift, the sample time and 3 why it should be maintained and posted on the board 4 for four to six days. 5 GREGORY R. WAGNER: We appreciate your 6 continuing with your comments and recommendations, 7 and we'll run through them at the end. 8 RANDY CLEMENTS: On the record or a 9 comment concerning the records that -- again, I guess 10 this is another question. What I'll do is a lot of 11 -- I've had these questions, and I will -- we will 12 submit them in the comments because we have to 13 understand this thing to be able to make sure it 14 works. And that's the whole goal, and as I stated at 15 first, it's a very complicated rule to understand, 16 proposed rule. And we will be submitting comments 17 and just asking that the thing be more simplified so 18 everyone can understand what's going on, what the 19 proposed rule means. 20 GREGORY R. WAGNER: If I can make one 21 request, if you could submit your comments and 22 questions to us as soon as possible, that would give 23 the Agency time, if there are specific areas that 24 have not been adequately addressed in what's come out 25 earlier in the room here that gives the Agency time 69 1 to clarify them for everyone. So we'd appreciate 2 that. 3 RANDY CLEMENTS: And again, I would like 4 to thank the Agency for extending the comment period 5 because, as you understand, it is trying to get all 6 of this together at one time. And in closing, I 7 think I would like to say the Agency, because if you 8 look back just here recently, there have been several 9 new proposed rules or rules that have been 10 implemented, and sometimes, you feel like it's about 11 time, you know, let's stop. Let's wait and see what 12 effects what we're doing is having. It seems like 13 we're constantly being bombarded with different 14 rules, different proposed rules. As I understand, 15 there's a possibility of four more proposed rules 16 coming out by June. That's just what I've understood 17 and comments that have been made. I just ask that 18 the Agency back off for a little bit, and let's see 19 what effects of what we're doing is happening. 20 That's all I have. 21 GREGORY R. WAGNER: Thank you very much. 22 RON FORD: Mr. Clements, just concerning 23 your comment about a manufacturer saying that 24 currently there's only 400 units available to 25 purchase, I mean, to manufacture per year. 70 1 Generally, firms can allocate more resources to 2 particular units or products as demand increases. 3 And right now, there is no demand for the CPDM to be 4 used. I mean, there's no requirement for the CPDM to 5 be used in the mine. But I want to ask a question 6 about that one CPDM that you did purchase. Do you 7 know the price that you purchased? 8 THE WITNESS: $12,900. 9 RON FORD: Did that include any 10 warranty? 11 RANDY CLEMENTS: Yes. I'll have to get 12 the paperwork. I'll put it into the paperwork I'll 13 be sending. 14 RON FORD: Thank you. And just other 15 question. Do you know the price of the filters? 16 RANDY CLEMENTS: All of that is broke 17 down. I'll have to put it into the documents too. 18 RON FORD: Thank you. 19 RANDY CLEMENTS: The concern I had on 20 the 400 units -- and I understand it's like any 21 industry. If you have a higher demand, you're going 22 to have more of what the item is. I understand that. 23 But we are restricted to, if this new rule goes into 24 effect, we must be using them within 12 months. Can 25 there be enough units because a lot of operators do 71 1 not have these units. We're looking at probably 2 close to 100 ourselves, and we're just one coal mine. 3 Will they be able to because they're not going to 4 hire anybody on until this rule passes. Because any 5 smart business man would not do that. That is the 6 concern we have as to availability, too. 7 JENNIFER HONOR: I'll just speak a 8 little bit further on that Mr. Clements. MSHA 9 addresses that in the preamble, and I don't have a 10 page number in front of me, but they do talk about 11 the availability. And in part, that phase-in period 12 is intended to allow them to ramp up production. 13 MSHA says in the preamble that if following, the 14 effective date, if there aren't enough of the units 15 available, they'll either issue a federal register 16 notice with more information, or they will accept a 17 valid purchase order. And I think that MSHA is, in 18 the past with the SCSRs, there was a similar 19 situation with not enough SCSRs available. And as 20 long as the operators made a good faith attempt to 21 purchase the item, then they weren't penalized. 22 RANDY CLEMENTS: Yeah. 23 GEORGE NIEWIADOMSKI: I have no 24 comments. 25 GREGORY R. WAGNER: I want to thank you 72 1 again for your comments, and we'll be looking forward 2 to seeing the written remarks. Adam Ritch. 3 ADAM RITCH: Good morning, ladies and 4 gentlemen of the panel. My name is Adam Ritch, 5 R-I-T-C-H. I'm safety coordinator for Cliffs Natural 6 Resources, Oak Grove Resources, which includes 7 Concord Prep Plant and North American Mining. 8 GREGORY R. WAGNER: I think maybe if you 9 could speak into the mic, tilt that down more towards 10 you if you would. 11 ADAM RITCH: I apologize. Mr. Sartain 12 is a little bit taller than I am. First off, we also 13 have one CPDM that I have put in the limited service 14 and serviced a couple of times, and currently, the 15 things I have noticed was that the CPM has presented 16 an ergonomic challenge to the wearer such as a scoop 17 operator, or when you're performing menial tasks like 18 maintenance and service inside of a longwall shield 19 or so forth. 20 And I've received complaints about that. 21 Furthermore, the device is bulky and heavy at 22 3 kilograms, which is significantly in contrast to 23 the current technology we have today including the 24 cordless lamps that we currently employ. Where coal 25 mine hazards exist, I feel that this should improve, 73 1 increased damage to the unit itself. Also, not sure, 2 because I haven't experienced it yet, what effects it 3 will have on the TEOM being jarred really hard, 4 haven't experienced that. I was just wondering if 5 NIOSH had any data relating to that because Thermo 6 Fisher didn't provide me any information on that as 7 well. 8 Furthermore, the CPDM does not replace 9 the gravimetric sampling for quartz or silicon 10 dioxide. It has been shown to be far more prevalent 11 in terms of exposure in coal mines. Silicosis 12 affects approximately one to two million people a 13 year in and outside of the industry as opposed to 14 approximately 40,000 with black lung. 15 Also, the silica exposure, as referenced 16 by Dr. Grayson, his article, is that the likely 17 culprit for these higher results and concentrations 18 could be attributed to silica. And therefore, is the 19 Agency really, outside of the proposed rule, really 20 digging into other sampling procedures for silica? 21 Also, the mass transducer, which is basically the 22 sampling portion of the unit, it does not -- there's 23 a mechanism, a latch mechanism, that you remove the 24 mass transducer with for cleaning and maintenance 25 purposes. That is not foolproof from being removed 74 1 in sample -- which produces an error sample, which is 2 basically a waste of our time. We'll have to start 3 back at square one. 4 What means can the producer do to kind 5 of lock that mechanism until we can remove it from 6 the monitor to do maintenance and calibrations. 7 Also, the port is poorly constructed in my opinion. 8 This is my personal opinion from my experience. It's 9 made of brass, which I understand is for 10 non-sparking, but if a person were to strike the cap 11 lamp against something hard like a shield or so 12 forth, I can't see this thing holding up for a very 13 extended period of time. Especially, since we only 14 have a one year warranty on the device. So the 15 repairs would be on us on day 366. So I have a 16 direct issue with that. 17 The location of the port. I know data 18 has shown that there's very little evidence to show 19 differences in concentrations from the cap, from in 20 front of the lapel. I accept that, again, but the 21 exposure of the inlet especially due to the size of 22 port, I think it's more susceptible to being 23 contaminated from metal fragments, welding fumes, and 24 so forth, which has shown in prior times that welding 25 fumes will skew the results. 75 1 The calibration of the unit is complex. 2 It's very tedious, which requires more time. And if 3 you cannot get a unit to calibrate, you have to 4 remove that from service, which means, basically, 5 you're going to have to have two ready to sample 6 one person. Especially, if it doesn't warm up 7 correctly, doesn't calibrate correctly, so we will 8 face more and more internal issue in terms of putting 9 this thing into service. 10 The operators' manual for the CPDM warns 11 against getting the battery wet. I'm not sure how 12 often you've ever experienced longwall operating, but 13 there's going to be times where water exposure is 14 going to be great. Especially, when you're having to 15 do anything below the normal standing or crawling 16 levels. Also, the tapered element oscillating 17 microbalance, a plus or minus 25 percent margin of 18 error and 95 percent confidence, to me, is just not 19 exact. Especially, in terms of determining 20 compliance. In the IH world, that's extremely high, 21 where as you can see some places it's plus or minus 22 5 percent. 23 Why can't we, industry and labor, get 24 with the manufacturers of these devices, come to terms 25 in trying to find a more accurate device, which in 76 1 turn, will determine our employees' direct exposure. 2 Secondly, the TE frequency has been demonstrated to 3 be susceptible to temperature fluctuating, humidity 4 concentrations, and low pulsations and filter 5 pressure drops, which will also cause an error on the 6 device. Here in Alabama, average humidity is 7 probably 65 to 70 percent, relatively, in the coal 8 mine. The device was sampled in 40 to 45 percent in 9 the lab. I think more research needs to be shown in 10 the higher and lower humid areas of the coal mining 11 to gain a more representative data sample going 12 forward. 13 Lastly, during the programming, you have 14 to select the temperature range. Given our 15 unseasonable weather, that can pose challenges. 16 Where in your travel ways, you have direct intake 17 air, it could be colder than what the operator 18 programmed it for. And when you get to the face, it 19 could be -- it could stabilize making your range you 20 want it to work -- or it could get hot. With this, 21 the guessing game to me is not the right approach. 22 On the surface, when I program this 23 device, I have to select the range to program it to 24 the best of my knowledge, which may or may not 25 reflect the conditions of the employee's shift. Also 77 1 again, currently, there's no competition in this 2 model; and sales and purchasing lead times right now 3 are one to three months, and according to the sales 4 rep I talked to, could go up to one year from the 5 date of order. By that time, under the proposed 6 rule, as it sits, we're looking at an exposure of 1.5 7 milligrams per cubic meter. Already, we're kind of 8 behind the ball in trying to get a great handle on 9 the issue. 10 More importantly, did MSHA estimate the 11 non-warranty cost in the economic assessment that 12 they performed? And then finally, in my opinion, the 13 CPDM in its current stage could be a very useful tool 14 in assessing the realtime coal dust exposure for our 15 employee. However, also due to its infancy at this 16 time, I don't think it's field ready in mass. Until 17 we can get more exact margins of error and also wait 18 to actually do replacing of the gravimetric sampler 19 for silica, for quartz, however, you want to say it, 20 and I think that right there would give us better 21 data to work on eradicating black lung. 22 Also, I want to thank the Agency for 23 extending the comment period, again, due to the 24 issues of the complexity and ambiguity of parts of 25 the law and the volume to further anaylize that. And 78 1 I also urge the Agency to incorporate, as a last 2 resort, the acceptance of supplied respirators or 3 something like that to determine the miners' exposure 4 because that's what he is physically exposed to not 5 necessarily the encompassed environment. So that is, 6 again, as a last resort, but it also should be 7 credited when all else fails. So you're looking at 8 almost totally purifying the air around a person. 