U.S. DEPARTMENT OF LABOR + + + + + MINE SAFETY AND HEALTH ADMINISTRATION + + + + + DIESEL PARTICULATE MATTER EXPOSURE OF UNDERGROUND METAL AND NONMETAL MINES + + + + + PUBLIC HEARING + + + + + THURSDAY SEPTEMBER 18, 2003 + + + + + ST. LOUIS, MISSOURI + + + + + The Public Meeting was held at the Renaissance St. Louis Airport Hotel, 9801 Natural Bridge Road, St. Louis, Missouri, at 9:00 a.m. I-N-D-E-X Ed Elliott, Director of Safety & Health Rogers Group, Incorporated . . . . . . . . . . . .14 R. Dana Boyd, Location Manager Rogers Group, Incorporated . . . . . . . . . . . .27 Steve Castleberry, Regulation Manager Mississippi Lime Company . . . . . . . . . . . . .48 Ed Elliott, Director of Safety & Health Rogers Group, Incorporated . . . . . . . . . . . .53 Mark Eck Springfield Underground. . . . . . . . . . . . . .60 P-R-O-C-E-E-D-I-N-G-S (9:00 a.m.) MS. SMITH: Good morning. My name is Becky Smith. I'm the Deputy Director of MSHA's Office of Standards, Regulations and Variances. And on behalf of Dave Lauriski, the Assistant Secretary of Labor for Mine Safety and Health, I would like to welcome all of here this morning. The purpose of this hearing is to obtain input from the public on the proposed rule published in the Federal Register on August the 14th, 2003, addressing diesel particulate matter exposure of underground metal and nonmetal miners. I would like to introduce to you the panel members who are with me here today. On my left is Jim Petrie. Jim is the Chairman of the Diesel Particulate Committee, and is from MSHA's Metal and Nonmetal Northeastern District. Doris Cash is from MSHA's Metal and Nonmetal Organization. John Kogut is from MSHA's Office of Program Evaluation and Information Resources. On my right is Deborah Green. Deborah's from the Solicitor's Office for Mine Safety and Health. And George Saseen is from MSHA's Technical Support Organization. There are other MSHA staff members with us here today, who might participate with questions later on in the hearing. This hearing is being held in accordance with Section 101 of the Federal Mine and Safety and Health Act of 1997. As is the practice of this Agency, formal rules of evidence will not apply. Therefore, cross examination of the Hearing Panel will not be allowed, but the Panel may explain and clarify provisions of the proposed rule. As Moderator of this Public Hearing, I reserve the right to limit the amount of time each speaker is given, as well as questions of the Hearing Panel. Those of you who have notified MSHA in advance of your intent to speak, will be allowed to make your presentations first. I will call speakers in the order that requests were made, and following these presentations others who request an opportunity to speak will be allowed to do so. We allow all interested parties to present their views at this hearing, and if you wish to speak, please sign in at the registration table. We will remain in session today, until everyone who desires to speak has an opportunity to do so. Also, if you are not signing up to speak today, we would like for you to sign the general sign-in sheet, so that we have an accurate record of attendance at today's hearing. We will accept written comments and data at this hearing, from any interested party, including those that are not speaking at the hearing. When I call on you to speak, please come to the speaker's table and begin your presentation by identifying yourself and your affiliation, for the record. If you have a prepared statement or any supporting document for the record, please leave a copy with us. You can give written comments on this hearing to us today, or you can send them to MSHA's Office of Standards electronically by facsimile, by regular mail or hand- delivery, using the address information listed in the Hearing Notice. In addition to this hearing today, there was a hearing in Salt Lake City, Utah, on September the 16th. And there will be two other hearings, in Pittsburgh, Pennsylvania on September the 23rd, and in Arlington, Virginia on October the 7th. The post- hearing comment period will end on October 14th, and submissions must be received on or before that date. A verbatim transcript of this hearing will be made as part of the record, and it will be posted on MSHA's web site. If you would like a copy sooner, you can make your arrangements with the court reporter; that information is available at the registration table. We will take a lunch break around mid-day, and short breaks during the morning and afternoon, as needed. Before we begin, I would like to give you some background information on the proposed rule we are addressing today. On January the 19th, 2001, MSHA published the Final Rule addressing the health hazards to underground metal and nonmetal miners from exposure to diesel particulate matter. The rule establishing new health standards for underground metal and nonmetal miners, by requiring use of approved equipment and low sulfur fuel, and by setting an interim and final concentration limit for diesel particulate matter in the underground mining environment. MSHA established staggered effective dates for enforcement of the concentration limits. The interim concentration limit of 400 micrograms per cubic meter of air of total carbon, was to become effective on July 20, 2002. The final concentration limit of 160 micrograms per cubic meter of air total carbon was scheduled to become effective January 20, 2006. On January 29, 2001, several mining trade associations and individual mine operators challenged the final rule, and the United Steel Workers of America intervened in the case, which is now pending in the District of Columbia Circuit. On July 5, 2001, as a result of Phase I Settlement Negotiations, MSHA published two notices in the Federal Register. One notice delayed the effective date of Section 57.5066(b), related to tagging requirements of the maintenance standard. The second notice proposed a rule to make limited revisions to Section 57.5066(b), and added a new paragraph to Section 57.5067(b), regarding the definition of introduced in the engine standard. The Final Rule was published on February 27, 2002. Phase II of the Settlement Agreement was reached in June 2002. Under the agreement the interim concentration limit became effective on July 20, 2002, without further legal challenge. Mine operators had one year to develop and implement good faith compliance strategies to meet the interim concentration limit. MSHA agreed to conduct compliance assistance during the one year period. MSHA also agreed to reenter rule- making on several other disputed provisions of the 2001 Rule. The legal challenge to the rule has been stayed, pending completion of the additional rule-makings. On September the 25th, 2002, MSHA published an Advanced Notice of Proposed Rule-Making. MSHA noted in the Advanced Notice that the scope of the rule-making is limited to the terms of the Settlement Agreement and addresses MSHA's intent to re-propose the interim and final concentration limits. On July 20, 2003, MSHA began enforcing the interim final limit of 400 micrograms. The Agency's Enforcement Policy is also based on the terms of the Settlement Agreement, and was discussed with the litigants and stakeholders on July 17, 2003. The Enforcement Policy is written into the Compliance Guide and both the Compliance Guide and a Program Policy Letter are posted on MSHA's web site on the sole source page for diesel particulate matter. On August the 14th, 2003, MSHA published its proposed rule, which would accomplish four things. (1). Revise the interim concentration limit measured by total carbon, to a comparable, permissible exposure limit measured by elemental carbon, which renders a more accurate diesel particulate matter exposure measurement. (2). Increase flexibility of compliance by requiring MSHA's longstanding hierarchy of controls at metal and nonmetal mines, but prohibit rotation of miners for compliance. (3). Allow MSHA to consider economic, as well as technological feasibility in determining if operators qualify for an extension of time in which to meet the diesel particulate matter limits. And fourth, simplify requirements for diesel particulate matter control plan. Jim Petrie now, who as I mentioned, is the Chairman of the Diesel Particulate Committee, will give us an overview of the proposed rule, and afterwards I will begin calling speakers. MR. PETRIE: I am going to stand up and do this. I've got to wake up my computer, first, it's asleep here. This is just a brief summary of the rule. It compares the requirements in the existing rule, with those that we are proposing to change. There's only about ten slides total, so it will go pretty quick. But, if you have any questions as I go