IN THE MATTER OF: ) ) DEPARTMENT OF LABOR ) ) Mine Safety and Health Administration ) ) 30 CFR 70, 75, and 90 Verification of Underground Coal Mine Operators' Dust Control Plans and Compliance Sampling for Respirable Dust; Determination of Concentration of Respirable Coal Mine Dust Pages: 1 through 247 Place: Grand Junction, Colorado Date: May 22, 2003 UNITED STATES DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION IN THE MATTER OF: ) ) DEPARTMENT OF LABOR ) Mine Safety and Health Administration Verification of Underground Coal Mine Operators' Dust Control Plans and Compliance Sampling for Respirable Dust; Determination of Concentration of Respirable Coal Mine Dust Garfield Room Holiday Inn 755 South Horizon Drive Grand Junction, Colorado Thursday, May 22, 2003 The hearing in the above-entitled matter was convened, pursuant to notice, at 8:00 a.m. APPEARANCES: On behalf of the Department of Labor: MARVIN W. NICHOLS, JR. Director, MSHA Office of Standard Regulations 1100 Wilson Boulevard Arlington, Virginia 22209 RON FORD Economist, MSHA Office of Standard Regulations 1100 Wilson Boulevard Arlington, Virginia 22209 JON KOGUT Mathematical Statistician, MSHA Division of Program Evaluation, Information Resources APPEARANCES, Continued: On behalf of the Department of Labor: LEW WADE Associate Director of Mining Research National Institute for Occupational Safety and Health (NIOSH) BOB THAXTON Committee Chair and Technical Advisor, MSHA Division of Coal Mine Safety and Health LARRY REYNOLDS, Esquire MSHA Office of the Solicitor GEORGE NIEWIADOMSKI Mine Safety and Health Specialist MSHA Division of Coal Mine Safety and Health P R O C E E D I N G S (8:00 a.m.) MR. NICHOLS: Good morning. My name is Marvin Nichols; I'm the Director of the Standards Office for MSHA. And I'll be the moderator for today's public hearing. On behalf of Dave Lauriski, the Assistant Secretary for MSHA, and Dr. John Howard, the Director of NIOSH, we want to welcome all of you here today. Can you hear me in the back? Can the court reporter hear me? Okay. Today's public hearing is the last of six hearings we've held to receive your comments on two related MSHA regulatory actions. First, we have reopened the record for comment on the joint MSHA and NIOSH single sample proposed rule that was originally published on July 7, 2000. Second, we have reproposed the plan verification rule. It was published in the Federal Register on March 6, 2003. Your comments today will be included in the record for both proposed rules. The two proposed rules are based upon the 1996 recommendation of the Secretary of Labor's Advisory Committee on the elimination of pneumoconiosis, and the comments received in response to the previous proposal rules published in 2000. These rules are intended to eliminate black lung and silicosis by eliminating miner overexposures. They completely changed the federal program for controlling, detecting, and sampling for respirable dust in coal mines. The emphasis of the new program will be on verified engineering controls, so that miners are protected on every shift. Let me introduce our panel up here. To my left is Bob Thaxton with Coal Mine Safety and Health. In the center is Larry Reynolds with the Office of the Solicitor. And at the end is George Niewiadomski, Coal Mine Safety and Health. To my right is Lew Wade with NIOSH. As you know, MSHA and NIOSH are partners on the single sample rule. Next to Lew is John Kogut with MSHA. And at the end of the table is Ron Ford. Ron is an economist in my office. Let me mention how today's public hearings will be conducted. The formal rules of evidence do not apply at these hearings, and the hearing is conducted in an informal manner. Those of you who have notified MSHA in advance will be allowed to make your presentations first. Following these presentations, others who request an opportunity to speak will be allowed to do so. I would ask that all the questions regarding these rules be made on the public record, and that you refrain from asking questions of the panel members when we are not in session. The reason we do this is that we want all the discussion of these rules on the record. Following the completion of my opening statement, Bob will give you an overview of the new proposed plan verification rules. Also, as with the five previous hearings, we will work through lunch. We want to give everyone ample opportunity to make comments on these rules. A verbatim transcript of this hearing is being taken, and it will be made available as part of the official record. Please submit any overheads, slides, tapes, and copies of your presentations to me, so that these items may be made part of the record. The hearing transcript, along with all of the comments that MSHA has received to date on the proposed rule, will be made available for review. We intend to post a copy of the transcript on MSHA web page at www.MSHA.gov. If you wish to obtain a copy of the hearing transcript before then, you should make your own arrangements with the court reporter. We are also accepting written comments and data from any interested party, including those who do not speak here today. You can give written comments to me during the hearing, or send them to the address listed in the hearing notice. If you wish to present