9 And that's the goal here, to have zero cases going 10 forward. 11 GREGORY R. WAGNER: Thank you. I 12 thought you were done. 13 ADAM RITCH: Well, I've got two 14 questions. According to the data of the 10,000 15 miners who succumbed to complications of black lung, 16 the average age was 78. And I didn't get the entire 17 age range on that. I was just wondering, would the 18 Agency provide that because I was curious just for my 19 research alone. 20 And then also, did NIOSH take into 21 effect that during the 1990s that was the lowest 22 number of miners in the industry across the nation 23 and people were -- went to other industries such as 24 railroads, steel mills, the military, and I was 25 curious during the assessments of the persons, was 79 1 that taken into account? I think that's very 2 prevalent data to have, especially if, like in my 3 case, I was exposed to very poor air in Afghanistan, 4 which may have a direct reading on me down the line. 5 I was just wondering does the Agency and NIOSH take 6 that into account? 7 And then finally, we're going to reserve 8 the right to extend our comments and also revise 9 comments with data as they come forward. And also 10 we'll be submitting more comments in writing. 11 GREGORY R. WAGNER: Thank you very much 12 for your comments. 13 RON FORD: Mr. Ritch, you stated your 14 question was: Did MSHA estimate the non-warranty 15 cost in the economic analysis? Could you be more 16 specific? Did you mean like annual maintenance costs 17 or -- 18 ADAM RITCH: Well, for example, say 19 month 18, the 18-month period we have this unit, it 20 gets internally damaged for whatever reason. That 21 cost will not be warrantied (verbatim) by Thermo. 22 I'm just wondering what that cost would be from the 23 Agency's standpoint. I do not know. I was just 24 curious is the data floating around saying this is 25 what it's going to cost to refurbish the unit, 80 1 non-warranty versus warranty, or just the TEOM 2 warranty versus no warranty, stuff like. I was just 3 curious. 4 RON FORD: In the economic analysis, we 5 have a cost-worthy unit and a separate cost for the 6 warranty for the unit, 5-year warranty. In addition 7 to that, we also have annual maintenance costs that 8 we estimated for the unit. What we would want you to 9 do is to look at those numbers and then also give us 10 any input on that. Like, if you have any updates or 11 anything more accurate that you have in addition to 12 other costs that we have in the economic analysis, 13 also, like, downloading the information and preparing 14 it before your shift. That's also included. 15 ADAM RITCH: Thank you. 16 GEORGE NIEWIADOMSKI: I have a couple of 17 questions for you. You pointed out a number of 18 potential shortcomings with the CPDM based on your 19 limited experience using it. Have you shared that 20 with the manufacturer? 21 ADAM RITCH: No, sir. I have not. I 22 haven't had a chance to speak with our local rep. 23 GEORGE NIEWIADOMSKI: We'd suggest you 24 do that, okay? They need to know that. My second 25 question is: You have indicated that you've used it 81 1 on a limited basis. How have you, in fact, used it? 2 Can you share that with the panel? 3 ADAM RITCH: Sure. I've worn it twice, 4 and one thing was for me to actually try to 5 manipulate it and see where my spikes and 6 fluctuations would occur. That was very easy to do 7 because, just the nature of the coal mine, you can 8 falsify the -- or you can skew the data very easily. 9 The second time I wore it as an assessment tool from 10 the standpoint of where a miner should or should not 11 stand, where the highest concentrations were, and so 12 forth. And also, have a person wear it to simulate, 13 like I was talking about, working on the longwall. I 14 gave it to the person just to wear at that moment. 15 And basically, I received less than rave reviews for 16 that. 17 GEORGE NIEWIADOMSKI: Did that work 18 result in some work -- changes in some work 19 practices? 20 ADAM RITCH: For him it was non-routine, 21 which poses a question there. In a case like that 22 where a person is going to do maintenance or other 23 work outside of his current work capacity or standard 24 work capacity, can he put the unit somewhere else or 25 is that going to -- to me, that still assesses his 82 1 exposure. The exposure levels didn't change. It was 2 just the ergonomics that changed for that person. 3 That raised an issue with me. I'm thinking that can 4 cause strains and sprains and so forth, getting 5 caught by it and caught on it and things like that. 6 GEORGE NIEWIADOMSKI: Thank you, 7 Mr. Ritch. 8 GREGORY R. WAGNER: You mentioned, as 9 our prior speaker did, the issue of silica. Just 10 note that MSHA has announced in its regulatory agenda 11 an intention to put out a silica rule. And you asked 12 the question about the data, the deaths of people 13 with black lung and other chronic lung diseases. I 14 suggest that you go to the NIOSH Web site, or you can 15 either access it directly or through the Centers for 16 Disease Control Web site, and that gives the various 17 assumptions for the work-related lung disease 18 surveillance report. Or you can just type in CWP, 19 black lung, whatever, and you ought to be able to get 20 the assumptions that they used and the sources of 21 their data. And once again, thank you. We'll look 22 forward to more detailed information. Dale Byram. 23 Is he here? 24 DALE BYRAM: Good morning. 25 GREGORY R. WAGNER: Good morning. 83 1 DALE BYRAM: My name is Dale, D-A-L-E, 2 BYRAM, B-Y-R-A-M. I work with Walter Energy. Like 3 everyone before me, I appreciate the opportunity to 4 speak to you today. And I'm speaking on behalf of 5 the Alabama Coal Association Safety Committee. As an 6 association, we support our members and their 7 comments and concerns that they've shared with you 8 today. I know that Chevron Mining had identified 9 concerns relating to the science and determining the 10 accuracy of the testing. They also identified 11 concerns and requested consideration from 12 administrative and engineering controls to help us 13 protect our miners. Jim Walter Resources spoke 14 specifically to part 70 and 75, and they had concerns 15 that MSHA had really missed the mark on what value we 16 could use the PDM for. Drummond/Shoal Creek also 17 talked about concerns with the posting requirements 18 and other specifics. Cliffs National Resources just 19 identified several specifics related to the PDM and 20 some of the shortcomings. 21 I think we'll hear again, as the day 22 goes on, other people that have concerns about the 23 ergonomics of the unit and potential safety hazards 24 with the design. The safety and health and the 25 wellbeing of our miners are of the upmost importance 84 1 to the Alabama Coal Associations and its members. 2 The intent is to lower the exposure to respirable 3 dust. The primary sampling tool, as we've heard so 4 far, references CPDM. 5 From its conception, the CPDM was 6 designed to provide personal samples for the miner 7 wearing the device. It appears that the intent in 8 the proposed regulation is to use the CPDM more as an 9 area sampler. However, consideration should be given 10 to the value of using the PDM as it was designed, and 11 thus, in itself, one could believe that by sampling 12 the individual, that we would also be able to have an 13 accurate sample of the environment. 14 Dr. Wagner, when you began today with 15 your introduction, you talked about some of the 16 things, the catalysts, that had driven us to this 17 proposed regulation. And you also showed several 18 slides of lung -- lung tissue that had been affected 19 by coal mining dust exposure. I'd like to share a 20 concern with the technical aspects related to the 21 surveillance testing specific to the X-ray program, 22 because again, that had to be one of the catalysts to 23 help lead us to this proposed regulation. 24 Under the black lung surveillance 25 program, operators are required to offer chest X-rays 85 1 on a scheduled basis for their miners. The X-ray has 2 to be read by a B certified reader, and it has to go 3 along with the NIOSH regulations or standards. 4 That's how I understand it. It's our understanding 5 also that the NIOSH regulations requires the films to 6 be processed by wet prep. In 2009, we received a 7 call from a medical center that provided our 8 particular B reader service telling us that they would 9 no longer do wet-prep reads, that it had become 10 obsolete, that better technology was available. 11 At that point in time, we contacted 12 NIOSH and shared two things: One, the problem we 13 were having trying to find a B reader to do wet prep 14 now in this area; and two, about our concerns that 15 the testing that was being done now was probably not 16 as accurate and defined as the digital imaging 17 would be. We had several conversations on the phone, 18 and we shared correspondence with Dr. Weissman at the 19 respiratory control or disease center. 20 Unfortunately, they were sympathetic to our problem 21 but could not make any changes to the regulation. 22 This brought up two issues: One, we had -- at that 23 time, we had like 30 days to find another B reader so 24 our mines would be in compliance with the regulation, 25 and we could continue to offer our miners the 86 1 opportunity for X-ray. You have to have two sources, 2 maybe a mobile van, and then a physical location that 3 if they missed the opportunity to be x-rayed at the 4 van, that you could send your miners to. The closest 5 wet prep -- B reader for wet prep from our location 6 was probably about 50 miles away. 7 This in itself was a deterrent for 8 trying to get the number of miners -- every miner you 9 would like to have the opportunity to conveniently 10 get a chest X-ray. But we met compliance as we are 11 in compliance today. Prior to today, I recontacted 12 NIOSH to get an update on where we were. And 13 yesterday, I found that we have made no progress. 14 That's a little bit wrong. They are making progress. 15 They feel like they are a few months away from being 16 able to accept digital imaging, but it was 17 presented by, however, before we can do that, the 18 regulation would again have to be changed. If there 19 is better technology out there that has been in place 20 for at least a couple of years, we want our miners to 21 be able to use this technology to more accurately 22 identify the potential for pneumoconiosis. And we 23 would like to request that there be some movement in 24 this area. 25 Finally, we'd like to thank you for this 87 1 opportunity to make these comments on behalf of our 2 miners who the proposed intent of this regulation is 3 to protect. Their health and safety is of the upmost 4 importance to us. We appreciate the extension of the 5 comment period because I believe we'll be able to 6 glean more technical specifics related to this 7 regulation. 8 GREGORY R. WAGNER: Thank you very much. 9 I'm glad to hear that NIOSH is reporting that their 10 using digital X-rays may be only a few months away. 11 I know there were substantial delays from what they 12 wanted, and hopefully, what I'm told is that the 13 regulatory change, unlike this one, may be quite 14 simple, noncontroversial, and be able to permit the 15 adoption quickly. 16 DALE BYRAM: We'll be able to make 17 supportive comments on that regulation. 18 GREGORY R. WAGNER: Excellent. Thank 19 you for your time. 20 DALE BYRAM: Thank you. 21 GREGORY R. WAGNER: I apologize. I 22 inadvertently went out of order. Larry McGiboney. 23 LARRY MCGIBONEY: Thank you. Good 24 morning. 25 GREGORY R. WAGNER: Good morning. 88 1 LARRY MCGIBONEY: I'm Larry McGiboney. 2 I'm with Jim Walter Resources. The spelling of my 3 last name, M-C-G-I-B-O-N-E-Y, and I want to talk on 4 the personal dust monitor itself. We at Jim Walter 5 Resources have two units. We have used these units 6 underground. I feel like the CPDM is a great unit. 7 It gives realtime dust readings for the wearer. Out 8 of the two units, we have a failure with one that we 9 had to send back to the manufacturer. It was 10 repaired and sent back. Dealing with the wearer on 11 the longwall, I feel like this unit is an unfriendly 12 unit to the wearer. And I'm speaking of longwall 13 face. Most of my samples were conducted on the 14 longwall. I feel that's one of the most critical 15 areas in mining and probably one of the most 16 confining areas with them traveling up and down the 17 face. 18 The cord, with it being stiff and long, 19 mounted on the side, the operator couldn't keep his 20 hard hat on. Periodically through the day, he would 21 have to pick it up and put it back on. It was -- it 22 wasn't feasible for him to have it and wear it like 23 that on the longwall. 