through this, just speak up and ask them, and I will be glad to clarify any of the proposal requirements. These are the sections in the existing rule that the proposal addresses. It's the interim limit, the special extension, or the extension of time requirements, exception to the diesel particulate limits. What that is, in the existing rule there is a Section 5060(d), that allows or requires the use of respirators under certain circumstances, when performing maintenance inspection repair activities. Section 5060(e), which prohibits personal protective equipment, except under 5060(d). And then, the prohibition on the administrative controls and the control plan requirements. Under the interim limit the existing rule is based on a 400 micrograms per cubic meter limit. We are proposing to change that to 308 micrograms per cubic meter. And that is derived from taking the 400 and dividing it by 1.3. The 1.3 was a factor that came out of the Settlement Agreement. In addition, we would be applying error factor of 1.12 to that. So we wouldn't take enforcement action unless the concentrations were above the error factor, times the proposed limit. The existing rule was based on a total carbon surrogate. The proposal will change that to an elemental carbon surrogate. The existing rule is also based on a concentration limit, and we're proposing to change that from an environmental or concentration limit, to a personal exposure. The final limit is not addressed in the proposal. The Agency feels it needs more time before it can address any possible revisions to the final limit. And that will be addressed under separate rule-making. The special extension requirements, or the extension of time requirements under the existing rule, that would apply only to the final limit. Under the proposal we would apply that both to the interim and the final limit. Under the existing rule it can only be considered, -- you can only consider technological constraints. Under the proposal we would allow consideration of both economic and technical constraints. The existing rule limits the number of extensions to one, of not more than two years in duration. And we would propose to change that to no limit on the number of extensions, but they would have to be renewed each year. We wanted to go into a little more detail on some of the control requirements. Under the existing rule operators would have to require to use engineering controls or work practice controls to come into compliance, with the exception that rotation of miners would not be allowed. Operators would also have to obtain approval under the existing rule, before using personal protective equipment or respirators for maintenance inspection repair activities. When respiratory protection is used, it would have to meet the requirements of MSHA's metal, nonmetal existing air quality standards, which incorporate ANSI Z88.2, 1969 by reference. The proposal, it's very similar. It's mainly a difference in semantics. But under the proposal operators would be required to use feasible administration and engineering controls. There would still be a prohibition on rotation of miners. You would be required to use personal protective equipment or respirators, if controls are unfeasible. The Respiratory Protection Program requirements would be based on MSHA's existing air quality standards. And the only addition to the respirator requirements would be that the proposal specifies the types of filters that could be used. On rotation of miners, to elaborate a little bit more on that, the existing role, as I've said, prohibits the use administrative controls, but it uniquely defines administrative controls as rotation of miners. So, any other type of work crafting controls would be allowed under the existing rule, such as changes in the length of shift, restrictions on engine idling, any type of administrative control requirements, other than rotation of miners, would be permitted under the existing rule. The proposal is similar. The proposal would still prohibit rotation of workers, but allow any other administrative controls to be used. The proposal does not include any provisions on medical evaluation of respirator wearers or transfer of miners that cannot wear respirators. But we're asking for comments during these hearings in regards to those particular issues. On the Diesel Particulate Matter Control Plan, under the existing rule it's triggered by a single violation. It requires verification monitoring, and it would be in effect for three years from the date of the violation. The proposed rule would require that controlled plan be triggered if the mine is not in compliance within ninety days of the citation. There is no specific verification monitoring, and it would have to remain in effect for one year after the citation is terminated. And lastly, there are conforming changes in other sections of the rule. For example, there is another provision in the rule that talks about concentration limits. A conforming change would be changing it from concentration to personal exposure. And similarly, another section of the rule talks about total carbon is a surrogate that would make a confirming change to use elemental carbons. So, there is some minor conforming changes throughout other sections of the rule. And then MSHA does have its Compliance Guide and Program Policy Letter on its web site under the dpm single source page, along with a host of other information on diesel particulate regulations, control, filters, a whole host of issues. Any questions? (No Verbal Response) MS. SMITH: Thank you, Jim. We had a previous request to speak today, from a representative of the Marg Group. Is there anyone here today from that organization? (No Verbal Response) MS. SMITH: All right. Then our first speaker signed up today is Ed Elliott. ED ELLIOTT - DIRECTOR OF SAFETY & HEALTH FOR THE ROGERS GROUP MR. ELLIOTT: I suppose you want me to sit here? MS. SMITH: Good morning. You may. MR. ELLIOTT: There's nothing attached electrically or anything? (Laughter) MS. SMITH: Not that we'll tell you about. (Laughter) MR. ELLIOTT: That's what worries me. Thank you. I'll try to make this quick. MS. SMITH: Good morning. MR. ELLIOTT: Good morning. Thank you for the opportunity to present comments on the proposed Dpm Rule. My name is Ed Elliott, and I am Director of Safety and Health for Rogers Group, Incorporated. We are the largest privately held stone producer in the United States, and the seventh largest producer overall. First and foremost, let me say we support protecting miners from over exposure to dpm. Developing guidelines or rules governing exposure must be based on sound science, and also done in such a way that there is widespread confidence in the process used to do so. On January 19, 2001, a final rule was released on dpm. In my estimation, this rule was rushed out because it was realized that it would never stand on its merits, based on objective scientific review. Numerous points support this view. (1). A NIOSH/NCI Study was commissioned to research possible health effect of dpm and is not yet complete. Second, confounding factors such as oil mist, cigarette smoke, et cetera, were not fully considered. (3). Sampling procedures and equipment had not had sufficient testing. (4). Analysis procedures were not thoroughly developed, nor had they been proven accurate. Economic feasibility was not accurately considered when taking into account the real world application of the recommended technology, or the practical use of associated methods to reduce dpm. There are other shortcomings, but these demonstrate my point. Another aspect of the process that concerns me not only as a miner, but as a taxpayer, is the fact that there appears to have been little or no coordination between Government agencies. In particular, the EPA has done extensive work on the dpm issue. This rule will, in my estimation, is not already, result in duplicative efforts and possible conflicting results. In addition, it appears that NIOSH is now undertaking research on dpm that should have been done prior to the January 19, 2001 rule. The question begs asking, is the current research looking to justify a flawed rule, or are they truly seeking the scientifically valid answers? Speaking of science, I would like to make comment on the scientific studies I have read concerning the health effects of dpm. First, I want to emphasize I am not a scientist nor a professional researcher. But through my education and training I am able to understand the process and interpret results. I have read many studies on dpm and the related health effects, and I could, if I wanted, select a study that supported opposing points of view. In determining the scientifically valid position