MINE SAFETY AND HEALTH ADMINISTRATION IN THE MATTER OF: ) ) PUBLIC HEARING ON THE PROPOSED ) RULE TO REVISE EXISTING ) REQUIREMENTS TO APPROVE ) SAMPLING DEVICES THAT MONITOR ) MINER EXPOSURE TO RESPIRABLE ) COAL MINE DUST ) REVISED AND CORRECTED COPY Pages: 1 through 43 Place: Arlington, Virginia Date: July 8, 2009 MINE SAFETY AND HEALTH ADMINISTRATION IN THE MATTER OF: ) ) PUBLIC HEARING ON THE PROPOSED ) RULE TO REVISE EXISTING ) REQUIREMENTS TO APPROVE ) SAMPLING DEVICES THAT MONITOR ) MINER EXPOSURE TO RESPIRABLE ) COAL MINE DUST ) Room 2539 U.S. Department of Labor Mine Safety and Health Administration 1100 Wilson Boulevard Arlington, Virginia Wednesday, July 8, 2009 The parties met, pursuant to the notice, at 8:58 a.m. BEFORE: MARIO DISTASIO, Acting Director Mine Safety and Health Administration Office of Standards, Regulations and Variance ATTENDEES: PANEL MEMBERS: KENNETH DICKENS RON FORD FRANK HEARL PAMELA KING GEORGE NIEWIADOMSKI JON VOLKWEIN APPEARANCES: (Cont'd.) SPEAKERS: DENNIS O'DELL, Administrator Occupational Health and Safety United Mine Workers of America LINDA RAISOVICH-PARSONS, Deputy Administrator Occupational Health and Safety United Mine Workers of America JAMES L. WEEKS, Director Evergreen Consulting, LLC JOSEPH LAMONICA, Safety Consultant Bituminous Coal Operators Association, Inc. BOB SELWYN, VP Sales & Marketing Casella USA ALAN MATTA, Product Manager Thermo Fisher Scientific P R O C E E D I N G S (8:58 a.m.) MR. DISTASIO: Good morning. My name is Mario Distasio. I'm the Acting Director of the Mine Safety and Health Administration, Office of Standards, Regulations and Variances. I'll be the moderator of the hearing today on MSHA's proposed rule to revise the existing requirements to approve sampling devices that monitor mine exposure to respirable coal mine dust. The hearing is being held jointly with the National Institute for Occupational Safety and Health, NIOSH, and the Mine Safety and Health Administration, MSHA. I want to welcome you all to this hearing, and I want to point out and introduce the members of the panel. To my right over here is George Niewiadomski. He's the Coal Mine Safety and Health Specialist with MSHA's Office of Mine Safety and Health. Let's see. Frank Hearl to my left is Chief of the Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health; Jon Volkwein on the right, Research Physical Scientist with the Centers for Disease Control and Prevention, National Institute for Occupational Safety and Health; Pam King to my left, and she's a reg specialist in the Office of Standards with Mine Safety and Health Administration. Let's see. Ron Ford is an economist in the Standards Office with the Mine Safety and Health Administration, and Mr. Kenneth Dickens on the left is our solicitor. The existing 30 C.F.R. Part 74 includes requirements by which MSHA and NIOSH jointly approve design, construction, performance and manufacturing quality of the coal mine dust personal sampler unit, the CMDPSU. The regulatory requirements were issued in 1972, are design specific and do not permit the approval of any other sampling device of a different design. The CMDPSU is currently the only personal dust monitor design that is approved for collecting respirable dust samples in coal mines. MSHA and NIOSH recognize the ability to directly measure in real time the amount of respirable coal mine dust to which a miner is exposed offers the best solution for protecting miners from disabling occupational lung disease. Therefore, on January 16, 2009, MSHA and NIOSH issued a proposed rule that would revise requirements in 30 C.F.R. Part 74 for approval of coal mine personal dust sampling devices. The proposed rule would establish performance-based requirements for approval of the new personal monitoring device, the continuous personal dust monitor, which I'll refer to as the CPDM. The CPDM is capable of continuously monitoring and displaying dust concentration measurements during the shift and providing end-of-shift summary measurements. The performance-based approach in the proposed rule would allow for continued innovation of the CPDM designs to accommodate improvements or alternative deigns in technology that may be introduced in the future. This rulemaking is limited to the approval requirements and does not address issues concerning how the sampling devices must be used to determine compliance; for example, who, when and how often to sample. Those requirements are addressed in existing 30 C.F.R. Parts 70, 71 and 90. We have a notice of request for information that we're working on. It's in the reg plan that was published in the spring, so that's a separate rulemaking. That's not what we're doing in this rulemaking. MSHA has estimated the economic impact of the proposed rule and has included a discussion of the costs, benefits and paperwork required in the preamble to the proposed rule. We have additional copies of the proposal available today. I will now summarize the provisions for which we have received comment: Section 74.7(d). Proposed 74.7(d) (dust concentration range) would require the CPDM provide accurate measurements of respirable coal mine dust concentrations for end-of-shift average measurement within the range of 10 percent to two times the permissible exposure limit, PEL, for respirable coal dust. A commenter asked if the requirement would remain the same, that is 10 percent to two times the reduced PEL, if dust sample contains more than five percent quartz. The commenter also asked if MSHA reduces the PEL for respirable dust or quartz dust in the future would this requirement remain the same, that is 10 percent or two times the new PEL. Section 74.7(f). Proposed 74.7(f) (electromagnetic interference) would require that the CPDM meet standards for control of and protection from electromagnetic interference established by the American National Standards