any written statements or information for the record today, please clearly identify them. All written comments and data submitted to MSHA will be included in the official record. Due to requests from the mining community, the agency will extend the post-hearing comment period for both plan verification proposal and the single-sample reopening from June 4 to July 3, 2003. And the notice announcing these extensions will be out soon. Let me give you some background on the two proposed rules. First, the single-sample proposed rule, which was originally published on July 7, 2000, would allow MSHA to make compliance determinations on single-sample results. The agency would no longer use the averaging method to determine if miners were being overexposed to respirable dust. Averaging can mask individual overexposures by diluting a high sample with a lower concentration taken on another shift. Using single-sample measurements rather than averaging multiple samples for compliance purposes will better protect miners' health. Single samples can identify and remedy excessive dust conditions more quickly. Single-sample measurements have been used for many years by OSHA, and at metal and non-metal mines in this country. MSHA and NIOSH are jointly reopening the rule-making record for this proposed rule to provide an opportunity for you to comment on the new information in the record concerning MSHA's current enforcement policy, health effects, quantitative risk assessment, technological and economic feasibility, and compliance costs, which has been added since July, 2000. For example, we updated the preamble to include the most recent information on the prevalence of black lung among coal miners examined under the Miners' Choice Program during the 2000 through 2002 period. These findings show that miners continue to be at risk of developing black lung under the current dust control program. The quantitative risk assessment is based on additional and more recent data. None of the new information changes the actual finding published in the federal register on July 7, 2000. The single-sample issue has been through a long public process, which is outlined in the preamble of the proposed rule. The second regulatory action is the reproposed plan verification rule. This proposed rule supersedes the one published on July 7, 2000. MSHA held three public hearings on the previous proposed rule during August of 2000. Many commenters urged the agency to withdraw the earlier proposed rule, and go back to the drawing board. Some commenters believed that MSHA had failed to adequately address their concerns. The reforms in the Federal Dust Program recommended by the Dust Advisory Committee by NIOSH in its criteria document and reforms urged by coal miners since the mid-1970s. After carefully considering all the facts, issues, and concerns expressed by commenters, MSHA is proposing a new rule in response to the comments made to the July 7, 2000 proposed rule. And Bob Thaxton will now give us an overview of the proposed plan verification rule. You can follow Bob on the screen behind me. And we're also posting Bob's presentation on the MSHA web page for further reference. And we would ask that you hold any questions regarding the presentation until you come up to the table to speak, and we'll deal with those at that time. Bob? MR. THAXTON: Before I start, could somebody have faxed in a document on -- testing? (Presentation held off the record.) MR. THAXTON: Okay, if we can go back on the record. Our first speakers are the NMA/BCOA panel. If you would, please, identify yourselves, and spell your name for the court reporter. MR. WATZMAN: I'm Bruce Watzman, last name is spelled W-A-T-Z-M-A-N. MR. BEERBOWER: I'm Dave Beerbower with Peabody Energy, B-E-E-R-B-O-W-E-R. MR. LAMONICA: Joe Lamonica, L-A-M-O-N-I-C-A. I'm a consultant to the Bituminous Coal Operators Association. MR. WATZMAN: Thank you, Mr. Chairman and members of the committee. We introduced ourselves. We appear today on behalf of our two associations, the National Mining Association and the Bituminous Coal Operators Association. We appear today not to share with you specific comments on the proposed regulations; we'll do that by the closing comment period. Rather, we want to use this opportunity to share some general comments on the philosophy that we believe should govern revisions to the respirable coal mine dust sampling program, including the proper use of single-shift samples to determine an operator's compliance with the applicable dust standard. At the outset, we want to recognize that may of the issues that the industry has long advocated to improve the program are contained in the proposed rules. Other elements are inconsistent with what we believe is necessary to restore confidence in the system, and we'll suggest amendatory language where we believe appropriate. We must highlight that this is what the rule-making process is designed for. To provide an opportunity for the affected community to offer suggestions to improve upon the product that the agency has produced. That is what this testimony and our written submission are designed for, to improve upon proposed rules that we believe are a step in the right direction. We would note further our concern that many of the comments