UNITED STATES OF AMERICA DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION * * * * * * * * * IN RE: LOWERING MINERS' EXPOSURE TO RESPIRABLE COAL MINE DUST, INCLUDING CONTINUOUS PERSONAL DUST MONITORS * * * * * * * * * BEFORE: GREGORY WAGNER, M.D. Robert Thaxton George Niewiadomski Javier Romanach Ronald Ford Susan Olinger HEARING: Tuesday, February 8, 2011 9:00 a.m. LOCATION: George Washington Hotel 60 South Main Street Washington, PA 15301 WITNESSES: George Ellis, Henry Moore, Esquire, Jim Morton, Mike Cooper, Edward L. Petsonk, M.D., Dennis O'Dell Reporter: Danielle S. Ohm Any reproduction of this transcript is prohibited without authorization by the certifying agency A P P E A R A N C E S HENRY R. MOORE, ESQUIRE Jackson Kelly, PLLC Three Gateway Center Suite 1340 Pittsburgh, PA 15222 COUNSEL FOR PENNSYLVANIA COAL ASSOCIATION I N D E X OPENING REMARKS By Doctor Wagner 5 - 26 TESTIMONY By Mr. Ellis 26 - 40 QUESTIONS BY PANEL 41 - 70 TESTIMONY By Mr. Morton 70 - 72 QUESTIONS BY PANEL 72 - 95 TESTIMONY By Mr. Cooper 95 - 133 QUESTIONS BY PANEL 133 - 200 TESTIMONY By Mr. Petsonk 201 - 204 QUESTIONS BY PANEL 204 - 212 TESTIMONY By Mr. O'Dell 212 - 226 QUESTIONS BY PANEL 226 - 234 DISCUSSION AMONG PARTIES 234 - 235 CERTIFICATE 236 E X H I B I T S Page Number Description Offered NONE OFFERED P R O C E E D I N G S ------------------------------------------------------ DOCTOR WAGNER: Good morning, my name is Gregory Wagner. I am Deputy Assistant Secretary for Mine Safety and Health for the U.S. Department of Labor, and I'm also a physician. I'd like to welcome you here to this public hearing on MSHA's proposed rule for lowering miners' exposure to coal mine dust. On behalf of Joe Main and the rest of us, we would like to express our appreciation for your coming here despite clearly the importance of the topic to all of us, to brave the road conditions, the weather in order to be able to come here. Before we get started with the formal hearing, what I would like to do is provide a little bit of context for MSHA's consideration, concern about this issue. I'm sure many of you recognize this picture incurred nearby in 1968. It's a fire explosion in --- near Fairmont, West Virginia, the Farmington Mine. It claimed 78 lives and provides the basis for the Federal Coal Mine and Health and Safety Act of 1969. That Act was intended not only to prevent tragedies like that explosion, but it also reflected the concerns at the time for the lung diseases that miners were getting. There was a lot of interest and focus on trying to prevent Black Lung. As part of the 1969 Act Congress mandated the respirable coal mine dust exposures be reduced to a level to prevent new incidences of respiratory disease and the further development of such disease in any person. In 1977, following the Scotia Mine Disaster of '76, the Federal Mine and Safety Health Act was passed, reiterating a lot of the '69 Coal Act. In it, it set standards, which assure on the basis of the best available evidence that no miner will suffer impairment of health or functional capacity even if such miner has regular exposure to the hazards dealt with by such standards for the period of his working life. No miner shall suffer. So fast forward to the mid '90s, National Institute for Occupational Safety and Health reviewed the world's literature, the scientific literature having to do with the lung diseases that coal miners get and how to prevent them and gathered their findings in a large document. It's available on the back desk. It's a criteria document recommending a standard for occupational exposure to respirable coal mine dust. The recommendations included in that document are based upon the best available science, and those findings were reviewed by a blue-ribbon panel established by the Secretary of Labor that included people from the Industry, Labor and other academics in order to look at this issue also and come up with recommendations. They gave a report to the Secretary of Labor. It was an Advisory Committee Labor report on how to eliminate pneumoconiosis and Black Lung among the coal mine workers. And in essence, confirmed, or supported the NIOSH recommendations. Let me show you, briefly, what it is that we're trying to prevent here. See on the left a lung slice from someone who did not have Black Lung. In the middle you see the beginning of the spots of coal mine dust that were deposited, some stringing of the lungs and some destruction among the tissue that's not as similar chronic coal worker’s pneumoconiosis, one of the lung diseases that miners get. And on the left you see a lung that's got big holes, that the air that people breathe in can't get through into the circulation. This is a lung that has massive destruction. It's called progressive massive fibrosis, and it's transformed over coal worker’s pneumoconiosis. This is one of the lung diseases that miners get from coal mine dust exposure. You get these --- what are called fibrotic diseases, where the fibrosis stitch places on the lung tissue. You get silicosis when there's silica rock, crystalline silica that people breathe in and react to. You can also get diseases that don't show up on x-rays, what we call airflow diseases. Chronic bronchitis, emphysema, these can come on insidiously, slowly and rob someone of their breath. Tuberculosis is an increase risk also to people who have significant silica exposure. So over the years, after the passage of the 1969 Coal Mine Health and Safety Act, there was a gradual reduction in coal worker’s pneumoconiosis among those who participated in an x-ray program run by the National Institute for Occupational Safety and Health. Miners who were only under the new dust limits showed less and less disease down until about the year 2000, and then as you can see, there's a point there that disease prevalence starts to go up among those who participated in the program. By this time I started investigating what was going on, trying to figure it out. I went down into some areas where they found geographic hot spots. Clusters of people with severe lung disease. Let me show you a couple examples. Here's an example of a miner who was x-rayed in 1997, only 37 years old. Sixteen (16) years of underground experience. Had advanced disease in 1997, and then just three years later at the age of 40 had this most severe stage B of progressive massive fibrosis. Another miner, 42 years old, 22 years of underground experience, been a roof bolter in Virginia. He started mining when he was 20, so 22 years of experience. All of his mining was under the current dust standard, and his lungs were like the lungs that I showed on the right category of 40 stage C with substantial destruction of lung tissue and problems with his breathing. We worry about each person who dies in a mine accident, but what's often unrecognized is the hundreds, in fact, thousands who have died and continue to die from lung disease from work. You can see here, that although the numbers are getting better, that over the last decade or so, it's like a little more than 10,000 people who have died with coal worker’s pneumoconiosis and the other lung diseases that come from breathing coal mine dust. And it's not only a health problem, it's not only a family problem, but it's also an economic problem. The Black Lung benefits support is designed specifically for miners who are disabled from all coal mining work as a result of their coal mine dust exposure. That's paid out benefits that are approximately $44 billion. So the science says that pneumoconiosis is rising in miners with greater than 20 years of mining who were among those x-rayed in the NIOSH program, and in cases of severe disease being seen in the young workers 40 years old and younger. Pneumoconiosis is far greater than in 1969 when the original dust standard was set. Miners are dying with coal worker’s pneumoconiosis and dying from mining injuries, accidents. A factor of 10 or 20. In miners there are greatly increased risk of chronic lung diseases of emphysema and chronic bronchitis that comes from dust. Here's the bottom line, Black Lung is caused by excessive exposure to coal mine dust, that's the only thing that causes Black Lung. MSHA's goal is to reduce miners' exposure to respirable coal mine dust in order to prevent Black Lung. In order to do that, simple you would think, MSHA's proposed rule that addresses the number of problems that have been identified with the current situation, the rule --- well, right now miners often work longer than eight-hour shifts, but currently the coal mine dust sampling, in order to make sure that the dust is controlled only goes for eight hours. So the proposed rule would require sampling for the entire shift, somebody told me that the dust monitor gets turned off after eight hours, but I don't turn my lungs off. This is supposed to correct that. Miners are exposed every working shift, but only five shifts are sampled, and samples are averaged to determine exposure currently and the proposal will determine exposure on each shift. Right now samples are currently maintained at reduced levels of production, but the proposal would require sampling the average of the last 30 production shifts. Sampling is supposed to be done when production is normal. And this is the normal average for the last 30 shifts. That's what the proposal is. We know from the NIOSH findings that miners are getting diseases at the current standard, I mean, even though what the Act says, is that no miner shall suffer material impairment of health or functional capacity wise. In order to address that, the proposal would reduce the exposure limit. And right now, several miners have not provided sufficient information about either their health or their exposures, and the proposed use of the continuous personal use dust monitor and additional medical monitoring including breathing tests, would provide miners information on which to act. So that, in sum, is what we hope to be doing with this proposed rule and the purpose of our hearing today. So what I would like to do is call our panel up to the front first, and then I'll introduce them and we'll get on with the hearing. My name is Gregory Wagner. I'm the Deputy Assistant Secretary with the Mine Safety and Health Administration. I am moderating this hearing on MSHA's proposed rule to lower miners' exposure to respirable coal mine dust, including continuous personal dust monitor use. And again, on behalf of Joseph A. Main, Assistant Secretary of Labor of Mine Safety and Health, I would like to welcome all of you at today's hearing and extend our appreciation for your participation in this rulemaking. Right now I'd like to introduce the members of the MSHA panel. First to my immediate left is Robert Thaxton, and to his left George Niewiadomski from our Coal Mine Health and Safety. To my far right is Susan Olinger, and to her left is Ronald Ford, both from the Office of Standards, and to my immediate right is Javier Romanach, from the Office of the Solicitor for the Mine Safety and Health division. The proposal rule for lowering miners' exposure to respirable coal mine dust is an important part of the Agency's comprehensive Black Lung initiative. It's the End Black Lung - Act Now. The Secretary of Labor, Hilda Solis, considers ending Black Lung disease as one of the Department of Labor's highest regulatory priorities. The proposal is published in the federal register October 19, 2010, and in response from --- requests from the public on January 14th, 2011, MSHA extended the comment period from February 28th, 2011 to May 2nd, 2011. All comments and supporting documentation must be received or postmarked on or before May 2nd of 2011. This is the fifth of seven hearings on the proposed rule. The first four public hearings were held on December 7th, 2010, January 11, 2011, January 13, 2011 and January 25th, 2011. They were held first at the MSHA Academy and then in Evansville, Indiana, Birmingham, Alabama and Salt Lake City. After this hearing, two others will be held, one on February 10th, 2011 in Prestonsburg, Kentucky, that's this Thursday, and February 15th, 2011, next week, at the MSHA headquarters in Arlington, Virginia. Now, before we start the public hearing, I would like to present --- oh, I'm sorry. As many of you know, the purpose of these hearings is to allow the Agency to receive information from the public that will help us evaluate the proposed requirements and produce a final rule that protects miners in the health hazards that result from exposure to respirable coal mine dust. MSHA will use the data and information from these hearings to help us craft the rule, responsive to needs and concerns of the mining public, so that its provisions be implemented in the most effective and appropriate manner. MSHA solicits comments from the mining community on all aspects of the proposed rule. Commenters are requested to be specific in their comments and to submit detailed rationale and supporting documentation for suggestive alternatives. At this point, I'd like to reiterate some request for comments and information that were included in the preamble to the proposed rule. Number one, the proposed rule presents an integrated comprehensive approach to lowering miners' exposure to respirable coal mine dust. The Agency is interested in alternatives to the proposal that would be effective in reducing miners' respirable dust exposure. The Agency invites comments on any alternatives. The Agency solicits comments on the proposed respirable dust concentration standards. Please provide alternatives to the proposed limits to be considered in developing the final rule, including specific suggested standards and rationale for your suggestion. Number three, the proposed rule bases the respirable dust standards on an eight-hour work shift and 40-hour workweek. In its 1995 criteria document on occupational exposure to respirable coal mine dust, the National Institute for Occupational Safety and Health, NIOSH, recommended lowering exposure to one milligram per meter cubed for each miner for up to a ten-hour work shift during a 40-hour workweek. MSHA solicits comments on the NIOSH recommendation. MSHA included the proposed phase in periods for the proposed lower respirable dust standards to provide sufficient time for mine operators to implement or upgrade engineering or environmental controls. MSHA solicits comments on alternative time frames and the factors which the Agency should consider. Please include any information and detailed rationale. Number five, in the proposal MSHA also plans to phase in the use of continuous personal dust monitors or CPDMs to sample production areas of underground mines and the miners who are Part 90 miners, those identified in the surveillance program as showing initial signs of coal worker’s pneumoconiosis. MSHA solicits comments on the proposed phasing in of CPDMs, including time periods and the information with respect to their availability. If shorter or longer time frames are recommended, please provide your rationale. Number six, MSHA received a number of comments about the use of the CPDM. For operators who use this device is interested in receiving information relating to its use. For example, MSHA solicits information related to durability of the unit, whether and how often the units have to be repaired, types of repairs, costs of the repair, whether the repair was covered under the warranty and how long the unit was unavailable and any additional relevant information. Number seven, MSHA understands that some work shifts are longer than 12 hours, and sampling devices generally last for approximately 12 hours. The batteries keep them going for 12 hours. MSHA solicits comments on appropriate time frames to switch out sampling devices, whether gravimetric samplers or continuous personal dust monitors, to assure continued operation and uninterrupted protection from miners during the entire shift. Number eight, the proposed single sample provisions based on improvements and sample technology, MSHA solicits updated data and comments and testimony from earlier notices and proposals that address the accuracy of single sample measurements. The Agency is particularly interested in comments on new information added to the records since October of 2003 concerning MSHA's quantitative risk assessment, technological and economic feasibility, compliance costs and benefits. Number nine, MSHA is interested in commenters' views on what actions should be taken by MSHA and the mine operator when a single shift respirable dust sample meets or exceeds the excessive concentration value or the ECV in this proposed rule. In this situation, if operators use a continuous personal dust monitor, what alternative actions to those contained in the proposed rule would be suggested the operator take in. The Agency is particularly interested in alternatives proposed in the proposal and how such alternatives would be protective of miners. Number ten, the proposal includes a revised definition of normal production shifts so that sampling is taken during shifts that reasonably represent typical production and normal mining conditions on the MMU. Please comment on what the average of the most 30 --- the most recent 30 production shifts specified in the proposed definition would be representative of the dust levels to which miners are typically exposed. Number 11, the proposed sampling provisions address interim use of supplementary controls when all feasible engineering or environmental controls used by the mine operator is unable to maintain compliance with the dust standard. With MSHA's approval, operators could use supplementary controls, such as rotation of miners, or alteration of mining and productions schedules in conjunction with the CPDMs to monitor miners' exposures. MSHA solicits comments on this proposed approach, and it may suggest alternatives as well as the type of supplementary controls that would be appropriate to use on a short-term basis. Number 12, proposed rule addresses (1) which occupations must be sampled using CPDMs, and (2) which work positions and areas could be sampled using either CPDMs or gravimetric samplers. MSHA solicits comments on the proposed sampling occupations and locations. For example, please comment on whether there are other positions or areas where it may be appropriate to require the use of CPDMs. Also, comment on whether the proposed CPDM sampling of ODOs on the MMU is sufficient to address different mining techniques to potential exposures and ineffective use of improved dust controls. Number 13, the proposed rule addresses the frequency of respirable dust sampling when using a continuous personal dust monitor. MSHA solicits comments on the proposed sampling frequencies and any suggested alternatives. For example, if the sampling on designated occupations were less frequent than proposed, what alternative sampling frequency would be appropriate? Please address the sampling strategy in case of non-compliance with respirable dust standard and provide a rationale. Also, should CPDM sampling of ODOs be more or less frequent than 14 calendar days each quarter? Please be specific in suggesting alternatives that include and support your rationale. Fourteen (14), the proposal would require the person certified in dust sampling or maintenance and calibration retake the applicable MSHA examination every three years, maintain certification. Under the proposal, these certified persons would not have to retake the proposed MSHA course of instruction. MSHA solicits comments on this approach to certification, please include specific rationale for any suggested alternatives. Fifteen (15), in the proposal, MSHA would require the CPDM daily sampling and error data file information be submitted electronically to the Agency weekly. MSHA solicits comments on suggested alternative time frames, particularly in light of CPDM's limited memory capacity of about 22 shifts. Sixteen (16), the proposal contains requirements for posting information on sampling results and of miners’ exposures on the mine bulletin board. MSHA solicits comments on lengths of time for posting the data. If a standard format for reporting and posting data were developed, what should it include? Seventeen (17), the periodic medical surveillance provisions in the proposed rule would require monitors, provide the initial examination of each miner who begins to work in the coal mine for the first time and then at least one follow-up examination after the initial examination. MSHA solicits comments on the proposed time periods specified in these examinations. Eighteen (18), the proposed respirator training requirements are performance based and time required for respirator training would be in addition to that requirement of part 48. Under the proposal, mine operators could, however, integrate respirator training into part 48 training schedules. The proposal would require operators to keep records of the training for two years. Please comment on the Agency's proposed approach. Nineteen (19), the proposed rule specifies procedures and information be included in CPDM plans to ensure miners are not exposed to respirable dust concentrations that exceed the proposed standards. For example, proposed standards include pre-operational examination, testing and setup procedures to verify the operational readiness of the CPDM before each shift. It would also include procedures for scheduled maintenance, downloading transmission of sampling information and posting of reported results. Please comment on the proposed plan provisions and include supporting rationale with your recommendations. I'm almost done. Number 20, MSHA has received comments that some aspects of the proposed rule may not be feasible for particular mining applications. MSHA is interested in receiving comments on the specific mining methods that may be impacted and alternative technologies and controls that would protect miners. Twenty-one (21), MSHA has received comments on the proposed Section 75.332(a)(1) concerning the fishtail ventilation to provide intake air to multiple MMUs. Commenters were concerned that under the proposed rule the practice of using fishtail ventilation with temporary ventilation controls would not be allowed. MSHA solicits comments on any specific impact of the proposed rule and current mining operations, any suggested alternatives and how the alternatives would be protective of miners. Twenty-two (22), the Agency's prepared a preliminary regulatory economic analysis that contains supporting costs and benefit data for the proposed rule. MSHA's included a discussion on cost and benefits in the preamble. MSHA requests comments on all estimates of costs and benefits presented in the preamble and the preliminary regulatory economic analysis, including compliance costs, net benefits and approaches used and assumptions made in the preliminary economic analysis. Twenty-three (23), MSHA's received comments that the proposed rule should not require mine operators to report corrective actions and excessive dust concentrations as 75.363 hazardous conditions. MSHA would like to clarify that the proposal would require the operators to record both excessive dust concentrations and corrective actions. However, under the proposal, MSHA intends that these actions be recorded in a similar manner as conditions recorded under Section 75.363. However, MSHA would not consider them to be hazardous conditions. Twenty-four (24), a commenter at the first public hearing suggested a time frame for miners to review CPDM performance plan be expanded. I want to clarify MSHA's position on the proposed rule. In developing the proposed rule, MSHA relied on the time frame and process in the existing requirements for mine ventilation plans. In the proposal, MSHA did not intend to change the existing time frame and process and stated that the proposed rule was consistent with ventilation plan requirements and would allow miner representatives the opportunity to meaningfully participate in the process. So as you address the proposed provisions, either in your testimony today or in your written comments, please be as specific as possible. The Agency cannot sufficiently evaluate general comments. Please include specific suggested alternatives, your specific rationale, the expected health benefits to miners and any technological and economic feasibility considerations and data to support your comments. The more specific your information is, the better it will be for us to be able to evaluate and produce a final rule that would be responsive to the needs and concerns of the mining public. As many of you know, this public hearing will be conducted in an informal manner, Cross Examination and formal rules of evidence will not apply. The panel may ask questions of speakers, and those of you who notified MSHA in advance you were going to speak or signed up today to speak already will make their presentations first. After all scheduled speakers have finished, any others who wish to speak may do so. And if you wish to present written statements or information today, please clearly identify your material and give a copy to the court reporter who's up there. You may also submit comments following this public hearing. Comments, as I said before, must be received or postmarked by May 2nd, 2011. Comments may be submitted by any method identified in the proposed rule. MSHA will make available transcripts of all the public hearings approximately two weeks at the completion of the hearing. You may review the transcripts of the public hearings and comments on MSHA's website at www.MSHA.gov. And we appreciate you folks who are in attendance today. If you haven't already, sometime in the course of today or on your way out, please sign the attendance list at the back of the room. I want to begin today's hearing --- when I call each of you in turn up to the table to speak, I will ask you to begin by stating your name and organization and spelling your name for the court reporter, so that we have an accurate record. I'm not that --- we will be here as long as people want to speak, but I encourage each speaker to be mindful of the others who hope to speak after you, as well as those in the room who are interested in following the rulemaking who want to hear what everyone has to say through the course of this hearing. Our first speaker is going to be George Ellis, the president of the Pennsylvania Coal Association. MR. ELLIS: Good morning. My name is George Ellis, E-L-L-I-S. I am president of the Pennsylvania Coal Association. With me is Hank Moore, M-O-O-R-E, he is an attorney from Jackson Kelly, but he is also PCA's counsel for mine safety matters. We appreciate this opportunity to testify before you, on respirable --- coal mine dust rule. PCA, for the record, is an association that represents the majority of underground surface coal mine operators in Pennsylvania. We represent about 80 percent of bituminous coal mining in Pennsylvania last year, and that was about 17 million. I will summarize my testimony. I think everybody has a copy --- the panel has a copy. I will provide one to ---. I'll probably not read it verbatim, but I ask that it be read in its entirety off the record. Significant progress has been made over the last several decades concerning the prevention of coal worker’s pneumoconiosis. Our members strive to maintain the lowest possible levels of dust control in the respective operations. The improvements of dust control are evidenced by a significant decrease in the incidences of CWP over the past several decades. The fact this rulemaking is driven by a few called --- so called hot spots attests to our meaningful improvement in the dust control area. The development of the continuous personal dust monitor has presented the industry and the Agency with a unique opportunity to restructure dust control. We do not reject the use of CPDM. It is better than the existing gravimetric system, but it's not perfect. It has had problems in its development and will continue to do so, but the Agency has utterly failed to take advantage of this technology, particularly in its most suitable use. We strongly object to the proposed rule in its current form, complete with technical and operational impracticalities and misapplication of dust control technologies, and represents a departure from the cooperative approach necessary to eradicate Black Lung. We recognize MSHA, the industry, and Labor met and discussed dust monitoring for several years, but the rule reflects little or nothing of this finding, substantial effort. Accordingly we respectfully ask you set aside this rule and recommend that you continue as MSHA set out last year, when it launched the End Black Lung Initiative. That approach was all encompassing and encouraging all stakeholders to work together towards a shared goal of ending Black Lung. In the following proposed rulemaking, MSHA placed inappropriate weight and support on studies and information presented by various personnel from NIOSH. Information that has not undergone the appropriate level of scrutiny, nor has been subjected to the peer-review required that's going to be relied upon throughout the rulemaking and intended requirements of this magnitude. Data has not been substantiated for accuracy or fact, nor does it necessarily support the provisions included in the proposed rule, rather conclusions drawn from this information can be predicated on the bias of its presenters. The industry has made repeated requests for copies of the underlying data. And in addition, NMA has filed several Freedom of Information requests for relevant data. We ask that such data be provided expeditiously so it can be fully vetted before this rulemaking is concluded. Rulemaking is also premised on the existence of so-called hotspots. If so-called hot spots truly exist or existed in certain geographical areas and are further the result of substandard mining operation practices, they simply do not warrant an industry-wide rulemaking, especially the Draconian nature of the proposed rule. Address those specific cases with specific needs, don't need a broad brush order over the industry. And I'm speaking for the Pennsylvania coal industry. And force us to do things that are necessary within the bounties of our Commonwealth. If it's a problem, if it's a particular limited problem, based on the facts, address it in a limited way. CWP is not the easiest --- easily explained nationwide problem that MSHA claims as reason for implementing rulemaking. Indeed, the justification for a rule, reducing the exposure level to a one milligram standard has not been adequately demonstrated or justified by MSHA in this proceeding. This brings us back to our request for data. I think, Doctor Wagner, at the outset you explained frustration of trying to comment on some of the general rather than the specific. We have that problem, too. We would like to see specific data that this rule is based on so that we can have our experts take a look at it so it could be fully looked at. Most importantly, the proposed rule also fails to recognize the improvements that have been made in the respirable dust concentrations, operators simple and advanced dust control technologies and improved work practices. In 2006 the average dust concentration for continuous mine operators in District Two was .88 milligrams per cubic meter. 