Institute, ANSI, the Federal Communication Commission, the FCC, and the International Electrotechnical Commission, the IEC. To address immunity and susceptibility, the proposed standard would require that persons must proceed in accordance with IEC 61000-4 and -6 (Electromagnetic compatibility, Part 4-6: Testing and measurement techniques -- Immunity to conducted disturbances, induced by radio-frequency field.) A commenter stated that as written the standard is confusing to the depth of testing required. The commenter asked if the intent of the standard was to test the entire sections of 61000-4 and 61000-6 or only Sections 61000-4 and 61000-6 or the specific test defined in 61000 4-6. MSHA inadvertently cited the IEC reference of the proposed standard as IEC 61000-4 and 61000-6. The proposed standard should have been phrased as, "Persons must proceed in accordance with IEC 61000 4-6 (Electromagnetic compatibility -- Part 4-6: Testing and measurement techniques -- Immunity to conducted disturbances, induced by radio-frequency fields.)" In response to this commenter's question, the Agency clarified in the hearing notice and is clarifying again today its intent that the proposed test be in accordance with the specific test defined in IEC 61000 4-6. Section 74.7(h). Proposed 74.7(h)(1) and (2) (reporting of monitoring results) would require: Adequate legibility or audibility of monitoring results; computer, that is digital, recording of results in the form of compatibility with widely available computer technology; reporting of results as cumulative mass concentrations in units of mass per volume of air, that is milligrams per cubic meter. It would also require a digital display that is illuminated and provides a minimum character height of six millimeters. A commenter stated except for the provisions of the size of the characters and the end-of-shift results, there is nothing in this proposed rule that provides for results for shorter periods of time (for minutes to hours). This commenter stated that an instrument that provides only end-of-shift results would not be acceptable. Additionally, whatever the number the instrument displays should not be truncated and instead should be rounded as is customary practice in most other applications. The commenter suggested that the information displayed on the CPDM be the same as described in NIOSH Publication RI 9669, Laboratory and Field Performance of a Continuously Monitoring Personal Respirable Dust Monitor. Section 74.7(i). Proposed 74.7(i) (power requirements) would require the power source for the CPDM have sufficient capability to enable continuous sampling for 12 hours in a mine dust atmosphere of two times the PEL. It also would require the battery charger for the CPDM powered by a rechargeable battery operate from a 110 volt (nominal) 60 Hz power line. A commenter supported the proposed requirement that the CPDM be powered continuously for 12 hours since miners' shifts are longer than eight hours. However, the commenter also suggested that the CPDMs be capable of operating for a minimum of 16 hours to accommodate full work shifts up to 16 hours. This commenter further suggested that if this is not feasible it should be required in two years. Section 74.7(m). Proposed 74.7(m) (tampering safeguards or indicators) would specify performance requirements that would help ensure the CPDMs are designed to prevent intentional tampering and limit inadvertent altering of monitoring results. It would require the CPDM have a safeguard or indicator that either prevents altering the measuring or reporting function of the device or indicates if these functions have been altered. A commenter supported this requirement. However, the commenter doubted that such safeguards could prevent tampering altogether. This commenter suggested that MSHA have other methods to prevent and detect tampering and to prosecute those who perpetuate such frauds. Section 74.10(a). Proposed 74.10(a) (operating instructions and maintenance and service life plan) is new and would require the manufacturer to include operating instructions and maintenance and service life plan with each new CPDM sold. Under the proposal, operating instructions would have to be clearly written. A commenter suggested that the proposal provide more specific and objective criteria and that operating instructions be written so that anybody in the industry can, after reading them, operate the CPDM. That concludes the summary of the comments we received. As you address the proposed rule provisions either in your testimony today or in the written comments, please be as specific as possible. Please include specific alternatives or rationale and any technological and economic feasibility considerations and data to support your comments. The posthearing comment period for the proposal closes on August 14, 2009, and MSHA must receive your comments by midnight Eastern Daylight Savings Time on that date. You can review the comments on the Agency website, www.msha.gov. The hearing, as many of you know, will be conducted in an informal manner. Cross-examination and formal rules of evidence will not apply. The panel may ask questions of the speakers. The speakers may ask questions of the panel. MSHA will make a transcript of the hearing available on the Agency website within a week of the hearing. If you wish to present written statements or information today, please clearly identify your material and give a copy to the court reporter. You may also submit comments following the hearing by any of the methods identified in the proposal. We ask that those in attendance sign the attendance sheet in the back of the room. If you have a hard copy or electronic version of your presentation, we would appreciate it if you would give it to the court reporter. Please begin by stating your name and organization and spell your