24 I came up, I put the unit in a backpack 25 and stuffed the cord down on it and allowed him just 89 1 enough cord out to mount on his hat, and it seemed to 2 where it would keep the unit and keep his hat on 3 during the shift. But in doing that, the employee 4 could not get his readings. He would have to stop, 5 take the backpack off, open everything up, look at 6 his unit, put everything back up, and then strap it 7 back on again. Our miner operators, we ask them to 8 carry remotes. They've got remotes on their chest. 9 We put a 7-pound unit on them, and they're wearing 10 it, too, during the day while they're operating their 11 equipment. And to me, I feel like that's a hazard 12 for those guys to be exposed to. 13 Roof bolters, they already work in 14 confined spaces. We use dual head roof bolters, and 15 they're side by side. They're turning; they're 16 climbing, reaching, and with this unit in the state 17 that it's in now, it's a hazard for the roof bolters. 18 So we really need to think about coming up with some 19 kind of engineering to reduce the size of this unit 20 so that we can use it in the way that it needs to be 21 used. And like I say, this unit was designed to be a 22 personal dust monitor, and if it's used in that 23 aspect, this unit can be outstanding for the mining 24 industry. 25 Also, I wanted to talk about 90 1 calibration. It might take an hour, it might take a 2 day to calibrate one of these units. They're so 3 high-tech. We don't have that much experience with 4 them yet, and I know we'll get better with time, but 5 right now, it's a nightmare to try to maintain these 6 units. As it was spoken to earlier, that you 7 basically have to have two units for every person 8 that you're going to sample in case you have a 9 failure. These units are programmed 30 minutes 10 before shift change and shift start. And during that 11 30 minutes, you might as well go ahead and start two 12 because if anything malfunctions on one, you're going 13 to go ahead and give him another one. And the 14 sampler will not start sampling until it's went 15 through its heating process. 16 Also, on the longwall, dealing with 17 water, we have fog and mist on longwalls, and I know 18 these units have heaters in them to take moisture out 19 of the air so the sample would be good. My concern 20 is, on a day-to-day basis in this heater, that these 21 units will not last any time on a longwall with it 22 day in and day out. That's something that when the 23 tests were made, you come and you make a test one day 24 on the longwall, and it works fine, you know, but for 25 day in and day out, I foresee problems. 91 1 Down time on the units, like I say, you 2 have to clean the unit. You have to download the 3 unit. You have to charge the unit. Now, you've got 4 to program the unit. It is going to be a burden on 5 the company that -- with manpower. It's going to 6 take a lot more manpower to deal with these units 7 than what we're accustomed to right now. And that's, 8 you know, we've had experience with them, and, like I 9 say, I like them for the realtime read out, and it 10 works. 11 And that's basically all I've got to say 12 on the unit, and I appreciate you letting me come and 13 speak to you this morning. I appreciate the Agency 14 for extending the comment period, and I would like to 15 thank you. 16 GREGORY R. WAGNER: We appreciate your 17 sharing your experience with the unit with us. 18 ROBERT THAXTON: I just have a couple of 19 short ones. First, you indicated that the cord was a 20 bit of a problem, it knocked the guys hat off. Have 21 you contacted the manufacturer to get the cord 22 shortened so that it's a more appropriate length for 23 what you need at your mine to try to eliminate that 24 problem, or have you just worked with the one that 25 you received? 92 1 LARRY MCGIBONEY: I worked with the one 2 that I received. The manufacturer said that when I 3 got my units, it was one of the first ones, and that 4 later on, they were going to come out with a shorter 5 cord. It was not available during the time that I 6 got my units. 7 ROBERT THAXTON: Also, you indicated 8 that it's difficult to work with, you're still 9 getting used to it. Did the manufacturer come to 10 your facility and provide you with training on the 11 use of the CPDM and how to maintain it? If so, how 12 many of your people attended the training and to what 13 extent was that training? 14 LARRY MCGIBONEY: Myself and one more 15 person went to Louisville to the Fisher Scientific 16 class that they put on. 17 ROBERT THAXTON: Was that one day? 18 LARRY MCGIBONEY: One day. 19 ROBERT THAXTON: Okay. Thank you. 20 LARRY MCGIBONEY: All right. 21 GREGORY R. WAGNER: Thank you, again. 22 Mr. Noble Linn. 23 NOBLE LINN: Good morning. My name 24 Noble, N-O-B-L-E, Linn, L-I-N-N. I'm employed with 25 Jim Walters No. 4 Mine. I'm a full-time safety 93 1 committeeman for the UMWA local 2245, District 20. 2 First off, I want to say thank you for the 80 percent 3 rock dust rule. I know that the time will come when 4 this will save lives. On behalf of the UMWA local 5 2245, District 20, you have our heartfelt gratitude. 6 Thank you very much. We appreciate it. 7 In saying that, I'd like to address a 8 few issues on the proposed rule to reduce miners' 9 exposure to dust. We would ask that the rule be 10 expanded to include shaft and slope construction 11 workers. Also, where workers are exposed to coal 12 dust during loading, transportation, and the shipping 13 of coal. Anywhere there is coal, there will be coal 14 dust, and any worker whose occupation requires them 15 to be exposed to respirable coal dust or silica 16 should be covered by this rule. 17 Next, we fully support the proposal that 18 each working section or MMU would be required to be 19 ventilated by a separate split of air directed by 20 undercast, overcast, or ventilation controls. We 21 know the miners will be better protected by intake 22 air sweeping the face, especially, where super 23 sections are used. 24 Next, we are pleased with the proposal 25 of lowering the standard on belt air force 94 1 ventilation from the current 1.0 milligram per cubic 2 meter to 0.5 milligrams per cubic meter. We at JWR 3 No. 4 Mine have used belt air for many years, and for 4 all of those years, we have been exposed to the dust 5 which is generated by the feeder at the loading 6 point. We would ask MSHA to clearly state in the 7 proposed rule that all belt air dust samples be taken 8 inby the feeder for the precise sample of the dust 9 that miners at the face are being exposed to. We 10 would also have MSHA to consider establishing a 11 predetermined distance inby all belt headers and 12 transfer points as a DA, or designated area, for dust 13 sampling. These areas are historically known to be 14 problem areas for dust control and should be a part 15 of the pre-shift examination with results and 16 corrective actions taken to assure compliance with 17 dust control parameters and the approved mine 18 ventilation plan. 19 We also feel the 6-month phase-in period 20 to meet the new requirements would be adequate and 21 reasonable. We are pleased to see that MSHA will 22 require initial and annual retraining on the use of 23 the CPDMs. We would ask MSHA to clearly state in the 24 language of this rule that a person could only be 25 certified and sample with or maintain and calibrate a 95 1 specific CPDM and that all certifications cards 2 clearly state the specific model of CPDM the 3 cardholder was certified with. We would also request 4 this training be separate from all other training and 5 ample time allowed for the miners to be educated on 6 the proper use and necessary knowledge to help reduce 7 their dust exposures. 8 In MSHA's own words on Page 64427 in the 9 right column, and I quote, accuracy and quality of 10 dust sample results can be significantly effected by 11 the procedures used during the collection process. 12 MSHA believes that only persons certified in dust 13 sampling procedures should be allowed to perform this 14 important responsibility. The quality of training 15 and the time spent on training should be a reflection 16 of this statement. Particular training must be given 17 to the miners in calculating permissible exposure 18 limits. The proposed calculations are confusing and 19 difficult to understand. We would assume there would 20 be a standardized form provided to perform 21 calculations. 22 We positively support the idea of a CPDM 23 performance plan. The rule should further expand 24 time limits under all sections that call for miners' 25 comments and notifications. Miners should be given 96 1 ten days rather than the five days proposed. Also, 2 under all sections were written to provide miners 3 information as upon request should instead be written 4 to require a copy of the information to be provided 5 to the representative of miners. For example, 6 70.206(b)(9),(c)(1) and 71.206 (a)(1)and (a)(2). We 7 are pleased that MSHA has proposed requiring 8 operators to make approved respirators available when 9 sampling has exceeded the dust sample. The rule 10 should be expanded to forbid operators from offering 11 cheaper respirators that are not NIOSH approved. 12 Currently, there are operators who put out cheap 13 unapproved respirators in prominent places where they 14 are readily available. Miners are lulled into a 15 false sense of security by wearing these unapproved 16 respirators. MSHA should ban their use. 17 The new rule continues to put control of 18 the sampling program in the hands of the operator, 19 and the UMWA continues to insist control of the 20 sampling program should be put in the hands of MSHA. 21 The UMWA produces the use of worker rotation as a 22 means of lowering respirable dust exposure. This 23 does nothing to control the dust. All this does is 24 pull one miner out of harm's way and put another 25 miner in harm's way. We should not -- we should 97 1 control the dust and not the miners' exposure to the 2 dust. 3 There should be language in this rule 4 that mandates miners have a right to make corrections 5 as necessary when they see their exposures exceed 6 what is deemed acceptable. It further needs to state 7 the operator cannot discipline or retaliate against 8 the miner. Thank you. 9 GREGORY R. WAGNER: Thank you very much 10 for your comments. Thank you, again. Phillip 11 Whitlow. 12 PHILLIP WHITLOW: Good morning. 13 GREGORY R. WAGNER: Morning. 14 PHILLIP WHITLOW: My name is Phillip 15 Whitlow, W-H-I-T-L-O-W. I'm a safety committee 16 representative for the Local 1926, North River Mine 17 in Berry, Alabama, which is owned and operated by 18 Chevron. I have six years underground experience at 19 this mine, four years as a roof bolter, one year 20 outlier utility and currently had just over a year 21 motor supply. There's a few things I'd like to touch 22 on as far as problem areas we see with dust at our 23 mine. The first is our haulage ways and belt lines. 24 Not long ago, we were here talking about 25 a new rock dust rule. I truly believe if we started 98 1 wet dusting in haulage ways and belt lines, that 2 would eliminate a lot of our dust problems or issues 3 we have in these areas. It would also aid in keeping 4 our rock dust up to standards we'd like to see. 5 Another area is our dirt loaders. The 6 biggest thing for me is when the dust filters and 7 dust boxes stop up. If it's not changed immediately, 8 it contaminates our exhaust system on them machines. 9 When this happens, it puts pure dust into the air, 10 which causes in the next entry where the air's going. 