on the health effects of dpm, it appears to me that there's no consensus on this point. Even though I might cite a valid study that would refute the need for this regulation, I recognize that there are studies that point to a need for exposure limits. For this reason is it clear we need more research to accurately determine both short and long-term health effects, if any. MSHA is in somewhat of a quandary, in that they are not a research agency, and must rely on others to provide information that guides their rule- making, they have highly qualified personnel within the Agency who review research and make recommendations. In the case of the Dpm Rule one important aspect of the January 19, 2001 rule may have been influenced by a clear conflict of interest on the part of a MSHA staff member. This staff member was directly involved in the writing of the Dpm Rule, yet at the same time, was on the ACGIH Committee responsible for recommending the dpm threshold limit value of 160. This alone, casts a shadow over the process. Government must have the trust of the people that it will do what is right regardless of personal beliefs, and will maintain the highest level of objectivity. Now I would like to comment on the specifics of the proposed rule. We support the use of elemental carbon as the measurement criteria for dpm, and in principle, support the 308 equivalent, if that is the correct calculation formula. The option of requesting additional time to come into compliance through application for a special extension, is fair and appropriate. The requirement for the application to be on file thirty days prior to the date of application, seems unnecessarily burdensome, and the requirement of providing a copy in the same time frame to the authorized miner's representative, equally so. It seems sufficient that a copy be made available to the representative of the miners on the date the application is submitted. It would also seem appropriate to post the application on the mine bulletin board for a time necessary, for all miners to have the opportunity to view the application. The contents of the application are reasonable, but the requirement to post a copy for the duration of the extension, is burdensome and subject to factors beyond the control of the operator, such as the posting being inadvertently removed or lost, with potential penalty to the operator without any practical reason. A copy of the approved application should only be made available to the miner's representative. The use of PPE, such as respirators, is the correct approach, but provisions should be allowed for other technology innovations that would achieve the same or greater level of protection. The determination of compliance when using new technology should be done with respect to the direct effect of that technology. Rotation of miners should be considered as an acceptable means of compliance, until definitive scientific research would dictate otherwise. This is an acceptable means of compliance with other health- related rules, and this rule is no different. Although recent rulings have allowed MSHA to use single samples to determine compliance with other health rules, I believe it is a fundamentally flawed approach. There are many human and equipment factors that could affect the reliability of single samples. Especially when taking into account the major ramifications triggered by this single sample event. At a minimum, at least one follow up sample should be taken to verify the first. In particular, the provision requiring the operator, once receiving a single citation, to establish and implement a written control plan, and maintain that plan in effect for one year after the citation is terminated, is an unnecessary burden. Once the operator has come into compliance with the standard, they should not be required to follow a plan which may or may not have been the factor in compliance determination. The requirement of the operator to perform monitoring as often as necessary is unclear. And since operator sampling has no impact on compliance, it seems unnecessarily burdensome. If this sampling were to be considered in compliance determination, then this provision would be appropriate. In addition, the associated provision of a posting of corrective action resulting from the operator sampling determination of over exposure, is an unnecessary paperwork burden. This in and of itself, would motivate the operator to reduce the sampling frequency due to the onerous requirements. If there were not paperwork requirements, quite the contrary could be the case. The record keeping requirements are unnecessarily burdensome, and would result in possible violations which have no direct bearing on miner health. The approved extension application and the control plan provisions are reasonable. Purchase records of sulfur content of diesel fuel beyond that being used at the time the testing takes place, is unnecessary. The maintenance law retention beyond the correction of the noted problem, is unnecessary. Competence to perform maintenance evidence is unnecessary because the results of the maintenance are proof of competence. Annual training of exposed miner's retention of records, should follow existing Part 48 requirements. Retention of records of corrective action requirement, is reasonable. Sample detail used by the operator, as long as the sampling and analysis procedures are according to accepted standards, is unnecessary. Results of sampling done by the operator should be maintained at the operator's discretion. Because of the difficulties encountered in the use of currently recommended filters, there should be consideration given to extending the deadline for compliance with the 400 or 308 limit. I also believe that the final 160 level should be withdrawn for the reason I noted in my earlier comments. A lower exposure level should await further research to determine the validity of any lower level. Also, I would like to comment to the fact that I believe litigation is not the way to develop regulations; with all due respect to Ms. Green, as an attorney. MS. GREEN: Thank you very much. MR. ELLIOTT: The current MSHA leadership was not responsible for the regulation which made litigation necessary, and they have the opportunity to establish the standard that no health rule will be promulgated unless based on independently verifiable scientific research. Finally, I want to state that MSHA has demonstrated a clear interest in seeking to do the right thing with this process. And those persons involved in the January 19, 2001 rule were sincere in their efforts to put forth the best rule they could by the deadline imposed. But time has shown that in their haste to produce, the inevitable flaws were not addressed. Today, you have the opportunity to correct the clear problems in this rule. And I thank you for the opportunity to speak. And any questions? MS. SMITH: Thank you, Mr. Elliott. Any questions of Mr. Elliott? Mr. Haney. MR. HANEY: As Bill Pomroy and I have been going around giving compliance assistance to, -- on dpm to the stone industry, we've seen that the preferred method of control strategy has been ventilation, clean engines, environment cabs, -- THE COURT REPORTER: Excuse me. Could you please go the microphone to speak? MS. GREEN: And Bob, if you could clarify for the record, your identity, please? MR. ELLIOTT: He's covert operations. MR. HANEY: Bob Haney. I'm with MSHA's Dust Division. To start over, as Bill Pomroy and I have been going around giving compliance assistance to the stone industry, we've seen that the preferred method of compliance is to use ventilation, clean engines, environment cabs and work practices. And what I was wondering is, if any of your mines needed to use filters to achieve compliance with the interim limit? MR. ELLIOTT: The short answer is no. And I want to comment on that. We feel that based on everything that I've been able to read and understand, that filters have not been proven in the field, to be as effective as theoretically they should be. And there are, -- I know I've read even MSHA has done the research, and indicated that some of the filters in their catalytic action produced hazardous gases. And so, for this reason alone, we would be, -- we would use filters as the very last resort. And let me make a, -- also a comment also, about the support that the technical people within MSHA have done. They've come to our operations and have really done a heck of a job of trying to help us understand what we're doing, and the most effective measures. And I think MSHA has done an excellent job at trying to help people that have requested. Not only the technical people within MSHA, but the people in the field, the inspectors that