name for the court reporter so that we have an accurate record. And now we will begin today's hearing. Our first speakers will be: The United Mine Workers, Dennis O'Dell, Administrator, Occupational Safety and Health, United Mine Workers; Linda Raisovich-Parsons, Deputy Administrator, Occupational Safety & Health, United Mine Workers; and Dr. James Weeks, Director of Evergreen Consulting. MR. O'DELL: If it's okay with the panel, we'd like to wait and go at a later time. MR. DISTASIO: That's fine. We'll go to the second one, Joe Lamonica, Safety Consultant, Bituminous Coal Operators Association. MR. LAMONICA: Good morning. MR. DISTASIO: Good morning. MR. LAMONICA: Joe Lamonica, BCOA, L-A-M-O-N-I-C-A. BCOA would like to thank the panel for allowing us to offer some comments on this important rulemaking. This rulemaking was brought about by the application of taper element technology to a sampling device that can measure in real time respirable coal mine dust in the breathing zone of a coal miner. The BCOA has been actively involved for over 10 years in bringing the continuous personal dust monitor to reality. Rather than going through the alphabet soup that's in the rule publication, I'll just say the PDM and the gravimetric sampler because I get tongue-tied with all the letters. As background, I was personally involved in the development of the existing coal mine dust personal sampling unit, the gravimetric, which is also being addressed in this rulemaking. I refer you to Bureau of Mines Technical Progress Report 17 entitled Personal Respirable Dust Sampler, which was published in September 1969 and authored by Murray Jacobson and yours truly. This effort started in 1965 and led to the existing gravimetric sampler. This sampling system has been an important tool in significantly reducing miners' exposure to respirable coal mine dust compared to exposures of pre 1970. However, this tool, combined with the existing 30 C.F.R. Parts 70, 71 and 90 regulations that deal with the who, when and how often has not gotten us to our goal of zero black lung. In 1996, the Secretary of Labor Committee on Miner Health recommended better respirable dust monitors for coal mining. The government immediately began development of the machine mounted dust monitor, which used taper element technology. In 1998, the reality of the machine mounted dust monitor and the poor comparison to personal exposure ended the project. In 1999, the manufacturer of the tapered element technology came up with a technical development which created the potential for a true person wearable mass measuring monitor. Today, the PDM is a commercially available monitor that can be used in an underground coal mine. This rule making process is another step towards making the PDM able to be used as both a dust control and an enforcement tool. The published summary of the scope of this rule by MSHA states that it is only to establish criteria for the approval of a new type of technology, the PDM, and update application requirements for the existing gravimetric sampler. The summary also stated that the who, when and how often are covered in the existing 30 C.F.R. Parts 70, 71 and 90. The BCOA and UMWA have made numerous presentations to MSHA, including at the Assistant Secretary level, that the PDM is not just another sampling device to be used in lieu of the gravimetric sampler. I have attached for the record a copy of the last presentation. We have strongly urged the Agency to revise existing 30 C.F.R. Parts 70, 71 and 90 to fully utilize the potential that the PDM brings. We are very confident that a new paradigm built on the potential of the PDM will get us to our goal of zero black lung disease. The UMWA comments, which were submitted for the record in March, point out some of the advantages of the PDM over the gravimetric sampler so I'm not going to repeat them here, but I will quote from their comments on the comparison of the two units. "The qualitative difference is profound. One enables targeted dust controls. The other does not. They are in fact two different instruments and should not be treated as interchangeable. Because of these differences, we look forward to the PDM being the sole acceptable method for measuring miners' exposure to respirable dust." That concludes my comments. I'm available for questions. MR. DISTASIO: Thank you. MR. LAMONICA: Thank you. MR. DISTASIO: Bob Selwyn, Vice President of Sales and Marketing at Casella, USA. Bob? MR. SELWYN: Good morning. MR. DISTASIO: Good morning. MR. SELWYN: My point is fairly simple and straightforward. Our company, Casella Measurement based in the U.K., manufactures a range of dust monitoring products, and we look at the specifications for the changes to the pump, particularly in the sizes that you've mentioned. We would like to suggest that rather than going on a size thing -- this length by this width by this height -- that perhaps a more practical and open solution might be to specify a volume rather than physical sizes. So we're suggesting that perhaps a more universal limit for the size of the pump would be based on volume at around about 500 cubic centimeters. That's it. MR. DISTASIO: Thank you. MR. HEARL: May I ask another question? MR. DISTASIO: Sure. MR. HEARL: Here's one question. MR. SELWYN: Yes. I'm sorry. MR. HEARL: Along with the volume recommendation, would you recommend some kind of other limit, so to say no dimension greater than some value? Would that work for you to, I mean, because obviously -- MR. SELWYN: We did think about that, but haven't initially come to a final conclusion on that one. Obviously the pump doesn't need to be so long that it makes it unwieldy, so a practical, wearable size, I guess. We could certainly look at that in a bit more detail if it was felt to be useful. MR. DISTASIO: If you would submit a comment that might be helpful. MR. SELWYN: Okay. MR. DISTASIO: Okay. MR. NIEWIADOMSKI: I have one question for you. MR. SELWYN: Yes? MR. NIEWIADOMSKI: George Niewiadomski. You must be referring to the existing sampling unit, the pump that we use currently? MR. SELWYN: I believe so, yes. Yes. MR. NIEWIADOMSKI: As you know, our intent was when those regulations were promulgated those were design specific, and we certainly continued -- we were just trying to update it to reflect the current technology. Our intent was not to totally change, okay, from design specific to performance related, okay? MR. SELWYN: Okay. MR. NIEWIADOMSKI: That's why we left it the way it is. MR. SELWYN: Okay. I'll pass that on. MR. NIEWIADOMSKI: But I was just curios whether or not you were talking about the PDM configuration or whether or not you're referring to the existing sampling. MR. SELWYN: We're referring to the existing sampling on that. MR. NIEWIADOMSKI: Thank you. MR. SELWYN: Yes. MR. DISTASIO: Raja Ramani, a professor of mining engineering emeritus at Pennsylvania State University? MALE VOICE: Not here. MALE VOICE: I don't see him. MR. DISTASIO: Not here? Okay. Alan Matta, Project Manager, Thermo Fisher Scientific? MR. MATTA: Yes. Good morning. My name is Alan Matta. First name is A-L-A-N, last name M-A-T-T-A, and as stated I'm the Product Manager for Thermo Fisher Scientific for the PDM 3600. I'd like to thank both NIOSH and MSHA for the chance to speak today. As mentioned earlier, I won't rehash some of the earlier discussions on the product itself. I think it's well known. But rather I'd like to have the chance to update the panel on what has transpired since the last formal hearing in 2003 with both the instrument and the company. In the May 2003 hearing, Eric Rupprecht, who is co-owner of Rupprecht & Patashnic, the original developer of this product, spoke indicating we were ready to have this unit go underground. At that time, the unit had not been approved for underground use. However, the product did successfully pass testing shortly thereafter and was brought to the mine and testing did begin. In April 2005, at that time Thermal Electron Corporation acquired Rupprecht & Patashnic, known as R&P. Following the acquisition, the work continued with the same team in place with both NIOSH and MSHA to validate the unit's performance. During this testing, there were approximately eight suggested improvements that should have been made to the product to make it more suitable for this application. Among these were better pneumatic seals, longer cord lengths, improved run time, changes to the internal fuses and improved battery charging. A ninth change, the dedicated software, is currently in the development stage through the efforts of NIOSH, and that would address one of the issues about any tampering that could take place with the data coming from the instrument. In April 2006, the parent company, Thermo Electron, acquired Fisher Scientific and the company is now known as Thermo Fisher Scientific. As we combined these two large companies along with the group we acquired from the former R&P, we set forth two goals of this new entity. One is to bring laboratory grade equipment to the field, and the second is more holistic, to make the world a cleaner, healthier, safer place to live. We believe the PDM satisfies two of these goals. A little later, in April of 2007, the decision was made to close the R&P facility located in Albany, New York, and consolidate it to our larger facility in Franklin, Massachusetts, which allowed us to get some economies of scale and put the facility into an area where it establishes a world class manufacturing facility that is ISO certified. In May of 2007, the informal partnership comprising of MSHA, NIOSH, BCOA, UMWA and Thermo met in Pittsburgh to address any remaining issues and to calibrate where we were with the product and the status of the necessary changes to permit formal use underground. It was just prior to that time that I became involved formally with the product. As a manufacturer, we had concerns the PDM would never become a reality of a goal of being underground as it had been nearly 20 years since the first design had been put out at the machine mount level and 10 years for the initial unit. We had a concern the design was becoming stagnant. Fortunately, the activities at that meeting made us feel better that the progress was going to continue, and we continued to work closely with NIOSH and MSHA to make several of the additional modifications. When the S-MINER Act slowed in the beginning of 2008, we continued forward with the progress on that and submitted for MSHA approval in the fall. We did receive MSHA approval for intrinsic safety in September of last year. Shortly after that we approached a number of the mining companies, as well as MSHA and NIOSH, to see if there was any intent in obtaining the PDM units as an engineering tool to help identify ventilation controls and changes to those controls. We were fortunate at that time. We received orders for approximately 100 of these early units to be put in the field, and those have been shipped over the past few weeks. Those orders came in from many of the mining groups, MSHA and NIOSH, and it's apparent the value of this instrument was clear to those users. To assist in successful deployment of these units in the field, NIOSH established and coordinated some training courses in conjunction with MSHA and ourselves, Thermo, to put on four day-long training courses over the past few months. These courses took place at the Pittsburgh Research Laboratory in Pittsburgh; Louisville, Kentucky; Grand Junction, Colorado; and the MSHA Mine Academy in Beckley, West Virginia. The hands-on training consists of instrument operation, data interpretation, communication and maintenance. It is true the procurement cost of the PDM is higher than the current coal mine dust