2010 the number was reduced to .73. This recent downward trend demonstrates that operators --- and again, it's going to be for Pennsylvania coal operators. Our commitment to lowering miners' exposure to respirable coal mine dust, which is the same purpose of this rule, I just want to clarify that our objective is to end Black Lung. We don't support the rule, not because we don't support the objective. We don't think the rule will affect the objective. It should also be recognized that relying on single samples fail to take into account the variability in sampling. In fact, the knowledge that you have intact --- the fact that the technology will be used is relatively untested and --- an underground environment is not conducive to accurate sampling by any means. Current dust system, which is based upon the five sampling average, results in a relatively low number of citations of year. With use of the CPDMs single samples and taking 600,000 samples a year, that number can be expected to skyrocket, 30 percent of all current in-house samples exceeding the one milligram standard, even if there is improvements and this will result in a massive number of citations. As a point of perspective, single --- multiple section of coal mines would be required to produce 10,000 samples each year. The notion that the industry and MSHA can smoothly transition to a program that increases from the industry-wide 25,000 respirable compliance samples per year to 600,000 is not credible. The proposed rule indicates that every exceedance of the standard will result in a plan change in addition to a new respirable dust plan separate and apart from the existing ventilation dust control plan. Requiring new plan submittals with repeated modifications based on single samples will only exacerbate an already flawed and backlogged plan approval process. Further, operators have no effective remedy in plan disputes. MSHA opposes expedited hearings before the Review Commission on this sort of issue, and the current backlog precludes actual expedited consideration. We also question whether MSHA has complied with the congressional imposed mandate to perform a sound fiscal impact statement and an analysis of the proposed rule. Even a cursory review of fiscal information that accompanies the rule indicates that the numbers are woefully understated, obligating a meaningful cost analysis of the rulemaking. I don't know what type of schedule you're on. If you want, I can go over these examples, or I can just ---. DOCTOR WAGNER: It's up to you. MR. ELLIS: Let me talk about one or two of them, and then I'll go on. MSHA has got the compliance cost in the proposed rule for underground coal operations to be less than 40 million annual. The estimate understates cost of the proposed rule whose complexity and administrative burden is extraordinary. Operators are currently collecting like 25,000 designated occupation samples each year. As we understand it, this would be increased to 600,000 under the proposed rule. The cost of the rule would exceed a hundred million per year for underground coal operators alone. Total compliance costs would greatly exceed MSHA's estimates as operators are forced to adjust schedules, modifying mining, alter underground mine ventilation systems by adding stopping lines, and additional airshafts in some situations. We believe that the proposed rule effectively eviscerates the ability of the underground industry to maintain various levels of production. It's not simply the rule itself, it's the consequences that the rule has and these ramifications that I've named. And the next page and a half really talks about that. I want to talk about some other areas of general concern, too. Mandating the CPDM as proposed in the rule is not appropriate at this time. There's been a number of deficiencies and problems that have been experienced during the period of evaluating this type of technology. For example, the unit weight weighs approximately six pounds. It's too bulky today, especially when it's factored along with the other items that the miners are required to wear on his or her person. The CPDM should be made smaller and more ergonomic prior to implementing on a nationwide basis, more time to work out some of the affordability and the reliability issues as well. And getting to that liability issue, perhaps the most notable is that CPDM is in compliance rulemaking consistently and accurately used as a single shift sampler respirable dust is a faulty assumption. It cannot. It has shown to be --- for example, it has shown to be less reliable in measuring lower concentrations of dust. Since accurate measurements of lower concentrations is a critical component of the proposed rulemaking, this is a particular concern to us. Technology mandated for implementation under this proposed rule is proprietary. It enforces an entire industry to rely upon a single manufacturer who has little incentive to further develop technology or engage in reasonable pricing practices. We've already seen the disadvantages of relying on new suppliers for SCSRs. To rely on a sole supplier, obviously, is inappropriate and unwise. The CPDM technology is most effective when used in combination with a weekly dose concept. Not a single shift exposure. The proposed rule completely fails to recognize this. Single shift sampling will have serious ramifications for shift set schedule. Presently many mines work a unique or different weekly schedule. Some mines work four ten-hour day weeks. Other mines employ weekend warriors, workers who work one ten-hour shift and two 12-hour shifts per week. When Industry and Labor were developing a weekly dose concept, these type of shifts were factored into the weekly dose concept. These workers are not working extended weekly hours. In fact, the weekend warriors’ schedule is less than a 40-hour week, used to set the original respirable dust system. By adding a single shift exposure and the accompanying penalties, schedules such as a weekend warrior will no longer be viable. The entire reason for a personal dust monitor is to measure the exposure to persons, not perform area sampling. This is where we see another flaw in the proposal. There was the idea of developing the unit, and why each person's personal exposure is proper measurement and not that of the air. As the rule is written, the entire CPDM, cap light and all, must be exchanged worker to worker. This makes absolutely no sense. Real time measurements provided by the CPDM empowers each worker to recognize his exposure increments. Workers can make adjustments in positioning and other basic changes. Industry's response is to allow meaningful use of multiple operators who are needed to maintain compliance. This rule prohibits this practice, even though it stops it --- protects each worker from over exposure. Mine operators should be permitted to use administrative controls to minimize dust exposure to individual miners, particularly when confronted with abnormal geologic abnormality. This was permitted with noise level. The proposal virtually eliminates the use of such controls. One of the frustrating failures of the proposed rulemaking is the lack of performance options to handle potential excursions above any compliance limit. We find no options to continue production while protecting our employees. A performance program would allow for the changing of operators to ensure that no one is out of compliance while production continues. This is not permissible under the proposed rule. The proposed rule ignores personal protective equipment, which is an effective means of reducing individual miner’s exposure to dust. Other regulatory agencies give credit to the use of PPE. Most longwall mines require the use of airstream helmets or the equivalent, and there is no recognition of this in the rulemaking. Even if primary reliance is on engineering controls, PPE can be used to supplement engineering controls. A performance standard would also allow for the use of PPE if non-compliance is likely. If an operator cannot change operators and cannot use PPE, and the worker is at risk of non-compliance, what does MSHA expect the operator to do? We do not believe that continued use of artificially created sample locations such as designated occupations are not necessary when the real time measurement system can be used to help manage the respirable dust inhalant --- inhalation for each individual assigned to these occupations. Personal sampling using real time readings is a major breakthrough in CPDMs. The Agency ignores its use. This proposed standard fails to incorporate basic industrial hygiene process of hierarchy controls. My members are confused as to the logic of the x-ray program as written in the proposed regulation as well as the rule requires reduction in the standard for Part 90 miners from the present one milligram standard to .5. We don't believe this is necessary. We'd like to know what evidence MSHA has to show that a one milligram standard that has been used to protect Part 90 miners for the past 40 years is no longer sufficient. The rule also appears to include a variety of Part 75 changes that bear no relationship whatsoever to preventing Black Lung. We mentioned our concerns with 75.332(a)(1), another prime example of the proposed changes related to 75.363 and posting and correcting and reporting hazardous conditions. Mine examiner is a well-trained certified safety professional who evaluates certain areas for hazardous conditions on a mine by mine, case by case basis. This proposal perverts the entire pre-shift and on-shift examination process that is intended to prevent miners from approaching imminent hazards. It's a gateway approved standard that a dust concentration of one milligram standard constitutes hazardous conditions is inconsistent with historical purposes of such examinations. An amount twice that is the amount a miner can be exposed to 40 hours a week for 40 years. The rule does not address the additional concern that we have with compliance sampling, which is based on required operator sampling. And at least from Pennsylvania coal operators' perspective, we don't want to think that the operator sampling is appropriate. We are tired of being unfairly accused of improprieties for tampering with respirable dust samples when everyone seems to know that that's not the case. We're also tired of being unfairly accused when the irregularities that are part of the filter or cassette manufacturing process have caused an issue such as with low weight samples. We had hoped that such accusations would have ended with the decision in the abnormal white centers litigation. It has not. Beginning at this point, compliance sampling should be done only by MSHA, as the Advisory Committee recommended. The CPDM then can be used by operators in its most effective use, to evaluate and control individual exposure over a period of time, MSHA inspectors are a constant day-to-day presence in our mines. They can certainly perform the required sampling if the rule were to go forward. Proposed rule purports to recognize that there are valid reasons to void samples, makes it clear that MSHA will utilize an overly restrictive approach in evaluating such requests. It's not clear that MSHA will, in fact, void samples that should be voided. It has, in the past, refused to void samples with the oversized particles if there is a certain weight gain. That means the sampling device can be dropped and filled with non-respirable dust on the mine floor without being voided. Finally, MSHA needs to be more respective to use of alternative dust control technologies. Scrubber technology, for example, is an extremely useful means of controlling dust. MSHA's current approach seems intended to discourage its use or limit its effectiveness. MSHA must begin to support any method that would reduce the individual exposure, be it scrubbers, PPE or administrative controls. I cannot emphasize this enough. We have made great progress in this area, all of us together, and we should not ignore effective tools merely based on some internal bias or philosophy or misconceptions. Again, PCA appreciates the opportunity to testify and comment on the proposed rule and try to answer any questions that you may have. DOCTOR WAGNER: Thanks very much, Mr. Ellis. I'm going to turn it to the panel. Susan? MS. OLINGER: I'll pass for right now. DOCTOR WAGNER: Mr. Thaxton? MR. FORD: Mr. Ellis, we understand that you don't support the current use of the CPDM under the proposed rule, but do you have an idea, any scheme that would support getting the CPDM used in the mine under its final rule? MR. ELLIS: I mean, initially we looked at that as a control to measure an individual's exposure, not the sampling. And so I mean, anything other than that, I believe ---. ATTORNEY MOORE: There was a discussion that Labor and Industry came up with a pretty comprehensive proposal, and we don't believe that was adopted or utilized in making any rule or proposed rule, and think that needs to be looked at. MR. FORD: Okay, sir. Just for my understanding is that there is a possibility that there is a scheme that it would support using the CPDM in the final rule. In your written comments, did you put that scheme in so we can just take a look at what that is? ATTORNEY MOORE: My understanding is that MSHA is familiar with that seeing that it was developed between Labor and Industry. MR. FORD: Okay. Just refer to what scheme you're talking about, and if we know about it, that's fine. Some of the problems with cost you talked about were related to the 75.332(a)(1) fishtail ventilation. MR. ELLIS: Yeah. Yes. MR. FORD: How many mines that PCA represents would have problems with this particular provision? MR. ELLIS: With this particular provision? MR. FORD: Implementing 75.332(a)(1). MR. ELLIS: I'd say about 60 to 70 percent. MR. FORD: Of the mines. And what are the total number of mines? MR. ELLIS: Forty-one (41). MR. FORD: So 60 percent of the 41? MR. ELLIS: Right. I mean, that's ballpark. MR. FORD: Right. And for those mines that would have problems, what's the average MMUs that would have problems in those mines? Is it one or two? Or if you don't know now, could you just supply ---? MR. ELLIS: I would have to get that for you. MR. FORD: And crystallize also those percentages for any written comments. That would be great. MR. ELLIS: Sure. MR. FORD: You also talked about conditional costs that would relate to adjusted production schedules. Can you tell me what would be provisions or what would be the --- what's the problem with the proposed rule that would cause adjusted production scheduling? I'm just trying to see where that fits. ATTORNEY MOORE: It would eliminate the weekend warrior. MR. ELLIS: It would eliminate the weekend warrior, but it also might very well result in, for example, you have an eight-hour shift or a ten-hour shift and you look at the sampler, and you are going to be over by, say, half --- three-quarters of the shift. You may just simply have to shut down and you'll have to --- you won't be able to produce coal for the rest of that shift. That's where we see that. Some of these may result in shifts that are six hours long and that sort of thing. MR. FORD: So you're talking about, at some point during the shift you would look down and you would see a certain number that would be a problem to you, about completing that shift without having the person being overexposed. MR. ELLIS: That's correct. MR. FORD: And you don't think that you could put into place engineering controls quick enough in order to eliminate that problem or adjust it before that problem would go into effect. MR. ELLIS: Well, no, I don't, because if it were a significant engineering control as such, it would probably require plan changes, and plan changes don't happen quickly. And your --- it would involve a significant enough control that you would have to get a plan change. You would already have significant downtime. ATTY. MOORE: You're picking up on some of the ramifications that this rule has, that we, at least by our reading of it, we will refrain kind of when on notice, appreciate some of these questions. They need reliances. MR. FORD: Concerning your additional cost, what I need to set this up. I was going to say this is the end of my speaking, but I'll say right now, when you provide the written comments, if you could give as much detail as you can as to these cost items that you said would increase. How many mines have incurred these costs, how many are they using in mines? What are the costs of these things? That would be very helpful. Just on a broad basis, again, you talk about additional airshafts that would have to be put into some mines. Not in detail, but in a broad sense, what would be the condition that would cause an additional airshaft, because that's a pretty big expense? ATTORNEY MOORE: Well, the additional airshaft would cause --- not going to mining, but that you are requiring --- you're going to increase your ventilation, something to that effect. Increase your ventilation with airshaft mining engineers. Someone may be better able to answer that. MR. FORD: Okay. Maybe in your written comments you can express that, too. ATTORNEY MOORE: And one of the things we would know is, given the hearing next week, we are relying on recommendations and a number of our representatives are going to be testifying next week, some of that information will be provided at that time. MR. FORD: In your 41 mines that you represent, have any of the operators used the CPDM in underground coal mines? MR. ELLIS: Not to my knowledge. ATTORNEY MOORE: Operators in Pennsylvania have tried it in other locations, to my understanding, but it's not in ---. MR. FORD: So no mines have been represented by PCA that has actually used the CPDM in underground coal mine? MR. ELLIS: Not to my knowledge. MR. FORD: Thank you. MR. NIEWIADOMSKI: I have a couple questions for you. You mentioned in your written testimony that in 2006 the average dust concentration is .88 milligrams per cubic meter. And that's been reduced to .73 milligrams per cubic meter, which is just certainly significantly below a two milligram standard, and certainly below the proposed limit of one milligram. And it appears that if you're successful in certainly maintaining compliance with the dust concentrations, the limits, the question is, since certainly that's still significant improvements, but according to the NIOSH x-ray data between 1996 and 2002, 2.2 percent of the miners x-rayed in District Two have evidence of CWP. Well, what's sort of puzzling to us is maybe --- this is what maybe you can elaborate upon what would be responsible for that. In 2002 --- between 2002 and 2009, 3.6 percent of the miners in District Two had early evidence of disease. That's a significant increase over the previous time period. And during the time period when, in fact, you've indicated significant reduction less than that, in dust concentrations. What would you account for that increase? MR. ELLIS: I would have to see --- first of all, I'm not a epidemiologist. You know, we just put these stats together. And number two, I would like to see ---. I mean, where in District Two were these increases found? MR. NIEWIADOMSKI: Well, that's available on MSHA's website. If ---. MR. ELLIS: I don't have the website up. Could you tell me now? MR. NIEWIADOMSKI: They're all over District Two. This is not focusing on the anthracite areas, we're talking about bituminous ---. MR. ELLIS: I understand, sir. MR. NIEWIADOMSKI: And I just wanted to mention there's --- you know, that's what's really puzzling to us, because the levels are apparently being maintained although we're still seeing significant increases in disease. The second question that I have for you is, you had mentioned that ---. MR. ELLIS: Well, I don't quite buy that last assumption you said. MR. NIEWIADOMSKI: I beg your pardon? MR. ELLIS: I'm not --- you know, I know my science isn't indicated that I bought the last assumption that you said. That we're still seeing, you know, a rather --- a sizable increase in the disease. MR. NIEWIADOMSKI: Right. 3.6 is a significant difference. That's not the intent. Remember if you look at the legislative history, their projections were no more than two percent. Let me ask you another question. This concerns --- you had mentioned something about that the Agency has not --- has ignored the recommendations that were made by the industry, the ones they were looking at submitting proposals on how to use this CPDM, and one of the things that you had mentioned, there was credible opposition. You're not the first group to oppose the use of single --- citing on single samples. Well, I was curious what the use of the CPDM, which is the device that gives you measurements in real time, the intent of that device is to prevent anybody to be overexposed at the end of the shift if it's properly utilized. So really there should be no concern about the use of single samples, because with that device no one should be over. And given the concentrations that we're talking about here, .88, and if that's representative of what normally happens, you should never have any problems with being cited based on a single sample, because you wouldn't be in compliance. MR. ELLIS: The problem we have, the single Sample is the problem we have, the history with single shift samples --- the problem we have with single shift samples is the problem we had historically with single shift samples, and we don't think reliance oN compliance and citations is appropriate to single shift samples no matter what. MR. NIEWIADOMSKI: Let me ask this follow-up. I know that you had mentioned about deficit provision in the proposed rule, okay, but you did not mention something that's very important, you said that's what the industry had recommended, is that we do those constant. You know, there's a provision also in the rule that says that's it's going to limit weekly --- permit the weekly permissible accumulated exposure, which is equivalent to what the industry had recommended to a weekly dose. This is the intent, it's to protect those miners that have worked extended weeks. So there are two provisions. One is not to exceed only a single shift, but in fact, there are extended weeks, not to exceed the weekly permissible accumulated exposure, which is similar to what the industry proposed to a weekly dose. MR. ELLIS: As I understand the industry's proposal on pneumoconiosis, it did not rely on single shift samples, it relied on a weekly accumulative dose. We thought that was appropriate, not ---. MR. NIEWIADOMSKI: Right. So you would support the enforcement of the weekly permissible exposure limit, which is comparable to the weekly dose? MR. ELLIS: We would support a weekly dose concept as it was outlined by the Industry and Labor. We could get them there. MR. NIEWIADOMSKI: One final question. You had mentioned that something the industry --- that MSHA refuses to void samples. And in particular, you talked about OSPs. Could you repeat again what the concern is? And why, because I wanted to --- I wanted to mention this to you. For many, many years, MSHA has been examining every operator sample that is approaching the two milligram limit. Any sample that has a weight gain of 1.4 milligrams, which is equivalent to two milligram concentration, every sample is examined for oversized particles following the criteria that's been established since the '70s and void samples that, in fact, have excessive number of OSP. So I think you made a statement that we refused to do that now. If it doesn't meet the criteria, it's a valid sample, but we do void samples for OSPs. MR. ELLIS: Our feeling is that you don't void all samples that actually have oversized particles. If you get, for example, historically I remember 22 milligrams per cubic meter sample. There isn't any way given a particular mine that came out of that was a valid sample, and they did not void it. ATTORNEY MOORE: Historically, we've seen situations where the sample is so adverse that it couldn't possibly be a valid sample. And it couldn't possibly been evaluated for oversized particles. It's been our experience. MR. NIEWIADOMSKI: I have no further questions. Thank you. MR. THAXTON: Several questions. Again, my only concern is I do want to clarify, we did build in a weekly dose into the proposed rule. It does track each individual shift, according to the way it's recorded, so that we are actually looking at your crews even though it's not individual miners, we're looking at the designated occupation, the type of sampling on weekly doses, so even your weekend warriors, as you call them, would be a separate crew than what your normal weekly crews are. Those are held differently, two different reasons. Does that, in any way, allay some of your fears about the way the rule is looking at the weekly exposure, given that you don't agree with the use of single samples? ATTORNEY MOORE: No, because it's not a personal weekly dose, as I understand it. It's a designated occupation weekly dose. We've got the technology. Let's use it in the way it should be used. MR. THAXTON: So you're proposing the only way to use a CPDM, use it as a personal exposure unit to individual miners? ATTORNEY MOORE: Yes. MR. THAXTON: That leads me right into my next question. Since you are proposing again, saying the best way the CPDM is to be used, are you then proposing that every miner be sampled in order to determine their exposure at all times? ATTORNEY MOORE: We're not, at this point, proposing that. MR. THAXTON: So how then would you propose to use the CPDM in order to address --- protect the miners, and if you're unable to tell us that here today, could you at least provide us how you would envision the CPDM being used in such a manner that it would provide a degree of protection for all miners on every shift if we're looking at it on an individual basis? ATTORNEY MOORE: We'll provide an answer to support that question. MR. THAXTON: Okay. The last thing that I have for you, is that you had indicated that over a third of the samples that are submitted now are overexposures that they would exceed the lower limit. Would it surprise you that actually over the last five years, basically we've gone from 78 to the last year on record, which is 2010. Seventy-eight (78) --- over 78 percent of the samples submitted by mine operators would currently meet the one milligram standard even though they have no reason to meet the one milligram standard? ATTORNEY MOORE: Yeah, if that's true, that 22 percent would be a massive number of exceedances that all result in a citation. MR. THAXTON: You are making that statement that the mine operators are not putting any additional controls or taking any additional actions to meet the one milligram standard they were aware of. This is considering that they were trying to get a two milligram standard, but there are only 22 percent or less actually exceeding one milligram without knowing that they have to comply with the one milligram standard. ATTORNEY MOORE: You and I both are assuming that all of those samples are under a two milligram standard and they might well not have been, because silica reduction, but leaving that aside, I'm assuming that even after we do our best, that the number, because of sampling variability, is still going to be unacceptably high. MR. THAXTON: Would it surprise you then if we look at the designated occupation samples that mine operators have been submitting --- indeed, last year, only four percent of the samples, knowing that they were meeting a two milligram standard, looking at the samples that exceed two milligrams, there are four percent samples submitted throughout the United States that actually exceeded two milligrams? ATTORNEY MOORE: I’ve seen the 22 percent number, I haven't seen the four percent number, but it's still four percent of a couple hundred thousand samples even if we're high on our estimate of 600,000. It's a lot of citations and a lot of plan changes. MR. THAXTON: Thanks. MR. ROMANACH: I am Javier Romanach from the Office of the Solicitor. I just have a few questions. Again, you say that in 2006 the average dust concentration for continuous miner operators in District 2 was .88 milligrams, and in 2010 this number was reduced to .73 milligrams. Do you have a basis for that reduction? Do you know why that number was reduced? MR. ELLIS: Not off the top of my head, no. MR. ROMANACH: You also stated an underground environment is not conducive to accurate sampling by any means. What is your basis for that statement? MR. ELLIS: Can you repeat that? I'm sorry. MR. ROMANACH: Yeah. You say that underground environment is not conducive to accurate sampling by any means. Do you have any --- when you say that underground environment cannot be --- may not be conducive to accurate sampling? Second to last paragraph. MR. ELLIS: When you are in an industrial environment, which is coal mining and you are sampling someone who is doing a job, and if they go forward with doing their job, and particularly in this case, I know you all had the demonstrations of the individual putting on all this mine gear, and you were doing the sampling in an environment where you are not unrestricted in your movements where it may be a 40-inch coal seam or 36-inch coal seam, or even a five-foot coal seam. Your movements are not natural, and because of that there are too many things that can happen to affect sampling, and that is why we think that's not an appropriate place for sampling. Now, if you could just hang the sampler, for example, in this room and leave it there for eight or ten hours, that's one thing. Where if you put it on an individual who's doing a hard, physical job in a difficult environment, then it's not necessarily conducive sampling. I'll relate that you understand. I was talking to somebody who had a miner who was crawling out of that mine, which you have to do in some mines. He was wearing a CPDM on his hard hat with his lamp, and his hard hat fell off. That happens. You know, you bump your head. It's not an easy environment. I mean, I would recognize that we all can sit here in a conference room and talk about sampling, but that's not the real world. It's hard physical work around heavy machinery in a difficult environment. And for that reason, sampling --- it would be nice if we could just break the sampling, but we can’t. MR. ROMANACH: Do you have any suggestions about how to conduct the sampling? MR. ELLIS: We would have to look within the perfect world. And one of the concepts of living in a perfect world is recognized, for example, single shift samples are not necessarily the be all, end all. MR. ROMANACH: Again, so you're not saying --- you're not denying that sampling cannot take place underground? ATTORNEY MOORE: No, we're not denying that sampling can't take place underground or it shouldn't take place underground. It certainly should. But having said that, we have to recognize the imperfections of sampling. Even if the technology is the greatest technology, and all technology isn't perfect, CPDMs are better than gravimetric sampling, but it's imperfect in recognizing that. That's why we think single shift sampling is inappropriate. MR. ROMANACH: Again, do you have any suggestions of where the sampling underground could take place? MR. ELLIS: I don't have any. We don't have any problem having miners wear sampling devices, particularly the CPDMs or advances in that. We need to recognize the limitations of that. And because of that we need to recognize that any rule has to recognize the limitations of that. MR. ROMANACH: You also referenced the --- Mr. Ellis, the number of deficiencies and problems with the CPDM. On what do you base those deficiencies on? Was there a particular study, a particular