11 And when this dust gets into the airways -- it's pure 12 dust. It's like flour, real powdery. A lot of 13 times, you can't even see it unless you're right 14 there on it. 15 And this might not be a problem today or 16 tomorrow, but after day in and day out experience 17 with this, potentially, it will kill you. And I 18 believe that if we would implement, maybe, like a 19 scrubber system on a ram car or water box that 20 would collect this dust, we could eliminate this 21 problem very easily. Not long ago, we installed some 22 seals on the south end of our mine. And while we was 23 down there setting these seals up, there was no way 24 for us to control the dust down there. It was a dead 25 end of the mine. It was very dusty down there when 99 1 setting these seals up, and our union men, we set the 2 seals up, and we had contractors come in and pour the 3 seals for us. 4 When the contractors came in to pour 5 these seals, the dust, you couldn't even see the man 6 standing beside you. And these men was working in 7 these ungodly dust parameters down there with no way 8 to control it. We'd like something to be done in 9 these areas. 10 There's a few things that we didn't like 11 in this proposed plan, 1926, and the biggest thing is 12 the worker rotation on the job. Like my buddy before 13 me said, we're not eliminating the dust problem here. 14 We're just eliminating the amount of time we're 15 exposed to it each shift. Our local 1926 feels that 16 if it's too dusty for the operators to work in this 17 constantly, then they don't need to be taken off the 18 job, but the dust needs to be taken out of the air. 19 Lastly, we feel that MSHA should handle 20 all the samplings so the operator's not tampering 21 with the results. If we give these operators an 22 inch, they will take a mile. I hope I didn't ramble 23 too much, and I appreciate your time, and thank you. 24 GREGORY R. WAGNER: Thank you very much 25 for your comments. If you want to wait just one 100 1 second. Thank you. Next speaker is Matthew Little. 2 MATTHEW LITTLE: Good morning. 3 GREGORY R. WAGNER: Good morning. 4 MATTHEW LITTLE: I'm Matthew Little, 5 M-A-T-T-H-E-W, L-I-T-T-L-E, 33 years old, married, 6 and I've got three kids ages 12, 8, and 7. I'm in 7 the coal industry as a construction worker. I sink 8 shafts for a living, often referred to as a hard rock 9 miner. 80 percent of my work deals with rock. Very 10 seldom do we get coal seams, most of the time 11 anywhere from 2 inches to a foot at the most. I'm 12 here today simply because, in the future, I'd like to 13 be able to attend my children's weddings, see my 14 grandchildren grow up, and enjoy retirement one of 15 these days. 16 My main purpose for today is reflected 17 in the Federal Registry of Proposed Rule on Page 18 64420, at the specific location, and I believe other 19 locations throughout this proposed rule, there's 20 language which states this proposal is consistent 21 with recommendations of the NIOSH criteria document 22 and the Dust Advisory Committee. I disagree with 23 this statement. Because after reviewing the rules, I 24 cannot find anywhere in that document that covers me, 25 a hard rock miner. Any time that it's stated in that 101 1 document, it says, coal miner. I'm not a coal miner. 2 I'm a hard rock miner. In my job, we have one means 3 of intake and one means of exhaust. We're in a 4 shaft. Air comes in one way and goes out one way. 5 We don't have the luxury of an intake side and an 6 exhaust side. Our means of ventilation is one way 7 in, one way out. 8 For example, quoted from the summary on 9 Page 64412 of the Federal Register proposed plan, it 10 says, "The proposed rule would significantly improve 11 health protections for this nation's coal miner by 12 reducing their occupational exposure to coal mine 13 dust and lowering the risk that they will suffer 14 material impairment of health and functional capacity 15 over their working lives." 16 I would also like to read from the 17 Advisory Committee Report. The report of the 18 Secretary of Labor's Advisory Committee on the 19 elimination of pneumoconiosis among coal mine 20 workers, October 1996. "The committee determined 21 that surface miners, workers of surface facilities 22 and underground mines, mine construction workers, and 23 independent contractors needed to be better protected 24 against the hazards of respirable coal mine dust and 25 silica. In the case of mine construction and 102 1 independent contracting, the committee concluded that 2 these workers have been neglected under the current 3 coal mine respirable dust program. MSHA developed an 4 initiative to ensure the protection of mine 5 construction workers, contract drillers, and other 6 contract employees with respirable coal mine dust and 7 silica exposure. This effort should include 8 estimations of types of contractors, number of 9 workers at risk, and their levels of exposure; 10 exploration of means of assuring compliance with 11 permissible exposure limits, the use of dust control 12 plans, sampling, and training, delineating 13 responsibility of mine operators and contractor 14 workers; and implementation of compliance activities 15 to protect this sector of mine workers. 16 MSHA should also improve recordkeeping 17 of exposure to dusts, occupational lung disease and 18 other hazards that occurred to workers of 19 construction and other contractors in order to 20 prevent occupational disease and injury." The 21 proposed rule does none of this. 22 "MSHA should work with NIOSH to expand 23 medical surveillance to appropriate groups of mine 24 contract workers and to contract research pertinent 25 to preventing respiratory disease and dust exposures 103 1 in mine contractor workers." Has this been done? 2 "MSHA should collaborate with OSHA in 3 bringing similar attention to operations such as 4 exploratory drilling, which fall under OSHA 5 jurisdiction." Has this been done? 6 On recommendation No. 14 in the same 7 document, "MSHA should develop an initiative to 8 ensure the protection of mine construction workers, 9 contract drillers, and other contractor employees 10 with respirable coal mine dust and silica exposures. 11 This effort should include estimation of types of 12 contractors, number of workers at risk, their level 13 of exposure; exploration of means of assuring 14 compliance with permissible exposure limits, the use 15 of dust control sampling and training; delineating 16 the responsibility of mine operators and contractors 17 in protecting contractor workers; and implementation 18 of compliance activities to protect this sector of 19 mine workers. MSHA should also improve recordkeeping 20 of exposure to dust, occupational lung disease, and 21 other hazards that occur to workers and construction 22 -- occur to workers of construction and other 23 contractors in order to prevent occupational disease 24 and injury." Our construction workers were included 25 in the Secretary of Labor's visions of good jobs for 104 1 everyone, and will construction workers be a part of 2 MSHA's Comprehensive Initiative To End Black Lung -- 3 Act Now campaign as stated in the introduction of the 4 Federal Register proposed rule on Page 64412? 5 My coworkers, my friends, and myself who 6 are at significant risk of material impairment of 7 health will continue to be if MSHA does not cover 8 construction in this rule. Irreversible damage, 9 which ultimately may be fatal to many construction 10 workers, is occurring because MSHA continues to 11 neglect construction workers. I ask that this rule 12 be expanded to cover construction workers to cover my 13 industry. I want to ask the audience that supports 14 expanding this rule to cover construction workers, 15 please stand if you're in support of this rule or 16 adding construction workers. 17 (Audience members stand.) 18 Mr. Chairman, I would like the record to 19 reflect that 16 persons stood supporting expanding 20 this rule for construction workers. On Page 64419 of 21 the proposed plan, MSHA states, "In a small number of 22 cases, MSHA expects that operators may have to 23 initially limit production, reconfigure major 24 ventilation sources, as for example, install a new 25 shaft or install major ventilation controls. Should 105 1 new shafts become necessary, the number of at-risk 2 construction workers will increase." Please protect 3 them as well as the ones already in this industry. 4 Also, on Page 64421 of the proposed 5 rule, I reviewed Respirable Dust Standard When quartz 6 Is Present. As I stated earlier, my work is 7 80 percent rock. And I'm exposed to a lot of quartz, 8 silica, whatever you call it. I rise in the support 9 of lowering these standards. I rise in support of 10 Comprehensive Initiative To End Black Lung -- Act Now 11 campaign provided that includes me. And I rise in 12 support of the Secretary of Labor's vision of good 13 jobs for everyone as long as my construction workers 14 are included in everyone. Thank you very much for 15 your time. I'll provide you with booklets of the 16 report that I read from with highlighted areas that 17 concern the construction workers. 18 GREGORY R. WAGNER: Thanks very much. 19 And please, when you leave, just leave them with the 20 reporter. Let me just do a quick rundown. Again. 21 Thanks so much for your contribution. I appreciate 22 it. We have two more speakers that have signed up. 23 Dwight Cagle is the next one. 24 DWIGHT CAGLE: Good morning. Welcome to 25 Alabama. My name is Dwight, D-W-I-G-H-T, C-A-G-L-E. 106 1 I'm a UMWA Local 2397 safety committee at Jim Walter 2 Resources No. 7 Mines, which we have over 700 union 3 employees at this mine, six sections and two 4 longwalls. These miners are exposed to this dust. 5 Our main goal right now is to end black lung. That's 6 what this is about, exposure of the miners to 7 respirable coal dust. We need to stop it now. 8 We need continuous dust monitors on our 9 people to inform our people at the time they're 10 exposed. We don't need to be waiting two, three 11 weeks later to know what these people are exposed to. 12 The exposure level, at that time, we need to take 13 action to remove the people and not just by swapping 14 another worker out. We need to inform our miners 15 about the dust level. We need the work-area sample. 16 Also, to let them know the exposure they're getting 17 into, which we do that now. And to remove, means to 18 -- we need to correct whatever means possible to 19 reduce the dust and just monitor -- rotating miners, 20 that won't cure this problem. 21 By means of whatever necessary, 22 controlling the dust, whatever we need to do, we need 23 to do it. Our shifts now are over 10 hours. We work 24 six, seven days a week. Travel time is, over some 25 sections, some longwalls, up to an hour travel time. 107 1 Right now, we have -- our miners are exposed on the 2 track because of the high velocity of air. We have 3 safeguards in place to cover this. Sometimes, this 4 doesn't get taken care of, down the tracks, so they 5 are exposed on tracks also. So the sampling should 6 -- three or four shift sample. 7 Second, we also have belt air, which we 8 probably couldn't run if we didn't have because of 9 the way the mines are designed. Section C of the 10 belt air, we use belt air as part of our ventilation 11 to the sections, which we commented on in the past. 12 The belt air needed to be clean and below 13 5 milligrams, and we agree with these sections of 14 on-shift examiner 75.362(a)(2), must record the 15 results and action taken to ensure that we are in 16 compliance not just work design, work design don't 17 cure this. We need to know, at this time, what 18 they're going to do. 19 In the recent Wall Street Journal ad 20 here, people tested positive -- The National 21 Institute for Occupational Safety and Health has 22 found that roughly 9 percent of workers with 25 years 23 or more in the mines tested positive for black lung. 24 This was in 2005, 2006. The latest publication data 25 up from about 4 percent in the late 90s. The rate 108 1 also doubles for the people with 20 to 24 years in 2 mining including many of their -- in their 30s and 3 40s according to NIOSH, part of the Centers for 4 Disease Control and Prevention. 5 That's what I say. It hasn't gone away. 6 I don't know if it got -- I don't know -- beliefs 7 about masks or whatever they're wearing, but the 8 production of coal is up. That's my belief on this. 9 Just went from a million ton a year to 3.3 million 10 tons a month through the longwall. And they were -- 11 earlier speakers were discussing about the cost. 12 What's the matter with -- there's no cost you can put 13 on it. I know we update our sampling cost, $16,000. 