personal sampler unit. However, we believe the benefits outweigh the cost, and NIOSH has constructed cost models to show the actual cost of ownership is lower over a four to five year ownership period in a typical mine. The cost data presented did not take into consideration a number of cost elements such as the expected reduction in health costs and the savings in the handling, documentation and gravimetric measure of the individual filters as done today. Additional benefits include a hoped for reduction in mine absenteeism and a healthier and safer operations in the mine. The early adopters who purchased these 100 units confirmed the value as an engineering tool. In my personal career I've been involved with many products that provide real, immediate benefits to the user. While the PDM does offer immediate benefits in verifying the effects of engineering controls, unfortunately it's not one that provides immediate remedy to the health of the user. CWP is a chronic disease and has been increasing over the past few years. I'm proud to be part of this valuable effort to help protect the health of the miners and contribute to the reduction of black lung disease. I believe we truly now have a technology to allow us to measure the exposure levels in real time and implement controls to minimize this exposure. I ask your assistance to take the necessary actions to put this technology to work now. The future health of the miner begins with the first step. Let's take that step. Thank you. MR. DISTASIO: Thank you. Thank you, sir. MR. MATTA: Thank you. MR. WEEKS: Good morning. My name is Jim Weeks. I'm an occupational hygiene consultant to the United Mine Workers, and I wish to speak in favor of this proposed rule. I think my take home message here is that we need to get this instrument, the continuous personal dust monitor, we need to get it into coal mines as soon as possible. This rule is an important first step, but, as the Chairman mentioned, there are other steps along the way having to do with compliance determination and so on. I wish to support the Chairman's statement that those are separate rulemakings from this and that they're essentially independent from this rulemaking. All we're doing here today is saying this is what this instrument has to conform to in order to meet its goals. At the outset, I think it's important to acknowledge the work of many people that have gone in to make this possible -- the Bureau of Mines that supported the development of the core technology of this instrument, the tapered element; NIOSH that picked it up; NIOSH, R&P and Thermo Fisher which developed it with the support of MSHA. I should mention also that the United Mine Workers has been working with the Bituminous Coal Operators and other operators to try and find areas of agreement where we could support the deployment of this instrument in the mines. That's been a very fruitful endeavor. We did in fact find a great, fairly broad collection of issues in which we had substantial agreement which we have given to the Agency in the past. The instrument that's before us -- actually, I expected one to be here today. So you can imagine the instrument that's before us -- which it isn't; it's out doing what it's supposed to do -- commonly referred to as the PDM. This instrument actually is twice removed from the forces that make it important. The first driving force is that it measures the concentration of respirable dust in real time in mines. That is a huge step forward. Imagine, if you would, a car without a speedometer and you're trying to maintain a speed limit. At best you go by your instincts. You go by the flow of traffic. You avoid the police, traffic cameras and so on and so forth, but essentially you're flying blind. When you put a speedometer in that car you get information back in real time at a time when you can do something about it. It makes a world of difference, and that's the kind of shift that this instrument gives mine operators and miners. It's difficult in fact to underestimate the significance of that change that this instrument gives us. The second driving force is black lung. Controlling dust is not merely a legal requirement. Its purpose is to prevent black lung. There are certain features about this disease that make it important to control dust on a consistent basis. First of all, it's a chronic disease. It develops slowly over time. Every exposure adds to the risk of burden, the risk of disease and disability. Secondly, it's not curable. We can alleviate symptoms to some extent, but for the most part once you get it you get it, and there's not a whole lot you can do about it. It is absolutely essential that this disease be prevented. And it can be prevented. The way of doing it is actually fairly straightforward. It's to reduce miners' exposure to dust and to reduce it every shift, every day, every miner, every mine. One may think that one shift of overexposure is not that important. It's only essentially a drop in the bucket. One shift's exposure seen by itself is in fact not that critical an issue, but what makes that one shift important is the bucket itself, and that is miners' lungs, because every shift of exposure means that dust goes into the miners' lungs. This requires a constant vigilance to keep dust exposure down. When the Federal Coal Mine Safety and Health Act was passed in 1969, it created a medical surveillance program which has been an invaluable tool not only to identify miners that might be developing black lung, but also to monitor progress over the years, progress in our efforts to prevent black lung. From 1970 when it first went into effect, for the next 25 years up until about 1995 or so there's been a very steady and welcome decline in the prevalence of black lung. From 1995 over the next 10 years, however, the prevalence of black lung for experienced miners