submitted in the prior hearings are, in our estimation, based on emotion rather than fact. The industry has never sought, nor would we seek, to increase the dust standard. And this proposal cannot and does not circumvent the statutorily-imposed two-milligram standard. Likewise, we've always advocated the primacy of controls to protect miners from exposure to respirable dust, and this proposal maintains that time-tested practice, while recognizing that situations will arise where traditional controls are not adequate to protect miners' health. In those instances we must use non-traditional means to protect miners, and we support the proposal's recognition of this. Before turning to our comments in the proposal, we want to comment on the agency's announcement that they would extend the comment period by 30 days. On April 20 we submitted a letter to the agency requesting that this hearing be postponed for 30 days, and that the comment period remain open until September 4 of this year. That request, if granted, would have amounted to a 90-day extension beyond the scheduled closure date of June 4. Rather than grant this, the agency, as noted previously, extended the comment period by 30 days. While we appreciate this and recognize that our request could have been turned down in its entirety, we're at a loss to understand the rational behind this decision to grant so short an extension, while still appearing to be responsive to the stakeholders. Without belaboring the point, I want to briefly explain the rationale behind our request. As many of you are aware, and as Dr. Wade commented on, we have been working cooperatively for the last several years with government, with labor, and industry for the development of a mine-worthy person-wearable continuous dust monitor. While this has not advanced as quickly as we would have liked, we are on the verge of a major breakthrough in the way we sample for and protect miners from exposure to excessive concentrations of respirable coal mine dust. This month the designer will deliver to NIOSH several units for underground testing. The devices have, as previously noted, been tested successfully in the lab, and we're in the final stages of the testing and development process. Namely, to validate the device's mine-worthiness, and to document its reliability and precision compared to the existing graphometric system. Under the testing protocol that's been developed, the devices will be tested for several weeks in underground mines, following which the results will be analyzed. Several companies, including Mr. Beerbower's, have volunteered to participate in the underground testing process, and they are anxious to do so. If successful, the PDM has the potential to alter the dust sampling and control landscape more than anyone could have ever imagined. Some believe that it will bring about a paradigm shift in the manner in which we protect miners from coal mine dust. While this may be somewhat of an overstatement, what we do know is that it will empower miners and operators to take real-time corrective action when circumstances warrant. Regrettably, the agency's decision on our extension request will deny us from having this information as we and others develop comments on the proposed rules. Quite simply, we're concerned that final decisions will be made without the benefit of this science, and those who suffer from that are the agency's stakeholders. We thought the experience gained as the industry struggles to comply with the new noise and diesel rules had taught us all a lesson of what happens when decisions are made in the absence of full and complete science. Regrettably, that appears not to be the case. Denying us the ability to utilize in the rule-making the knowledge that will be gained is inconceivable. The proposed regulations recognize the role that the PDM can play in the future, but that role cannot be defined until the testing is complete. Quite simply, if the devices prove mine-worthy and reliable, we'll be back at the drawing board sooner than any one of us wants to be. To deny adequate time to test and analyze the device's utility underground makes little sense, and has the potential to thwart, rather than foster, the use of this tool. At this point, Mr. Chairman, we'll share with you some of our preliminary thoughts on the proposed rule. As noted previously, we'll file comments by the close of the comment period, including suggested revisions to the proposal. As a backdrop to this discussion we would ask that a series of letters, which I will provide you, dated April 5, 1996, February 6, 1998, May 21, 1998, November 2, 1998, and December 16, 1998, between our organizations and MSHA be included as part of this record. These letters transmitted and expanded upon an MSHA- and industry-crafted conceptual outline for a new respirable dust sampling program that we believed then, and continue to maintain today, will enhance the protections afforded miners against the potential health consequences where excessive dust concentrations are encountered. Let me briefly explain this. First, MSHA assumption of sampling for compliance with the existing respirable coal mine dust standard based upon the results of a single-shift determination that considers all sources of variability. And I