have come out, the field supervisors, and so forth, have tried to be very cooperative and helpful anytime we've asked for it. MS. SMITH: Thank you. MR. PETRIE: This is Jim Petrie. Ed, you had mentioned that the rule should allow for new technology. With the exception of prohibiting rotation of miners, it would allow the use of any engineering controls, or work practice controls, without exception. Do you have examples of new technology that should be maybe specifically addressed in the rule-making, or, -- MR. ELLIOTT: One of the aspects of being, -- I'll answer your question kind of in reverse, I want to preface my answer. But in some respects a rule is developed, and then there may be a time down the road that that rule could be in existence for twenty or thirty years. And sometimes technology comes into play down the road, that wasn't considered, or provisions weren't allowed, and you're kind of trapped into using something that's in the rule. So, primarily, I'm seeking to have an appropriate language in the rule that would allow an inspector or MSHA in the future, to take into account technology that we might not know about, that could achieve the same or greater level of protection, without having to go back through the process of getting an, -- what do they call it, an exception, or you know, when they put in a request to get something approved. MR. PETRIE: Petition for Modification? MR. ELLIOTT: Exactly, a modification. And so, this way it might allow a way to reduce that necessity to do that, if there was a flexibility in the rule. Now, the technology that I have heard of, some of the filtering mask, or the pressure that actually have a forced air helmet, -- MR. PETRIE: Powered air purifying respirator? MR. ELLIOTT: You should be doing this testimony. You're right, that's exactly, -- I've heard some people, -- we've experimented with it one time in the past. MR. PETRIE: That would be permitted under the proposal, as long as it had the proper filter in it. MR. ELLIOTT: Right. MR. PETRIE: And you can get those with the appropriate filter. MR. ELLIOTT: Yeah. And right now we know of those being readily available, but having some appropriate wording, -- MR. PETRIE: Let me clarify that. It would be permissible as respiratory protection, not as an engineering control. MR. ELLIOTT: Right. And I understand, I'm not technically trying to get you to say something. We're on the same page, I just want to make sure. It's somewhat like I look at the Part 46 Rule, that allows flexibility to modify, without having to go through a detailed paperwork burden to get a change, same thing with this, is what I'm talking about. MS. GREEN: Mr. Elliott, if I could clarify just for the public's sake, that this is a health standard, and therefore the Mine Act does not allow a Petition for Modification. MR. ELLIOTT: Oh, that's good to know. Thank you. MS. GREEN: Only to the safety standard. MR. ELLIOTT: Okay, thank you. MR. PETRIE: That's all I had. Thanks. MS. SMITH: Thank you very much, Mr. Elliott. MR. ELLIOTT: Okay. Thank you. MS. SMITH: Our next speaker is Dana Boyd. R. DANA BOYD - LOCATION MANAGER ROGERS GROUP, INCORPORATED MR. BOYD: Good morning. Thank you for allowing me to speak. My name is Dana Boyd. I'm the Location Manager for Rogers Group, Bloomington Crushed Stone Facility of surface and underground mines. I've got several different aspects of things I want to speak to today, according to my personal beliefs and thoughts, as well as the stance from an organization. MS. SMITH: Mr. Boyd, could you move the microphone just a little closer to you? MR. BOYD: Okay. MR. PETRIE: I think we can hear you all right, but I don't know if the persons in the back can. MR. BOYD: Okay. I don't want to yell too loud, I've got a strong voice anyway. All right. Just to start out by saying first of all, I totally support a Dpm Rule to protect, not only the miners, but my fellow workers, from the over exposure to diesel particulate matter. I also support a single, expedited rule-making to promulgate the changes of MSHA's diesel rules, including adoption of MSHA's diesel exposure limit, and also a final limit that is acceptable to the industry, as well as MSHA. I also support parts of the current rule in effect that favors the continued dpm research, especially in health effects and feasible controls and exposure limits, as well. As we all know, on January 19, 2001, the Dpm Rule was more or less rushed out the door, and there were several things that were just, in my personal opinion, stuck into the rule at the last minute, without sound data backing and supporting the rule. One being the 160 Rule; micrograms per cubic meter that was put into effect there. My personal belief is that we can meet the 400 micrograms per cubic meter rule in our existing structure, mining strata, and things of this effect. I do foresee issues in the future meeting the 160 Rule. With technology that is being developed daily, not only with the diesel engine manufacturers, but ongoing research. Who was to ever think that we would have purification systems on board twenty years ago, and engines that actually run without any kind of visible emissions. I mean technology over the last ten, fifteen, twenty years, has just changed dramatically. Research needs to be done, and continue to look for feasible engineering controls to help us meet these regulations. Not only on the part of the mining aspect, as far as the miner, or the industry in general, but as far as the mine equipment manufacturers. A couple of things that have happened because the regulation was more or less rushed out the door on the last day, in my perspective, mine operators experienced several difficulties in complying with the existing regulation. This in effect, -- I'll only read through a few of those that I've noted here. A measurement of total carbon was used in the regulation as a surrogate for dpm. Other carbonatious sources in the mine, including cigarette smoke, oil mist, and things of this effect, plus basic carbon in the rock structures that we mine, the mining strata, were not really given consideration. Several pieces of our equipment in the underground mine; relating to oil mist I'm speaking to now, utilized oil mist as means of lubrication and controls to not help eliminate the possible hazard of a fire, but lubrication of the controls to make certain the equipment runs properly. And one of the things that the oil mist actually contains in it, and several different types of oils that we utilize, is carbon. One of the items that really concerns me, as I go forward and I look at the existing equipment we have on board, the technology today, and example, my underground drills. The drills that we utilize have several different types of hydraulic oil and the oil actually comes out of the hammers that actually drills the blast holes underground. The oil is put out in a mist spray. And that mist spray as it's entered onto the slide mechanism of the drill unit, -- it's doing that for two different reasons. One is the lubrication device for the hammer on the drill, but also, to keep the heat down in the drill. And the reason being, with a diesel engine, -- which this drill is actually a diesel engine-driven drill, the diesel engine needs to run at a consistent temperature, and fluctuations back and forth with drilling speeds, temperatures, how fast we drill in the mine, things of this effect, can affect the operating temperature of that drill. As the operating temperature of that drill fluctuates, due to friction loss, and things of this effect, we're actually generating heat. The heat itself, good, bad or indifferent, technology shows that with the generation of heat the engine is under a strain. And anything outside of the normal aspect of the engine's normal operating temperatures, can cause different fluctuations in diesel particulate matter exposures. The operator of the drill is in a environment cab. Even with ventilation at the face of the mine there are residues left by, that's actually from the oil mist and sprays, that can be left on the mine wall, for instance. And throughout the day the ventilation of the mine, whether they're using forced air ventilation or natural ventilation, these carbon fragments, or elements, can actually be picked up and carried throughout the mine, affecting other miners. So, I think that when you consider the overall evaluation of the carbon exposure, they really need to research a little bit more on the elemental carbon aspect of things. I've seen the proposed rule, and I agree with some updates on that. I'm not an industrial hygienist by any means, but I understand my equipment, and how to run it, and how to work it. But I really need more investigative research