has nearly doubled. We essentially have lost control of preventing this disease, and we need to bring the full array of tools to prevent this disease. One of them is this instrument, the continuous personal dust monitor. Now, the causes for the increase are not clear. I mean, obviously the cause is exposure to excess amounts of dust, but why? There are a variety of theories. One is that miners have been exposed to more quartz dust. I think in large part that's true. The other is that miners have been working longer shifts. The two milligram standard assumes an eight hour shift, but miners work 10, 12, longer, 16 hour shifts these days, and because of that they're exposed and they absorb more dust. If you look at the annual hours worked of miners over the past say 15 or 20 years, there's been a steady increase from about 1,500 hours to over 2,000 hours, 2,200 hours per year the miners are working, and that I think is another factor contributing to the increased risk of black lung. And I think we need to investigate both of these issues to find out what exactly is going on and take appropriate measures to stop them, some of which is being done now, but in the meantime whatever else we have to do, we have to reduce exposure to respirable dust even before we have convincing answers to the questions of causality. And one of the things we can do and I think must do is to get this device into mines and to use it to pinpoint in a timely manner those circumstances when miners could be exposed to higher levels and to take corrective action in order to reduce exposure. The PDM is the instrument to do that, and I think the instrument that it replaces, the gravimetric instrument that Joe Lamonica referred to, simply cannot do that. Now, the balance of my testimony essentially is a recapitulation of what I submitted in my written comments, I think some of which were discussed earlier today, so I don't see much point in going over that again. We'll be expanding on these comments prior to the August 14 deadline and giving you some more material, but everything that was said in our written testimony remains concerns of ours about shift length, about this device and replacing the earlier device and so on. If you have any questions, I'd be glad to take them at this time. MR. DISTASIO: Thank you. MS. RAISOVICH-PARSONS: Okay. Good morning. My name is Linda Raisovich-Parsons -- it's spelled R-A-I-S-O-V-I-C-H hyphen P-A-R-S-O-N-S -- and I am the Deputy Administrator for the United Mine Workers Department of Occupational Health and Safety. The proposed rule we address today sets forth the criteria for approval of the continuous personal dust monitor, a new technology for providing continuous readings of dust exposure. This technology is achievable, will be a dramatic improvement to dust monitoring and is long past due. Nearly 40 years have passed since the passage of the Coal Mine Health and Safety Act, which established the rules for controlling respirable dust in the coal industry. Years later, we are still faced with black lung disease. NIOSH findings in 2007 showed the incidence of black lung disease has been on the rise since 1995, with some miners developing advanced cases. The NIOSH chest x-ray program currently underway has identified counties in West Virginia, Pennsylvania and Kentucky they call hot spots where we are seeing miners progressing very rapidly through the different stages of black lung. When Congress passed the Mine Act that many years ago, I am certain they did not envision that we would still see increasing cases of black lung today. The continuous personal dust monitors have the potential to bring the coal industry out of the dark ages and provide the serious attention to dust control that is so direly needed. For that reason, it has the full support of the UMWA. I have worked in the coal industry since 1976, with many years of that experience being in mine health and safety. The dust testing program has been rife with fraud and failure for many years. The rise in black lung progression is very troubling to us, especially among younger miners. The toll black lung has taken is frequently overshadowed by the mine explosion or the disaster of the day which steal the headlines, but attention focused on these events has overlooked a simple fact: That black lung displaced accidental deaths as the principal killer of miners at least 50 years ago. Every year black lung disease kills hundreds of people who have worked in this nation's mines. It's as if a 9-11 happens every year unnoticed while miners slip into early graves one by one. It is time to put this national tragedy behind us. It can be done. Black lung among British miners who worked in mines that were government owned have a much lower incidence of the disease than American miners because dust test cheating was rare. I am certain that with this new technology and strong enforcement of the standards we can also make black lung a thing of the past in the United States. Upon review of the proposed rule, we would like to make the following suggestions concerning the proposal. 1) The UMWA notes with concern that MSHA and NIOSH propose to update requirements for coal mine personal sampler units, the instrument the continuous personal dust monitor is designed to replace. We realize that the continuous personal dust monitor is limited to sampling for coal dust and that the old sampling units must be retained to sample for silica content. However, we ask that this be made clear in the standard that all sampling for coal dust will be with the continuous personal dust monitor. The coal mine dust personal sampler units must be limited in use. Approving both instruments implies that the mine operators may use either. This should be clarified. 