emphasize all sources of variability. And once the personal dust monitoring equipment becomes available. The use of mine-proven commercially-available continuous coal mine dust monitoring instrumentation. Third, compliance determinations based upon personal, and only personal, samples. Fourth, MSHA recognition of the use of administrative controls and supplied air helmets as a supplemental means for obtaining compliance with the dust standard. And fifth, MSHA recognition that the science underlying the NIOSH criteria document is insufficient to warrant a reduction in the current dust standard. This conceptual outline was developed not as a type of menu from which one could pick and choose selected items. Rather, it is a comprehensive program to restore confidence in the dust-sampling process, and further protect miners from the potential health consequences in those limited instances where exposure to excessive dust exists. It would be unfair if we did not reiterate again that the agency's proposal addresses to some degree most of these elements. Regrettably, in our estimation it's done in a bifurcated, incomplete manner. This we can't tolerate. Reform of the dust program must be undertaken in a comprehensive manner. If it involves awaiting the results of the PDM testing, so be it; we would support that wait. At this point Mr. Beerbower will now discuss single-shift sampling and the use of supplemental controls. MR. BEERBOWER: Thank you. My name is Dave Beerbower; I'm vice president of safety for Peabody Energy. And I appear today in my capacity as the chairman of the BCOA safety committee, and as vice chairman of the NMA safety and health committee. It should come as no surprise that the industry continues to oppose the use of single-shift samples for compliance, if this is implemented without our having the benefit of the PDM. This is the position that has been set forth in our prior communications with the agency, and we maintain that position today. Our objection to the use of single-shift sampling was well-documented in our oral and written comments submitted on the previous regulatory proposal. It is not our intent to rehash those objections to the single-shift proposal in its entirety. The prior record, which we understand has been incorporated into this proceeding, well documents our concerns. It would, however, be insightful to highlight a few of those prior comments. In industry testimony before the agency on July 19, 1994 in Salt Lake City, an industry witness stated, "We contend that MSHA and NIOSH have underestimated variability in the underground mining environment. Although the agency takes into consideration sampling and analytical errors, the agency's finding totally ignored environmental variability that can exceed sampling and analytical errors." The witness went on to state, "Reliance on a single sample and a single sample only will be contrary to good, sound, and accepted industrial hygiene practice." This was followed by another industry witness who stated, "Practically speaking, the use of single samples for non-compliance determinations will do nothing to improve miner health. In fact, what you've heard is that such a procedure may have a net effect of causing respirable dust levels to rise, based on the requirements placed upon operators by MSHA to modified dust control plans and practices, particularly after a non-compliance determination." Mr. Chairman, nothing in this newly-proposed rule has given us reason to alter those earlier comments. The issues remain, from our perspective, the same. We do not believe that single-shift samples accurately reflect the dust concentrations that miners are exposed to during their working careers. If we can agree that most exposures to respirable coal dust present a chronic, rather than acute, health hazard, our focus should be on the miners' long-term exposure, rather than their exposure from a single shift. Probably the most informative critique of the single-shift sampling was prepared by Dr. Thomas Hall. Among other things, Dr. Hall concluded that "employment of the single-sample strategy, therefore, is a de facto effect to reduce the current coal mine dust standard in mines without going through the normal rule-making process, because operators will be forced to ensure that exposures are well below the currently allowable limit to avoid citations." His conclusion arose from the fact that, for an operator to assure with a confidence level of 95 percent that an individual sample will not exceed the limit, they will have to maintain average dust concentrations from one-quarter to one-fifth below the allowable exposure level. Dr. Hall went on to reference the published literature, saying, "A single day's measure of exposure does not provide an accurate representation of long-term exposure. It is not relevant the help out comes from exposure to chronic toxins, and can lead to misleading interpretations, with a high possibility of taking an incorrect decision regarding the compliance or non-compliance status of the environment." One of the stated purposes of this new rule is to restore credibility to the dust-sampling program. And yet the agency would require operators to void an average of 67 percent of the samples they take because they will fail to achieve