14 We had to update repairs. That was last month. And 15 then, like, the other comment was on pumps. You use 16 three different pumps, you get three different 17 readings. We need our people trained on maintenance 18 of the pump, not one man doing the sampling -- doing 19 the sampling and repairs, the maintenance of the 20 pump. We need training. They need to be retrained 21 every six months on it. I'm not saying that his 22 pumps were bad but sounds like maintenance of the 23 pumps, calibrations of the pump if they give you 24 three different readings. 25 So these people need to be trained. We 109 1 need more than one person trained for sampling. Like 2 I said, it's costing miners lives. And this training 3 on calibration and testing, this should be going on 4 now. Not after this, it should be going on now. We 5 hope the new rule goes in. And Mr. McNider, on his 6 testimony he was going to get back with you about, 7 the operators and the helpers are switched out at 8 lunch, on the longwall, at Jim Walter No. 7. They 9 rotate out, but both people are exposed. They're 10 still exposed. Both of them still stay in the same 11 area, one take the head gate and one take the 12 tailgate. We're still in the same area. Rotate them 13 out. It don't change. 14 Same way as continuous miner operators, 15 the helper operator, rotate out during lunch. So the 16 occupation don't change. They're still exposed. 17 That's all I have at this time. 18 GREGORY R. WAGNER: Thank you very much 19 for your comments. 20 GEORGE NIEWIADOMSKI: No questions. 21 GREGORY R. WAGNER: Thank you very much. 22 Our last speaker signed up is Gary Jolly. 23 GARY JOLLY: Good to have y'all back in 24 Alabama. Probably couldn't read my writing, but my 25 name is Gary Jolly, G-A-R-Y, J-O-L-L-Y. I'm on the 110 1 safety committee with Shoal Creek Mining, been 2 employed by Drummond Company for 35 years, third 3 generation coal miner. I'm also a member of the 4 State Board of Mine Examiners here in Alabama, fixing 5 to start my second term on the board, really enjoy 6 doing that kind of work. 7 As a stated, I'm a third generation coal 8 miner. My Grandad, he died from black lung. My dad 9 had black lung, but it was not the cause of his 10 death, but he had black lung, diagnosed with it. And 11 I really appreciate y'all looking at this. You know, 12 when we started in the mines 35 years ago, dust was a 13 problem, you know, conventional mining. We improved 14 it with ventilation. Now, we're in a new generation, 15 fast coal mining, miners, longwalls, faster 16 equipment, bigger equipment. We need to control it 17 because we've got less people in the mines working, 18 but we've got faster equipment, which creates more 19 dust. So we really appreciate this effort that MSHA 20 is doing to try to cut down on coal mines. You know, 21 we want our guys to live a long, happy, successful 22 life when they leave the mines. We don't want them 23 to be unhealthy, you know, because the life 24 expectancy of a coal miner is not very long to start 25 with. We appreciate this. 111 1 Yes, there are concerns in this plan 2 that we are concerned with, but I want to look at the 3 aspects of what's good. The part 90 miner, really 4 appreciate that since my grandad and my dad had black 5 lung -- they were diagnosed with black lung. We 6 really appreciate that. These guys and the part 90 7 miners, they've already been diagnosed with black 8 lung. So we need to do everything we can to insure 9 their safety and health at the mines until they get 10 ready to retire because they've already got this 11 disease. We do appreciate that. 12 Shoal Creek Mines is a unique mine. 13 It's probably one of the few mines in Alabama that 14 have rubber-tired equipment transportation throughout 15 the mines, which creates a lot of dust. These are 16 some of the areas I'm concerned about is our outlier 17 people working in the dust. On our faces, on our CM 18 units, we have some of the best ventilation for dust 19 control that you can have is exhaust fans. I don't 20 think it would be a problem to reach that goal on our 21 mining end because of the exhaust fans. If you're 22 familiar with the auxiliary fans, they do a great job 23 of controlling dust. They're not very good on gas. 24 Fortunately, we're not in a lot of gas right now in 25 our mines. But they do control the dust very well. 112 1 But our outlying areas of the mines are -- we have a 2 problem keeping the roadways wet, dusty, and that's a 3 lot of my concern is we have a lot of people. How is 4 this going to effect our outlier people? Is it going 5 to monitor them in this atmosphere that they're 6 working in? 7 And other things our construction guy 8 spoke about awhile ago. I'm a fire boss now at Shoal 9 Creek, and I shift a lot of areas where we build 10 seals and bore holes, and these guys work in a 11 tremendous amount of dust, and building seals and 12 drilling these bore holes, and I'd really like for 13 y'all to look at that really hard and heavy because 14 this is an area that's in great concern. 15 Especially, like I said, since I've been 16 on the fireballs I get to see a lot more of the 17 mines. And these areas are a big concern. In the 18 wintertime at Shoal Creek -- we have a lot of wet 19 conditions at Shoal Creek, which we're getting out of 20 that problem, but in the wintertime, the mine dries 21 out. As you know, we have a lot more dust, so it's 22 harder to control in the wintertime. We appreciate 23 y'all taking a look at that. 24 Another area that I've always been 25 concerned with is our intake air. I really 113 1 appreciate y'all dropping the level on our belt lines 2 because our air and our belt is all intake air. So 3 that part we really back y'all up on that because air 4 goes directly to the face. No matter where you're at 5 in the mines, intake air, belt lining, roadways, goes 6 straight to the face. That's another problem that, 7 the wetting of the roads and things and conditions. 8 A couple of questions, I know we heard the guy speak 9 about this unit. Yeah, it's big, and it's heavy, you 10 know, I wouldn't want to wear one. 11 I was a miner operator for over 12 25 years, and I can tell you about the dust and 13 having crawled in and out of some of these areas, and 14 it is a bad area. But you know, I've heard a lot of 15 complaints about the dust monitor itself, the new 16 one, but I haven't heard a lot of complaints about 17 dropping the levels. So I was sitting back there and 18 the thought come to me that, if we're not getting a 19 lot of complaints about the dust level, let's go 20 ahead and drop the standard. It's a 2-year program, 21 if I read this right. It starts at 24 months and 22 gets to a certain level. Go ahead and drop it. Use 23 the standard we've got now, checking for dust to see 24 if we can get it down until we come up with some new 25 technology on the dust monitors. The technology is 114 1 out there. We've just got to take time to get it 2 there. But for our guys, lets drop the standard, 3 start the program. Let's get it down and check the 4 dust with our old dust monitors that we've got now to 5 see if we can comply with that regulation and then, 6 maybe in a few years, maybe we can come up with a 7 better way, smaller unit, you know. Technology's out 8 there every day. So that's one thing that I was 9 sitting back there and I heard. And then this -- 10 like I said, I didn't hear a lot of complaints about 11 it. 12 Another thing I'd like to mention is our 13 non-union mines all over the United States. I don't 14 think we have that problem here in Alabama. How is 15 MSHA going to look at our non-union mines? How are 16 they going to regulate them? Because most of our 17 accidents, most of our dust explosions and gas 18 explosions are at non-union mines. How are we going 19 to regulate them? We know our union mines are going 20 to be regulated. We know that MSHA is going to 21 regulate our union mines. We know that. 22 As a union member, I'm concerned with 23 that. We don't want to lose jobs. We've lost jobs 24 over the years, but let's look into this situation. 25 That's the question I have for you. I don't think 115 1 this district here -- we have a problem because I 2 know 95 percent of the people personally and 3 professionally that are inspectors. I don't think we 4 have a problem here. Parts of the United States, we 5 do have a problem in that area. And I'm concerned 6 with how MSHA is going to regulate this problem with 7 our non-union mines. 8 We really do appreciate it. As a United 9 Mine Worker, Local 1948, we applaud y'all for 10 dropping the dust standards and working on this 11 problem and really appreciate you coming down and 12 letting us speak to you again. Any questions? 13 GREGORY R. WAGNER: Thank you very much. 14 Once again, look forward if you want to send written 15 comments and appreciate you being here today and your 16 interest in this area. I now ask if there's anybody 17 that didn't previously sign up, would you please come 18 forward? 19 TED NICHOLS: Good morning. My name is 20 Ted Nichols, N-I-C-H-O-L-S. I'm with Reed Minerals 21 out of Walker County. I am with the surface 22 installation. We have three coal mines and a 23 trucking company. I have one question mainly to the 24 comment, reference 71.207 of designated work 25 positions, if it's covered and I have not read it, I 116 1 apologize. Subsection B says, "Designated work 2 position samples shall be collected at locations to 3 measure the respirable dust generation sources in the 4 active workings. The work positions at each mine 5 where DWP samples shall be collected to include: 6 One, each highwall drill operator; two, bulldozer 7 operators." 8 My question is: At this time, our DWPs 9 are established by dust samples that are taken by 10 MSHA. If we are over 1.0 or 5 percent quartz, then 11 DWP is issued. Am I reading this correct that each 12 drill and each bulldozer will become a DWP if this 13 passes? 14 ROBERT THAXTON: Each highwall drill 15 will become a DWP automatically. Each bulldozer 16 would not. They would be representative bulldozers 17 if you have, say, two dozers that are pushing spoil, 18 if you have two that are doing reformation work, we 19 accept you do the sample of, essentially, one of each 20 so that you're representative of all the exposures. 21 TED NICHOLS: Is that something that we 22 would decide at the operators -- in my operation, 23 most of our dozers are in the push -- in the 24 overburden, we are a reformation crew. Is that 25 something that the district manager would tell us, 117 1 we're going to separate these dozers, or how would 2 that be laid out? 3 ROBERT THAXTON: It actually is a 4 program that you would work through the district 5 manager, and you would be providing the district 6 manager which occupations you have on your particular 7 mine site and identify which ones would need to be 8 sampled. If he has other opinions about which ones 9 should be sampled, then he would work that out with 10 you. Plus, the combination of MSHA coming out and 11 doing inspections, we would evaluate the positions 12 and identify additional positions that would need to 13 be sampled. 14 TED NICHOLS: Reference to the drills as 15 becoming an automatic DWP, at this time, I have nine 16 drills between three operations. I have zero DWPs 17 because the samples that have been collected would be 18 locally standard at this time. So to go from zero to 19 nine automatic, even though I'm below the standard, 20 seemed a little aggressive. I personally have no 21 problem with going to a 10 standard because I'm below 22 a 10 standard with my samples that MSHA has 23 collected, but to go from zero DWPs to nine and then 24 the representative dozers and most of my dozers being 25 in the push, I'm looking going 20, 25 DWPs from 0. 118 1 So I would ask the panel and ask MSHA to relook at 2 this, how a drill would become automatic as opposed 3 to, now, when the sample has to be taken. It's like 4 we're trying to correct a problem with a drill when 5 there is no problem and everything. All our samples 6 are good, and we're automatically being -- I don't 7 want to use the word, "punished," -- because I had a 8 driller when I was an operator. But we have zero 9 now. We're going to go to at least nine, and by the 10 time you count my dozers, 20 to 25, so I would ask 11 that be looked at. 12 GREGORY R. WAGNER: Thank you very much. 13 Appreciate your observation. Susan? 