and data to support the existing findings of MSHA. MSHA's position in support of diesel exhaust filter technology as a feasible compliance method, is inconsistent with the position of diesel engine manufacturers across the board, that I've spoken to. These manufacturers that I've spoken with, such as Catapiler, Komatsu, Cummings, Detroit, things of these effect, -- it's amazing, everyone's got their own opinion. I mean that's what makes the world go around, diversity in action. It would be nice if we could all agree on a common goal there, with what technology is available; what emissions will be available to be met. We understand that EPA has got different Tier Regulations, Tier 1 through 4, that they are looking at right now. The different requirements the engine manufacturers are coming out with, are to meet, whether it's Tier 3 or Tier 4, they're in the process of putting together technology to meet those requirements now. We need to make certain that the engine manufacturers are well aware of our requirements, but also have a say so in what technology is available to meet these requirements. I know there were several engineering controls, -- technology, that was developed. I believe there is a platinum filter-based catalytic controlled catalyst, that was installed as a, -- I believe the recommendation from MSHA. But it was learned later by the mine operators that these catalyst, platinum-based catalyst, generated several toxic or hazardous gases, such as nitrogen dioxide, was actually in excess of the existing MSHA standard. So, as I go back to stating, the data should be reviewed. We need to research this. I feel that the platinum-based catalyst was stuck out there as a knee-jerk reaction, as some way to comply, not really looking at the cause and effect syndrome. The cause and effect being, well, here is something that will help you, but in return, it causes another effect to happen. Which is probably actually worst than the dpm itself, being the nitrogen dioxide. I personally believe that we have had a failure to coordinate regulations with other agencies, being NIOSH, and also, the National Institute, -- or Cancer Institute, NCI. As far as the information that they've permitted, everything seems to be up in the air right now. MSHA rules don't become fully effective for existing equipment manufacturers until late 2014, on regulations for the dpm. There are several concerns that I've got. We see ongoing lawsuits. Through lawsuits, I don't believe anyone wins, except for the attorneys, who have job security through litigating the situations. I'm really concerned about that aspect, not only as a miner, but a taxpayer. I don't believe in the Government spending ruthless dollars just to make regulations, or throwing good money into a bad situation, when no one really understands what the final outcome will be. We've had several lawsuits that were actually initiated after the rule went into effect. I support provisions of the rule that are currently in effect. I also support MSHA rule-making to change the measurement of elemental carbon, which is subject to fewer filing interferences. I also support reasonable extensions of time without penalty, to abate these exposures over standard limit for operators, who demonstrate good faith efforts in attempting to reduce the dpm exposures. Several operators are not fortunate to be a part of organizations such as the National Stone, Sand and Gravel Association, and our other organizations such as that, that communicates the information. I'm sure just like Part 46 when it rolled out, there were several operators in them that I'm sure MSHA still sees today, that even though they get mailings, and things of this effect, they are not really in compliance with Part 46. And they are unaware of what the standard actually is. Yes, that is in some ways, an excuse for them, but it's not, it's the law and we have to abide by it. I'm a firm believer that we need to partner and work together and find a common solution. One nice thing with Part 46 was the Partnership Agreement with several organizations to come to an agreeable regulation that not only MSHA, but the industry could agree to. And it has, I believe, worked well. EPA has stated that research literature does not now support establishing specific occupational exposure limits to dpm. MSHA has adopted its pell (phonetic), with inadequate sympathetic risk assessment; my personal belief. Based on existing data, the Agency has no credible science, based on the information to date, to set a pell. Ongoing studies by NIOSH, as well as the National Cancer Institute, and others, once compiled, should inform the public of what those standards should be. And I believe just putting a permissible exposure limit out there, without the sound science to support it, is doing one of two things. One, it's really not sound science. Two, it's going to be causing more lawsuits, litigation, things of this sort, going forward, due to the fact of it not being sound science. This is kind of an overview of my recommendations. MSHA should immediately initiate a single expedited rule to adopt the needed changes outlined, including deletion of its 2006 permissible exposure limit, the 160 Rule. I believe that MSHA should partner with the industry and several organizations regarding diesel technology. And research feasible engineering controls, as well as future modifications to existing equipment, to possibly even beat the 160 Rule that they have put into effect. I would love to see that happen, but right now, realistically, as our minds progress, I don't see us being able to meet those limits. I personally believe that worker rotation should be allowed as an administrative control, to comply with not only the existing pell, but to reduce the dpm exposure overall. One of the things that I am personally concerned about, not only being from a large company, but industry in general. I mean to be in business we have to be competitive, and we have to make margin. We all need to be held to the same standards. One of the things that I have seen in several aspects of my career, is not everyone is treated fairly. You now, you've got the small mines initiative, I guess it's mines smaller than five individual employees, they're given different leeway to meet regulations. I personally believe that everyone, regardless of what the situation is, has to abide by the same rules. My interpretation of this, well, it's just like the speed limit. And the speed limit may be 55 miles an hour, and it doesn't matter if you work for the largest company in the world, or the smallest company in the world, that is the speed limit and that is what you need to abide by. So, rules need to be fair and consistent to all, but they also need to be able to be met by all. I also believe that the paperwork requirements of the regulation are somewhat burdensome and should be scaled back to comply with not only the Paper Reduction Act, but the Bush Administration's mandates to minimize such requirements on businesses. The more we do, the paper trail, if you say, the duplication of reports, it gets somewhat burdensome. And the last thing I want to do is as a mine operator, is to get cited for not having something posted on a bulletin board that someone may have pulled down, or deteriorated over time, -- you know, someone watching. You know, we need to pay attention to these opportunities here. The reckless lack of health effects data, in my opinion, significantly supporting the final rule, we need all underground dieselized mines to implement feasible engineering controls to help us meet the goal of the 400 micrograms per cubic meter rule that is in effect. And I also believe that MSHA once established, -- whatever the final pell is going to be, needs to implement and put out an additional update to the Diesel Particulate Matter Exposure Guide to update these engineering controls, to help the industry in general. And provide additional training and field support for that. I know for a fact, it's difficult right now within MSHA, the training and field support is difficult to get. I've asked on several occasions, and I am happy to say that I am getting support now from Tech Support, to come out and add technical support to my facility for ventilation, which is a key aspect of this. It's difficult to, -- especially for me, to see the trainings that are available. I can pick up a phone and ask questions and get responses, going about finding proper training, of not only the Diesel Particular Rule, but in understanding the different types of training that is available on, not only the maintenance and upkeep of ventilation, things of this effect from the underground. You know, there are several different