the verification production level. This is because all operator samples must exceed the tenth-highest production total of the last 30 shifts. In a normal bell-curve distribution, two-thirds of those samples will fall below that level, which will require the operator to resample. Others state it differently. If the production distribution is normal, three samples will be required to be taken to get one good one. Now, if the distribution is skewed, it may require many more samples to be taken for those standards to be met. The miner who is being sampled under this system will quickly conclude that the operator is going to keep sampling until he gets a low-enough concentration to be submitted to the agency. And no amount of explanation will be able to convince those, who are naturally skeptical, and the credibility that is so important to any dust-control scheme will be destroyed. Mr. Chairman, single-shift sampling was a bad idea in 1971. It was a bad idea in 1994. And it remains a bad idea today. Consistent with our previous communication with the agency, we remain opposed to the use of single-shift samples until the agency recognizes all sources of variability that can impact that sample. Until its use is tied to only the personal sampling, and until such time as we have the tools available to determine the real-time exposure of miners to respirable dust. The next issue we want to discuss is the use of supplemental controls to protect miners where traditional engineering and environmental controls are not adequate to maintain dust concentrations below the applicable standard. As you are well aware, the industry has long advocated that MSHA recognize the use of supplemental controls to protect miners from exposure to excessive concentrations of respirable dust. In those circumstances, where a combination of engineering and environmental controls are inadequate, and in those situations where unforeseen conditions arise that necessitate the long-term use of such controls. Indeed, in 1997, Energy West Mining filed with the agency a petition for rule-making to allow for the use of airstream helmets or the NIOSH-approved air-purifying respirators as a supplemental means of compliance with respirable dust standards. The rationale for their petition stated, "The use of airstream helmets is a highly protective method of minimizing the exposure of miners to respirable dust. In combination with the application of all other feasible engineering and environmental controls, allowing the use of airstream helmets and other NIOSH-approved methods as specified herein for the purpose of achieving compliance with applicable respirable coal mine dust standards will go far in eliminating pneumoconiosis and other pulmonary diseases." While we are heartened that the proposed rules contain provisions for the use of supplemental controls, we believe the proposal, as written, dramatically discourages the use of effective respiratory equipment and administrative control measures, and therefore would diminish their potential to protect coal miners' health. In order for supplementary control measures to be practical and useful, they must be readily available when the need arises. Therefore, the only way a mine operator could realistically use such measures would be to have a pre-approved plan to do so. As the proposal is presently written, it is very unlikely that a mine operator would ever apply to MSHA for the use of supplementary control measures. Moreover, it is even more unlikely that approval would be granted, because mine operators would not, or could not, use all engineering or environmental controls that may be mandated solely at the discretion of MSHA. Regrettably, more often than not decisions on control technology feasibility become concentrational disputes between mine operators and MSHA district officials. When these situations arise, operators have few remedies available, and controls, whether meaningful or not, are installed merely to achieve plan approval." In order for the use of supplemental control measures to be practical and functional, they must be approved for mine operators that make a request to use them prior to a situation or circumstance that would require their use. Approval to use supplemental control measures would be granted by the MSHA district manager, and mine operators with the pre-approval to use those controls would then be expected to implement these measures when, for example, number one, either the verification limit is exceeded; or secondly, if a mine has been placed on a reduced standard due to the presence of quartz; or thirdly, when unusual conditions are encountered or anticipated which occur briefly and intermittently. Using such control measures in conjunction with administrative procedures, will more quickly provide a high degree of respiratory protection for miners. A proposal finalized along the lines just discussed would provide an effective system to continually control hazards associated with exposure to coal mine respirable dust. At this point, Mr. Lamonica will share our thoughts regarding mine verification. MR. LAMONICA: Thank you. I'm Joe Lamonica, and I serve as a consultant on the health and safety matters for the bituminous coal operators association. The present respirable dust