location? What was the basis for ---? ATTORNEY MOORE: We based that on actions with some of our members and their technology people on the use of CPDM outside the State of Pennsylvania, and they indicated there are technical problems. MR. ROMANACH: Do you know how many --- was there a particular district that was involved, a particular mine that was involved? MR. ELLIS: We can't speak for that. MR. ROMANACH: Can you provide us with some data to that effect? MR. ELLIS: We believe we will be providing that data next week. MR. ROMANACH: Would that data address also any ergonomic effects on the use of the CPDM? ATTORNEY MOORE: I don't know whether or not in this analysis there's testimony about the ergonomic effects of the CPDM. And so I'll leave that to what evidence is going in, testimony ---. MR. ROMANACH: Just a correction. You stated that the proposed rule ignores the personal protective equipment, but the proposed rule does mandate that PPE be provided with the --- when the exposure is above the proposed limit? MR. ELLIS: I don't think it takes the whole effect ---. MR. ROMANACH: Do you have any data supporting the use of PPE for protecting that miner? MR. ELLIS: Well, we have --- for example, here in Pennsylvania we have a number of longwall mines, and they provide the miners with Airstream helmets on the longwall faces. That's routine. My concern is this is routine in every longwall face, so they have not been on any longwall faces. But it is sort of routine. MR. ROMANACH: And has that reduced the exposure to the miners? MR. ELLIS: If you're wearing an Airstream helmet, yes, it reduces exposure. But having said that, obviously it requires the sample outside of the circumference. There's not a massive sample inside, but they are effective. MR. ROMANACH: You're aware we are also under the Act, which mandates that environmental controls should also take precedence over personal protective equipment. MR. ELLIS: Taking precedence doesn't mean you ignore particular factor types of ways to reduce personal exposure, a PPE or anything of that nature. MR. ROMANACH: Would you recommend mandating the use of PPE at all times? MR. ELLIS: I don't think we're going to take position at this point. MR. ROMANACH: Do you have any proposal as to how that PPE would be used or whether it would be used or when it would be used? MR. ELLIS: We have not put together a proposal. MR. ROMANACH: You also state that compliance sampling should be done only by MSHA. How would you --- if compliance sampling would be done only by MSHA, does that mean that the operator would not conduct any monitoring of how much coal dust exists at the mine at any particular point in time? MR. ELLIS: Not necessarily, no. I think operators would conduct sampling, but the problem obviously historically with compliance sampling done by operators has been the allegations. A vast number of us had a lot less gray hair when we started this --- on that issue years ago. And there has to be a way to figure out a system that an operator in sampling for compliance is done by an individual. Otherwise, we'll never be able to get any monkey off all of our backs. And when I say all of our backs, I mean MSHA's backs. MSHA is the only one that does the sampling. There's always going to be issues, and I wish there weren't. Our experience with our operators here in Pennsylvania is they're trying their damndest to comply and do things right, but there will always be issues as long as you are relying on sampling from our guys. MR. ROMANACH: And if MSHA were to be the only party conducting compliance sampling, how --- do you have any proposal as to how the operator would monitor the exposure, the amount of respirable dust in mining? MR. ELLIS: Well, we have a nice new tool, CPDMs, that the operators use. We don't have a full scale proposal on that, certainly not, but we have a tool to use. MR. ROMANACH: I don't have any further questions. Thank you. DOCTOR WAGNER: You started your presentation with a fairly broad indictment of the scientific basis for the proposed rule and expressed concern about the availability of information upon which the rule was based. Have you taken a look at the NIOSH criteria document that has over 70 pages of specific references from the scientific and world peer-review literature ---? MR. ELLIS: Yeah, I've seen that before, yeah. DOCTOR WAGNER: Right. MR. ELLIS: Yes. DOCTOR WAGNER: So could you let us know specifically which of the areas, studies within that recommendation and also within the references cited in the federal register notice of this proposed rule that you're particularly concerned about that's not being scientifically valid? MR. ELLIS: Sure. And we can include --- one other thing is that we could also probably include a Freedom of Information request, if you could help us with the delivery of that, we can certainly do that, too. DOCTOR WAGNER: Okay. Second, you've been involved in conversations about weekly and daily exposures. We would appreciate it if you provide any specific recommendations that you have for how both weekly and daily exposures should be taken into consideration in order to be able to protect miners? That your involvement --- it feels like a few hours ago. Conversations about the weekly dose and daily exposure limits, we would appreciate any particular recommendations and the basis for those recommendations that you would have that would combine daily exposures and weekly exposures in a way that could ensure protection of miners from lung disease as a result of the respirable dust exposure. MR. ELLIS: Sure. DOCTOR WAGNER: And last, you made a broad statement of commitment to the goal, the purpose of ending Black Lung and raised a number of concerns about the specific proposals that have been made to move in that direction in the regulatory component of the End Black Lung efforts, do you have specific recommendations for what should be done differently from what is being done now that would help end Black Lung? MR. ELLIS: On a regulatory side? DOCTOR WAGNER: On both the regulatory and the non-regulatory side, but specifically since this is an effort to look at regulatory proposals, whether there are any regulatory changes that would move us in the direction of keeping the commitment that Congress told us to make in 1969 to end Black Lung. What would you do? MR. ELLIS: And we can put that together. Just so I am not misunderstood, we were --- you know, we're a heavily regulated industry, obviously, on all sides. And there are well intention regulations whose --- with the letter of the reg is not going to meet the intent, even though the intent is good. And that's how we're looking at this, is we're not sure your objective is going to be accomplished, particularly if the rule is passed in this form. DOCTOR WAGNER: The specific request was in follow-up of your statement of commitment to ending Black Lung, what, if anything, specifically should be done and please provide the basis for your recommendations as to what should be done differently from what is currently being done. Do you feel as though miners continue to get lung disease as a result of the coal mine dust exposures? MR. ELLIS: You're asking the wrong person for that, but I would say, based on my talks with my safety people, I think no, I think it's improving and that's why I'm at a loss on some of these statistics that you state. I think we --- no, I'm not hearing that. What I'm hearing is that we're making great strides in reducing the incidence of Black Lung. DOCTOR WAGNER: Okay. Were you going to say something more? MR. ELLIS: No. Uh-uh (no). DOCTOR WAGNER: Okay. We're making strides in reducing the incidence. Have we completed the task of eliminating lung diseases from coal mine dust exposure? MR. ELLIS: Well, I think that's still a goal we have to work at, yes, but I think --- and I know you asked me to put something together, and we will, but we don't see what you're proposing to do is going to result in that. DOCTOR WAGNER: Okay. Thank you very much. Thanks both of you for your testimony here. The second person who signed up to speak this morning is Jim Morton from Thermo Fisher Scientific. MR. MORTON: Good morning. DOCTOR WAGNER: Good morning. Spell your name and tell us where you're from. MR. MORTON: I'm Jim Morton, M-O-R-T-O-N. I am sales director for Thermo Fisher Scientific. I would like to thank you for this opportunity to speak to the status of the Thermo Scientific PDM3600 coal dust monitor. I'll have these comments forwarded to you. I'll just read them verbatim to you and you can ask what you wish. What I'll do is briefly review four points, the development, the production, the customer support and the state collaboration of PDM. The PDM is developed from a 25 year old bureau of mines research initiative and specifications set. Initially conceived as a machine mounted monitor and then a two piece portable unit, the PDM is now a continuous dust monitor utilizing state of the art respirable particle cyclone, true volumetric flow and a unique oscillating microbalance gravimetric filter. We are submitting PDM3600 for final certification in accordance with C.F.R. 30 Part 74. The PDM3600 is manufactured in a Thermo Fisher facility in Franklin, Massachusetts. Dedicated production and engineering personnel assemble and test the PDM in a single purpose manufacturing space. Project managers are in close proximity to the factory floor. All documentation, production processes, final test and checkup procedures are compliant with current ISO standards. Results of the performance checks occurring through assembly and final tests are signed off and maintained in a permanent file with internal fixture. Customer satisfaction is a paramount concern to us at Thermo Fisher Scientific. Approximately 250 PDM3600s have now been shipped. We have established a field sales and training team with a lengthy history of serving the unique performance of the coal mining history. We are expanding and significantly improving our level base technical support and service response, including an asset tracking system that registers and follows an instrument for its entire service life. Thermo Fisher Scientific is the world leader in serving science and has a history of over 50 years of enabling our customers to make the world cleaner, healthier and safer. The PDM3600 is a result of a unique collaboration of industry, government researchers and miners. We solicit input from these industry stakeholders and continually review, as appropriate, our product to ensure its use, utility and reliability. We're pleased that, since MSHA certifications is intrinsically safe, PDM3600 has performed well for hundreds of hours in some of the world's most challenging underground workplaces. The PDM is available right now and empowers miners to make adjustments in real time to reduce coal dust exposures below relevant standards. Thank you. MS. OLINGER: Is your asset tracking system being used right now? MR. MORTON: It is. It's my recollection it follows the serial number upon any short shipment, but I believe it has been in place since midyear, since May 2010, and we can make that information available in the written comments. MS. OLINGER: So of the 250 CPDMs that have been shipped, not all of those have been entered into the asset tracking system? MR. MORTON: There are probably some that have been shipped during the initial shipments in early 2009 that may not be entered by the tracking number. We are always evaluating and looking for that, in the event coming in for service. We do know by serial number when those units were manufactured and what sequence and what quarter of the year they were delivered. In addition, over 80 percent --- I believe it's 80 percent of the units sold have maintenance contracts, three to five-year maintenance contracts. So upon the recertification, when we the owners ship them back in, we are also double checking our system to make sure that asset is in our base. MS. OLINGER: And when units are sent back for repair, are you able to tell us what the turnaround time is on the repair, how long this unit is unavailable? MR. MORTON: It depends upon the condition it was received and it depends on the service aspects. Is it coming in for normal repairs? Is it coming in for a recertification? Is it coming in for a damage? Is it coming in for a unique situation? So I can't give you those exact figures right now, but we can put them in a particular format to present them. MS. OLINGER: And can you give us an idea of whether those that have been returned are under warranty and the types of costs and repairs that are done? MR. MORTON: We can. MS. OLINGER: Thank you. MR. FORD: Mr. Morton, of the 250 PDM units that have been sold by Thermo, have they all been sold for use in under --- for use in underground coal mines? MR. MORTON: I can’t be 100 percent sure. I believe they have been with the exception of two that were sold in Switzerland for a tunneling operation, but I believe they’ve all been underground coalmines. MR. FORD: So you expect that the CPDM has other non-mining use also that you can market it? MR. MORTON: Possibly. Possibly. That’s why we entertained the idea from Switzerland to determine its viability and other non-underground applications. MR. FORD: Mr. Morton, for the PDMs that have --- of the 250 that have been sold in the US underground coal mining market, can you give me an idea of what the average price is? MR. MORTON: I believe the average price is around --- is under $12,000. MR. FORD: Does that price include any sort of warranty? MR. MORTON: It does include a warranty. It includes a year-long warranty. MR. FORD: Okay. So the $12,000 price is the one-year warranty that comes with everything, the machinery that you would sell? MR. MORTON: That’s correct. Now, may I add that the price is dependent upon the volume that is sold per year, and as has been published, I believe, for public consumption, is the fact that we have given a pricing scale depending on how many units may be sold to the industries. As the quantity goes up, the pricing comes down. MR. FORD: You anticipated one of my questions. Can you provide --- I know you probably can’t right now, but in your written comments, can you provide that quantity scale? MR. MORTON: That has been provided. We can resubmit it. It is possibly three, four years old, I believe. MR. FORD: That’s why I’m asking you to resubmit it again. You know, the costs may be different now. And it’s my understanding that that pricing scale follows a purchase order, if that’s correct, so if a particular mine --- or I’m sorry, mine operator has like three mines, he could put in one purchase order for the three mines and take advantage of this? MR. MORTON: Oh, yes. Absolutely. MR. FORD: But if a mine operator had just one mine, could he in any way involve some ---? MR. MORTON: I have no problem in entertaining a collaboration were any larger quantity orders placed. That’s simple commercial common sense. We want to make this instrument, this occupational health instrument, as widely available as possible, and as economically feasible as possible to all. MR. FORD: I just wondered maybe in your written comments if you have any ideas of how a small mining operator could maybe in some way see some of those types of decreased spending? MR. MORTON: I would not desire to put that in written comments, but I can say for the record that a collaboration, be it an industry association, be it a corporate entity placing it for a variety of operations, all of these commercial procurements, these win/win situations between a vendor and an operator, are well published in general business 101. These purchasing people are aware, and we would also extend suggestions depending on the individual case and the individual operator as is. MR. FORD: Okay. You also talk about different warranty programs that you have. I know we --- if anybody would just buy a PDM if they had an automatic one-year warranty which includes the $12,000 price. Can you talk about the three-year warranty or the five-year warranty or any other type of warranty --- MR. MORTON: Currently ---. MR. FORD: --- and the price that goes with those? MR. MORTON: I can’t give you a definitive price. We currently have three and five-year warranties that cover many aspects of the instrument. There are conditions surrounding and defining what is repaired under the maintenance contract, the usual damage and certain components within the instrument are required --- are not covered under the extended maintenance plan. We can submit for the record, if you desire, a copy of one of those extended contracts. MR. FORD: That’d be great. If you can, well, just submit the different warranty plans, what it includes and the price of each warranty and the number of years that plan would be under warranty. I noticed you also talked about you did not have, at this time, a lot of information concerning the repairs for machines that are returned back to the manufacturer, so I’m ---. MR. MORTON: No. I believe I said that I didn’t necessarily have all of the serial numbers of the instruments that went out. I’m quite confident that we have a --- if not all, we’ve certainly had records on all of the instruments that have been returned for repair or service. We do have that and that is in our --- it is in our tracking system or is being entered. MR. FORD: Okay. What I’m thinking about specifically is if you could put this in your written comments. Of all the sold units that have been sold to be used in underground coal mining and that have been returned to the manufacturer for repair, can you state in your written comments what percentage of those units were returned for problems that were not under warranty? MR. MORTON: Yes, I can do that. MR. FORD: And can you also state for those units, those percentage of units that were returned for repairs that were not under warranty, what is the --- what would be like some of the major or common problems that were not under warranty? MR. MORTON: That is norm to our biweekly roundup that we examine the various instruments that have been returned, the various calls, oftentimes --- not oftentimes, at times, people call in with a technical problem and the instruments are not returned. The technical support team over the telephone takes care of that. We also monitor that and I can probably give you that aspect as well, frequently asked questions, if you will, and can certainly define, characterize and describe the problems as they’re computing them and give you the IUs (phonetic) on the occurrences and the frequency thereof. MR. FORD: Can you also, on those units that have been returned, that repairs were not under warranty, give us an idea of what’s the average cost to repair the unit not warranty? MR. MORTON: If there are any repairs that haven’t occurred on warranty, yes, I believe we can. MR. FORD: And finally, going again with the returns --- I know that this was asked already, but can you also give us the average turnaround time in your written comments? MR. MORTON: I can, with the understanding it will be further elaborated and reinforced and reiterated that the times are improving. I need the panel and the industry to understand that some of the situations, questions, occurrences that have happened in the field, we often need to receive the unit back and do a study for root cause analysis. That’s a fairly comprehensive study, so may I suggest that the initial first or second time you see a problem, the turnaround time is not representative of what will occur in the future. We would like that codicil to be recognized. MR. FORD: Concerning the issue of a coal mining operator sending a Thermo machine back to the manufacturer for repairs, do you have any sort of like lending program whereby the coal mining operator could use --- or the addition of any sort of lending program whereby the coal mining operator could use like a rented CPDM until the one they purchased is repaired? MR. MORTON: Yes. We envision many aspects of that. MR. FORD: Is there ---? MR. MORTON: The parameters that we could offer that depend in --- depend dramatically on the proposed rule, the uptime, what would you consider an accurate sample, and the time frame that samples have to be taken. We need to consider all of that before we design a program of the utmost uptime to an operator. Many things occur. The placement of units, who actually has the units. There are many --- there’s been speculation that MSHA might own it, the property might run it. Other parties might be interested. We have some alternative plans in our --- in my forward strategy, but much depends on exactly what’s imbedded within the rule regarding your desire, turnaround time, sampling frequency, et cetera. We have similar situations from the work we’ve done with international agencies and even our own EPA where rentals --- units on the shelf, spares that we hold, the operator holds, et cetera. All of these are able to be envisioned, but I can’t really define something until at least we see how this rule is turning out. MR. FORD: That I completely understand, and I’ve just asked you to think about this, if you could think about in your written comments perhaps telling us how such a rental program would work and then the costs of such a program under the proposed scheme that’s in the rule. I just want you to see if you could put forth some examples. I also have a question on filters and it’s similar to the CPDM questions. And that is as the number of CPDM filters increase the number of purchase orders, would the price per filter decrease and could you talk a little bit about that? MR. MORTON: Currently, I believe our prices are in the range of between $5 and $8. We have lowered the price --- the price in consultation with both industry and regulatory agencies. We have enabled larger bundles, if you will, of filters to be available to make them available at lower cost. These are a unique filter, dramatically different than the integrated filter that’s now being used, and we feel that based on projected use, which we think is a decent amount, we tried to make the price constant and therefore lower to what we expect the usage might be in two or three years. We’re trying to give to the industry the lowest price right now for expected quantities that could occur two or three years from now. MR. FORD: Okay. And again, in your written comments, could you give us some scenarios of how that would work in the --- a purchase order would work so whereby some operator could get the $8 price and some get a lower price? MR. MORTON: It’s a very simple scenario. The more you order the cheaper the price. Again, as you indicated, it’s the same scenario that purchasing agents in their professional demeanor would begin to collaborate or begin to negotiate with us. Absolutely. MR. FORD: Right. So if we can just get currently what is that now, that volume of range that produces ---? MR. MORTON: Tell you what the process is? MR. FORD: Yes. MR. MORTON: Okay. MR. FORD: Thank you. MR. MORTON: Sure. MR. FORD: Mr. Morton, thanks for answering my questions. MR. MORTON: No problem. Thank you. MR. NIEWIADOMSKI: I just have a couple of questions for you. Since a large portion of the 250 units have been sold to mine operators because we know that --- have purchased certainly a number of them, has the flow of information from the users on their experience --- I mean, have you --- has that been free flowing or are you aware of the problems, because, you know, we’ve had a number of public hearings and, of course you’ve heard some of it here, that people have been expressing problems, been experiencing problems with the unit. And so I’m wondering whether or not, you know, for you to be responsive because I know Thermo wants to be responsive to its customers, have you, in fact, had the --- do you have an open dialogue? Are you aware of all the problems that the users have experienced so you can address them accordingly? MR. MORTON: Excellent point. I believe that the flow of information from users to Thermo has improved. I believe that as we show our asset tracking system and as our technical support improves that the flow of information is much more forthcoming and candid. We have certainly made efforts by putting two people specifically to help support the users and to increase training at the mine site. We have noticed a lessening of some of the problems, but right now I think the industry as a whole is generally impressed with the transparency, with the responsiveness that is now appearing with our asset tracking system. We will upon call --- upon notification of a problem, we will either enter that --- if it’s a technical support problem and the owner calls, then we will enter that in a database the same day. If the user wishes to send back any unit, we will use a return authorization dated that day or eight hours hence. And that’s how we’re beginning to track our information. If a user, for instance, somehow sets aside the unit and the return authorization isn’t used, it still registers. So whenever that unit comes back in, we can tie it to the original occurrence. I don’t think the procedure is 100 percent perfect yet. The mining industry is extremely spread out and I would hope that we have conveyed who the operator should contact. That may not always be the case, but we’re striving. MR. NIEWIADOMSKI: One follow-up question. As the sole producer of the unit, what can you say to allay the concern that as a sole producer --- as has been expressed here and other meetings --- that you’re not just going to raise the prices, okay, at will? MR. MORTON: That’s a very good comment, and we’ve been cognizant of that for three or four years because the industry is candid, which we appreciate. But we’ve been manufacturing instruments, as I've said, analytical instruments and safety instruments for over 50 years. I would suggest as an exercise --- and I already have the slides --- that we begin to take a look at the inside of the instrument to see what technologies are there and the amount of developments and the amount of materialization and the amount of sophistication, the fact that it has real time volumetric flow control, which there’s only two instruments, two personal monitoring dust monitors in the world that have it, and both of them happen to be from our stable of products. The environment into which this operates, the PDM3600, the environmental concerns, the intrinsic safety concerns, we feel that we are justified in the price that we are charging. We feel that we are justified in the price reductions that we’re offering based on quantity. I believe and have closely studied the figures, and I’m confident that under any type of scrutiny, the pricing is fair and allowable. We realize that this is a new paragon in occupational monitoring, and we realize that we have a large group of stakeholders that need to be satisfied. We are in the business for the long run, and it would be absolutely foolish and distasteful to me personally if we were to offer an instrument simply to take advantage of a market. That is not our --- that is not Thermo Fisher Scientific’s methodology of operation. MR. NIEWIADOMSKI: Thank you very much. MR. ROMANACH: I have a couple of questions. In addressing the potential market, if the rule that’s issued as proposed, how do you address --- are you prepared to address the increase in demand and how so? MR. MORTON: Good question. Yes. We have had input from the industry, from the agencies and from the miners --- from the owner/operators themselves and miners themselves about the potential uptake requirement to furnish the --- adequately furnish the industry within an 18 to 24-month period. That’s already in our production schema. We already have some long lead time items that we’ve made our instruments with the vendors. We can double our manufacturing space allowable to the instrument and we can double the shifts involved in the instrument, in addition to adding other people. We feel that we have --- will have no concerns satisfying the domestic US industry if the expected quantities are required after about a four to six-month lead up. For instance, this year we have production expectations based per quarter that should --- we have units on the shelf right now. MR. ROMANACH: Would you place a limit on the number that a particular company or mine could request, the number of PDMs? MR. MORTON: No. No. MR. ROMANACH: Are you aware --- has Thermo Fisher conducted any study on any of the ergonomic effects of the use of the PDM data in the mine, particularly in an underground coal mine? MR. MORTON: No. We have heard and reviewed various comments coming in from the lawyers. We have heard and reviewed comments coming in from MSHA inspectors, many people that have tested it. We have not heard of any specific improvements or alterations specific to that instrument yet. MR. ROMANACH: Have you received any complaints from any wearers of the PDM? MR. MORTON: I don’t know if I’d classify them as complaints, as to the effect that they --- it’s an unusual device. It’s an additive device. The weight is increased over what they’re primarily used to. It’s a brand new device that, as mentioned before, people have to become aware of, and that process of adopting is noticed, you know. MR. ROMANACH: Has Thermo Fisher considered any changes to the product to make it lighter? MR. MORTON: In our goal review, we consider --- when we hear issues being voiced by the industry, by the stakeholders, by the lawyers, we will always review both new technology, the diametric factors. We review them in collaboration with our stakeholders, which includes the agency, the researchers, the government researchers involved, the amount of testing, the amount of costs involved, the utility to --- the utility means and usage. We always do that. Do we have specific ideas? We’re waiting for the stakeholders to put those specific ideas in writing and submit them to us. Manufacturing an instrument is much like anything else. We can speculate and offer blue sky suggestions, but it’s only when definite desired specifications emanate from the users that we can now begin to do a life cycle study, a utility study and a cost study. So we always solicit from the stakeholders --- you give us a written set of specifications and we will review it. That’s been in existence, I believe, since the first day of this project and will continue. MR. ROMANACH: You said you shipped --- Switzerland has been purchasing some PDMs from Thermo Fisher? MR. MORTON: Yes. MR. ROMANACH: How many countries have been purchasing PDMs? MR. MORTON: Two. Some of what we call pre-production units that were offered about six or seven years ago were purchased by consultants from Australia in substantial diesel fume and coal dust sites. And the two in Switzerland. Currently, we have not applied for international intrinsic safety, which is required in most countries, although many countries have suggested --- certainly many countries have an interest, among themselves, Africa, Brazil, Australia, Indonesia, Japan. They’ve expressed interest. They have even suggested a waiver for the international intrinsic safety approval to try the units out on a test basis. It may be amenable to them, but we are cautious about that. So we have only sold two to Switzerland specifically for non-mining, and the units that we sold to Australia came with the governmental waiver to allow it to operate underground in conjunction with a personal mounted methane detector. MR. ROMANACH: Does Thermo Fisher have a policy or would they consider executing a policy to give