2) The proposed rule notes that the continuous personal dust monitor will allow mine operators to identify and immediately respond to high dust exposures. The Union would point out that these units would benefit the miners who can also take corrective actions in their own interest to respond to higher concentrations of dust and make adjustments in their work environment to better control dust. The rule should note that the continuous personal dust monitor will permit the mine operator and the miner to take the most effective steps needed to reduce the dust concentrations. 3) The Union looks forward to the continuous personal dust monitor being the only acceptable method of measuring miners' exposure to respirable dust. We realize that with any new technology a transition period must be permitted to phase in the new devices. The UMWA recommends that this transition period be no longer than two years. 4) The proposed rule would require the continuous personal dust monitor provide accurate measurements for a shift of 12 hours. The UMWA believes it is important for the instrument to have a capacity to monitor for a full shift where miners work extended shifts of 12 hours or more. We would also ask that in the near future the continuous personal dust monitor be capable of operating for a minimum of 16 hours. Some miners work shifts longer than 12 hours, and a dust sampling unit must be available to sample for their full shift. 5) The UMWA is glad to see that this proposal includes requirements to design tampering safeguards in the new units. However, it would be naive to believe that such mechanical safeguards would prevent tampering altogether. MSHA must address means through other regulation to prevent tampering and to detect it and prosecute those who perpetrate such fraud. We would expect to see these issues addressed when the Agency reviews those standards. 6) Lastly, the UMWA would ask that the operating instruments for the continuous personal dust monitor be clear and easy to understand. Further, those using these devices must receive training to assure that they are completely familiar with the correct operation of these devices. In conclusion, the UMWA is glad to see MSHA propose the use of the continuous personal dust monitor in a step toward eradicating the scourge of black lung which has plagued the coal industry for far too long. Being born and raised in the coal fields of West Virginia, I have personally witnessed the devastation of this disease in my community and my own family. I watched my father die far too soon at the age of 56 due to complications of black lung and heart disease, so I, too, am personally glad to see MSHA move forward with these rules. Thank you. MR. DISTASIO: Thank you. I have a question about the 16 hours -- MS. RAISOVICH-PARSONS: Yes? MR. DISTASIO: -- because I saw that in your comments earlier. Do you have many miners that are working that long? MS. RAISOVICH-PARSONS: I wouldn't think we'd have that many. We have a lot that work 12 hour shifts as what we call our weekend warrior schedules under the contract, but -- MR. DISTASIO: So you're concerned that the 12 hours is not enough for a 12 hour shift? MS. RAISOVICH-PARSONS: If some of the miners choose to work overtime or whatever, we expect there would be a unit available that would sample for that entire shift that they worked. MR. DISTASIO: Because the concern is obviously the battery weight. MS. RAISOVICH-PARSONS: Right. MR. DISTASIO: The longer the shift, the more battery weight you're going to have. We're trying to keep the weight down to two pounds. MS. RAISOVICH-PARSONS: Well, we would hope you would take a look at that anyway. MR. DISTASIO: Any other questions? (No response.) MR. DISTASIO: No? Thank you. MS. RAISOVICH-PARSONS: Thank you. MR. O'DELL: My name is Dennis O'Dell. I am currently the Administrator of Occupational Health and Safety for the International Office of the United Mine Workers of America. I have 32 years' experience in the mining industry, close to 20 years as an underground miner and the remainder as a health and safety specialist for the UMWA. The United Mine Workers of America appreciates the opportunity to participate in this important rulemaking. The UMWA has already submitted written comments on this rule, and we may submit additional written comments based on this hearing. Even though this proposed rule is limited to establishing a criteria for approval of a new type of technology, I would like to reiterate the importance of this device as a means to help reduce and possibly one day eliminate the dreaded disease known as black lung that continues to kill our miners across this nation. For the purpose of my testimony I, along with Joe, will refer to the coal mine dust personal monitor as a PDM. The proposed regulations set forth requirements for approval of the units designed to determine concentrations in the atmosphere. Understanding initially that there will be a need for the existing sampling unit used today, the CMDPSU, and until such time as the PDM can safely perform these functions it's the Union's recommendation that the existing units be used only for sampling silica, designated area sample or, if modified for other exposures, other than respirable coal mine dust; for example, diesel particulate matter and things such as that. The Union insists that this rule defines and is made clear that all mine operators, large or small, will be required to use the PDM as a means for sampling and compliance of respirable coal mine dust exposures for miners and the mine environment. This is even more important noting that NIOSH's hot spots that have been recognized are mostly small mines where we see these increased cases. The Union also recognizes that 30 C.F.R. Parts 70, 71, 90 will need to be revised prior to the use of the PDM, and we look forward to offering our comments when the time occurs in the proposed rule of its own. As I have stated to you in my opening, I've served