14 SUSAN OLINGER: For some discussion of 15 your first question, I would just like to acquaint 16 you to the Page 64440 of the preamble where it 17 discusses DWPs. That might help. 18 TED NICHOLS: One more question. I'm 19 sorry. On the CPDM, it is not available to record 20 quartz content. Am I correct about that? 21 GREGORY R. WAGNER: That's correct. 22 TIM NICHOLS: So when I do my DWP as 23 MSHA measured for quartz over a one year period to 24 take a DWP off, will that still be done or once the 25 drill is a DWP, he'll always be a DWP? 119 1 ROBERT THAXTON: As the proposal's 2 written right now, a drill would never come out of 3 sampling. The other occupations that are established 4 based on sampling, the district manager could remove 5 from sampling after sufficient data's gathered that 6 shows that it's not a problem but not the ones that 7 are established by the regulation. 8 TED NICHOLS: Will we be required to run 9 the CPDM at a surface installation, or can I continue 10 to run the pumps I run now? 11 ROBERT THAXTON: The surface would have 12 the option of using either CPDM or the current 13 gravimetric sampler. It's your choice. 14 TED NICHOLS: Thank you very much. 15 GREGORY R. WAGNER: Thank you. Anyone 16 else who wishes to make a comment? 17 THOMAS WILSON: Hello. I'm Thomas 18 Wilson, T-H-O-M-A-S, W-I-L-S-O-N. I'm currently a 19 UMWA International Health and Safety representative. 20 I've held that position for the last 25 years. I 21 started in mining in 1976, initially working at 22 Peabody Coal Company in Southern Indiana. Then in 23 1979, coming to Alabama and working for Walter 24 Engineering at Jim Walter Resources No. 4 Mine. 25 During the 25 years that I've been as 120 1 International Health and Safety representative, as 2 many of you on the panel know, much of that time has 3 been following many attempts of trying to improve the 4 dust standards in this country. I attended all the 5 Dust Advisory Committee meetings, and I believe each 6 and every public hearing has been held on dust. And 7 I want to start by saying this is a well written 8 proposed rule, and it will save lives. I compliment 9 you on that. 10 During those 25 years, I've listened to 11 the industry explain the complications of moving 12 forward and cleaning up this industry. And while 13 they change or explain progress away, miners continue 14 to get sick, diseased, and die. Again, I want to 15 thank you on the thoroughness of this proposal. 16 I want to start by -- I heard this 17 morning talking about how unfriendly of a unit this 18 continuous monitor is and how burdensome it is and 19 other adjectives that they used explaining 20 complications of wearing it. I'd like everybody to 21 pause for just a moment and really think what 22 burdensome is and what unfriendly is. Unfriendly is 23 having to carry an oxygen tank when you're trying to 24 hold your grandchild. Unfriendly is in pouring down 25 rain trying to load groceries while you're holding an 121 1 oxygen tank in one hand. Unfriendly is trying to 2 drive down the street while you're connected to an 3 oxygen pump. Unfriendly is not living long enough to 4 see your children married, as Matthew Little 5 mentioned, or getting to play with your grandchildren 6 or getting to spend time with your wife and your 7 retirement that you worked for. 8 We have several things in the proposed 9 rule I want to discuss. I want to start by saying, 10 the new rule continues to put control of the sampling 11 program in the hands of the coal operator. In past 12 comments, the UMWA has insisted that MSHA should take 13 control of the sampling program. We maintain this 14 position. Realizing that that's not the proposal on 15 the table, I'm going to go forward and discuss the 16 proposal that's on the table. 17 Also, I want to say for the record, 18 Section 70.208(h) of the proposed rule permits worker 19 rotation to be used as a supplementary control when 20 the operator is unable to maintain compliance through 21 environmental or engineering control. The UMWA 22 supports language that would achieve compliance 23 through environmental and or engineering controls. 24 The UMWA opposes the use of worker rotation as a 25 means of lowering respirable dust exposure. Allowing 122 1 rotation will do nothing to control the dust, will 2 not provide any incentive to come into compliance, 3 and it merely rotates one guinea pig out of the dust 4 and places another one in the dust. 5 In Beckley, West Virginia, Dennis O'Dell 6 discussed expanding the regulations coverage. I 7 believe Matthew Little did an excellent job urging 8 MSHA to insure that this proposed rule covers shaft 9 and slopes. Matthew called himself a hard rock 10 miner, but in fact, I consider Matthew a coal miner. 11 Every shaft Matthew sinks is on mine property. Gary 12 Jolly just discussed expanding to persons pouring 13 seals, and I believe he was referring to having to 14 work in returns to pour seals. He also mentioned for 15 you to consider expanding it to cover mine examiners, 16 and I believe, again, mine examiners are required to 17 work in the returns. 18 On the topic of expanding, there's some 19 underground jobs that are absolutely essential that 20 we expand and make sure that we get coverage of under 21 our sampling program. Really, any time construction 22 work or rock work is being done in the underground 23 coal mine, for example, shooting and/or mining of 24 overcast, our industry has really one new fad in the 25 industry that's really taken off is raise bore 123 1 drilling or shafts. This raise bore drilling 2 requires constant clean up of pure rock shavings that 3 fall back down into the mine. This raise bore drill 4 and clean up of the shavings needs to be monitored. 5 One issue that is prevalent on every 6 underground mine, the persons that spoke today, of 7 the operators that spoke today, is they, each and 8 every one of them, allow drill shavings from the roof 9 bolters to be dumped on the section roadways. That's 10 followed by equipment running through it causing 11 those contaminates to continuously become airborne. 12 We would ask MSHA to address in this proposal the 13 waste that is left over from roof-bolt drilling and 14 for that not to be allowed to be left on our section 15 roadways. These are just a few -- laundry list of 16 problem areas that we would urge MSHA to further 17 address. 18 On Page 64415 of the proposed rule and 19 preamble, third column, it states, "However, the 20 Secretary of Labor considers ending black lung 21 disease as one of the Department's highest regulatory 22 priorities and strongly believes that the proposed 23 integrated regulatory approach represents the most 24 effective strategy for reducing miners' exposure to 25 respirable dust." We appreciate that position, and 124 1 we applaud it. 2 At the bottom of the same page, the 3 bottom of that column, it states, "the Agency 4 believes that the integrated approach in the proposed 5 rule would achieve an effective and balanced 6 regulatory program consistent with MSHA's 7 Comprehensive Black Lung Initiative to lower coal 8 miners' exposure to respirable coal mine dust and end 9 lung disease. The Agency believes that a more 10 compartmentalized approach would lessen the impact of 11 the benefits to be achieved by this important 12 initiative and would not reduce the risk of serious 13 lung disease from coal mine dust exposure." I agree 14 with MSHA's position. 15 On Page 64416, again, third column, 16 reads, "To provide effective protection to miners 17 working longer than 8 hours, the proposal would 18 require that dust concentration measurements for 19 these be converted to an 8-hour equivalent 20 concentration as measured by the MRE instrument. The 21 proposal is consistent with generally accepted 22 industrial hygiene practices that adjust worker 23 exposures to account for all time worked, recognizing 24 that an extended work shift results in a shorter time 25 to recover before the next exposure." Again, that's 125 1 the position that I agree with. 2 On Page 64417, middle column, bottom of 3 the page, states that, "The proposal would revise the 4 definition to require that each set of mining 5 equipment be identified as a separate MMU if two sets 6 of mining equipment are used in a series of working 7 places in the same working section and two production 8 crews are employed. This would be a change from the 9 existing standards that requires that the MMUs must 10 be 'simultaneously engaged in the production of 11 material' within the same working section in order to 12 be identified as separate MMUs. MSHA believes the 13 change is necessary because miners can be exposed to 14 respirable dust and quartz when there is no 15 simultaneous production of material. The proposal 16 would protect the health of miners on the working 17 section." Again, that's a statement we agree with, 18 what MSHA is saying and doing. 19 "Normal production shift, the proposed 20 definition of normal production shift would revise 21 the existing definition to mean a production shift 22 during which the amount of material produced by an 23 MMU is at least equal to the average production 24 recorded for the most recent 30 production shifts or, 25 two, if fewer than 30 shifts of production data are 126 1 available, a production shift during which the amount 2 of material produced by an MMU is at least equal to 3 the average production recorded by the operator for 4 all of the MMU's production shifts." Again, that is 5 an area of agreement on what MSHA is saying and 6 doing. 7 On Page 64418, MSHA approaches a 8 question. This is in the middle column, "MSHA 9 believes that the proposed definition 'normal 10 production shift' would significantly improve miners' 11 health by requiring operators' samples to be 12 collected during shifts that are more representative 13 of typical conditions at the mine. The Agency 14 solicits comments on the approach taken in the 15 proposed plan. Please be specific in your comments 16 and include the rationale for suggested 17 alternatives." MSHA must insure that normal 18 equipment is operating during these samples, and I 19 want to give you some examples or an example. You 20 have a surface facility in Alabama that also operates 21 a thermal dryer, and in the past, when samples were 22 being taken, it was quite normal not -- to operate 23 the plan but to not operate the thermal dryer, which 24 would leave a completely different result as far as 25 the dust levels. So any time these samples are being 127 1 taken from the B representative, we must make sure 2 that normal equipment is operating also. 3 On Page 64419, third column, "MSHA 4 believes that with the proposed phase-in of exposure 5 limits, all coal mines, regardless of their size and 6 type of mining system would have sufficient time to 7 either upgrade existing controls or to install 8 additional measures to meet the proposed 9 requirements." Again, that is a time frame we agree 10 with. 11 Further down on that column, "MSHA 12 believes that the phase-in period would provide an 13 appropriate amount of time for mine operators to 14 feasibly come into compliance with the new proposed 15 limit." Totally agree. 16 GREGORY R. WAGNER: Excuse me. I wonder 17 if there are specifics that you have to recommend, 18 either agency changes or modifications, that would be 19 particularly helpful. As you previously mentioned in 20 your testimony, if these are areas of substantial 21 agreement, we'd appreciate your just noting that, but 22 it's a little bit unclear. If you don't mention 23 something, does that mean that you disagree with it? 24 THOMAS WILSON: Absolutely not, sir. 25 GREGORY R. WAGNER: Okay. Then we would 128 1 appreciate if there are specific points where you 2 have suggestions for improvements that you would 3 identify those. 4 THOMAS WILSON: On Page 64420, third 5 column, middle of that column, it says, "MSHA 6 solicits comment on proposed phase-in period for 7 lowering the respirable dust limit from 1 milligram 8 to .5 milligrams for belt air courses and part 90 9 miners." I'm believing that there should be a second 10 phase-in period that would lower the intakes and 11 belts to even lower than .5. Our intakes and our 12 belts are areas that we can get those dust levels 13 down if we just apply ourselves to do them, if we're 14 required to do them. So I'd like to see MSHA go even 15 further with the first phase-in going down to .5, and 16 the second phase going even lower. 