preference to a --- to American mines as opposed to foreign mines that request PDMs? MR. MORTON: Right now I can see no instance where that might be necessary. We have the production capability to fulfill everyone’s requirements based on a cursory review of underground coal mines throughout the world and those countries that are interested. I don’t see why we can’t supply everyone on a four to six-week satisfaction after we see award. MR. ROMANACH: Thank you, sir. DOCTOR WAGNER: I’m just going to request that you do provide us as comprehensive a set of written comments as you can that would include the number of users that have been touched upon including --- you mentioned the stakeholder written comments that you’ve solicited. If you can provide a summary of these including the identification of any points of either satisfaction or dissatisfaction use or areas in which it’s been found to be less than useful. It would be good if you can give us the information that you have about the units that have been returned, whether --- not only the specific problems, the turnaround time, the delays, but also, as you noted, there is a kind of learning curve here, so the trends over time and not just averages. It would be useful if you were able to give ranges as well. It would be useful to know whether your experience has been that a certain number of units have multiple problems and a lot of units have no problems, or whether a lot of units have a few problems each. And as these get worked out, your assessment as to the extent to which the problems identified relate to inadequate training, use that’s at variance with the manufacturer’s specification or what the other root cause is that you’ve identified and the extent of which these have been corrected. Basically, you are the --- you hold the collective wisdom of the experience in terms of the reliability and durability of this device and it will be useful for all of us to be able to have access to the information that you are able to collect. We would really appreciate it and it will help us to see this formal rulemaking move forward. And with that, I will thank you for your time. MR. MORTON: Thank you. DOCTOR WAGNER: So our next presenter is going to give a fairly extensive slide presentation. It’s now 11:10, and what I’m going to do is break for ten minutes so that everybody gets a chance to stretch and refocus. We’ll reconvene at 20 minutes past 11:00. SHORT BREAK TAKEN DOCTOR WAGNER: Our next speaker is going to be Mike Cooper. If you could state your name and spell it? MR. COOPER: Yes, sir. Mike Cooper, C-O-O-P-E-R. I’m with Exponent, a scientific consulting firm. All right. Let me start then with the slideshow. Just as a couple points of my background, I don’t run coal for a living. I’m an industrial hygienist involved with occupational health and a certified industrial hygienist. So I’ve spent most of my career working with preventing both disease and exposures for workers in a variety of industries, but not in the coal industry. I’ve not published within the coal industry. I’ve done a lot of airborne contaminants studies for a variety of industries including some work over in the Middle East, on military bases. One thing I might bring to this discussion is I have served and am currently serving as a California state health advisory expert, which is one place in the country where the OSHA limits are reviewed and set as opposed to some of the other states which are using the older versions of the 1992 standards. So in California, we actually have permissible exposure limits for OSHA that are enforceable and chart below the federal limits. I’ve sat on that committee for a number of years, served in the past. Also worked with the University of California as an instructor. My disclaimer here is myself and a colleague at Exponent were asked to independently review the proposed MSHA rule related to specifically the CPDM MSHA maintenance, exposure monitoring and other factors. I think you see that from the material that’s provided and the slide as well. Exponent did receive funding from the Murray Energy Corporation in order to conduct this independent assessment. But having done this for a number of years, the opinions and comments presented today are my own and my colleagues’ and not necessarily that of Murray Energy. In terms of methodology, I will explain that we reviewed the rule from an industrial hygiene viewpoint, reviewing of course the CPDM studies and quantitative risk assessments in terms of the basis for the lowering of PEL. I was able to review conditions in two underground bituminous mines. They were MEC mines, and we reviewed collective all of the continuous personal dust monitor data for five underground mines. As part of the investigation, we reviewed dust managers and various safety and health professionals within the mines. There are several areas of agreement with the proposed MSHA rule. I state those here, of course, reiterating some of the comments from prior speakers. I do appreciate the process which allows for public comment because I think the goal is, of course, to reduce miners’ exposure to respirable dust, and that’s why we’re all in the room. I certainly agree that the CPDM unit has the potential to improve both the timeliness and knowledge of dust levels, mixed dust levels within the mine, assuming it has reliability and is feasible to use. We’ll discuss some aspects of that in just a bit. Certainly, through the course of the objectives as articulated in the 2009 End Black Lung Initiative --- and that’s been going on for a number of years --- of course, I am cognizant that there’s been a lot of very good work and scientific research that has been performed through the years in this particular arena. Obviously, the objectives of the Black Lung Initiative include rulemaking, enhanced enforcement, collaborative outreach, education and training. I think, that as my 10-year or 20-some odd years in the industry working with management and employees, the last two I think are the most highly effective ones. In terms of the collaborative outreach in the industry, there's a lot of good information out there, education and training from both the agency as well as the miners themselves. There are, of course, some areas of concern with the proposed MSHA rule. The CPDM units is one of those concerns. We have reports that miners were frustrated using the units because, in part, its high fault rate raises the potential for distraction. We’ll explain a few of those issues later in the discussion. The proposal calls for a large increase in the number of samples. These would be mixed coal mine dust samples. Some of the factors including mine size, coal type, the region where the mine is, silica weight, et cetera, and miner age not monitored by CPDM - looking for all factors that affect a particular safety. Those are some of the factors that are there. The last point on this slide is large scale monitoring on the CPDM, in reality is an inefficient way to improve our understanding of those situations and the factors involved influencing the coal worker’s pneumoconiosis. My stance is that a smaller well focused study where the objectives were known and understood upfront and delineated in the file would be a much better way of approaching it and it would produce better quality data, hence that’s one of our recommendations. Some other areas of concern, I’m also looking for some delineation of when anything new is introduced into the workforce, whether it be a piece of equipment or something. The concern is whether there'd be any unintended risks from the introduction. A couple of those risks that may be unintended risks would include wearing the CPDM as several speakers have noted its weights, the unbalanced load. There are issues there. It sounds like the Committee is well aware of those particular issues. The other issue, of course, would be the potential distraction. I’m very sensitive having done a lot of fatality investigations in my years, and distraction is a major issue. We do not want to increase a miner’s distraction in terms of wearing or reading the unit or anything else caused by that particular unit. Lastly, citations in the proposed rule changed from the average to the single shift and it appears that this is at the same time that more samples are being required. The new instrument is being put into effect which may not have been fully tested under all of the mine conditions. We’ll talk through that. It appears that that new instrument has a higher fault rate than what is currently used and whether or not it intends to --- you can only do so many operations and modifications at the same time, so we may want to look at that and some recommendations regarding that. My topics today will be to provide you some data. I hope this is specific enough per your request regarding miner experience with the CPDM, maintenance issues, the NIOSH 2006 study which discussed the testing and then some data that I collected of five different mines and the use of CPDMs regarding the error rates over the last approximately 18 months. I would like to talk very quickly about the feasibility and rationale for lowering the PEL and then provide some practical considerations. We’ll take questions at that point. We’ll begin with the mining experience with the CPDMs. The miners are reporting a variety of concerns when they’ve worn the CPDM. Murray Energy Corporation provided CPDM units to five mines approximately mid 2009. They’ve been using them from that time period. The data collected were from that point in time until 2010, the end of the year, so approximately 18 months of data. These units were put in place and a number of samples were taken. We talk about how many samples and the number of hours involved on the subsequent slide. The miners that wear these units reported that the unit has a high fault rate. This is --- the parenthetical here is not from the miners. That's my data point from reviewing all of the dust cards from each of these mines for each of the units for this 18-month period. The miners report that the CPDM unit is too bulky for seats and equipment compartments and that faults have occurred in terms of the start of a shift which sort of obviates the ability of the unit to do what it’s intended to do for the portal to portal shift monitoring. Miners have reported some frustration regarding that there were no alarms either audible or vibrational to alert the miner. And that coupled with the next comment is that it’s a bit difficult to read. Having been able to spend a couple days underground using these units and some extensive testing in our offices with respect to maintenance of these units, it is indeed difficult to read the display, to put it in their own words, to read it. But most of the background, I guess, was reported by miners as too long, it has a tendency to catch on equipment, and it really has to do with the weight of the units coming from the side and going up to the cap light as opposed to from the rear, which is where the battery was usually put, and it would come directly over the back of the head. The connections to remote units are hard to make in the mine themselves and were not as standard and as foolproof, if you will, with respect to the exchanging out a cap light battery, for example, or putting a remote connector on the cap light. The CPDM unit does not fit into pouches and doesn’t fit all the belts. These were from the miners. Interviewing certain managers at three of the mines, their complaints were on a different level. It really had to do with the use of the equipment and some of the maintenance issues involved. I’ll start with the time. We certainly were concerned with respect to Mr. Morton and what they have done. This is a significantly improved unit from the gravimetric sampling. The technology was very impressive inside. Obviously, there was room for improvements. One of those would be a long start time to include software and hardware error, situations where we're trying to make sure that it’s operating within the specific parameters. Thirty-five (35) minutes means that if you set the timer to start the equipment, if the mine shift starts at eight o’clock and you set the timer at 7:00, because that’s when you get in, then you’ve got 35 minutes. And if it fails the first diagnostic, then you don’t have time for it to go through the second one before the shift starts portal to portal. The CPDM unit, per the certified rescue managers, they had concerns that it’s more complicated to maintain than the gravimetric sampler. I think that is apparent. The maintenance of the unit is specialized in that it does require some practiced skills. I observed firsthand two of the locations where maintenance of the unit would be done, which is topside. And they are not --- they are not clean rooms, you know, in terms of the location where some of the maintenance would need to occur. Four out of the five CPDM units that were examined from the five mine study that was conducted needed to be sent back to the factory six times within the 18 months that they were present in the mines. Two of these particular units had to be sent back twice. That’s of some concern, and we’ll talk about that. Significant time was required to return the units to the company for repairs when a significant repair occurred. I believe in one case the 3600PDM pump failed on a unit with less than a year’s time on it. That took a couple weeks to diagnose and to get the equipment back. I understand that there may be a rental unit that’s available from the company. That wasn’t known to the folks that were using this piece of equipment. There’s concern that one of those units have failed in a major piece of equipment within that time period. There is mention that --- some of the maintenance, there was some need for experience with some of the maintenance components like the KO, which is calibration offset, which is done with tweezers putting small weights on the oscillating filter. That requires some skill to be able to maintain that. I’ve done that a few times and have watched others do it who were more experts than I am. It’s not a simple thing and it needs to be done with some care. So does the cyclone cleaning and the forward determinations, which those --- the cyclone cleaning are not part of the maintenance that would be required with gravimetric sampling for example. Obviously, we mentioned the fact that there’s only one MSHA approved CPDM manufacturer at this point and there’s concerns about that from dust managers in terms of the availability of the units and supplies. Safety and health professionals that were interviewed came up with these particular concerns, again, still on the CPDM. Wearing the unit may cause some potential risks and should not be upfront summary - to distract and perhaps decreased ability to go in the mine and work safely. Wearing the CPDM unit incurred a risk for ECVs based on how slow-. I will say this carefully. There’s a misconception that the CPDM is a real time unit. It doesn’t mean the real time dust concentrations for a 30-minute time period and then as opposed to an end of shift calculation at that particular point in time. From my experience, I’d like --- with handheld devices I’d like to see units which are a direct reading in the sense that I could walk up to a miner, indicate what the concentration is while they’re performing work so there isn’t a setback in terms of the 30-minute time period and saying, well, what you did in the last 30 minutes was too high based on the bar graph that’s provided with the unit. Some of these might be interpreted as suggestions to the manufacturer for changes. There is some concern that some of these changes may take some time in order to accomplish them. So the two main items we mentioned are the providing of a continuous reading or readings for 30-minute averages and the end of shift average. You can look to this information all down the dust chart, but of course, that’s not performed within the mine. While it’s important to note that the CPDM is an improvement over the gravimetric unit, the ability to implement rapid changes because of this non-continuous situation is significant. I show here a slide which depicts some of the remote connections used that I mentioned before. The two that are held here by the hand are two of the remote connections for continuous operation of that unit which is plugged into a port supplied by the CPDM. If the miners had their choice, they would rather see a connection that’s like this which is a cap light battery. That’s over on the right side. It is a little difficult to do this connection in the mine setting because you’d got --- and I think you can see right here, it’s unintentional on this particular photograph. If you look carefully right here, you see how much material and debris is present. In this particular mine situation it had more than one type of connector for the remote device in order to make it operational. So if you brought down the wrong connector or didn't have it available, that would be a problem. This is showing a video, if you will, of one of my colleagues in the mine. You cannot hear this, but the problem is it’s a shuttle car in an equipment compartment when you sit down. And this individual is much more petite than I am and my observation, in deference of the size of most miners, she can’t read the unit where she’s sitting. It actually faulted through no trick of photography after she sat down because the hose pinched and caused the flow to be a problem. And the bottom line is it is a little hard when you’re crammed inside of the equipment compartments. This is just the shuttle car, but there are much more tight spaces that are present there. So in terms of CPDM maintenance issues, one unit that was available to us with a specific serial number which --- maybe tracking --- the asset tracking system, was provided to Exponent for several recent evaluations, both of sampling as well as to review the maintenance procedures and perform the monthly procedures as well as the annual procedures that were done. We were looking at this from a standpoint in time as well as of use. The unit, this particular unit we had some problems with. It may have just been the particular unit that was given to us. It did not go back to the factory prior to it coming to Exponent, but it was an in-use unit and was shipped to us in the state --- there was a lot of coal mine dust on the unit when we got it. So it was as it would have been used is our understanding within the mine. In this particular case, the unit repeatedly passed the diagnostics but gave high readings in the one to two milligram per meter cubed, the values off the site. This is highly unusual. Something was not right. We did perform one KO test on this to see if the added weights onto the de-oscillator would be --- may be indicative of error, the need to send this back to the factory for repair. The difficulty was it failed the first time, it passed the second and then subsequently passed other diagnostics. So we thought that it was simply a unit that had something go wrong with it which subsequently had resulted in something. So we took that unit down into the mine with --- then we went on the mine tour. Read through the manual and the reviews, NIOSH said we were --- we had pieces that we were looking for on our analysis, some things that we look for, data concerning any type of failures for the critical parts of the unit, the lifetime of the unit, and how long it would take --- if there were to be improvements, how long those improvements would take in terms of the response by the company or approvals by MSHA. One unusual failure then with the same unit I just described occurred when we went into a mine. We went in. It initially passed diagnostics out of the mine. I mentioned before that it had units --- had values that were high in readings in an office setting. And I mentioned about the KO. One thing that we were very --- we do science for a living, so what we do is observe types of things. When you see unusual types of errors for any piece of equipment --- I've worked in a typical chemistry lab over my career, but when we popped the unit at the end of the one day after this had failed --- so the unit did not provide data in terms of giving specific portal to portal information on the first date that we used it in the mine. We pulled it out and found a very odd looking fiber, so we had that analyzed as well as filter by semi ----. We looked at the filter by scanning electronscopy and the filter itself. And we did a quick analysis of this finding of EDS. What we found is that the filter was pretty good in terms of the cyclone and collecting a lot of particles which were not higher than the ten micron limit, so that --- when you scan that filter, it looks pretty good in terms of that. The unusual part, the fibers, I cannot explain where it came from. That particular mass was 95 percent carbon, had some particles imbedded in it. Where it came from is not distinguishable, so that would be helpful to discuss it with TSI (phonetic). I guess that stated perhaps not all of the issues with the unit that have been released by the prior studies at NIOSH in 2006. If I could refer to that 2006 study that was done by NIOSH, they conducted both laboratory and mine testing. The first part that’s done in the dust chamber, the gravimetric versus the CPDM unit. As noted, these were all pre-commercial units based on the age. I think we were told that they were first shipped in 2009 if I’m correct, for the commercial year available in the market. NIOSH didn’t really explain what maintenance was performed on these except in the dust chamber where they did say that each unit was cleaned after each day of use. And I assume this to be the beginning of each shift, but I’m not sure. They didn’t report the amount of time it took to do this. They did mention that the maintenance that was performed at the end of day included cleaning the cyclone grit pot, the tapered element, the sensor module and cleaning out the inlet tube lines. That’s all appropriate and would be required by the maintenance service unit who was doing this work to perform those same types of maintenance at the end of each shift, and you have to replace the filter as well. For the mine sampling, the NIOSH report did not communicate what maintenance was done for these particular units. We understood that NIOSH was present for three days during the testing in terms of instructions, et cetera. Then they left the unit with the mine and the data collection was both when NIOSH was present and when they were absent. The in-mine testing by NIOSH in 2006 included ten mines, three to ten days at each mine, one full shift per day. They didn’t report any monthly or annual maintenance as we had discussed. Of course, these are pre-commercial units. They evaluated 25 units. They had an average of about 437 hours for each unit of operating time, and that was equivalent to about 44 ten-hour shifts. The results of NIOSH indicated that it took about 1,202 full samples of the CPDM unit for approximately 11,000 hours of testing. The best units, and I’m a little cautious when I relay this --- I’m not quite sure what it means, but there were some units perhaps that performed better than others, and better ones went 532 hours without needing repairs. And I would assume that that means no faults. It wasn’t directly communicated. A void rate was determined as the number of invalid samples or total samples, and NIOSH reported that number as 9.8. Out of the 1,202 samples, there were 118 invalid samples that were reported. And I assume that was based on the error rates. They mentioned it was not a valid sample. The two types of errors that NIOSH reported in their 2006 study on the CPDM indicated both remedial and critical, the one being that there were software and hardware modifications and upgrades or changes that needed to happen with the various components. I assume that this was related to or would have been related to the maintenance components, although that wasn't specifically stated. And the second was a critical error which was the units aren’t functioning and that has to be sent back because there’s a unit reliability issue. The NIOSH report indicated a method of calculating when the repairs were needed per thousand hours of run time and average that number by making it 4,000 and averaging 4,000 --- number by 4.75 per thousand hours. If we were to take this information and communicate it into a mine that’s operating under the proposed MSHA rule for three shifts work at a time, assuming that one unit operates about 15 hours per day, so the assumption here was that you have a unit operational. Then it would need time to charge and time to do its maintenance and replace its filter and then it would be available for the third shift, and then with alternating CPDM units in that fashion. If you had an error occur that would be 4.75 times per thousand hours until we reach this error occurring approximately once every two weeks within the month. That seems like a high number, but you’ve got to understand that some of those might be critical, some of those X hours may have been changed or altered by reasonable X amount that when the company provided a commercial version of this that some of us were working on that. My comments on reviewing both the information from the mines as well as the NIOSH report are that the CPDM units were tested using the pre-commercial values, which there’s probably some good and some bad with respect to that. There was no report of the monthly or annual maintenance performed and that’s a critical element of maintaining the reliability and integrity of the units with time. The study is limited in that it compared a number of hours of sampling which would be about 11,000 over the ten mines that were looked at. In my estimation, that’s a rather small number given the number of hours required for a sampling to occur in a typical mine given the proposed rule standard. Some of the faults were observed in the study, but it is possible and certainly could be likely that other errors may be present on the CPDM units which will come out as the result of additional testing, essentially additional not testing, but use of the units themselves. I mentioned the mean time between failure and the lifetime, but my concern is that we’re talking about --- these are expensive units, to rule out the full range of errors and to demonstrate that that’s clear. And I would be concerned about what that means. If we look at some specifics in terms of numbers, the NIOSH report cited the MSHA available database regarding gravimetric samples and how many voided samples were present for the time period of 1995 to 2004. There’s a little bit of disclarity in the NIOSH report in that there’s two different date ranges given and the numbers appear slightly different if we take this to be the information that is correct. The inspector data had a void rate of approximately 6.1 percent, 23,399 samples were voided over the 381,000 that were taken of this time period. And the operator even had a higher void rate of 11.7 when the samples were sent in. If you looked at the MSHA inspector and operator data, those void rates, I believe everyone with something besides the CPDM unit would have a lower void rate. And in fact, in the NIOSH 2006 report, to quote here, is that based on the expected capabilities of the CPDM, they estimate that about half of the MSHA voided samples could have been valid. Unfortunately, this wasn’t quite the case. If you look at the --- well, I’m going to --- I'll slide out of the way here, but I think it’s the way the slide is; is that correct? If it’s a CPDM --- we’ll go with what we have. The CPDM error investigation, we went and collected all of the dust card hard copies and the notes that were provided by the operator during the sampling, and in most cases these were handwritten pieces of paper we entered into the computer, approximately dated 2009, 2010 for five mines. So you can see the total number of samples that were taken was --- well, just which you can see from the data there is there’s five mines. The number of coded samples that were collected was approximately 166, thank you very much. And if we looked at the number of samples in the --- and right off the dust card you can see errors that were present, so this is not an interpretation by an operator, so you print the card. Some of the data had multiple errors, but if you just pick the ones that had one error, those numbers total 48.59. This represents the experience of 18 months where they’re using the units from a portal to portal survey within the particular mines that we were looking at, which were located in Kentucky, southern Illinois regions. The percent void in this particular set of data looks higher than both the NIOSH estimate from the 2006 study and certainly higher than the data from gravimetric report, the CPDM --- I mean not for the --- were the operator data. We did it because the cards allowed us to do this. We looked specifically at the number of hours involved and then did a rough calculation of the errors per 1,000 hours and came up with a number which is located on the bottom here, which is what we want. Well, what types of errors did we see? We looked at all these dust cards. I’m going to report now the total number of errors. This is not 48 on the prior slide, but this is 75 because some of the units had multiple errors. The kind of errors we saw with the CPDM unit ranged from some of the high ones like mass offset error, which was most common, to high filter overload, low power, flow out range, TE frequency and not detected. This represents then the --- from all five of the mines, the dust particle information that we were able to extract. But if --- we then in the next slide compare the invalid versus total samples, so if you’ll let me loosely call that the void rate --- and we compared the 6.1 percent from the MSHA inspector data with the 11.7 from the MSHA operator data that’s publicly available and is published in the NIOSH study, those numbers are 6.1, 11.7. NIOSH came up with 2.8 for the pre-commercial testing in 2006. Our data from the five mine study with commercial units was 29 percent. I took the liberty of walking hand in hand with statisticians and had them calculating upper balance of expected, a prediction using the normal traditional model. That number had a plus or minus seven percent, so the 29 there is anywhere from 22 to about 36 percent would be the expected percentage of invalid over valid samples. That’s a pretty high number and it’s not the same as the information that we would have expected from the testing that has already gone on. If you’ll allow me to compare the CPDM error rates in the same type of way that NIOSH had in terms of number of hours involved, a best case in order to put a number on the chart is one error per 1,000 hours based on the NIOSH study. NIOSH did report in their ‘06 error (phonetic) data, 4.75 errors per 1,000 hours. The five mine study came up with a number value of 41, which was about 18 months' worth of time. My conclusions from these studies is that they’ve suggested the true error rates of the CPDM in the field use is not known at this time, and I’m more confident in understanding the things that might affect errors should we note --- and let me say this as clearly as I can --- before relying on it for compliance purposes. I think the unit as itself is an improvement on the gravimetric tool. It involves a much