as UMWA International Health and Safety representative for 14 years, the last four years of that time as the Administrator of the Department. I choose to let Thermo, who is the experts of the equipment, speak on the technicality of the PDM, but let me now speak to you as an individual who worked as an experienced underground coal miner for close to 20 years prior. You're looking at an individual who had to wear the existing gravimetric pump and has been subjected to the system we now have in place today. And although it served its purpose in helping to control and reduce black lung and eliminate some dust exposures, the system and the manner in which we do sample for dust today is broken. For years you've heard from miners across this country like myself who have told you that the manner in which coal dust samples are currently taken is not effective. We've testified in years past begging MSHA to come up with a better way to sample miners for coal dust mine exposure. We went through a period of time when sample cheating and fraud occurred throughout parts of this industry, and I'm sure they still occur. We've testified on when MSHA came in to sample these days were not a true indication of the conditions that we actually worked on a day-to-day basis. We've told you how production is cut back to qualify for a valid sample, how outby roads are watered when they normally aren't, how more time is taken to change bits and change bits more often, how changing water sprays occurs more often, how the ventilation controls are tighter, and we've even seen cases where the air is maxed out only on sample days, but not maintained after the sampling is over. To this, this is nothing more than a legal way to cheat and beat the system. The stories go on and on and on on how miners have lost faith in the system as we know it today. Again, we have seen a rise in black lung cases, many new cases of younger miners with fewer years in the mine than one would expect for having the progressive stages of black lung we are saying, yet rather than focus on stopping the killing spree the focus is centered in a debate of whether it's coal dust or silica, whether it's a regional issue, if it's extended shifts with less time to purge the lungs. And although there has been some debate also, the lack of MSHA's enforcement under the Bush Administration, and that's why it's allowed to surface now. Although these debates need to occur so that we may understand why, it's time to focus more on a way to fix the problem. Today is the beginning of a new opportunity to do that. Today MSHA has a chance to provide miners with a tool that will allow us to correct and reduce our exposures as they occur. Real time measurement and projected exposure will be at our fingertips. Currently we have to wait sometimes for our sampled results after MSHA's five days of samples. Samples are sent back to a lab to be analyzed. The samples are averaged out, which I think is a crock in itself. Then the results are sent back to the mine where they're supposed to be posted for review. But guess what? It's too late. We've already been exposed. We can't fix what's happened, and by the time the results are processed we forget all about being sampled so in a lot of cases we don't even look at the mine bulletin board for our results. And if we did look, most of the time they're buried under motorcycle or 4-wheeler ads for sale. The PDM will change this madness. The PDM will empower miners and mine operators with the ability to take corrective action immediately and on the spot. Miners will wear these for their entire shifts, not just six hours being sampled, three hours if we're lucky during production time. We've done a fairly good job in putting protection in place to protect miners' safety. The approval of the PDM will be a step forward in putting protections in place to protecting miners' health. I'd like to offer one more comment if I may as a follow-up to the question that you asked Linda about the 16 hours. MR. DISTASIO: Go ahead. MR. O'DELL: That comes into play a lot of times when miners work vacations and when miners are on the weekend warrior crews. Sometimes these miners do work, counting their travel time in and travel time out, 16 hour shifts so it's out there more often than what you think. We believe that during a phase-in period of time that surely -- I mean, Eveready does wonderful jobs with their batteries now and small and how long they last. I'm sure we can come up with a manner to find a battery that will not be overburdensome or overweight to miners, so that's why we would like that looked at. MR. DISTASIO: If you could supply some data on the 16 hours we'd appreciate it. MR. O'DELL: Sure. Yes, sir. MR. DISTASIO: Thank you. Any other questions? (No response.) MR. DISTASIO: No. Thank you. MALE VOICE: That was painless. MR. DISTASIO: All right. Is there anybody else that wants to make a statement? (No response.) MR. DISTASIO: It doesn't appear to be, so that concludes our hearing today. Thank you for attending, and we appreciate your comments. (Whereupon, at 9:53 a.m. the hearing in the above-entitled matter was concluded.) REPORTER'S CERTIFICATE DOCKET NO.: -- CASE TITLE: Public Hearing HEARING DATE: July 8, 2009 LOCATION: Arlington, Virginia I hereby certify that the proceedings and evidence are contained fully and accurately on the tapes and notes reported by me at the hearing in the above case before the Mine Safety and Health Administration. Date: July 8, 2009 John DelPino Official Reporter Heritage Reporting Corporation Suite 600 1220 L Street, N.W. Washington, D.C. 20005-4018 TRANSCRIPT OF PROCEEDINGS HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 600 Washington, D.C. 20005-4018 (202) 628-4888 contracts@hrccourtreporters.com 42 Heritage Reporting Corporation (202) 628-4888 43 Heritage Reporting Corporation (202) 628-4888