17 At the bottom of that column, it says, 18 "MSHA believes that the two year phrase-in period is 19 sufficient time for mine operators to reduce 20 respirable dust exposures to an acceptable level." I 21 believe that is an adequate time. Actually, it's a 22 very generous time. 23 On the top of Page 64421, our respirable 24 dust standards, I support this section, but want to 25 stress that underground construction projects, such 129 1 as overcast work, shaft, and slope work must be 2 included. 3 On Page 64423, first column, middle of 4 the column, "the Agency requests comments on the 5 proposed phase-in on the use of CPDMs, including the 6 time period and the Agency's intent with respect to 7 availability of CPDMs." Very concerned that MSHA is 8 being too lax with the suggested phase-in, 9 especially, with the language of the purchase order. 10 On the same page, middle column, middle 11 of that column, "Proposed 70.201(e) would account for 12 all the time that a miner works and is exposed to 13 respirable coal dust." I do support sampling devices 14 being operated. 15 And on the third column, "Working 16 extended shifts increases exposure resulting in 17 increased health risks to miners, both in terms of 18 incidence and severity. The proposal with respect to 19 extended shifts is consistent with generally accepted 20 industrial hygiene principles today, which take into 21 consideration all of the time a worker is exposed to 22 an airborne contaminate, even if it exceeds 8 hours a 23 day." This approach is very much needed with this 24 industry going to extended shifts. 25 On Page 64424, at the bottom of the 130 1 middle column, "Proposed paragraph (g) is new and 2 would require the operator to make a record showing 3 the length of each production shift for each MMU, to 4 retain the records for at least six months." It is 5 my belief that retaining the records should be 6 extended to 12 months. 7 Third column of that page, discussing 8 the proposed paragraph (h), "Redesignated in 9 paragraph (c), would be revised to require that, upon 10 request from the District Manager, the operator would 11 submit the date and time any respirable dust sampling 12 would begin and submit that information to the 13 District Manager at least 48 hours prior to scheduled 14 sampling. MSHA has included the proposed 48-hour 15 notification requirement." Again, that is really 16 good and long overdue for an opportunity for MSHA to 17 get out there and monitor to operator sampling. 18 A little further down in that column, 19 again, it refers to the six months retaining of 20 records for at least six months. Again, I would 21 recommend a 12-month retention of records. 22 Six months goes by so fast. We could be in the 23 middle of an issue at that mine and find out that the 24 records just got destroyed. 25 At the bottom of that page, and column, 131 1 "Proposal paragraph (j) is new and would require mine 2 operators using CPDMs to provide training to all 3 miners expected to wear one." This needs to be 4 totally separate from other training. Our other 5 training is quite full of topics, and as far as the 6 quality that a trainer can put on each item, with the 7 importance of this, we need separate and distinct 8 training. 9 On Page 64425, first column, "Proposed 10 paragraphs (j)(1) through (j)(5) would require that 11 the miner be instructed on: The basic features of 12 the CPDM and its capabilities; how to set up the CPDM 13 for compliance sampling; the various types of 14 numerical displays on the CPDM readout and how to 15 access that information; how to start and stop a 16 short-term sample run during compliance sampling; and 17 the importance of continuously monitoring dust 18 concentrations and properly wearing the CPDM." 19 Again, I believe what is trained on should be 20 expanded to also include the miners' rights as he 21 approaches noncompliance. 22 At the bottom of that column, it talks 23 about, "MSHA believes that it is impractical to 24 include the proposed comprehensive training on CPDMs 25 within the prescribed time limits under part 48." 132 1 Again, that's something I agree with, and I know to 2 be correct. 3 GREGORY R. WAGNER: May I ask, will you 4 be submitting these comments in writing as well, or 5 are you not planning to? 6 THOMAS WILSON: No, sir. 7 GREGORY R. WAGNER: Okay. Good. Thank 8 you. 9 THOMAS WILSON: On Page 64425, middle 10 column, "Proposed paragraph (k) is new and would 11 require mine operators to maintain a record of 12 training at the mine site two years following 13 completion of training. MSHA believes it is 14 important to retain these records to verify that the 15 required training has been approved." We agree with 16 and support MSHA's selection of a two year time 17 frame. 18 At the bottom of that page, "70.203(b) 19 would retain the existing requirement that candidates 20 for certification pass an MSHA examination to 21 demonstrate competency in respirable dust sampling 22 procedures or in maintenance and calibration 23 procedures, as appropriate. To ensure consistent 24 administration of this certification process, 25 however, the proposal would add a new requirement 133 1 that candidates complete an MSHA course of 2 instruction prior to certification." We support 3 that. 4 GREGORY R. WAGNER: Excuse me, again, if 5 I could ask if you could justify the areas, as you 6 have been before, where you are suggesting 7 alternatives as opposed to indicating support. 8 Because otherwise, we will assume that anything 9 that's in here that you don't mention you are 10 supporting. If there are changes or improvements 11 that you're recommending, we'd appreciate you 12 identifying those areas and suggesting the changes 13 that you would recommend. 14 THOMAS WILSON: On Page 64426, first 15 column, "Propose 70.202(c) and 70.203(c) are new and 16 would require persons certified in dust sampling 17 procedures or maintenance and calibration procedures 18 to pass the MSHA examination demonstrating competency 19 in sampling procedures or maintenance and calibration 20 procedures every three years." I object to the 21 three-year time frame. I believe it should be 22 shortened. For three years to pass, there could be a 23 problem that becomes a major problem. I believe that 24 that time frame needs to be shortened. 25 Page 64433, first column, under J 134 1 Section 70.208, Sampling of Mechanized Mining Units; 2 Requirements When Using a CPDM, talks about, "An 3 interim use of supplementary controls when all 4 feasible engineering and environmental controls have 5 been used." I object to that language being in the 6 proposal. Historically this language has been a 7 failure to cause compliance, but if MSHA moves 8 forward and uses this language, the 24 months should 9 be shortened to a lesser time. 10 On Page 64434, talks about the mechanics 11 working on the longwall would be sampled under 12 paragraph (a)(2). This is very important for MSHA to 13 maintain this for the mechanics on our longwalls. 14 Further down on that column, it talks about, "the 15 Agency requests comments on the proposed locations 16 for the use of the CPDMs." We recommend that -- back 17 to the mine examiners that must work the returns, to 18 do their examinations, I believe all examiners 19 required to work returns should be required to be 20 sampled with a CPDM. 21 On Page 64435, middle column, it's 22 talking about, "Proposed paragraph (h) would provide 23 that for the 24-month period following the effective 24 date of the final rule, if an operator is unable to 25 maintain compliance with the applicable standards for 135 1 an MMU and the operator determines that all feasible 2 engineering or environmental controls are being used 3 on the MMU, the operator may request through the 4 District Manager that the administrator of Coal Mine 5 Safety and Health approve, for a period not to exceed 6 six months, the use of supplementary controls, 7 including worker rotation, in conjunction with 8 monitoring miners' exposures with the CPDMs to reduce 9 effective miners' dust exposure. When making such 10 request, the operator would have to provide a report 11 that: Evaluates the specific situation in the MMU; 12 outlines all the controls that will be used during 13 this time period to prevent miners from being exposed 14 to concentrations exceeding the applicable standard; 15 and three, address the actions that will be taken to 16 reduce miners' exposures through the use of 17 engineering and environmental controls; and four, 18 establishes the time line for the implementation of 19 engineering and environmental controls." Again, the 20 UMWA objects to this approach and believes that MSHA 21 is opening the flood gates and that this will be an 22 area of abuse. 23 Also on that page, 64435, on the bottom 24 of the third column, "Any approved use of 25 supplementary controls would only be in effect for a 136 1 period not to exceed six months. MSHA believes a 2 six-month period is a reasonable time in which 3 supplementary controls may be used. If approved, 4 supplementary controls would be permitted until other 5 feasible engineering or environmental controls are 6 implemented. In addition, if an operator cannot meet 7 the applicable standards after the six-month period, 8 the operator may make another request to use 9 supplementary controls; however, the use of 10 supplementary controls would not be permitted beyond 11 the 24 months following the effective date of the 12 final rule." I object to that approach. That's 13 telling me that we'll have two years of 14 noncompliance. 15 GREGORY R. WAGNER: I think -- excuse 16 me. With regard to the length of your testimony, 17 when people came in, we said we want people to be 18 mindful that there are others that want to testify. 19 What I'd like to do, with your permission, is let the 20 other people who have signed up at this point come in 21 and testify in case they need to get somewhere and 22 then ask you to come back and complete your 23 testimony, would that be okay? 24 THOMAS WILSON: Yes, sir. 25 GREGORY R. WAGNER: I'd like to invite 137 1 Joe Craig Weldon. 2 JOE CRAIG WELDON: Weldon. 3 GREGORY R. WAGNER: Excuse me. Weldon. 4 JOE CRAIG WELDON: I was going to say 5 good morning, but afternoon now. 6 GREGORY R. WAGNER: Afternoon. 7 JOE CRAIG WELDON: My name is Joe Craig 8 Weldon. That's J-O-E, C-R-A-I-G, W-E-L-D-O-N, UMWA 9 local 1948th, District 20 Chairman of Safe Committee, 10 Drummond Company/Shoal Creek Miners. I'm 50 years 11 old. I've got 31 and a half years in coal mining, 12 all of it underground. I'm a coal miner at heart, 13 and I guess I always will be. The lord has truly 14 blessed me with a lot of friends and family in the 15 mining community, not only here in Alabama, but all 16 across this country. I know his favor's with me, and 17 I guess I said all that to say this: From a 18 rank-and-file miner, and a proud one at that, I 19 believe that the subject y'all chose to speak on 20 today is a true representation of the way it is. 21 And having said that, I want to talk to 22 you about 70.208, which is involving worker rotation. 23 We all know that this does nothing to control the 24 dust or the hazards of dust in the coal mines. We 25 stand in opposition of this section of the proposed 138 1 rule because we feel that this section undermines our 2 seniority rights and in the process that we have 3 contract, and that in order to comply with the 4 proposed rule, instead of taking steps to reduce dust 5 and dusty conditions in the mines, this would be a 6 lot easier than doing that. 7 And I'd probably say, if I was in that 8 position, I would probably do the same thing. 9 Because this is just a quick fix and an easy way out 10 to comply, and it don't have anything to do with 11 trying to remove the workers from the dusty 12 conditions. 13 And then it would be just business as 14 usual. And we're standing in opposition of worker 15 rotation. I don't think worker rotation is the 16 answer. I think that the answer to reducing dust 17 would be to start in the belt lines where we use belt 18 air and the haulage ways where you have rubber-tired 19 haulage -- I know we have rubber-tired haulage in our 20 mines, and we're talking about big equipment that 21 don't pull the air through the radiator, but it blows 22 air out of the radiator. 