more immediate understanding of what the concentrations are available both to the miner, the dust manager and the safety health professional within the industry. However, to rely upon it for compliance purposes, I would have some issues. If the error rate is as high as observed in the five mines, it certainly wouldn’t be a good tool for whomever for compliance purposes. So maybe the best thing we have about the compliance issue would be the question. So the questions I would raise back to the Committee for consideration would be why would the field use five pieces of equipment over an 18-month time period at such a different error rate from what NIOSH have or whether that would have predicted --- based upon the knowledge involved. Some of the units performed more poorly than others, so I would certainly try and analyze and maybe some of that information would be available if --- if it was possible to take the full range of industry data from the manufacturer in terms of their asset tracking. Somebody could do that particular piece of work. What’s the fault rate if you’re taking samples day after day with these pieces of equipment, noting that NIOSH did this over a period of between three and ten days, but the proposed rule suggested they be done over an everyday situation, which means operationally for a longwall or a continuous mining operation. That would be anywhere from 8.5 to 9 percent of the available hours within the year on three shifts. What is the suspected interference? There’s not a lot of information from that that we could discern from the literature, and I guess I would be curious to know about what were the mining conditions under which the pre-commercial CPDMs were tested in the 2006 study by NIOSH? What I’m particularly concerned about is the last item, the relative humidity aspect, and I understand that it has been admitted; however, the extremes in the mine that I viewed personally ranged from either from about 15 to 100 percent relative humidity depending on where you were. And that’s a pretty large range. The folks at NIOSH did indicate that they looked at a relative humidity range and I believe that that was in the 30 to 50 percent range, which would be good for a comfort zone in Washington, Pennsylvania, but it may not be reflective of what the units will see within field operations. Additional questions would be --- and I don’t know this answer --- what are the range of temperatures and RH conditions within US mines? A particularly important question is will the fault rate increase as the units age? That’s certainly something that I cannot answer. We only have a limited amount of data here, but it’s something that would be very, very helpful to have a collaborative understanding of what that would look like, especially for the proponents if it’s to be used for compliance purposes. It would be nice to know what the useful life is for compliance purposes. I’d like to know that in the meantime for the critical components of the unit itself, how long it will take for the changes or suggestions, some of which were presented in this discussion. Another question that comes up is what happens when the CPDM unit faults? If there’s no effect, then we can ignore the slide. If you’re required to resample, then you’ve got some questions about that because you typically will have to stop to clean it, perhaps change the filter and run the diagnostics again, which is a 35-minute time period in order to set that. Now you may miss the portal to portal situation at that point, so the question is, is the sample required at another shift? Do you upload the fault data to MSHA? Are they counted? Is there a compliance issue for faulting this? Those are some of the questions that I would ask back to the Committee considering this as things that need to be addressed. From an industrial hygiene perspective, one of the other key issues that I am interested in is how do you prevent disease. I appreciate your initial discussions this morning. We’re all here because we want to understand and help with this Black Lung disease affecting coal miners. Having personally gone through and watching somebody pass away with COPD and emphysema, I would not wish that on anyone, but we need to differentiate the factors involved. And specifically the CPDM collects mixed dust samples within the mine. There are some other factors as noted by the rule regarding the issues in terms of silica. There are some aspects that aren’t noted by the rule, which would be mine size, the coal rank, the effective age of the workers, some of the other compounding factors that the epidemiologists will tell us, et cetera, and the presence of some of the other potential contaminants, i.e. biologically available iron, which has come out in some recent studies, I believe one in 2008. And then other factors which could affect long term, but may not be involved in the development of disease issue, things like adhesive solvents within the mine. Obviously, each and all of these would be improved if there was good real time exposure data present, but I will point out that exposure data is not quite the same thing. Collecting exposure data is not the same as collecting data for compliance purposes. My experience, I’ll briefly mention it in terms of setting up --- or an assistant of setting public policy or permissive exposure in the State of California went something like this. What I probably reflect by this slide is that because of their legislative requirements to the California version of OSHA, which is state by state, they’re required to update their airborne contaminant exposure levels on a frequent basis. And what that simply means is approximately once every two years, another set of review and provide it. The way that this is done is to set up a health expert advisory committee to set a healthy standard. I think it was referred to earlier in our discussions. There’s been a lot of work in this particular area which has to do with a health-based standard as recommended by NIOSH from their 1985 reports, one that I have used. The second component of this is the public process, looking at the economic feasibility. So we have a feasibility committee that reviews the results of the health-based standards. I participated on the first community health-based health expert advisory committee and I attend the economic feasibility committee meetings just for an identification of interests in health. These are then provided --- the recommendations are provided into the standards or typically those were in ranges, not just the numbers, but we had ranges to the standards board. The standards board does their work with them and comes up with a proposal which goes to the state board for enforceable PEL. The whole point of this slide, not to belabor it, is that there is the feasibility components to this, and this is very important and helps keep this thing on track. When we talk about all the PEL, one of the key documents --- and this is the 2010 version so I’ve provided a couple comments regarding that particular component. If you are a --- used compliance data to monitor exposure to silica, that is specifically mentioned in the QRA as being non-binding, but that’s what they have to deal with and I would recommend --- there are several reasons why that’s not a good indicator of exposure monitoring. The QRA you submitted for mixed coal dust does not by itself differentiate other risk factors. It didn’t help. Or silica, for example, or maybe the roof is --- you know, has a thin seam in the roof which would include a higher silica content. What they did use was a set of MSHA data that were available, so this is trying to show a little bit here. And all the data that’s available for MSHA, they went to operator versus inspector under various elements. The inspector data was better. They looked at the entire time period and argued that 2004 to 2008 was better data than the entire time period, most recent, I guess. They then wrote that first day of day use and then they adjusted it in some way, adjusted one year’s worth of that unit for 2008 for what they called the adjusted supplemented core or ASC. From that, the QRA came up with an average reported range of current exposure levels, .5 to 1.2 milligram per meter cubed. It seems like --- and I’ll explain why when we look at the data that we came up with. I think my main comment here is that they did come up with this range, but they also said in the same report that there were some caveats associated with that. So if you quote from the report, it says essentially that approximately when they looked at the percentage of work, occupations that did not meet the one milligram per meter cubed standard, they had --- because all of them did not meet it at some level, but they had a range of percentages of approximately, reading the bottom of the slide, .9 to about 72.2 percent, with an average of about 20 percent of the 19 occupations did not meet the one milligram per meter cubed based on the data that the QRA relied upon when they recommended a lower PEL. This is of some concern from the feasibility aspects. If we took data --- we did this for two of the mines, this certainly could be done for more, but we looked at the feasibility in terms of what’s reported in the MSHA database, the gravimetric data from 2008 and 2010, so this is more current data, if you will, the number of operator samples over one milligram per meter cubed is reported and then it’s a total number of samples reported for two different MSHA mines. The information here, it says that whereas the two milligram per meter cubed from the operator sample is being not met approximately between six and seven percent based on the MSHA operator data, if the standard were lowered to the one milligram per meter cubed, that number would go from approximately six to seven percent to somewhere between 33 and 42 percent. That seems like a dramatic increase. The inspector data similarly shows an increase, but it’s not as large. If we were to do the same thing, if we were to --- I had available to me all of the dust cards for five different mines using five CPDM units, we did the same analysis for the 18-month period looking at all five mines and seeing what the end of shift values would be for exceeding one or two milligrams per meter cubed. What you see here is the mines that used the CPDM units saw 2.5 percent of the samples not being reported for valid samples. That’s why this number has the denominator of 118, 2.5 percent. If the standard were lower, this would translate to approximately 15 percent. Eighteen (18) over 118 samples would not be a proposed lower standard. This is a concern because the number of valid samples here is 118. What we estimated that a particular mine would need under the proposed rule was in excess of over 6,000 or 7,000 samples. And so this is a large number. So I guess I’ll include on that feasibility of lowering PEL, I think there is a real question as to whether one milligram per meter cubed can be met with a 95 percent confidence level within an actual mining operation knowing those conditions that are present and all of the efforts that both the mine operators and miners have done to reduce exposures over time. And I think the data does show that there’s a lot of that happening and has happened over time. The proposed rule seems to change to me variables at the same time, both bimonthly --- average about the same. Average of five samples that’s been changed to a per shift, in other words, a weekly component as I understood, and was addressed earlier today. The measurement, too, is changing. The number of samples is changing. Maintenance requirements in my view are increasing. The unit that’s being required has a higher fault rate and there’s a lack of experience with the units in the mines. I think I heard some from the Pennsylvania Coal Association indicate that to his knowledge they are not using the CPDMs within the state within the mines earlier today. My graph will represent how many samples is involved. It’ll look something like this. It’s a little tough to weed out exactly what the numbers look like, but if we took one of the Murray Energy Corporation mines, we’ve picked one --- we’ve picked three of them, looked at how many operator samples were required over a three-year period and divided that --- the old rule on the books has about 264 samples per year. If you make the assumptions in the upper right-hand box of --- per MMU that’s a requirement where there’s one designated operator then other designated operators can ignore the DA, the designated area. We put that five mine use for this particular mine on three shifts and consequently the number is --- about 71,000 samples would be required by this mine per year. That has some pretty significant applications in terms of the error rates that we discussed earlier. I think we would argue that the number of CPDM units required for that mine would be somewhere in the order of magnitude of about 60. Counting the fact from the error rate and how many you need for all shifts, 24 hours a day, they would have to be recharged and maintained. That’s a rather substantial amount of cost, let alone the number of filters and other repair situations that may occur. I will conclude with two slides on some practical considerations. I apologize if these are too general, but I would certainly conclude from this discussion that the data collection --- and we’ll say this carefully --- data collection doesn’t reduce miner exposure. What you do with that data collection to pull a miner out or change situations or make other impacts to the workplace is what reduces the miners’ exposure. And that’s what we’re interested in. There appears to be some significant increased changes, significantly high hurdles, if you will, in terms of the feasibility to meet the one mg per meter cubed and certainly within the data that was provided here. I would argue that what happens to the data that’s being collected is pretty important. It's important to get very good data about exposures and different factors in terms of all the things that could impact a particular miner’s exposure with current significance of disease. I am not convinced that somebody has handed this over to the epidemiologists and said here’s the number of data samples that we’re going to collect. So the idea here is that collecting samples on a 20 percent shift over all US mines is probably not the most efficient way to get exposure data. If the goal is strictly for compliance, that may be what’s required. However, there are some significant arguments in terms of feasibility and other aspects, the compliance issue based on the CPDM units as discussed. Many variables that are articulated seem highly unlikely. That means they’re put out in the community to do some studies or establish a third party to look at it. What do we do with all this information that’s going to be coming our way? Of course, I have worked with both the industry and the workers for a number of years, and I always think there’s a collaborative approach between the agency and industry, mine investigation things. The last line talks about some practical considerations. I understand perhaps incorrectly that the Committee may be interested in having our experts pursue economic and ergonomic review of the CPDM units. I highly encourage that, looking at things like distraction, the weights, the unbalance and the population of older miners. Under my very short tenure in underground mines, we had three federal safety inspectors there each day. We may not have met all of them, but there were a lot of folks there. It’s a highly regulated industry. That’s the mining industry, mine experience. One thing that could be done is you could have people in different sectors and have them collect data both in terms of reviewing faults and ergonomic considerations, and take that information and feed that into this for a period of time of six months to a year. It would be very helpful in terms of the use of the units. I mentioned earlier pursuing a third party to look at the design of what are we going to do with the sampling data that the operators are going to collect at the time and relate that back to the factors involved with incidents of CWP. That’s a very unique opportunity. It was mentioned lastly that going from the Pennsylvania coal group mentioned what I would use, a mix and match strategy. One thing that I understand that the rule has proposed is it does allow the use of respirators. The hierarchy controls it, however, it’s an important component if you’re looking at trying to protect somebody from a respirable situation. One way of looking at this in terms of a practical consideration would be looking at mix and match, which takes less PEL, provides more highly respirable mixed dust concentrations, the use of things like airstream helmets that were mentioned earlier where needed and where perhaps elucidated by what the data would show. And obviously, the impact of education affecting miners’ work practices. That might be, in my opinion, to help to reduce miners’ exposures. Thank you very much for your time and attention. I’m sorry. One more side course. The data are preliminary. What I mean be that is that we asked for data across the mining industry to look for information. It’s out of my hands at this point in time. We would like to look at things like error rates, maintenance issues and miner experience. Over time, we will review that information if it’s available. Thank you. DOCTOR WAGNER: Thank you very much. Susan? MS. OLINGER: Not at this time. MR. FORD: I just have a couple questions. How many miners were involved in the five mines that were conducted over the 18 months? MR. COOPER: I’m sorry, sir. Could you repeat the question? MR. FORD: How many different miners wore the CPDM over the 18 month study of the five mines? MR. COOPER: I would have to get back to you on the number of individual miners. There were different miners under different situations, both longwall and bituminous, and I believe a couple of shuttle car and scoop operators, but we can certainly provide that information. MR. FORD: Can you tell me what kind of training they received on how to use the CPDM unit before they actually started using it in your five mine study? MR. COOPER: Is the question, sir, related to the dust managers or the miners themselves? MR. FORD: It’s the actual persons that were wearing the unit. I’m trying to see, did they receive any type of training at all before they were involved in this study, or did they have no training and just wore the unit? MR. COOPER: That’s a very good question. If you’ll allow me, I’ll answer it in a broad array. And that is --- you also asked the question what was the training that the certified dust managers who were administering this have prior to providing this information to the miners. What we ended up looking at is in one particular case the certified dust manager changed in the middle of this time period. And the information that we had was the individual who took over the units wasn’t doing all of the monthly maintenance on it. So that raised a significant flag. So we looked at the information to see whether or not the errors for that particular situation were higher than the other four mines and whether or not there were more errors at the beginning when there was less experience or for the errors spread out over time. And what we found was what you saw in the data set, is that it didn’t seem to matter really in terms of the error rates, the void rates or the invalid versus valid samples. Nor, in fact, that some maintenance was not being performed as the manual would have requested it to have been performed, which raised another component of concern. That might have come up if the study had gone on longer, but it was certainly a concern. In specific answer to your first question, though, we interviewed both some miners, as well as the certified dust managers who provided the tool to them. They basically said this is the unit, here’s how it works. It was a very brief thing. It was not extensive. In my understanding, they were asked the questions on a document, but no specific notes were taken about which miner and what operations were present for some of the information, so we had a range of notes being taken for the dust cards versus rather extensive handwritten notes which we could correlate to the specific dust cards. I have confidence that on the situations where there were specific notes being taken of who the miner was and what information was made back and forth from the miner to a deferred location, et cetera. That information would be more robust than the ones where there was no computation on them. So I believe to be a rather short training program if you would --- very generous to describe it like that for the miners themselves. MR. FORD: Again, concerning the logistic five mine study, concerning the training for the maintenance, and I’m talking about here the daily maintenance, did each miner do their own --- did each miner that wore the machine during their shift, did that miner do the daily maintenance or did some other miner do the daily maintenance? And then the second part to that question is for whoever did the daily maintenance, were they trained in any way or did they receive any kind of training at all in how to perform maintenance, specifically the daily maintenance? MR. COOPER: I think both are very good and valid questions. The first one is did the miner that wore the unit perform the daily maintenance, the answer is no. That was performed by the certified dust manager which in the case of the five mine study the gentleman who was the certified dust manager for the mine, they had an individual specifically who was an experienced miner that took that role, the position within, if I could call it the environmental health and safety department within the mine. So that was the MSHA certified manager who was both adapted technically to do that job because he was the one who managed the gravimetric samplers as well, and with that gentleman, he would actually communicate, in some cases take notes on the information that was being provided to the miners themselves. So it was not done by the miner. Probably there would be some way we could do it for some mines that don’t have an individual in that particular job category that we, at the additional expense of doing this, could put somebody in that role and then multiply that across all the mines involved. The second part of your question you’ll have to repeat for me. MR. FORD: That mine that was --- I realize that mine that was performing the maintenance, daily maintenance, is a certified --- certified to perform daily maintenance on the gravimetric, but the --- I’m sure you --- maybe can you tell me what --- if not now, maybe in your written comments, what level of training did that person get to perform maintenance on the CPDMs? MR. COOPER: Okay. There is an established course or training for the CPDM unit. I will provide you information on my written comments to address your question. I can offer, though, because you’ve have asked in your question about what was my training to do the maintenance on those units, myself and my colleagues, Ms. McCarthy, specifically went through each and every step, and we used a manual as our guide, and when we had questions, we’d call TSI. MR. FORD: One last question, and that is how long did it take you to do daily maintenance? MR. COOPER: The estimates that we had for the daily shift maintenance was --- MR. FORD: I mean the daily unit care. MR. COOPER: --- per unit between 15 to 20 minutes. MR. FORD: Thank you. MR. NIEWIADOMSKI: Mr. Cooper, let me just say this, that it appears that you’ve done a really comprehensive analysis of this, and have raised some important points for the Committee to consider. MR. COOPER: Thank you, sir. MR. NIEWIADOMSKI: Let me ask you a couple questions. I’ll refer to the slides; okay? On slide number 11, this has to do with mining experience with the CPDM. You mention in here that data was not provided instantaneously to the miner. Well, we know with technology that certain dust other than light scattering tends to be not something that we’ve looked at before. As an engineering tool it’s fine, but not for exposure monitoring. Why do you think that it’s important for somebody to know there is a case which is --- you know, at times they can be 56 milligrams per cubic meter? They just occur for a minute. So can you elaborate why you think it's important? MR. COOPER: Yes, sir, I can, and without too much difficulty. We brought a light scattering device with us, so that I had a device which could provide an instantaneous reading. There are problems with light scattering devices, certainly within the high humidity types of situations that could occur. When I searched through the literature, I did not find any direct comparisons between the light scattering and the TE (phonetic). I did not find where the light scattering had been specifically tested within different temperature or humidity conditions. I think it’s quite well known that depending how much moisture in the dust chamber, you’re going to have particles. And it will see differences and I guess I’d be very interested to understand what that looks like certainly as a scientist, so that we had some understanding of that. But I think the question you specifically raised is there’s no unit that’s currently MSHA approved that’s light scattering that would give you a direct reading. If the question is why do you want that, as we’re going into the areas, going into the areas where you could bring a piece of equipment in like that, and you had a dust scattering unit and you had the CPDM, it’s very interesting what the miners were interested in is to be able to walk up to someone and say you’re standing on the intake side, you know, this is the wrong place. Or you’re on the tailgate side and you can need to be, you know, in a better physical location. You can’t do that with a 30-minute sampling device. In my experience looking at toxic gases, airborne contaminants in a variety of different industries, I would like to have a handheld device that I can use in order to impact worker behavior. If it’s not the most practical device or it’s not a device that meets compliance purposes, I’m okay with that. I use whatever tools are available to me. MR. NIEWIADOMSKI: Thank you. Slide number 18, an analysis of the report of CPDM errors, you’ve indicated that using those errors --- or at least based on those errors, you’ve calculated and determined that the repair rate would be one repair every two weeks, and you felt that’s not acceptable. What do you consider to be an acceptable repair rate? And the other thing is this, part of it is also you assumed that when we see CPDM errors --- and of course, it’s defined as an error and we’ve had these discussions because some of them are not errors, okay, were, in fact, an invalidated sample, so my question to you is assume that every time there was an error, okay, whatever it was, that would result in invalidating that sample. Is that how you looked at that? MR. COOPER: Yes, sir. To answer the second part first, because I'm not --- I don’t have a clever way to do it in terms of more differentiation based on some type of way to come out with in terms of design. And the only types of information available for --- about the mine study is that we have the dust cards which indicated what errors, their frequency and their dates and how many hours and when within the operation that error specifically occurred, because it's time stamped. But the thought process there is that you're examining --- it would be kinder to say fault for the piece of equipment that’s identified. I guess the definition there would be that we were not able to complete a portal to portal shift sample for whatever reason. It's a hot mess situation. That may be real and it may have to overcome the ability of the instruments to be able to detect that on a situation. If it's a pinched hosed, that may be real, but it's still providing a piece of information that says we've got an error on that portal to portal shift information. And the question becomes what do you do with that information? If we report it at as fault, that’s perhaps a little more clear. MR. NIEWIADOMSKI: So what you're saying is that what's required is some additional explanation and discussion of the importance of the particular errors and whether or not if you experience them, whether or not that invalidates the sample, or it's just maybe a red flag to you to look at something else? MR. COOPER: Sir, I think that’s fair. One of the slides tried to hit the point you're saying. What do you do when you’ve hit a fault or an error within the --- in a particular unit? And some of the questions that are raised are what do you do with that information of slide number 29 specifically? If it's a new sampling, then there's issues with that. But perhaps more important is how do you count those. And if it's being used for compliance purposes, it's certainly not what would be recommended. What do you do with that information? The fact that we're seeing numbers which have allowed what we call a fault rates significantly higher than what miners saw in the 2006 setting is a concern, because I think, quite frankly, they were pretty small samples. This is five mines with 166 particular samples that were involved here. That’s a very, very small portion of --- statistically of what would occur over --- if one individual mine collects 7,000 samples per year, you would see a very significant aspect that might be problematic. MR. NIEWIADOMSKI: Let me refer you to slide number 38. And I know that the slide above, which is slide 37, you determined the number of samples that would be required to be collected under the proposed rule. MR. COOPER: Yes, sir. MR. NIEWIADOMSKI: Slide 38 is showing the data collection, although it does not necessarily reduce miners' exposures. I think the intent is, as Doctor Wagner mentioned at the beginning, that we know that overexposure to such concentrations causes Black Lung disease. So the intent of the rule certainly is not for other purposes. The intent of the rule is to prevent overexposure on individual shifts. And so when you're indicating that the data collection is not --- we're not doing data collection, the intent is to make sure that no one is overexposed at the end of the shift. The question being is what do you recommend? What are you going to propose if you're indicating that 24/7 sample is not necessary, okay, to ensure that every miner is being protected in a shift? Is that what you're saying? Or do you have something else that --- another idea and alternative to finding what should be the frequency of compliance sampling to ensure that nobody is being overexposed on individual shifts? And as far as we know right now, the best way to do that is to monitor the miners every shift. So my question to you is, if 24/7 is an overkill, okay, what should be the frequency to ensure that miners are not being overexposed on individual shifts? Right now, we're looking at sampling that’s being done by --- it's five shifts of sampling in two months. That data basically, since 1983, has shown that the average concentrations are below one milligram. And so when you look at that data and you look at the level of disease, the question being is why are people getting disease. And if you're implying that, by point number two, that there appears to be significant feasibility challenges, are you indicating