technologies that are out there, best practices, and I think those best practices need to be communicated across the industry in general. Due to the fact, that someone in Wyoming may be doing something that will work excellent for me in Indiana. I'm not aware of that. And MSHA being the regulatory agency, I think should do, personally, a better job of communicating those best practices. I'm happy to say that there are some best practices going out relating to some of the recent safety and training movements that we've had in the industry, and we're seeing better communication, not only with e-mail, but the web page as well. But just to continue to communicate that information. But, like I said, I fully support the dpm rule in the existing fashion. I am not in support of the 2006, 160 Rule. And I really wish that MSHA would look at sound science and data to come to an actual exposure limit that we can all work with. Thank you. MS. SMITH: Thank you, Mr. Boyd. Questions of Mr. Boyd, by the panel? John. MR. KOGUT: You indicated that the EPA had made a statement saying that the existing health effects evidence doesn't justify setting an occupational limit? MR. BOYD: Yes. The information I've read upon, EPA is using a lot of the information generated from MSHA, as well as what's out there in the market, as far as existing technology. EPA when they are setting material level requirements, Tier 1 through 4, there's, in my opinion, a misrepresentation. They are not really communicating amongst agencies, to see what is available or what is going on. The right hand doesn't know what the left hand is doing. And I really think there needs to be more communication and understanding between organizations to see that. MR. KOGUT: My question was, do you have a specific reference to some place where somebody can, -- MR. BOYD: I don't have that with me right now. I'm sorry, I don't. Just some bullet points I put together, which the EPA, -- let me find my note here related to the EPA. One of the things that the EPA, -- I saw during my reading, that the EPA, which issued regulations in 2003, to phase-in requirements for off the road sulfur fuel, the emissions for off-road fuel, the EPA rules don't become fully effective until 2014, but there are several things going forward, data lines, to meet these regulations, that we have to make certain that we understand that EPA and MSHA need to work together as far as the diesel particulate matter for these mines. MR. KOGUT: Well, I'm just particularly interested in the statement you attributed to EPA, saying that there wasn't justification for having an occupational exposure limit. And if you can find a specific reference to that, maybe you could submit it later, for the record, before the close of the comment period? MR. BOYD: Yes. I don't have that information in front of me, I'm sorry. MS. SMITH: If you do have that, we would appreciate you submitting that for the record. That would be good. MR. BOYD: Okay, thank you. MR. PETRIE: I guess I just wanted, maybe, to clarify a point; that under the Small Mines Initiative there is no regulatory relief mechanism. Those operators would still have to comply with all the regulations that a larger operator would. However, it does offer compliance assistance to the small mines to help them better understand those rules and regulations, and comply. MR. BOYD: Jim, correct me if I'm wrong, but I believe just like with the HAZCOM Rules, things of this effect, there is different time lines in effect for these mines to go into effect. There was like, six months leeway, I believe. MR. PETRIE: There was a delayed effective date for small mines under HAZCOM. MR. BOYD: Yes. And my point to that fact is, that if we're going to be on the same boat, the standards need to apply across the board. MR. PETRIE: Okay. MR. BOYD: At the same time. MR. PETRIE: Thank you. MS. SMITH: Mr. Boyd, you made a recommendation about improved or different types of communication to the industry, about best practices. Can you give us some examples or some ideas that you might suggest for MSHA either to do more of, or differently, in terms of communicating that information to the community? MR. BOYD: Really, the manual that went out on diesel particulate matter, the exposure, was an excellent little tool to get started as a training device. One of the recommendations, -- I know there are several trademarks and copyrights what we have watch, that we don't infringe upon, but if some inspectors or industry officials visit different mines and see something that they are doing, that doesn't infringe upon those rights, just a brief little statement on the web page, or even sent out to the underground mines related to this, -- you know, if they found a different type of brattice cloth or something, that holds up the underground blasting, or just what's out there. You know, I try to read as much as I can in different trade magazines, and attend different trade shows, to see the technology and advances in equipment, supplies, things of that effect, but you really don't know what's there until you see something in action, how it's working out. But those kind of communications, handouts, mailings, e-mails, things of that effect, in my opinion, would help out. MS. SMITH: Okay. Are you aware of MSHA's new list serve capability on the web site? MR. BOYD: Yes, uh-huh (positive utterance). MR. SASEEN: You do mention best practices and tech supports have been varied. In working on a lot of best practices, you know, we've also worked exclusively, you know, worked with NIOSH on the Filter Guide. And you mentioned that maybe that's not being, -- are you aware of the best practices on the internet and the NIOSH/MSHA Filter Guide? MR. BOYD: We've read the Filter Guide, -- MR. SASEEN: Okay. MR. BOYD: -- and the information's that's there. I've got several concerns related to some of the filtering devices if you actually wear a respirator. My underground blasters, which we have to blast using electronic blasting, we're not allowed to use non-electric blasting due to the debris that's in the shot. I do have concerns as far as static electricity generated by some of these filter medias; that if a miner is wearing this, you know, it doesn't take but just a half a, -- in some cases, depending on the type of blasting cap used, very minute amounts of static electricity or straight current, to initiate these caps. And if I have blasters that are exposed with some of the type of filter media actually wearing some of the filters, through personal protective equipment, or some of the filter media that we have on our machines, and the cabs, and things of that effect, there could be, -- and this is what I am determining from some of my readings, the static can be generated by the air flows through this different media. And I am really concerned about that aspect of things. MR. SASEEN: I guess I didn't clarify myself. The Filter Guide that we're talking about, is a ceramic, that uses particular traps that are on the exhaust. And that was, -- we worked with NIOSH on that. MR. BOYD: I've read some information about that. I do have some concerns as well. Personal beliefs, -- as my background, I started fifteen years ago in the industry as a mechanic; went to school, got my degree. And one of the concerns with diesel engines, -- diesel engines are very efficient engines when maintained. Some of the ceramic issues is getting the exhaust gas hot enough to more or less remove the dpm. One of the nice things about a diesel engine is that a diesel engine in some cases, will run cooler. You know, I believe some of the information shows that the ceramic filters, after they get in the neighborhood of 300 to 380 degrees, before proper working; most of our engines run around the 200, 230 degree, and the exhaust gas that we have from the diesel engines, when properly tuned, using it also for fuel, and things of this effect, shouldn't have any problems meeting that. They're looking at re-burn units right now, I know, to generate extra heat to burn off these ceramic filters. But now it just goes back to the same thing that they were talking about the platinum- based filters, now you've got an excessive heat source on an underground engine that creates possibly, a fire hazard, if you're not aware of what the surrounding media, or set up on the machine is. And the last thing you want to do is to put something in the engine compartment of 380 degrees, and next to a hydraulic line, if the hose blows the next thing you know I've got a firing inferno on my hands, and I've got more miners exposed to carbon monoxide, fire hazard, explosion hazards, things of that effect, versus what the actual good of the ceramic filter did for me. That goes back to