23 And with that in mind, it creates even 24 more dust than just the tire stirring up dust on the 25 roadway. The fans are so strong, it will blow rock 139 1 dust off the top, off the roof, and the ribs. So 2 what's happening is, the area that is getting to the 3 face is already contaminated, is already polluted. 4 So when you have dust that's getting to the face, 5 then once it gets to the face, you even get more dust 6 than, you know, you have a double-edged sword there. 7 So I believe that if we control the dust 8 on our belt lines where we have belt air, we can 9 control the dust on the roadways where we have rubber 10 tired haulage and track haulage, that we would be 11 able to comply with this. And that's just my 12 opinion, and I think it's a pretty legitimate opinion 13 since I work on the roadways every day. I work out 14 -- I work on rubber tired haulage, and that's what I 15 do. And sometimes, we have to get into returns when 16 they're cutting on the face. I know how dusty it 17 gets. You can't see 25 feet. So I believe that 18 it's, in our opinion, that worker rotation's not 19 going to work. Dust and controlling respirable dust 20 and protecting miners, that's why we're all here, no 21 other reason we're here other than that. If we're 22 here for any other reason, we're here for the wrong 23 reason. And I feel that we can all put our heads 24 together to come to solve this problem and set a 25 precedent to insure all those workers and employees, 140 1 whether it be union, whether it be salary, whether it 2 be construction, whether it be contractors, to 3 protect them. 4 And I also feel that we need -- the 5 company and the union need to have all the 6 information and all the tools and all the help from 7 MSHA to achieve this goal. We're going to have to 8 all work together to achieve this goal. If we don't, 9 it's not going to happen. This proposal and this 10 standard is achievable. It's just going to take us 11 all pushing in the same direction to ensure the 12 safety of the miner comes first. That's why we're 13 here, to protect coal miners, to make sure that 14 they're safe, that they'll be able to breathe when 15 they retire. 16 I've got about four and a half more 17 years, and if everything works out all right, I'm 18 going to be retired, and I'll be 55 then. And I hope 19 that I'll still be able to do some of the things that 20 I enjoy doing. And I believe that what we're doing 21 now is going to carry on for several generations. 22 So we need to look and think hard and 23 all push the same direction to make this happen. I 24 guess that's all I have. I'll answer any questions 25 if you have any. 141 1 GREGORY R. WAGNER: Thank you very much. 2 Questions? 3 GEORGE NIEWIADOMSKI: No questions. 4 GREGORY R. WAGNER: Very good. Thanks 5 for taking the time to speak with us today. 6 GREGORY R. WAGNER: Fred England. 7 FRED ENGLAND: My name is Fred England, 8 F-R-E-D, E-N-G-L-A-N-D. I've got 32 years in the 9 coal mines. I started back with a bunch of old 10 timers. We didn't have continuous miner, longwalls, 11 and all that. It was the conventional mining, 12 cutting machine, coal drill, shuttle cars. To sort 13 of sum up everything, I've heard here today -- when 14 they came out with the miner everybody -- nobody 15 wanted the miners. They was going to put us all out 16 of a job. It was going to be a bear, and they was 17 going to cost so much the companies was going to go 18 broke. But the ones that could buy one was going to 19 run more coal and get all the big contracts and put 20 the rest of us out of work, so nobody wanted the 21 miner. Then the longwalls come along. That's the 22 first class, topnotch, Cadillac-way to mine coal. If 23 you don't have a longwall these days, you're not 24 competitive. You can't produce or make money. And 25 that's one of the things that we're up against here 142 1 in Alabama. To be competitive in the mining 2 industry, you just about have to have a longwall. 3 The drawbacks to it, all this new high level 4 equipment, it all generates dust. The continuous 5 miner, the haulage -- the rubber tired haulage we 6 have, the fan ventilation systems, all of it -- it is 7 a part of mining nowadays, but it all generates dust. 8 And people have to work in that in areas where 9 there's just a lot of dust. It's contaminated. 10 As far as the new proposed rule, I think 11 it's a step in the right direction as far as doing 12 away or helping to eliminate black lung. I was 13 surprised at some of the comments from the operators, 14 and they -- I want to commend some of the things I 15 heard from that side. But there's not nothing that 16 we can't achieve as far as the dust, ventilation, 17 equipment, but we do need some working slack to be 18 able to -- what might work at one mine may not 19 necessarily work at another one. We've got a 20 different-type ventilation, the tubing and exhaust 21 fans. Most other normal mines, they've got line 22 curtain or belt and that type ventilation system, 23 scrubbers on their miner. We don't have a scrubber 24 on the miner. So what we do as far as what would 25 work on our ventilation system wouldn't necessarily 143 1 work across the board for everybody else, or what 2 they do for theirs may not help ours. 3 But anyway, to sum it all up, I agree 4 with what Joe said, it's a doable deal, and it's for 5 the good of everybody. Nobody likes change. Just 6 like the old timer didn't like change. Nobody wants 7 change now. The dust pumps, the new monitors, and 8 all that, it's all new to everybody, really, even the 9 people making them. But as far as -- it's a doable 10 deal, and I feel like we need to do it. 11 And another thing I wanted to hit was 12 the raise borer. That roof bolter, it drills an inch 13 and three-eighths hole, and if you open up the dust 14 compartment, after he drilled one hole, it's a 6-foot 15 hole, there's probably going to be a shovel full of 16 dust in and all that. And it's got a cyclone in there 17 that separates it into different sizes, but that's 18 just one hole, an inch and three-eighths in diameter. 19 Them raise borers are from 16 feet up to 24 feet in 20 diameter. It generates an ungodly amount of dust. 21 I'm talking about tons. 22 And here, we have an ignition in one of 23 our raised bore shafts from a year or two ago, got 24 five men burnt. But as a result of that, they 25 started blowing air down that and drawing air out too 144 1 to try to eliminate methane from building up inside 2 that hole. But at the same time, I think it may be 3 blowing some more of that dust down on the -- into 4 the mines and through the returns. 5 But anyway, there's workable solutions 6 for whatever -- you've just got to put your heads 7 together and do it, and I think if we all work 8 together, company operator, MSHA, and the good Lord, 9 we can all do anything. Thank you. 10 GREGORY R. WAGNER: Thank you very much 11 for your comments. I'll ask the panel if they have 12 any questions. Appreciate your time. Before we 13 invite Mr. Waters to come back -- excuse me -- 14 Mr. Wilson to come back, were there any other 15 individuals who wanted to present? Mr. Wilson, the 16 microphone is yours. 17 THOMAS WILSON: Again, Thomas Wilson, 18 T-H-O-M-A-S, W-I-L-S-O-N. Starting back on Page 19 64436, middle of the first column, it's talking 20 about, "Proposed 70.209(a) would revise existing 70.208 21 (a) and require operators, who are using CMDPSUs or 22 CPDMs, to sample each DA for five consecutive shifts 23 every calendar quarter." We need language added to 24 that section that would capture major projects. For 25 example, the drilling of raise bore shafts. 145 1 On Page 64438, third column, under B 2 Section 71.100, Respirable Dust Standards, MSHA 3 solicits comment on the phase-in periods. Again, I 4 believe that phase-in period is reasonable, actually, 5 it is quite long. But based on the samples, operator 6 samples, everybody can have levels lowered during the 7 gracious phase-in period. 8 Again, on Page 64439, again, talks about 9 training on CPDMs that would be the same comment as 10 earlier that it not be part 48 training. 11 Page 64440, "Proposed 71.207(a) would 12 revise existing 71.208(a) and require operators, who 13 are using CMDPSUs or CPDMs, to take one sample every 14 calendar quarter from the working environment of each 15 DWP." I want to make a long distance observation 16 here from some of the strip mines that's in our 17 areas. From a long distance observation, and that's 18 an observation from the road, it appears to me that 19 conditions are getting worse not better in our strip 20 mines. And in recent times, we've had -- the dust 21 has been so overwhelming at some of our local strip 22 mines that it's even harder to get down the highways 23 to our underground mines. The dust -- you're in a 24 fog out on the highways. And I don't understand. 25 We also have some strip mines that are 146 1 operating directly next to our central shop and 2 supply, and again, it's not uncommon for that strip 3 mine to dust out our shop workers and our supply 4 workers. So based on those observations, I believe 5 it's not the time to cut back on the frequency at our 6 strip mines. I think we need to be stepping things 7 up at the strip mines. 8 At the bottom of that page, proposed 9 71.207(b) and comment under that section would be that 10 MSHA should consider including all front-end loaders 11 on that sampling. One commenter mentioned earlier 12 about having two different standards, one for coal 13 dust and one for silica. Unfortunately, a miner only 14 has one set of lungs. MSHA does have it right when 15 considering the miners' health. And I'm asking that 16 you continue with the reduced standard. With that, I 17 thank you and would welcome any questions. 18 GREGORY R. WAGNER: Thank you very much 19 for your review of the document. 20 SUSAN OLINGER: You had a lot of 21 specific comments. I know you indicated that you may 22 not be submitting any written comments, but in some 23 cases, it would help us to evaluate your suggestions 24 if you were able to include rationale in written 25 comments, such as why to include front-end loaders 147 1 and some of your other comments. Thank you. 2 GEORGE NIEWIADOMSKI: No questions. 3 GREGORY R. WAGNER: Again, on your last 4 comment about one set of lungs, I think that MSHA is 5 interested in controlling both the coal mine dust to 6 a level that won't be harmful and silica dust to a 7 level that won't be harmful. Any consideration of 8 separating the two would not be less protective, but 9 it would be to be equal or greater protection than 10 the miner has right now. So that's definitely the 11 intent. And we invite you to, as I'm sure you will, 12 take a look at the silica rulemaking at the point at 13 which that comes out and to offer your thoughts and 14 comments at that point as well. And again, we really 15 appreciate the thoroughness with which you have 16 provided your comments. 17 THOMAS WILSON: Thank you. 18 GREGORY R. WAGNER: Are there any other 19 individuals in the room now who would like to offer 20 additional comments, data, or thoughts on the 21 proposed rule? Seeing none, I want to thank everyone 22 who has participated in this meeting today. You've 23 provided useful information that will be quite 24 valuable to the Agency in trying to improve our 25 approaches to reducing dust exposure for miners in 148 1 order to eliminate black lung. Again, I would remind 2 you that we have a written comment period that is 3 open until May 2nd, 2011. MSHA will take your 4 comments and your concerns into consideration in 5 developing the Agency's final rule. I'd like to 6 encourage all of you to participate throughout the 7 rulemaking process. And at this point, this hearing 8 is concluded. Thank you and safe travels. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 149 1 C E R T I F I C A T E 2 3 STATE OF ALABAMA ) 4 JEFFERSON COUNTY ) 5 6 I hereby certify that the above 7 and foregoing deposition was taken down by me in 8 stenotype, and the questions and answers thereto were 9 reduced to computer print under my supervision, and 10 that the foregoing represents a true and correct 11 transcript of the deposition given by said witness 12 upon said hearing. 13 14 15 I further certify that I am 16 neither of counsel nor of kin to the parties to the 17 action, nor am I in anywise interested in the result 18 of said cause. 19 20 21 ________________________________ Lauren H. Deerman, Commissioner 22 ACBR # 583 23 24 25