that even though compliance samplings are indicating that there's significantly below one, that actual exposures are lesser? A compound question. A number of things I threw at you. I apologize for that. MR. COOPER: If you'd be kind to let me answer and then please clarify if I haven't reached the points. On the first question, if I understood it correctly, sir, the points regarding the 24/7 and that being overkill, I'm not a statistician. If I were to go back and take a look at the information that was available and what information you wanted to collect, I would go back to my statistical department and say design me a study that would collect the appropriate item information. It would most likely not be 24/7. But we can answer that question specifically by asking the folks who specifically design studies to come up with a statistical model so that that could be followed in terms of coming up with a recommendation. I don’t --- and I will apologize if it's in the record, but I did not come across a design of sampling with clarifications as to how the sampling regimen came up currently. And perhaps you could educate me if that does exist within a body of literature. MR. NIEWIADOMSKI: Can you repeat that again? MR. COOPER: Sure. But I guess what I was asking, I did not see it. So is there something in a body of literature that defines how the sampling strategy was developed for the proposed rule? MR. NIEWIADOMSKI: The intent is --- primarily what we're trying to do is prevent --- as far as we're concerned, every overexposure is important. Okay. So we want to prevent. And the only way we know right now is to monitor miners' exposure on the shift. Now, we've indicated that statisticians could, in fact, look at data and design the sampling frequency. But you know, we understand that that’s assuming that it's based on the conditions, okay, that you're comparing to are certainly set and staying and don’t change. They're preventing, in fact, design sampling frequency and not --- that doesn’t require 24/7. Assuming that the environmental conditions remain similar from shift to shift, but that’s not the case, because mining is very dynamic, things change from shift to shift. And you can't use the results of one and assume that you're going to get the same result the next shift. MR. COOPER: Sir, I think that’s very fair. What can be done is if the goal is to understand whether or not the dynamics are being modeled correctly with a sampling strategy, then I would recommend that setting be done upfront. And that is what we were indicating in terms of some of the practical conclusions. There's going to be a tremendous amount of additional sampling that’s being ---- that is being required. One way, perhaps, we know would be to pick a region of the country, let's say, ours or some region of the country where it was indicated that the prevalence or incidents of CWP is the highest. Choose that as a region and have a study conducted so that the sampling methodology within that region could be known and then apply that information over to the rest of the mines within the country. That’s one way to do that. I don’t like to collect any data as a chemist or as an industrial chemist that I don’t know what to do with it. But I am fearful when I read this proposed rule. There's a very large amount of data that might be extremely valuable, but it's not being collected in a way that we know exactly what we're going to do with it. If it is for compliance purposes, that is an answer. If it's for the stated objective, which is to reduce miner exposure and understand and to differentiate the factors involved, then that’s one. I don’t think that this is done in an efficient way. MR. NIEWIADOMSKI: Thank you. I have no further questions. MR. THAXTON: One second. A few questions. I have several. First, ---. MR. COOPER: Can you do them one at a time, sir? MR. THAXTON: They will be one at a time. First, I'd like to ask you, you indicated that you did this work independently. Did Murray Energy review your review prior to presenting it here today? MR. COOPER: Murray obviously helped. They were very helpful in providing the data. To my knowledge, they have not seen this presentation. This was something that we finished just recently. MR. THAXTON: So they're not aware of any of your data and findings that are presented in this document? MR. COOPER: They provided all of the data for the information that was provided in this information. They are aware in the fact that they provided that information, what it contains, but not in this analysis. MR. THAXTON: I'd like to go back and start out with slide six. You used slide six and you mentioned it a couple other places throughout the presentation, the fact that the CPDM collects mixed dust samples. Do you understand what the Mine Act requires of the coal mine industry? What standards we actually set? We don’t set the --- we set a standard based in the Mine Act. The standard is set for all coal mines. Do you understand that that’s what that standard is? MR. COOPER: Yes, sir. And it is mixed dust, and that terminology came out of the QRA, which is why it's being used here. I do understand that there are a number of different concerns which have to do with coverage issues that would mitigate a section, a particular standard for a particular region. MR. THAXTON: It's your understanding that the regulations are actually set up --- we set a standard. It is a respirable coal mine dust standard. All the dust on the coal mine property is under two milligrams respirable dust standard, as we treat it right now. The proposed rule would continue that on a new standard to either one milligram or .5 for any location in the mine. So that any dust on mine property that CPDM or the gravimetric sampler is designed to collect, and that is what we're interested in? MR. COOPER: Yes, sir. With the exception, of course, of measuring the silica content within the dust, which can --- obviously with the gravimetric sampler, that is a methodology to take the filter out and send that in and have the sampling done doing the CPDM to analyze for silica, sir. MR. THAXTON: And you understand to reduce that silica --- reduce the silica, a new standard would be applied to the CPDM so that really silica remains the same would result in people being protected from silica as well? MR. COOPER: Yes, sir. MR. THAXTON: Okay. In relation to your slide number nine, you were asked some questions about support in relation to the training. I'd like to go a couple steps further on --- and this is inclusive of slide nine and slide ten since they both discuss the set for wearing the CPDM units by Murray Energy personnel. Do you know which specific miners were wearing the units? Were they all designated occupations? MR. COOPER: A significant number of them were designated occupations. It was mostly longwall, bituminous mining operations. But as I indicated, there were some samples being taken from individuals in equipment compartments, so that involves scoops and shuttles. That would be different from portal to portal. MR. THAXTON: Okay. Can you provide data? Do you have it broke down that you would be able to provide us the breakdown of the data from each type of occupation? MR. COOPER: Yes, I believe that the majority of that data exists within the records. I've reviewed it for the dust sheets that I had available to me. It's not summarized here, but that’s something that could be provided. MR. THAXTON: Okay. As far as an individual miner wearing the PDM unit, can you tell us how long any individual miner wore the unit? How many shifts, how many weeks, months, whatever? MR. COOPER: The number of shifts, sir, are indicated on the number of total samples which were taken during this 18-month period, which was 166. MR. THAXTON: But I'm saying one particular miner. Did Joe, the continuous miner operator, the MMU, how many shifts did that individual wear the CPDM? MR. COOPER: I don’t have that information here, sir, today. But I believe the number starts at one and goes up from there. In some cases, it is pure continual, and in some cases, the individual asked to wear this handed it back to the certified dust manager and said thanks, but no thanks. I don’t want to wear this again. So in that case, a different miner or a different designated operator would have been asked to wear the unit. MR. THAXTON: There's only one designated occupation on an MMU. So if the guy that’s the designated occupation refuses to wear it or doesn’t want to, there is no other designated occupation so you would have to be picking somebody else that is not a designated occupation. MR. COOPER: Sir, the mine offers three shifts with multiple MMUs per mine, so there's plenty of opportunity for a designated operator for three shifts. MR. THAXTON: So if the guy on one shift didn’t want to wear it, you're saying that a designated occupation on the next shift would be asked to wear it? MR. COOPER: That certainly was available to Murray and how they can --- it worked out to 166 samples, yes, sir. MR. THAXTON: Okay. You indicated that there were three shifts. Do you have a breakdown of which shifts the PDM were worn on? How many times were they worn on the dayshift, the evening shift, midnight shift? MR. COOPER: I'm going on memory here, most of the samples were collected on either the first shift, which started at 8:00, or on the second shift. That is my number, but we could break that down. Specifically, there's a time stamp on all dust monitors, so this isn't a matter of somebody coming up with a recollection. It's a matter of record. MR. THAXTON: You were asked if the miners were trained, and I take it that they were given some instruction on the use of the PDM before they actually wore it. Can you specify the type of training, the extent of the training, what was covered with the individual miners prior to them wearing the unit, or was that training given to them at the same time that they were given the PDM to wear it? MR. COOPER: Well, that’s a very good question. I think as I answered Mr. Ford, it's my understanding that that information was given to them at the time that they were provided with the unit. Now, the gentlemen who would wear it a second time or a third time would obviously have more experience with the unit and would have more ability to converse back and forth with the certified dust manager who was providing the unit to him. But the first time --- we can certainly check that piece of information out, but it is my understanding that that would have been provided when the unit was provided, which may represent a much more typical situation within the mines. MR. THAXTON: Wouldn’t it be typical giving them the training at the time that the unit is presented to the person? MR. COOPER: I only understand that there's training that’s required for the --- there's a one-hour time period of training that’s required for the folks that are wearing this within the proposed rule; is that correct? MR. THAXTON: The proposed rule actually requires that the miners be trained in a number of issues prior to them even being asked to wear it or instructed to wear a unit. MR. COOPER: Is the time frame provided for that, sir? MR. THAXTON: No. Also, then in relation to training them, at what level and how much training and when was the training provided to the personnel that were actually charged with maintaining the unit, setting it up, preparing it and taking --- downloading it at the end of the shift? MR. COOPER: I believe we answered that question when Mr. Ford asked. Folks that were the certified dust managers would have available to them the information from their --- from the mail and from their --- I guess you would call it their corporate safety and health personnel, who would send those units into the individual mines and provide them to the certified dust managers. In addition to that information, which is not robust, they would have access to the folks that provide the phone service for TSI. And if they had questions about this or they could share amongst themselves because in several locations there's multiple mines that are close by and hence they have the opportunity to not only share units but share information that they gathered with respect to those units. MR. THAXTON: So to your knowledge then, no Murray personnel actually attended the training classes in relation to the use of the CPDM? MR. COOPER: I don’t have that information, but we will check that, sir. MR. THAXTON: Okay. MR. COOPER: And by training classes, I'm assuming you mean a manufacturer training class? MR. THAXTON: Yes. You have mentioned several times a certified dust manager being used. And I before asked the person that’s doing the maintenance on the CPDM, which is the certified maintenance person, what certification did the personnel that handles the PDM hold? MR. COOPER: With respect to the mine industry, please understand my answer would be they had a card from the MSHA certified dust manager course which they attended. And they should have gotten documentation that they had attended that course. MR. THAXTON: Certified dust sampler or certified dust maintenance and calibration? There are two different certifications. MR. COOPER: It's my understanding that they had both as that’s what they needed to hold that position with Murray. But we can check that, sir. MR. THAXTON: You would agree that the people that are actually certified on --- right now on the gravimetric sampler has --- there's no training whatsoever within that training that would make them better qualified to handle the CPDM unit? MR. COOPER: No, sir, I would not agree with that. I think there is training within that that would make them better qualified to work with the CPDM. And certainly the technology is not there, but the other aspects of communicating components of it to the miners, how the unit is to be used and where the sampling mechanism goes on the cap light, those are the components which would be reciprocal in the gravimetric and the CPDM. MR. THAXTON: Okay. MR. COOPER: The maintenance certainly would not be. MR. THAXTON: Would you include that in your documentation, the fact whether those personnel actually attended a class on the certification of those areas or whether they simply took the MSHA examination and passed the test only? MR. COOPER: I'm not quite sure I understand the question, sir. When you say did they attend the course and pass the test, the answer's yes. What was the first part, please? MR. THAXTON: Whether they attended a class on those areas to be certified by MSHA or did they simply take the test to be certified? In other words, they didn’t attend the training at all, other than just going through and taking the test administered by MSHA and certified. MR. COOPER: They took the class, sir. I did ask the question and asked for the binder of information that you got when you took the class. And they indicated that they'd gone through --- I believe it's a one-hour or one-day class. And without my memo or my notes, I don’t quite remember. My understanding is that they did take the class, but we can clarify it. MR. THAXTON: If you would, please. Slide 11, you indicated that the PDM does not provide instantaneous readings for miners. That doesn’t allow them really to evaluate specific locations where they're standing so that they can actually tell whether it would be beneficial for them to move. Are you familiar with the short-term monitoring capabilities of the CPDM? MR. COOPER: We did not use the short-term monitoring capabilities of the CPDM when I used the unit underground, nor were they being used when the samples were taken by the mines for the five mine study. So whereas there may be other displays that are being used that were provided by TSI, that’s not what the common practice was and was not used by these folks, which is why it's not mentioned. MR. THAXTON: Okay. Would you agree that there are means available for miners to find out what their exposure is for standing in a particular location while performing a function if they so choose? MR. COOPER: Where there is that capability, sir, the difficulty there --- I'm very sensitive to what that takes to do and how that manipulation would take place in the underground mining department. You can demonstrate that with a classroom-type setting much easier than you can if you're operating a remote continuous miner or a longwall operation. MR. THAXTON: You realize that that is a requirement of the proposal that miners are to be specifically trained on that short-term function before they're permitted to use a CPDM unit? MR. COOPER: With respect to the proposed rule, of course. However, in the situation where this study is being done prior to the rule, which is what our exception is, this is how the work was actually being performed within the guidelines, so ---. MR. THAXTON: Slide 14, you indicate that one CPDM was provided to you to use at your facility? MR. COOPER: Yes, sir. MR. THAXTON: What training did you all receive on CPDM before you started using it? MR. COOPER: I did not receive any training on the CPDM unit. It was from the conversations with TSI. MR. THAXTON: Would you be providing specifics of your testimony that you did in your facility as opposed to the five mine studies? MR. COOPER: We're not done. So what I hope to do is to be able to complete that work and then provide that prior to the requirement for when the information is requested by the Committee. MR. THAXTON: You indicated several times there's lots of information that NIOSH used, it was that limited study, and it really didn’t encompass a large amount of data to do the evaluation of failures on the unit or error rates and such and the ability of the unit to operate. Your study, though, reflects five Murray Energy Corporation mines over a period of time. But those five studies only accomplished 166 samples. Would you consider that a large study, a significant number to make decisions on or is that also a small study? MR. COOPER: Sir, I believe the number of hours used in the NIOSH study for total work was approximately 11,000 hours and underground mining was --- if my memory serves me, it was about 8,000 hours. The five mine Murray Energy study was about 1,000 hours, so approximately one-eighth of that. So it was smaller. NIOSH used 2,500 different CPDMs for 110 mines. We looked at five mines with five different CPDM units. So that is a smaller situation. But if your question is, is that sampling reasonable to make a conclusion or decisions from in regard to that? It certainly is, because it would be reflective of the conditions within the mine to which these units may be used if the proposed rule moves forward in its present state, barring, of course, the comments that have been made on the training on it, respective of the folks that were administering the CPM units and the folks that were actually wearing the units themselves, MR. THAXTON: Have you made a determination and analysis of the comparison between the Murray Energy mines and the things that were conducted in relation to all other mines, coal mines in the United States and how they compare size wise? Since that was one of our concerns, the number of units that would have to be taken by production people? Have you considered how those mines that you looked at, the size, in that study compare to other mines in the United States? MR. COOPER: That I think is a very interesting question. And on the last slide we indicated that we're trying to find out what other mines have experienced with the CPDM units that would be more than, you know, a couple of months' worth of time that they’ve been using these and then being able to aggregate the data but having the original dust card information being provided so that we had it. Obviously, we don't want to rely on someone's memory on what happened. We want to rely on a piece of information that’s been downloaded from the particular program. So that information's been requested. We don’t have access to that through the manufacturer regarding, for example, information that comes back through their repair type situation. But we may be able to get that information from the comments that we heard from Mr. Morton today. And it’s the ability to coordinate not just data but their experience in using the CPDM units and look at how many hours and how many samples were taken from the fault rates to be. But I'll certainly get back to how much --- how often the unit is required to be sent back to the factory or some sort of situation that could not be resolved by the mine itself. MR. THAXTON: Slide 34 is the capability --- you compared two mines, mine one and mine three. MR. COOPER: Yes, sir. MR. THAXTON: Those are the two Murray Energy mines? MR. COOPER: Yes, sir. MR. THAXTON: Do you know which mines those are? MR. COOPER: Yes, sir. MR. THAXTON: Would you mind telling me? MR. COOPER: Yes, sir, I will. MR. THAXTON: Do you mind telling me? MR. COOPER: Yes. MR. THAXTON: Okay. Just as a matter of information then, do you have the number of operator samples at both these mines exceeding one milligram or exceeding two milligrams? MR. COOPER: Yes. MR. THAXTON: And you're saying seven percent and six percent of the operator samples respectively exceeded two milligrams; right? MR. COOPER: Yes, sir. This is obviously publicly obtainable information. The only reason to be coy about which particular mines is some of these issues may be under current situations where Counsel is looking at things. To be honest, ---. MR. THAXTON: I'm going to tell you --- MR. COOPER: Yes, sir. MR. THAXTON: --- it's going to be a matter of litigation. And yes, it's true I think about providing samples. MR. COOPER: Yes, sir. MR. THAXTON: The only thing I'm asking is we do know several mines and we know the size of the mines and it makes a difference in what the situations are in those mines. MR. COOPER: I can provide the sizes of the mines, sir, in terms of production volume. MR. THAXTON: It's not necessary. The thing I'm trying to point out is would you agree that both these mines, they have an incentive right and the knowledge that they need to meet the two milligram standard? MR. COOPER: Without question, sir. MR. THAXTON: So when you compare and say this number is over one milligram, they have no reason right now to be at one milligram; is that correct? MR. COOPER: No, sir. I would heartedly disagree with that statement. I think their motivation is not in this current situation to be a particular number dealing with the health and safety professionals. And I'll speak from that side point that there's not a sticking point that I approach the industry with, the goal is to reduce the incidence of disease and reduce exposure of miners to the mixed coal dust. MR. THAXTON: So that really --- I mean, if you're looking at the data, this really doesn’t tell you the feasibility of meeting standards at these two mines. The mines have shown a remarkable ability to meet the two milligram standard. And you don’t --- we do not believe that they’ve tried just as hard to meet the one milligram standard that’s actually the legal standard in place? MR. COOPER: No, sir, I would disagree with the statement, and let me start at the beginning of it. The numbers do show a common point of feasibility and that’s the current situation, which is, A, that reducing miners' exposure overall within the mine. It is indicated that it is not feasible based on some of the comments that were expressed by your colleagues on the Committee relating to the fact that it's not a stayed state and that there are significant changes with time that can occur. And this would indicate that there's some variability and the ability to meet a one mg per meter cubed in this particular case says that over 30 percent at least of these given samples are not meeting the one mg per meter cubed. That is a very different situation from making assumptions with the data that the QRA in 2010 indicates that the mining is not permanently meeting the one mg per meter cubed standard on the --- of a very average basis. In particular mining situations exemplified here, they're not meeting it on at least a 30 --- between 30 and 40 percent of the valid samples that were taken by the gravimetric readings. What they do show, if you'll allow the comparison, is if you switch to that CPDM on the slide 35, these are not comparing apples to apples, but the sample of 118 values looking at similar types of operations. They are not correlated to each other, which indicates that they would meet POS value of one mg per meter cubed at least on a percentage basis on the lower basis. But that raises a number of questions which we're not going into at this particular point. But I think it does speak to feasibility because if they're --- if the goal is to approach it as an --- as lowest as reasonable achievable, that’s what’s being done currently. And with the two mg per meter cubed, that would be compliance implications of that two mg per cubic meter cubed. By setting the standard to something that is 50 percent of that does not necessarily change the ability of the mine to engineer out from an engineering control cite themselves, but rather which would meet that one mg per meter cubed. The assumption is from the industry's perspective, I'm assuming, as a health and safety professional, is that they're trying to reach that goal as well as reasonably achievable at the current time, and has been for some time. MR. THAXTON: And this goes back to why I asked if you had compared these mines from Murray Energy that you looked at with other mines throughout the United States, simply because if you actually look at the data, there is an enormous number of mining operations in the United States that not only meet the one milligram, but they meet it on each and every sample collected from each and every MMU at those mines. And there are lot of mines that do that. And actually there are a lot of mines that turn in samples to the Agency as representative samples that are below the .5 on a routine basis, each and every shift that they sample. MR. COOPER: And sir, I appreciate that. And that is very important information. The only thing to consider, however, is that that’s based on the old rule --- excuse me, on the current rule in terms of number of samples that are being looked at. They're not looking at it from every shift. And they're certainly not looking at every shift per MMU. So based on that review, it's a bit rarified to say that you would be able to go from being a mine that is not seeing any samples above the one or .5 mg per meter cubed under the current standard scheme. And that’s addressed, we'd have to significantly enhance the sampling scheme, that you were still being --- have to take it within the same ranges. That would be ---. MR. THAXTON: My question, though, is in relation to the data that you had in that slide which said that it is the current sampling scheme as well. So it's comparing the same type of data between mines? MR. COOPER: Yes, sir, it is. That is correct. MR. THAXTON: Let's move to your slide 37. I would like you --- can you tell me again how many CPDMs that you concluded would be necessary to collect these samples? MR. COOPER: Yes, sir. There was five mines and one CPDM unit per mine. MR. THAXTON: So for this particular slide you had --- you came up with the data for the 7,155 samples per year, can you tell us how many CPDMs? MR. COOPER: I'm sorry, sir. I was referring to the prior slide. Slide number 37 with the coal ---. MR. THAXTON: Yeah. MR. COOPER: Up in the upper right-hand corner, based on reading through the proposed rule, on a per MMU basis, the assumptions made are, hopefully, clear from the slide. The assumptions were that there's one DO and two ODOs per MMU without a designated area. So that would be --- those samples would be three samples. There's five different MMUs per mine and there's three shifts per mine --- excuse me, per MMU. So on the one mine basis, that would be three samples times the three and then multiply that up through the years, whatever that number comes in. MR. THAXTON: I'm not asking for the number of samples. I asked --- you gave the number of the PDM units. It does not look like that had ---. Could you tell me that number, please? It’s not on the slide. MR. COOPER: No, sir, it's not on the slide. I think the logic behind the number of CPDM units is something that we can provide in the comments forthcoming. But to the back of the envelope calculation is approximately ten CPDM units per MMU. MR. THAXTON: If you would, please, I'd like you to provide us the data, what you analyzed to come up with that number. Also in relation to the number of samples under the old rule, the 264 samples per year that you come up with, I'd like to know how you came to that number. Because if we're using your five MMUs at the mine and an MMU collects five samples each two-month period, that’s 30 samples per year. With five MMUs, that’s 150 samples. MR. COOPER: Yes, sir. Again, we can try to stand here and give oral testimony where the 264 came from. We went through each of the MSHA designated mining numbers that we had available to us. Found out how many samples were taken. I believe it was a three-year period, from 2008 to 2010. That gave us the number for --- this was done based on the three of the mines. There were some changes in the MSHA identification numbers that occurred, which is why only three were used. That total number was then divided by three to get the 264. Now, that may be a higher representative number than the calculation that you just made based on the DOs. But at worst case, it is a --- it's the number of record on average that this mine would have collected samples for within a three-year time period. MR. THAXTON: So that old number for the current sampling program is assuming that they had non-compliance or overexposures during the year as well because that's the only reason they got the other samples and compared them? MR. COOPER: Sir, that may well be the case. I don’t --- I'm not sure that I have the information to give to explain how it got it from a 180 to 264. What I do have is the assumption that extra samples wouldn’t be required. So perhaps your point, sir, being that 7,000 samples would not take that into account either, so that number may be lower. MR. THAXTON: So if you could provide the information and the data that you summarized and come up with 264 as well as the number that was used to develop the 7,155 per year plus the number of CPDM units that you estimated. And if you can provide the specific data that you used for the number of samples that you got for the three mines. MR. COOPER: Your last question? MR. THAXTON: You said you used three mines --- MR. COOPER: Yes, sir. MR. THAXTON: --- to get this number? Just provide the data for the --- that is broke down by the three specific mines --- MR. COOPER: Yes. MR. THAXTON: --- by whether they're DO samples, DA samples. MR. COOPER: That information should be available. The only thing is I think 7,155 is a low number for several reasons. One would be that there's no DO samples associated with that part of it and it could become part of the proposal for that particular operation. MR. THAXTON: My last question, --- MR. COOPER: Yes, sir. MR. THAXTON: --- you indicated that you had a limited amount of time in the coal mine, --- MR. COOPER: Yes, sir. MR. THAXTON: --- just at one mine. Which mine did you visit? MR. COOPER: Two mines, sir. MR. THAXTON: Two mines. Which mines did you visit? MR. COOPER: Two of the Murray Energy mines. MR. THAXTON: I'm asking which mine. Can you offer