my comments about using the data, using technology to research the information that we've been presented, and utilize that to our best ability. But, it just, -- I personally believe that we have a lot of knee-jerk reactions going on right now. This will work for that; this won't work, because this happens. And we're not realizing that technology, root cause analysis, utilize the data, generate a sound solution. I personally believe that we have to research, and I don't believe that enough research has been done on this to make a final rule. MS. SMITH: Anymore questions? (No Verbal Response) MS. SMITH: Thank you, Mr. Boyd. We appreciate your testimony. MR. BOYD: Thank you. MS. SMITH: We have no other speaker signed up today. Is there, -- UNIDENTIFIED SPEAKER: Steve Castleberry. MS. SMITH: Do you mind if we take a brief break before we begin with your testimony? MR. CASTLEBERRY: Not at all. MS. SMITH: Okay. MR. CASTLEBERRY: But, my comments are very brief. MS. SMITH: Okay. Let's take about ten minutes, if you don't mind. We need to give the court reporter a little bit of a break. And we'll resume in about ten minutes with your comments, sir. (Whereupon, at 10:05 a.m., the hearing was recessed, to reconvene this same day, at 10:15 a.m.) MS. SMITH: Our next speaker is Steve Castleberry. STEVE CASTLEBERRY - REGULATORY MANAGER MISSISSIPPI LIME COMPANY MR. CASTLEBERRY: Good morning. MS. SMITH: Good morning. MR. CASTLEBERRY: I'll make my comments quite brief, so that you can all head back to your homes and families, and hopefully they aren't affected by the winds and hurricanes of the east. MS. SMITH: (Raises her hand.) MR. CASTLEBERRY: Oh, well good. We have a great supply of plywood here in the Midwest, if you would like to take a few cases back with you. MS. SMITH: It's getting through security is the question with the plywood. MR. CASTLEBERRY: Yeah. I often use my alias in meetings like this, as Bob Haney, with MSHA, but I see that won't work in this case. So, my real and true name is Steve Castleberry. I am the Regulatory Manager for Mississippi Lime Company. And we are a very large limestone, nonmetal, low silica, facility, located 60 miles south of here. MS. SMITH: Mr. Castleberry, do you mind moving the microphone a little closer to you there, please. MR. CASTLEBERRY: Okay. I would like to first start out by saying that we are extremely concerned with the health and safety of our employees, and particularly, our miners, and their exposure to diesel particulate matter. We've made some fairly significant changes in our operation, and we're fairly close to be in compliance with the lower limit, but the cost to get us below that limit, will be quite extensive. We first would like to openly support and endorse the Marg comments that were presented in Salt Lake City on September 16th. I understand council for Marg was unavailable to be here today, because he too, is bunkered down in his basement in D.C. Mississippi Lime Company, as I mentioned, is the largest underground nonmetal mine in Missouri. It's been operating since the 1920(s). We have a stable and continuous workforce, and as such, we were an ideal candidate for the NIOSH/NCI Study to evaluate the health effects on our miners. There is no direct evidence of any elevated cancer among our employees. We feel we have a healthy workforce. We have folks who have been there thirty, forty years, and they go on to have great lifestyles, and great lives in retirement. I guess the first comment that I would really like to make, -- and it's been heard hear already today, is that there is no definitive health study to link diesel particulate and lung cancer. We participated in the NIOSH/NCI Study, we've been following this for years, and the conclusions are being developed. We think it's premature to set a 160 limit, until those conclusions have been published, digested, and analyzed by technical folks, and you know, qualified epidemiologists and medical expertise. So, again, the mantra would be to defer the final limit until the conclusions of those health assessments have been published. As I view our mine, and what we're doing to protect our miners as they are working daily, -- and we have over fifty working sections, and different isolated areas. We have numerous vent holes to provide fresh air, but there are areas that may become a little bit stagnant at different seasons, at different times, depending upon the activity within the area. Our miners are protected with the latest environmental controls in the cabs, you know, pressurized with filtration systems. But the person on the outside is probably the one who would be exposed to the greatest amount of particulate. And those being the scalers, the roof bolters, -- actually, we don't have roof bolters, but the blasters, and blasters' assistants. And I would encourage that personal protection equipment be considered as an engineering control for meeting with the limit for those people, if it is determined that they are in a high concentration area. It seems prudent, and it's a good fix, it provides them the protection that they need during their day. And those are my remarks. Thank you for your time coming this way, and I wish you all a good trip home. MS. SMITH: Thank you, Mr. Castleberry. Are there questions from the panel? MR. PETRIE: Is your mine naturally ventilated, or you have mechanical ventilation? MR. CASTLEBERRY: We do both. MR. PETRIE: Okay. MR. CASTLEBERRY: We do both, but primarily naturally. We put forced air where need be, and then we have fans down in our operating phases as well. Just to sort of give you a reference, the mine is probably about 15 square miles, and our ceiling to mining height is about 100 feet. So, it's, you know, quite a huge bladder. MR. PETRIE: Thank you. MR. CASTLEBERRY: Thank you. MS. SMITH: Thank you, Mr. Castleberry. I have no other speakers signed up, is there anyone else, however, who would like to make a remark? MR. ELLIOTT: (Indicating.) MS. SMITH: Yes sir. MR. ELLIOTT: If I could come back? MS. SMITH: Mr. Elliott, yes. Mr. Elliott, would you reintroduce yourself, please. ED ELLIOTT - DIRECTOR OF SAFETY & HEALTH FOR THE ROGERS GROUP MR. ELLIOTT: Yes. Ed Elliott, Rogers Group, Incorporated. The question arose earlier, concerning a comment that Dana Boyd had made, with respect to a document, EPA document. And I have a copy of that with me. And what it is, it was review of the EPA's Health Assessment Document For Diesel Emissions, EPA-600/8-90/057D. It was a review done by the Clean Air Scientific Advisory Committee. And their report and accompanying letter, was dated February 4, 2002, and certainly would be subject to any changes that have occurred since that time. But, I think an important aspect of this report, is that this Advisory Committee, at that time, did not recommend acceptance of the EPA's Hazard Assessment Document for Diesel Emission. And I might read just one paragraph out of this, if I might. "Second, there was also substantial disagreement with the use of the descriptor highly, to modify the category likely, used to describe the potential human carcinogenicisity (phonetic)," -- well, yeah, "being a human carcinogen of environmental exposures to diesel emissions. The majority of the panel did not agree that the current level of confidence regarding the exposure response relationship from occupational exposures, warranted the discretionary use of the term highly, to describe the confidence regarding the cancer hazard from environmental exposures. The panel agreed with Agency's judgment that a quantitative estimate of unit risk for human lung cancer from environmental exposure to diesel emissions, could not be made with an adequate level of confidence at this time. And viewed the source of that lack of confidence as also conflicting with the characterization of hazard, as highly likely." And that was what, -- I think what he was referring to. MR. KOGUT: If I might just clarify two points. First of all, you raised the possibility, and indeed that possibility has been realized. That document has now been replaced by a later document, and they did approve the Hazard Assessment in 2002, I believe it was. The second point is that the discussion that you were alluding to, -- the point that I was asking about, was whether there was any statement that the EPA made, specifically relating to lack of sufficient health effects information to warrant setting an occupational standard. And that reference that you were talking about, really applied to whether there was sufficient justification from extrapolating health effect studies that had occurred in occupational settings, down to ambient levels, environmental standards, which, of course, are much lower. The estimates that I've seen, in the worst urban areas in the United States, the total dpm is of the order of 10 micrograms per cubic meter. That's total dpm, not elemental carbon or total carbon, but total dpm. So, what they were referring to there, is the justification for extrapolating the occupational studies, which occur at much higher levels, down to setting limits at those ambient environmental levels. And the discussion, particularly that you were talking about, was whether the conclusion, which in the draft of the Health Assessment that you were referring to, said that diesel particulate was highly likely to be carcinogenic at those ambient levels; talking about 10 now, whether it warranted saying highly likely to be carcinogenic, rather than likely to be carcinogenic at those lower ambient levels. MR. ELLIOTT: Certainly, I can understand, and I agree with you, and I stand corrected with respect to the more recent document. But one aspect, I think, that's important, is there even is research that does conflict with respect to the health effects at those higher levels, that we're discussing here. And so, I guess in reference to the fact that the EPA, which has been doing significantly more, I guess, dedicated research to environmental exposures to diesel particulate matter, had doubts in their mind about the scientific research that had been done during this time period. And I think it initially, -- weren't the samples that were going to be taken under the January Rule, going to be environmental samples? MR. KOGUT: There's a difference of definition here, as to what we're talking about as environmental samples. When I said that they were concerned about extrapolating the results down to environmental levels, I'm talking about ambient environmental levels, like in an urban environment, where the, -- in the worst cities, meaning the highest levels of dpm in the country, the total diesel particulate matter is estimated to go up to about 10 micrograms per cubic meter. In an urban environment. Now, that's a, you know, an order of magnitude or two, lower that what we're talking about in personal exposures or environmental exposures in an underground mine, at the levels that we're regulating. So, the passage that you quoted, had to do with extrapolating results from occupational settings, down to ambient environmental settings in, you know, outside air. MR. ELLIOTT: Right. And I agree with you. I can understand the specifics of what you're saying. I don't disagree with it at all. We are talking about significantly different levels. But I think my point was that there is still not what I see as clear evidence, and I believe it was mentioned by another speaker also, that there is a direct relationship. There is differing research on the topic. And I think initially, when the January 19, 2000 Rule came out, it had assumed a number of things, I think, with this existing document, that was the only one available with respect to those studies. So, all I'm saying is, I think there were conflicting studies, and I do not see, and did not see, at that time, that there was a clear indication that you had the relationship that was being a very strong supporting point of exposure to diesel particulate matter and cancer. Now, at some level, I think you could, -- I mean exposure to water can kill you, but it's very healthful. I think exposure to extremely high levels of dpm could certainly cause significant health effects, but that level is where we get into discussion and, -- as we've talked about, with respect to the rule. And I don't, by any means, to besmirch what was done by this, -- the EPA, and what they were trying to achieve. I just think it states, -- it shows me, that there needs to be further research before we come up with definitive consensus positions with respect to adverse health effects for dpm. That was what I was saying. MR. KOGUT: Okay. The document that you were reading from and referred to, by the way, is already in the record, and there is a discussion of it in the existing Risk Assessment that was published in January of 2001. MR. ELLIOTT: Right. And I only wanted to clarify the reference. I know you raised the question, and I wanted to just clarify that. MS. SMITH: Thank you, Mr. Elliott. Any other last requests for remarks? (No Verbal Response) MS. SMITH: We are going to go off the record now, since we have no other speakers signed up at this time. We will probably come back on the record about a half an hour from now, and check to see if we have any last minute requests, and if not, we will close the record at that point in time. So, we'll come back on the record at about eleven. (Whereupon, at 10:30 a.m., the hearing was recessed, to reconvene this same day at 11:00 a.m.) MS. SMITH: All right, we are back on the record. We do have another speaker, Mr. Eck. MARK ECK - SPRINGFIELD UNDERGROUND MR. ECK: Good morning. MS. SMITH: Good morning. MR. ECK: My name is Mark Eck, I'm with Springfield Underground, in Springfield, Missouri. I'm representing, what I would say, a very small player in this whole issue. We run one underground mine, we have one surface mine. But we deal with the same issues, and we have concerns about our personnel safety and health, and we are going to do what it takes to keep them in good shape, because that's our life blood. But, we also have the economic balance that we have to deal with. As I listened to this discussion and been involved with the NSSGA Diesel Task Force for the last six months or so, it reminds me of a prior life I've had, where the question came down to with the EPA rules, how clean is clean? And our issue here, in my mind, is twofold. We need definitive evidence as to what level of dpm causes true health risks to our employees. And the other scientific issue we need, is we need definitive ways to measure dpm levels so we know what we're dealing with. And it was the same exact issues. This was major litigation through the EPA, that I dealt with before. And we struggled with that very issue, and we actually went overboard, and cost the industry, and stifled the industry in doing many, many things; in another industry, in the oil industry, and we stifled the industry, stifled business. And this same thing is going to occur for the small players in this issue as well. Because no one can go out there and afford to invest in an underground mine, if you're a small player, because you don't know where we stand on the issue. Is it going to be 400? Is it going to be 160? Is it going to be more than, -- or even less than 160? And so, as a business owner, it's very difficult to go out and make investments in new mines, or, -- well, we can continue to expand existing, but making investments in new mines, for the small players. Larger players have the wherewithal to deal with it, they'll find a way to overcome those obstacles and stay in business. But the small players are going to get hurt more than others. That's one point I wanted to make. The other point I wanted to make is barring whatever happens with the new rule-making, I think everyone should realize that you've got industry's attention. When the 400 limit was imposed, and we all went down the path of finding ways to restrict limit, reduce dpm in our mines, which previously was not an issue, you know, we all have gone down that learning curve, and we've made probably, you know, the old 80/20 Rule probably applies very well. We've probably made more than 80 percent of the gain by just getting to 400. And I think we have to ask ourselves what is the true value of getting below that 400 level relative to the cost. I say that, not knowing if, -- if there is significant evidence out there, scientific evidence that says, and that we can define; I think it's up in the air right now, personally, but if we can truly define it needs to be lower for health issues, that's what we need to do. But, barring definitive evidence, we need to really be concerned about requiring industry to make significant cost investments to get to that level, when we've gotten the majority of the gain. And I think we should all, industry, MSHA, everyone, should pat themselves on the back to getting to the point we're at. But I think we have to think really, really hard about going below that level. Those are my comments. Any questions, I'm welcome. MS. SMITH: Thank you, Mr. Eck. Questions? (No Verbal Response) MS. SMITH: Thank you very much. I want to thank all of the speakers who came today, and the attendees. We are particularly pleased to be able to offer this hearing in this area, as we were requested by several entities. And we appreciate you coming today. And this record is officially closed for this hearing. Thank you. (Whereupon, the hearing was concluded at 11:05 a.m.)