perspective on the type of mine that's being ---? MR. COOPER: These were Southern Illinois bituminous mines. MR. THAXTON: So one is Galatia l and one ---? MR. COOPER: One Galatia and the other one is the one next to it. MR. THAXTON: That's all. Thank you. MR. COOPER: Thank you, sir. ATTORNEY ROMANACH: Javier Romanach from the Office of the Solicitor. I just have a few questions. Do you have a report from which your PowerPoint presentation was based on or did you draft a particular report to that effect? MR. COOPER: Not at this point. ATTORNEY ROMANACH: Will you be drafting one? If so, we'd like a copy. MR. COOPER: I think, sir, that the information will be formulated in a non-PowerPoint presentation for the comments that the Committee has asked for by May 2nd, 2011. ATTORNEY ROMANACH: Were you involved in the five mine study? MR. COOPER: Yes, sir. ATTORNEY ROMANACH: How were you involved, sir? Did you conduct the study? MR. COOPER: Yes, sir. ATTORNEY ROMANACH: Did you draft a report pursuant to that study? MR. COOPER: Sir, I think I just answered that question. ATTORNEY ROMANACH: Your PowerPoint is that study? MR. COOPER: The PowerPoint represents what we found in that study. The information in terms of writing that report up has not been done to date. The census could never be prepared before May 2nd. ATTORNEY ROMANACH: Is that because you stated that --- the actual study, that you based the report on the various studies? MR. COOPER: No, sir. I indicated that Murray provided all of the information that we solicited for that study. So everything that we asked for we got. They provided the raw data and just review it. ATTORNEY ROMANACH: And who decided what raw data to require --- to inquire to conduct the study? MR. COOPER: Myself and my colleague, Ms. McCarthy, with Exponent. ATTORNEY ROMANACH: And is there a place where that raw data has been compiled or a document detailing that raw data? MR. COOPER: It's a large amount of raw data, sir. It's either in my office or in Ms. McCarthy's office at this point, so yes, we do have that information. ATTORNEY ROMANACH: Do you have --- do you know how were ---for the particular five mines involved, how were they determined to be the ones which the study was being conducted? What was the basis for picking those mines? MR. COOPER: They were five mines which Murray indicated we can obtain the information in order to be able to provide public testimony for this particular meeting. And we could get all that information prior to it and be able to analyze it. There is a request out to --- I think from both Murray and the National Mining Association to see if this could be extended to pull in other information that was indicated by a couple of Committee members. ATTORNEY ROMANACH: Were they all underground mines? MR. COOPER: The five mine study were all underground bituminous coal mines, yes, sir. ATTORNEY ROMANACH: Were any of them local? Or out of these five mines, were --- what was the height of these mines? Were any three feet? MR. COOPER: You're asking for the width at the seam, sir, or the height? ATTORNEY ROMANACH: The height. MR. COOPER: Average height between about six and six and a half feet. ATTORNEY ROMANACH: Were any of these sampled miners --- are you aware if any of them were management officials? MR. COOPER: I'm sorry, sir. ATTORNEY ROMANACH: Were any of the miners who wore the CPDMs, were they management officials? MR. COOPER: Myself and my colleagues wore the CPDM units when --- it's indicated by video, when we were in the mines. My understanding is that they were miners and that the certified dust managers who wore them for the data cards that were collected. I did ask the question whether any MSHA state or federal inspector had ever been observed wearing a CPDM in any of the five mines over the two-year time period. And I was told that one was on one shift or one part of a shift. ATTORNEY ROMANACH: In slide number 14, you said there was an office setting where the concentration was one to two milligrams. Where was that office setting? Was that in the coal mine or was that outside the mine? MR. COOPER: No, sir. The question --- the office that I'm referring there to, we had indicated we shipped one of the CPDM units, the CPDM units which was in use, in operation. It was shipped to a Menlo Park. And it was my colleague's office in Highland, Menlo Park in Oakland is where those samples were taken. All the maintenance that I physically did on the equipment at --- we physically did on the equipment was done in a rather clean office setting where light scattering dust tracker units would be measuring in .01 to .005 mg per meter cubed. So we ran the units side by side with the dust tracker within that particular setting on a variety of different time periods. Not for an entire shift but for 15, 30 minutes, an hour's worth of time. So that we were capable of looking at some comparison between what we were used to using as a respirable dust 1.7 mg per meter cyclone versus the unit that’s impinged upon with cyclone within the CPDM unit. That's where this comparison comes from. Some of those results were orders of magnitude out of range so that that begged the question for the maintenance and begged the question of the annual maintenance. It looked like everything was fine and we were all done, but it actually did fall within the mine itself, as indicated. ATTORNEY ROMANACH: Who established the protocol for conducting the study? Or was there a protocol established for conducting the study? MR. COOPER: The maintenance work that was summarized, is that what you're referring to? ATTORNEY ROMANACH: For the District in the study, the five mine study, as to how it was to be conducted, was there a particular protocol established as to the criteria for what information to be gathered? And if so, who made that determination? MR. COOPER: We were asked by Murray Energy Corporation to provide an independent assessment so that the study design throughout was myself and Ms. McCarthy to determine what this unit looked like when we compared it to a dust tracking unit. When we looked at the unit, we checked for how it worked, for the maintenance aspects of it, how it worked within the mine itself. There were a number of different components to setting design that we did not have the opportunity to implement at this particular time. Those may be forthcoming. And if they are, we will certainly include them in terms of other studies. I think I mentioned, one of them just looking at the impact and effective relevance of humidity and temperature on the results. For most of these situations, we didn’t find literature information regarding this because our sole source was the 2004 and the subsequent 2006 NIOSH articles that were published on the pre-commercial units. ATTORNEY ROMANACH: Again, is the PowerPoint the only report that you presently have on which was done for that particular study? MR. COOPER: Yes. This is what was presented, provided in order to --- from the standpoint of what the study looks like. At this point in time, I don’t have a written report. ATTORNEY ROMANACH: There's no other report summarizing the results of the study? MR. COOPER: No, sir. Typically, in my line of work we will get the information first, look at that information, and then create a report subsequent to what that looks like. We're not done with this study yet, sir. ATTORNEY ROMANACH: I have no further questions. DOCTOR WAGNER: Thank you. Can you tell us at what point you became involved in looking at this data? MR. COOPER: I'm sorry, sir. At what point? DOCTOR WAGNER: Yeah, like what month, year. When were you hired? MR. COOPER: I believe it was November of '09, sir, but I have to check the date. DOCTOR WAGNER: So ---. MR. COOPER: Excuse me, I said '09. I meant November of '10, after the proposal was ---. DOCTOR WAGNER: November of '10 or '09? MR. COOPER: '10, sir. DOCTOR WAGNER: So what you're calling study, actually the issue of the design of the data collection, any protocol relevant to all the site training, frequency of collection, the methods that would be involved in assessing the hypotheses that would be tested through this, you were not involved in any of that? MR. COOPER: No, sir. I was involved. I directly worked with our statisticians on the components of certain aspects of the slides that we have shown. This is a work in progress. I think that’s ---. DOCTOR WAGNER: Well, let me ask it a different way. In your normal work, do you refer to yourself as a scientist? Do you ordinarily collect data first and then take a look at it and decide how it is that you're going to analyze the segment? Or do you establish a method for data collection and analysis by protocol and then go through that? MR. COOPER: That’s a very fair question, sir. There's a typical way of doing it, which is the latter. Which is you establish what --- if you're doing a large study for looking at health effects from airborne contaminants in Saudi Arabia, the design set is extremely important, because how that is structured and where your sampling components are from and how you deal with stats, that has to be established upfront. There's a well-defined protocol for dealing with that within the firm that we rely on other experts outside of my area of expertise in order to define that. In other cases, when we looked at exposure concerns for military bases in Iraq and Afghanistan, we had so little information to start the information with, we had to go in a direction that said let's get somebody on the ground to actually collect information and then we can determine where we're going to go from this. DOCTOR WAGNER: I don’t want to minimize the value of taking consistent data and trying to understand what information you derive from it that would just distinguish it from a hypotheses driven, protocol driven study, if you will. MR. COOPER: That's a fair comparison. DOCTOR WAGNER: You said something about in order to be able to answer specific questions. I'm going to skip around a little bit. You referred in a couple places to compliance sampling versus what would be researched kind of sampling or sampling that’s done in order to establish a dose response relationship, for example. Can you --- in your view, what's the purpose of the proposed regulation? Is it to establish a dose response relationship, or is it to determine compliance with a new standard? MR. COOPER: That's a good question. But I think that the answer is, from my limited viewpoint, is a lot of information that’s been --- that’s on prior here. So I am familiar a little bit with, quote, the literature and some of the players and some of the history involved, only from an outside observer's standpoint. And I'll answer the question from that perspective. California has the ability, good or bad, to set the number of standards that have become the national standards, both in the Fire Code and the Uniform Building Code and some other instances. Many of those deal with some of the types of industries that we have in California. As such, typically those that have happened at the local level with local regulators, both in the county and state, before they became pushed into the federal scene, on the national scene. DOCTOR WAGNER: Sir, maybe I was unclear, but I'm actually asking about the specific environmental monitoring sampling that is in the proposed rule, what you see as its purpose? MR. COOPER: Its purpose would be to collect single shift data so that there is information available for compliance purposes and for information purposes for the miners. That’s my understanding. DOCTOR WAGNER: Okay. Thank you. Then to follow up and go to the slides relevant to the feasibility. Can you tell us what you mean by feasibility? MR. COOPER: Yes, sir. Having been involved with setting recommendations for consideration for PELs for a number of years, there is a difference between the public process which sets a health-based standard versus something that you implement down the road as part of the policy that’s an enforceable standard for a PEL. I understand there are significant differences between the jurisdiction and application of those terms with MSHA and with OSHA. However, it appears that the ability to look at the compliance part of this needs to be a part of the feasibility discussion in terms of not just how easy it is just to implement, but whether or not it's actually feasible to comply based on current technology. And then you layer that with things like the cost, other issues of commerce, components which may not be directly related to determining the dose response relationship or factors that influence prevalence or incidents of the disease. DOCTOR WAGNER: Is there a plain English meaning of feasibility? MR. COOPER: From the office's standpoint? DOCTOR WAGNER: Yeah. MR. COOPER: Whether it would work to achieve the goal for both the Agency and the industry. DOCTOR WAGNER: And so that’s --- is that what you're speaking to in your slides about feasibility? MR. COOPER: I am speaking to that in the broader context, yes, sir. DOCTOR WAGNER: I'm not asking you to do this now, but I just didn’t want to let the request get lost as you're preparing your written remarks. I think it would be very useful for you to make any recommendations that you may have based upon your experience and the available data on possible sampling strategies that could ensure compliance with whatever standard there is. And just to help us out with that, similarly you have a mix and match suggestion in here. If you could be more specific about how those various things could be mixed in a useable way to ensure health protection for mines that is useful. I want to make sure that I've got the numbers right. The data collection of five mines, you went to five mines, 18 months. Right so far? MR. COOPER: Yes, sir. DOCTOR WAGNER: 166 samples, approximately nine samples per mine per month? MR. COOPER: No, sir. I would not use the average of nine samples per mine per month. I think the frequency of the samples were not spread out evenly over that time period. There was a significant number of samples from the first about six to eight months. The data seems to suggest there was a lull and then another data collection of samples subsequent to that to make up the total. I don’t think I indicated that there was an average frequency that was involved. I think it had to do in part with the availability of units, which you recall I did indicate that these units had to be sent back and so that made delays in whether or not they were available to do the work. In one case, there was a little bit of confusion in terms of which unit was being used at which mine. The data cards are clear, so that’s apparent. But the serial number wore off one of the units by the time it got to us, so there's just nothing on that plating that tells you which unit it is. It's only when you start up the unit that the software ---. DOCTOR WAGNER: I hear what you're saying, but I think then what you're saying is just my numbers are right. On average there were, over an 18-month period, nine samples overall per month with five CPDMs approximately doing the samples versus CPDM per month over the --- over the --- excuse me, over that period of time. If you were designing a study de novo where you wanted to make intelligent recommendations of the utility of a particular device, would that be where you'd want to be? MR. COOPER: No, sir. It would need to be designed upfront. DOCTOR WAGNER: I didn’t quite ---. MR. COOPER: It would need to be designed upfront by the --- based on the time frame of the number 2010 until this point in time. There is a difference of what is available versus how do you design something for you moving forward. A retrospective study, however, I think is very useful, perhaps not limited to the five mines but those that have experience of CPDMs over time. Which according to the gentleman from TSI that there's a number of units, over 200, that have been out there for a period of time. I know they're not required to be used. However, there's, I believe, some collective experience with those which might be very, very useful and would provide additional information to either refute or confirm some of the conclusions that were found here. DOCTOR WAGNER: Can you review all of the data that is collected, that’s been available to you? MR. COOPER: I am quite comfortable that question has been asked in a number of different settings. I am not dealing with the upper management of the company. I'm dealing with the folks like myself, safety and health professionals. DOCTOR WAGNER: Any idea --- you mentioned early on a concern about a single source for the CPDMs. You might have mentioned that in passing in discussion. So do you know the number of suppliers for the cyclone measurement devices that are currently certified in the market for use in underground coal mining? MR. COOPER: No, sir, I do not know that data. I don’t think those are admitted. There's a lot of cyclones that are out there that are based on the Dorr-Oliver (phonetic) or some of the original ones like the Anderson. But that are certified by MSHA? No, sir. In fact, I actually tried to look for that information on the website, I was not able to find it when I searched on the ---. DOCTOR WAGNER: I think the answer is one. MR. COOPER: Thank you. DOCTOR WAGNER: But I believe that others in the room may --- no. One. I'm getting the ---. MR. COOPER: Yes, I believe the answer should be one, but I couldn’t confirm that directly from MSHA. DOCTOR WAGNER: Yeah. If you could, when you provide your written comments, if you could --- do you have any information that might be relevant on production levels when the mines were being sampled by the devices? How the five mines compare to the production of other Murray mines? What the basis was for choosing these particular five mines? Any additional information that you have that could help us and others who will be reading your written comments to really understand the context in which this --- these observations were being made in your data collected. And just the general request is to be able to provide some information as you can so that we can, you know, be able to look at both the --- learn what we can also from the study. Can you describe a little bit of the strengths and weaknesses of this kind of an observational retrospective evaluation of your data stuff, I guess? MR. COOPER: Well, sir, the strengths are sometimes one goes with what information is available. DOCTOR WAGNER: Uh-huh (yes). MR. COOPER: The ability to have some of the components of information not being historically based or based on folks' memories or notes was better in this particular situation, because we have dust cards that were --- I've printed out and that we extracted from the units themselves. Maybe it was limited, but we did collect all of the information from the units themselves or from ones that had actually been provided. The weaknesses of this, of course, is that we're looking at one particular company, their particular experience. We're looking at a particular type of mine, a particular type of heights of human use of production, et cetera. The goal, as indicated, and this was ongoing, would be to look at this side much more broad based. And I think there was a way to take this from the kind of retrospectives that we're looking at right now and be able to move that in a direction and say what information would we collect, pieces of information that we would put in place or request to be put in place would be some information. There's not a requirement in the proposed rule which indicates that one has a database and keeps track of the maintenance that was performed and what the ending point of that maintenance is for an average shift. Speaking of somebody who works a lot with that equipment, that's kind of a really interesting point to be able to have. And so if you were going to design something forward, you would want to do the data collection a little bit better now. I would also probably have taken more time to work on the kinds of questions that --- and the ability to put the questions to the specific audience that we were trying to answer and solicit, to one of these types of mines that would be present, you know. DOCTOR WAGNER: Okay. So I gather from compressed carbon says that the issue is because of the narrowness of one company, one small set of mines, one narrow range in high coal, but make the results just not necessarily be generalized coal ---? MR. COOPER: Well, that answer, sir, that the sampling says of five CPDM units at over 1,000 hours' worth of time is not --- I mean, there's some comparisons to that with the way that NIOSH did the study, --- DOCTOR WAGNER: Uh-huh (yes). MR. COOPER: --- used two mines, 25 units and ---. DOCTOR WAGNER: So you might not get the same? MR. COOPER: Well, I will be --- if you ask for a hypothesis, I would be very surprised if you told me that there was a set of data out there of 1,000 hours and 25 units in mines and that a ten percent sampling of that over an 18-month period didn’t fall within the realm of the range of data that was being expressed. And that's apparently what we've done. DOCTOR WAGNER: And last, I just want to confirm, you gave us a slide with a number of safety and health personnel concerns. Were those safety and health personnel the Murray Energy folks you were working with? MR. COOPER: Yes, those were based on interviews with those individuals. That particular slide also, I guess, I would call it the ---. DOCTOR WAGNER: Yeah. And I just wanted to make sure that you didn’t develop the extent of your data collection beyond that group. MR. COOPER: No, sir. But that would --- that’s, again, a highly useful recommendation. DOCTOR WAGNER: Well, I'm going to thank you, specifically thank you, for the specificity with which you shared specific data recommendations that were based upon the data, and we look forward to the additional information you can provide to this rulemaking. Thank you. MR. COOPER: Thank you for the opportunity. DOCTOR WAGNER: Now, I'm going to try to just tell everyone there's only one more person who has signed up in advance for speaking. My preference --- I know that some of the requests that people have is to give as many people the opportunity to listen to everyone. After this speaker speaks, we will call for anyone else who wants to give comments that hasn’t signed up in advance. And depending upon the number of people, I can be persuaded to either break or not. But my preference right now is to call our last signed-up speaker. If that’s --- so I will do that. E.L. Petsonk? Please, sir, start with stating and spelling your name and your organization. MR. PETSONK: My name is Edward L. Petsonk. I'm with West Virginia University, professor of medicine. I live in Greene County, recently I moved to Greene County, Pennsylvania. I have taken care of a lot of coal miners and examined hundreds and hundreds of coal miners and have been involved in etiology and field research for 38 years as a physician. And well, I've been a physician for 38 years, and for about 33 years involved in pulmonary disease research and lung diseases. And just I wanted to make a few comments relevant to the Black Lung issues. I think as a physician who has had to take care of miners whose lungs were deteriorated and who eventually passed away from Black Lung, I think it's really important for us to keep that personal story in front of us as we talk about controlling the dust. The topic of Black Lung is here today. There are miners getting sick now as we speak and who, over the next few years, will begin to become symptomatic, eventually disabled and some will die from the disease. So as a physician, I have to say it's very, very frustrating to take care of a patient whose disease is entirely preventable. Of course, in medicine not --- there's other diseases that are entirely preventable, the tobacco-related diseases and substance abuse, alcohol and so on. But the important thing in dealing with a patient is that they have to acknowledge their problem and cause of the problem. I think one of the things that was a little disheartening to me today was to hear representatives from the coal mining industry basically say, well, we're not too sure there is a problem with Black Lung disease. And I think that until the industry is forthright in acknowledging the continuing problem of severe disabling Black Lung disease is occurring here in Pennsylvania and throughout the United States, we're not going to get solutions. And that --- as a physician and someone who's familiar with the data, that’s really the basic point that I want to say. If we look at the numerous studies that have been quoted, the 1995 Coal Mine Dust Criteria Document, as well as in the revision of that document that was posted on a website and published and other studies that have come out since that time, there's a very consistent story. And that story is that there are increasing prevalences of severe Black Lung that goes on to be a disabling and often painful disease. So I guess my major point here is that if the coal mining industry has credible scientific reports that can refute this, we’d like to see them. But all the medical evidence right now is entirely consistent and coherent, and that is the problem. It’s here, it's continuing and it's due to dust. There is no other potential explanation for the types of disease that we're seeing. There are, of course, patches like cigarette smoking that can cause lung disease and does cause lung disease in coal miners. But the type of severe massive fibrosis that Doctor Wagner showed on his x-ray --- on the slide show, the x-rays, can only be caused by inhaling too much dust. So you must reduce the amount of dust that coal miners are inhaling if you want to control this disease. And that’s --- I endorse what you're doing. And I guess my one concern, which has been mentioned before, is that all of the approaches that have been proposed at this point do not address the issuance of silica. And I think that it is important that we realize that although reduction in dust standard and the continuing dust monitoring will certainly help control disease --- excuse me, dust exposures, the magnitude of silica exposure is still not going to be dealt with and there is scientific evidence that that's at least part of what we address and at least part of what's going on right now. So with that, I will stop and answer any questions that the panel has. DOCTOR WAGNER: Thank you very much. MS. OLINGER: Just to point out, I'm sure you're aware that there will be a proposal developed on silica exposure. MR. NIEWIADOMSKI: I have one question for you, Doctor Petsonk. In previous public hearings, and probably in this one, it was mentioned that it was quite a bit of --- at least a report of NIOSH that has the data that NIOSH has presented of a reference of the so-called hot spots, okay. And that the focus should be really on those hot spots. And this is what we got from other parts of the country, that we don’t have the level of disease that you see in the hot spots. So why don’t you just focus on that? And of course, two milligram standard is the same issue that was raised back in 1969, where in fact, high levels of disease were in Pennsylvania where most of the mining was occurring. They certainly did not decide at that time, well, let's set the standard for Pennsylvania and forget about Colorado. This is the question that’s --- how would you address the critics that say let's focus on the hot spots and leave the other areas alone, as far as reducing the standard? MR. PETSONK: Well, I think I start with the premise that the problem there is excessive dust exposure. When you analyze the regional patterns of disease, yes, there appears to be greater amounts of disease in Pennsylvania, West Virginia, eastern Kentucky and Virginia. But on the other hand, when you look at the dust levels, you don’t really see any dramatic differences in dust levels. So I'm not sure how a focus on one area without reducing the dust levels is going to make an overall difference. The second issue is that, in fact, dust levels are increasing in many areas of the country --- not dust levels, disease levels. The dust levels are not increasing, the disease levels are increasing. And it's happening in Pennsylvania. It's happening in the Appalachian states and so on. And you know, I can't find another approach aside from giving each mine the day-to-day knowledge of their dust exposures as a tool to, you know, manage the exposures. I don’t see any other approach myself. I'm a physician, and you know, there may be other engineering approaches that we don’t know about. But from what I see, we see severe disease, we see a rapidly progressing disease here in Pennsylvania. There are hot spots in Pennsylvania, as you know, and in other areas of the country. So if there were a scientific basis upon which to determine how the specific dust level has a greater potency or whatever in causing disease, then there might be a basis upon which to act in that fashion. But we don’t have that. I'm not aware of any, let's say consistent basis to regulate coal mine dust aside from the respirable reduction and the silica. MR. NIEWIADOMSKI: Thank you. MS. OLINGER: I don’t know if you're aware of the proposed rule expands the periodic examinations of surface coal miners and not only requires x-rays, chest x-rays, but also a spirometry test and occupational history. Can you give me your thoughts on that part of the proposed rule, please? MR. PETSONK: Well, I certainly support that. And part of my professional activities in the past several years has been involved in trying to enhance the technology that's available to permit healthcare professionals in occupational settings to utilize serial lung function studies to protect lung health. There is no question that coal miners develop accelerated losses of lung function, either some may have radiographic evidence of pneumoconiosis and some do not. Just this past week, I took care of a miner who had 30 years of coal mine exposure, severe obstructive lung disease, never smoked and whose health might have been preserved if his lungs had been monitored using spirometry earlier in a career. So is it effective? We know that accelerated lung function decline occurs in some coal miners and leads to severe and disabling and fatal disease. We have published articles demonstrating that. The early recognition has been improved in terms of identifying individuals before they have disabling lung disease. And I think it’s very feasible to do this. It's done in other industries. And I think the group of individuals who do not develop x-ray changes of pneumoconiosis are those who will benefit from this. And I support them. MS. OLINGER: And do you have thoughts on how to increase miner participation in the periodic examination? MR. PETSONK: I think historically the miners have been reticent to participate for, I think, basically two reasons. One is they were very concerned about confidentiality of their health information and I think that remains the concern. But over time, we've developed additional techniques. The HIPAA Act has significant penalties for the violation of confidentiality. So that’s one issue that I think needs to be addressed as you implement spirometry and other health monitoring. I think the second issue is --- relates to the actual Workers' Compensation laws of the various states. In some states, a radiographic abnormality that is consistent with pneumoconiosis starts the clock for applying for compensation. The miners know this, even though early disease may have no symptoms and no measurable impairments. If you want to catch the disease, if you have it identified and you do not file, the clock is running and whether it's three years or whether the statute of limitations, the miner becomes ineligible to prevent this. So then there is a very negative feedback. If I find out I have Black Lung, I must apply in three years, but since I'm actually early in my disease, I won't be eligible. So I apply, I get refused, and then of course, the employer's notified and the individual becomes, you know, potentially discriminated against because of your health. MS. OLINGER: Thank you. DOCTOR WAGNER: Thanks a lot for ---. You mentioned that the disease prevalence is rising, yet the measure of recorded dust levels aren’t. Do you have any thoughts about why this --- the disease levels are going up, so that MSHA can make sure we can address those? MR. PETSONK: Well, I think we probably --- although it's hard to document what a patient's telling me, that the dust levels are measured in unrepresentative ways. We hear this --- now, that’s something that’s only allegation, and I know that when I make it in public, it's sort of put --- you know, it's hard --- I can't substantiate that. I can tell you that’s what they tell me. They say that they're told to stand in fresh air over by the intake when the sampling is going on, that the production is changed or the ventilation is improved. But on days where there's no sampling, if the brattice cloth is flopping in the breeze, they don’t fix it until it's time to sample. Now I hear this. And this is what --- you know, this is hearsay, and I can't say anything about that. But I do believe that the dust levels --- we know the epidemiology of Black Lung pretty well. It's been studied in many countries in Europe and North America. So we know the relationship between dust and disease quite well. Well, something's changed recently. The dust levels are staying the same, but disease levels are going up. I have to believe that what's happening is those dust levels are not representative of the actual ongoing exposure to miners. Because if they were, they would be going up with the disease levels. So my first hypotheses, which as a physician, I can only guess, is that the dust sampling protocols that are in place right now are not adequately representative of the true ongoing chronic exposure that the miners are experiencing. Now, could there be other things going on? Again, I'm not a mining engineer. Could changes in mining technology be making, for example, dust more fine, penetrating more deeply into the lungs? That’s a possibility. Certainly I think that the easy coal was mined earlier, the harder coal with more rock extrusions, lower, you know, roofs and so on, make the generation of silica dust more likely. I'm trying to do a study right now to look at that issue, but we're just in the early phases of it. I don’t have any answers on that. Other things, well, we know that over the past several years, the number of hours worked has gone from like 1,900 up to almost 2,400 on the MSHA website, the hours recorded by operators in quarterly reports. So miners are spending a lot more, maybe 25 percent more time, in the mines. And of course, they're inhaling 25 percent more disease --- more dust. The other thing, though, that happens is on impairment is that if you work a double shift, you only have eight hours to clear your lungs. And so in addition you're getting twice as much inhaled dust. The clearance mechanisms only have half the time to clear the dust out. So whether that’s --- that’s certainly happening. We know that from the reports. Whether that is an important factor, I cannot say. I'd like to get the data, try to get information that could actually confirm that. DOCTOR WAGNER: Okay. Thank you. Thank you very much for your time here. We appreciate it. There's one other person that I have that signed up now. It's Dennis O'Dell. When he's done, if anyone else wants to speak, you can. MR. O'DELL: Good afternoon. Again, my name is Dennis O'Dell, D-E-N-N-I-S, O, apostrophe, capital D, E-L-L. And I'm here today on behalf of the United Mine Workers of America. I've worked in the coal industry since 1977. First as an underground coal miner with close to 20 years experience. Then a mine inspector and currently as the administrator for the past five years for the United Mine Workers Department of Occupational Health and Safety. I'd like to thank you for the opportunity to address an issue that has been a problem with United Mine Workers for many years. For far too long we were watching our nation's miners suffer and die from Black Lung disease, an illness that is unnecessary and totally preventable. We are grateful MSHA has taken these steps toward serious measures to prevent this unnecessary suffering and death. I grew up in a coal community in West Virginia and personally watched the pain and suffering this horrid disease inflicted on me, members of my community, as well as my whole family. So this issue is a personal one for me, as well as a professional one. You’ve already heard me go over these specific issues at the Beckley hearing. So since that is already a matter of record, I won't read each one of those. I'll just touch on some of these. I should begin by saying that the United Mine Workers overall are supportive of MSHA's proposed rule and we are glad that the government is finally taking concrete steps toward preventing this dreadful disease. Let's talk about some other non-data. We've heard that word used today. Black Lung is critical and killed tens of thousands of miners over the years. According to NIOSH studies, between 1987 and 1996, at least 18,245 deaths occurred from Black Lung. The latest study shows after a long period of time, the prevalence of Black Lung. Recent surveillance data indicates that it's rising again. Coal miners are developing Black Lung at relatively young ages, below 50 years of age. What is concerning about this is the connected increase in years of potential life loss due to Black Lung in these young miners. So not only are the cases of Black Lung on the increase, but miners lives are being shortened more now than ever before. Adding insult to injury, those filing claims for Federal Black Lung Disability Compensation face a harsh and unfair system. Nearly 87 percent of the claims filed for Black Lung are rejected. The UMWA is more than pleased to see the federal government finally step up after years of senseless pain and suffering inflicted on the mining community and our brothers and sisters and that you're taking a serious step towards preventing Black Lung. However, even though we are supportive of most of the proposal, there are key issues that we would like to take issue with. One issue is the trouble --- one issue which troubles us is that under this proposal, the sampling program is to be placed in the hands of the coal operators. The federal government regulatory programs that protect miners from exposure to unhealthy coal mine dust has failed to protect miners through the years. Since the passage of the Federal Mine Health Safety Act of 1969, coal mine dust sampling programs have been subject of much criticism. Reports of cheating and fraud in the coal mine dust program, leaving miners' exposure (sic) to unhealthy levels of mine dust have been commonplace over the years. In 1971 and 1975, the U.S. General Accounting (sic) Office and the National Bureau of Standards reported documents that documented serious problems with the miner operator coal mine dust sampling program. The reports identified widespread fraud in the program. Since 1990, over 160 companies and individuals have been criminally prosecuted for fraudulent coal mine dust sampling in the nation's coal mines. And in-depth investigation report published by the Louisville Courier Journal in 1998 cited widespread corruption with coal mine dust sampling program. Miners and their representatives on numerous occasions have provided evidence on the flawed system. For decades the miners and the United Mine Workers has demanded that the respirable coalmine dust program be reformed. As far back as 1977 and 1978, miners have testified in several public regulatory hearings to make major changes in the program. Among the changes miners sought were full mine inspections to oversee the coal mine dust sampling, a government takeover of the sampling program and devices installed in the mines that constantly report coal mine dust levels. We applaud the Agency for the requirement of the use of continuous personal dust monitor in response to one of those concerns, but the UMWA still believes that the sampling program should not be left in the operator's hands. Many coal companies do the right things to comply within the standards. However, even with the use of the CPDM, we know that there are renegades in the coal industry who will find ways to cheat the system. The United Mine Workers of America wants to see the Agency play a bigger role in the sampling program and to at least adopt the Dust Advisory Committee's recommendation for funding such programs and to give MSHA a bigger role in the dust sampling process. Paragraph B and C in the recommendation number 16 of the Dust Advisory Committee recommends, B, the Committee believes that any MSHA resource constraints should be overcome by a mine operator's support for MSHA compliance sampling. The Committee recommends that to the degree that MSHA's resources cannot alone serve the objective identified, resource constraints should be overcome by mine operator funding for such incremental MSHA compliance sampling. One means of obtaining the support could be a reasonable and fair operator fee based on the hours worked for other equipment means designed to cover the cost of the compliance sampling. Any operator in the program should include an accountability system to ensure the uniform applicability of the program throughout the industry. The fee shall only be utilized for the specific purposes of required compliance sampling. C, the Committee considers it the high priority of MSHA to take full responsibility for all compliance sampling at a level which ensures representative samples of respirable dust exposures under usual conditions of working. In this regard, MSHA should explore all possible means to secure adequate resources to achieve this and without adverse impact on the remainder of the Agency's resources and responsibilities. Since compliance sampling will be carried out 24/7, the operators and MSHA should adjust their resources to make sure the integrity of the program is protected. Furthermore, the miners' representatives would be and should be afforded the opportunity to participate in these inspection activities as provided in Section 103 of the Mine Act. The United Mine Workers of America believes that one of MSHA's highest priorities must be to restore the confidence of miners and mine operators in respirable coal mine dust sampling programs. We believe that MSHA should take full responsibility for the task of compliance sampling and overseeing other aspects of the sampling programs as well. Another problem with the proposal is something that I spoke on in Beckley, and that is the formulas that are set forth in the rule for calculating equivalent permissible concentrations on miners that work for an extended shift. These formulas are too complicated and confusing. Although our nations miners are very skilled at their trade and are the most productive miners in the world, we're not mathematicians. The Union would recommend at least calculations be simplified and set forth in an easy-to-read chart. The UMWA appreciates the Agency taking into account the fact that most miners work more than eight-hour shifts, but there must be a simplified way to arrive at permissible concentrations than that currently stated in the proposed rule. Next, what the proposed rule fails --- I'm sorry, falls under Section 70.208 paragraph H. Under this section, when an operator is unable to maintain compliance with the applicable standard on an MMU and makes a determination that all feasible engineering or environmental controls are being used, they may request approval to the district manager to use supplemental controls, including worker rotation, to reduce effective miners' dust exposure. The UMWA understand that the intent of this proposal is to remove the infected miner from a dusty environment. However, this practice would be completely contrary to the requirements and spirits of collective bargaining agreements in place at all UMWA representative mines that protect job bidding and seniority. But it also undermines the intent of the Mine Act that states compliance for the mine operator as well as the miner. The proposed rule that undermines our contractual rights for miners to routinely be rotated from their job classification for six months or whatever the case may be is totally unacceptable. The UMWA has historically stood firm that respirable dust must be controlled through engineering and environmental measures. Rotating the miner out of their normal job duty is not the solution. Another problem with this provision is that it gives the operator the exclusive right to determine that all feasible engineering or environmental controls are being used or have been exhausted. When the operator determines that he has done all he can to control the dust through an engineering or environmental controls, he then simply asks the MSHA district manager to approve a plan that permits worker rotation. We would like to question what program is in place in making the determination that all feasible engineering or environmental controls have been exhausted. That decision must not be left entirely up to the operator. MSHA must play a role in determining that all such measures have completely been exhausted to control the dust through engineering and/or environmental controls. Again, at the Beckley hearing, I gave comments about the areas specifically that we supported in the proposed rule. Those which we still stand behind. I'm quite bothered and was not able to speak about the remarks made on behalf of the West Virginia Coal Association and today by the Pennsylvania Coal Association, that the approach is simply pull the rule and start over. I continue to be bothered by other MSHA folks that have also since testified to this at hearings that have followed such as the ones from Kevin Dillon to pull the rule, pull the rule. This makes me wonder if the operators out there really care about addressing this problem and making a more healthy environment for the nation's miners. We do not and will not support pulling the proposed rule and starting over. This would only further delay protections that our miners deserve. Much of this rule can be effectively put into place while gathering real data for the PDM to see what the actual exposure to miners should be. I spoke to you about that issue in Beckley. Early on as a joint effort, the United Mine Workers and our partner, the Bituminous Coal Operators Association, presented a plan to MSHA. This was done with the previous administration and recently with the current administration. We did that with the purpose in mind that we draft a regulation based on a plan of ideas as agreed on by labor and industry. Although we're not able to agree on all issues, we had agreed in concept on a number of issues we felt it would take to make this rule become effective. With that, I would like to add some other comments since I spoke to you at Beckley and ask the Agency to collect real data with the PDM to see what is actually feasible. Why not entertain the idea of implementing the rule into effect and allow that time period to collect real time data with the PDM and also allow Thermo the time to make adjustments that have been brought forward about the PDM to be more worker-friendly. Comments that I've heard on PPEs. We must, as you pointed out, control the mine environment as per the Mine Act. And personal protective equipment fails to do this. If we have people out there that think that PPEs is okay while allowing the mine atmosphere to be dusty, I’d like to remind everyone here today of what we just witnessed at the Upper Big Branch Mine where 29 miners were killed. I'm a little surprised that the Agency hasn't spoken more forward on comments and questions from the industry about the use of the scrubbers. I keep hearing the industry speak that they should be allowed to use the scrubbers, yet you haven't really responded. It's my understanding that there are operators out there who have approved plans with the use of scrubbers. The only ones that have not or have had their plans revoked are those ones that are not able to comply. As far as the PDM, I heard today that this should be used as an individual surveillance tool. And many MSHA folks have suggested that. When questioned by you today whether each individual should be provided with one, they failed to answer. Well, let me answer that question on behalf of the United Mine Workers. If these PDMs are going to be used as individual surveillance tools, then every miner that works in the coal mine should have one, because every miner that works in the coal mine has the potential to be exposed to dust. Miners deserve a healthy place to work, and we support a reduced standard. The use of the PDM will allow us to get there. Look, we know that when sampling first took place in the coal mine industry, there were a lot of concerns by the industry. There were a lot of problems with the gravimetrics. Everybody thought that this was going to shut the coal industry down, it was going to be a huge hardship, because it was something new, something that had to be developed, it had to be tweaked. Well, we got past that. It didn’t shut the industry down. And we were able to help protect miners from the disease maybe being worse than what it could have been. But this current sampling system that has helped as we know today is working. For a miner to have to wait two weeks to get his results back after he has been sampled is a little too late, especially since we know that we have a tool that could give us and empower the miners to know what their exposures would be and to actually do something at that moment to control their exposures. I have many concerns about the unit itself. Again, any time we have new technology, it will have to be tweaked, and I'm sure federal will address those concerns. When I first started in the coal mine working on the longwall, we needed shots to support the roof, one of the most dangerous things looking back now that we could have had is to crawl up between the shots and set the cribs to protect the roof as the rocks fell all around us. Well, we were approved on that. Now, we have shields to protect miners. The miners aren’t exposed to those kind of conditions. But we’ve made adjustments to make improvements. But this was done for productivity. If we can do that and address those issues in productivity and improve our mining with this, because if you look at it now, we're one of the most productive people in the world as far as coal mining. And we've been able to do that because smart people put their heads together to come up with technology that helps increase productivity. We should be able to do that with the health issues. We always find ways to improve mine extracting equipment. Now, we have to do the same thing with health improvements. I heard someone say today that the industry's already been heavily regulated, yet we still have miners dying today on the job as well as miners dying afterwards from Black Lung. Maybe it isn't as regulated as some suspect. There's always room for improvement. And there's room for improvements for our guys that put their lives on the line every day. To protect, we have a duty. We have a duty as an industry, as workers, and as an agency to protect these guys that put their lives on the line every day so that this country can enjoy the electricity that we produce, the comforts that we use, the use of our computers, the use of lights. The simple things that people take for granted. We intend to speak again at Arlington and we also intend to submit written comments when the time comes. One of the things that I hope is that somebody from NIOSH will be available to speak at that hearing because we haven't heard from them in any public setting, yet many have challenged what they’ve put in writing. I hope they can be available to address the challenges that have been made on their document as what we heard at today's hearing as well as previous hearings. Again, I’d like to thank you for the opportunity that you’ve given me today to speak about this important issue. DOCTOR WAGNER: Thank you very much. MR. THAXTON: I just have one follow-up question. You indicate that UMWA supports MSHA taking over compliance sampling that was put into the criteria --- or the Advisory Committee's report. The Advisory Committee, though, also stated that mine operators should be involved in a lot of samples. The Mine Act actually says mine operators should be taking the samples. So I guess my question to you is just that we see still a role for miner operators as far as collecting the samples. Would you be amenable to something where mine operators be available to collect the samples, those samples then are looked at and they use them as information, that we would require them to take appropriate corrective action based on those results, much like we do with methane detecting? You know, if the mine operator detects methane at a high level, the fact that they can address that. But if they failed to take corrective action to address that level, then they would be in non-compliance with that issue and as a means of encouraging them to take samples, look at the data, evaluate that data and take the appropriate action? MR. O'DELL: Many of the operators that I've been able to speak with are actually excited about it. They're excited about the use of the PDM. And I think that they're going to do that anyway from what I've been told. They have expressed, just in talking in general, and when speaking --- and somebody from the industry can correct me, but they address the fact that they wanted to use this to be able to monitor what's going at the mine for the sole purpose of staying in compliance and not having to be cited by the industry --- by the Agency. So what my fear is, because I mean, Bob, you went through it, we fought this battle of coal mine dust sampling and went through this period of time where fraud occurred, you know, the operator sampling was fraudulent, people were cheating the system. What we suggest, what we want is to make sure that the Agency oversees the manner in which the sampling will be done. And so it's kind of like you're caught in the corner. You have to keep people honest, and that’s what we see your role as doing in that, in charge actually of the compliance sampling. I understand that that means that you have to have an inspector on property as samples are being taken if this is going to occur 24/7. That’s something that we're going to address in our comments to you in Arlington and in our final comments as to how we think that should work. MR. NIEWIADOMSKI: I just have a follow-up to that one issue. You mentioned where you came in with the BCOA and presented an agreement in some form on parts and uses of the CPDM. Part of that was to be used as a weekly exposure and we saw a calendar to that. Do you still agree with the use of miners collecting samples and making a weekly determination? MR. O'DELL: Here's what it is, here's where we're at, as I told you at Beckley, I support --- the United Mine Workers support what MSHA is saying and we also support a weekly accumulated exposure limit like as suggested by you and by what we have talked about. Here's where our problem is, we --- the data --- and you spoke about this earlier, the data that you talked about as far as operator samplings that show that they're in compliance of .05 or the one milligram standard that have been collected throughout the years is --- I mean, a typical --- you know, a typical day is the MSHA inspector shows up on the property, they set the box for a warm-up period while the safety supervisor goes and gives whoever's going to wear the dust pump that day, he goes to the safety office and puts it on the individual who fills out the card. And the guy goes out in the bathhouse to get ready to go underground performing a job, which may be another 10 or 15 minutes. And then at that point, they’ll get on the elevator or get on the mantrip, however they're going to go underground. And they wear that unit. And in some cases they may have a cup of coffee or a sandwich before they even start up or check their cables or whatever, you know, hot seat exchanges. They may not jump into productivity right away. And this general scenario is what we're looking at today. And then at the end of eight hours, the MSHA inspector is looking at his watch and he says, I have to collect these gravimetrics. I have to put them back in the little box and take them outside and shut them off after the eight-hour period. And the miner is still left underground, you know, not being sampled and really starting to get into full production mode. So we're not really sure that the data that you have today may really tell us what is achievable for the true standard that should be set. That’s why we suggested further that maybe we could look at models that the UMWA and the BCOA presented to you and work with that in the interim while we collect data for the PDMs to see what the actual exposure limits should be. Because now we're going to see what X miner has for this 10-hour shift or 12-hour shift or what the weekend would address. And we'll look at the data then and that will give us a better idea of what we need. But I want to see what that means for a rule. I think that can be implemented in one particular rule. Because what it does do is not only is it an eight --- two hour --- I'm sorry, eight-hour two milligram standard, but we're going to look beyond that because we're going to be sampling those guys for the full shift they're underground, whether it be 10 hours or 12 hours. So if you work 16 hours, it's going to be a one milligram sampling and so on and so forth. MR. THAXTON: Thanks. I have nothing else. DOCTOR WAGNER: On the work rotation issue, --- MR. O'DELL: Right. DOCTOR WAGNER: --- are you familiar with any mines that are --- if there's any mines where there is work rotations being implemented that is consistent with the collective bargaining? MR. O'DELL: Worker rotation? I'm sorry. DOCTOR WAGNER: Yeah. MR. O'DELL: Where they take one individual off a piece of equipment? DOCTOR WAGNER: Yeah, where an individual may work a different piece of equipment in the course of the shift or in the course of a week? MR. O'DELL: Well, I think what occurs is a lot of guys get bored with their jobs. DOCTOR WAGNER: They get what? MR. O'DELL: They get bored with their jobs, so --- like when I used to pull shields and sometimes the shearer operator would say how about I don’t run the shearer tonight and pull shields just to break up the boredom. So sometimes we'll do that. On my section, when I ran shuttle car, sometimes the bolter operator would say, you know, I feel like maybe running the shuttle car, can you bolt my place. And you switch back and forth to do things like that. But it wasn’t something that was mandated, it was just a voluntary thing that we did just to actually help each other learn all the different jobs, plus it gave us a chance to break up some of the boredom of your normal day-to-day work routine performing that job. Now, there's a so-called --- you hear people talk about longwall guys that maybe work a half shift on, a half a shift off, I've heard rumors of that, but I can't substantiate that. DOCTOR WAGNER: Okay. Thank you. You raised the possibility of an individual wearing a CPDM --- all individuals wear the CPDMs. Do you --- have you thought at all about both the environmental sampling and the individual sampling being done? MR. O'DELL: In consult that --- I disagree with that point because I think, you know, in our comments earlier, we suggested that MSHA is going to be the ones to determine what occupations should be sampled, just as you did with the gravimetrics. We would like to see it go further than that, though, not with just the normal occupations that we monitor today. Because that’s --- we've heard Ron talk about earlier, the guys that are on belt lines sometimes are exposed to dust as opposed guys on the mine section. Or sometimes guys over in the return or a rock duster that’s working by the fan. You know, sometimes those are the guys that are getting more dust exposure than the other miners. So we would like to see the Agency look at all occupations and see which of those occupations should have dust pumps or PDMs. I said, if we're going to talk about these being the individual samples, I don’t know how you do that. Because if I'm a shearer operator and I'm running a shearer on an eight-hour shift, and you're just going to sample me, you know, for my 20 years that I work as a longwall shearer operator, yet you got somebody that’s working another job but still amounts to the same number of years and maybe some days he works in a dusty environment and some days he doesn't, you know, you're not really collecting --- you're not really doing a true service to all the miners that work in the coal mine. It can't really be an individual sampling. It has to be, you know, those occupations that miners work at that are more dusty than others. You can --- it's easy. I mean, it's easy to figure it out. All you have to do is to go to the coal mines and talk to the miners. They'll tell you right where the dusty places are. The operators will tell you where the dusty places are. DOCTOR WAGNER: I want to thank you very much for speaking again. We look forward to your speaking in Arlington next week. And we're looking forward to your comments as well. Let me ask if there's anyone who hasn’t signed up who would like to make a statement at this time? Well, if no one else wishes to make a presentation, I want to again say the Mine Safety and Health Administration appreciates everyone's participation in this public hearing. I want to thank those who made statements, but also the rest of you by your presence are demonstrating an interest and commitment to trying to help the Agency move forward. I want to emphasize that everyone here still has an opportunity to make comments, either in person at the other hearings that are scheduled, or written comments will be taken into consideration if they are received or postmarked by May 2nd of 2011. MSHA will take your comments and concerns in consideration to develop the Agency's final rule. And I want to encourage all of you to participate throughout the rulemaking process. And with that said, I'll ask one more time, if anyone else has anything they need to say for the record? Seeing no one, this public hearing is concluded. Thank you very much. See you guys. * * HEARING CONCLUDED AT 3:00 P.M. * * CERTIFICATE I hereby certify, as the stenographic reporter, that the foregoing proceedings were taken stenographically by me, and thereafter reduced to typewriting by me or under my direction; and that this transcript is a true and accurate record to the best of my ability. 2 Sargent's Court Reporting Service, Inc. 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