program was conceived, developed, and tested started around 1965, and was put into regulations becoming effective around the summer of 1970. It was designed to measure the exposure of miners to the respirable dust by having the miners wear a dust pump set in a cyclone separator for the whole shift. The sets were mailed to what was then the Bureau of Mines, where they were processed to determine the concentration of dust. If this sounds familiar, it is because the present program is still basically the same after more than 30 years. Has the program been successful since it was implemented in 1970? The answer, in our opinion, was a resounding yes. But, as in Mr. Thaxton's presentation, there are still, I believe he said eight percent of the samples showing excess of the two-milligram standard. Dust levels in those days -- I'm talking back in the early seventies -- reached 10 to 20 milligrams per cubic meter, and even greater. These conditions do not exist today in the mines run by responsible operators. Average levels today are near the two-milligram-per-cubic-meter standard. So why change? The reasons are many. But I want to focus on the one major reason, and that is that the mine operator takes the majority of samples submitted to MSHA. Cases of sampling fraud have caused a loss of credibility with the program among our nation's miners. How do we try to restore that credibility? We do it by taking the dust sampling program out of the hands of the operators, and putting it totally in the hands of MSHA. Imagine our surprise when we read the proposed rule of March 6, 2003. MSHA would do compliance sampling, but operators would do plan verification sampling. The operators are still in the dust-sampling business, still subject to accusations of tampering and fraud. You have heard from the miners, the operators, the advisory committee on which I served, the experts, and even the pseudo-experts, and they all agree: MSHA should do all compliance sampling. Renaming some of the sampling as verification sampling does not hide what it really is. The government does not have to wrest this program from the operators. They will gladly turn it over to MSHA. The proposed regulations are overly complicated, based on the sheer volume of the document alone. This is particularly the case with the proposed plan verification requirement. MSHA's proposed verification sampling requirements are so burdensome that it is entirely likely that the agency will be involved much more heavily with these plans than is reasonable. After more than 30 years of dust sampling experience, is this the best we can do? It is a Band-Aid on the present system, which is broken. So what do we do? As was frequently stated, our request for extension of time was not fully granted, preventing us from giving detailed comments at this time. But we will speak to what can be done conceptually. If we remove the mine operator from all sampling and it becomes MSHA's responsibility, then all references to dust sampling can be removed from the proposed regulation. Regulations are not required for MSHA sampling programs. Those are governed by MSHA policy. MSHA can design its program to be one in which all of its sampling is compliance sampling. It does not have to be overly complicated. The proposed rule can then be reduced to addressing the following. Conditions and circumstances under which the operator submits a dust-control plan, and revisions to that plan. Actions to be taken by the operator if MSHA finds non-compliance. Actions to be taken by the operator if the applicable standard is reduced due to quartz. Actions to be taken by the operator if there are Part 90 miners present. Conditions and circumstances governing the use of supplemental controls. This provides the basis of a simplified rule that can be understood by all, from the tool room to the board room. It eliminates the need for someone whose primary responsibility is to interpret the rule. As for the PDM, this approach allows for MSHA to convert over to the sampling method once both MSHA and NIOSH approve the device. Mr. Watzman has provided in our opening remarks compelling reasons for using the PDM. The PDM will change the paradigm of respirable dust sampling in coal mines. When the present dust-sampling program was being designed in the 1960s, one of the major obstacles was the dust sampler. There was no device that could give us real-time information. As a result, we have a program that gives us dust concentrations days, and sometimes weeks, after the fact. A response to excessive dust levels cannot take place if and when they occur. The workplaces in the mine are rarely static, but in fact dynamic, always moving, always changing. The PDM gives us real-time information as to exposure trends that allow the miner and mine management to take corrective actions to remove the miner from possible excessive exposures. The approach that's outlined allows the rule-making process to move forward, while testing of the PDM is being completed. Even if MSHA has to repropose the rule based on the above, it would be short and sweet, to the point, workable, understandable to all, and performance- rather than prescriptive-based. This will put the final rule on a fast track. Thank you. MR. WATZMAN: Mr. Chairman, this concludes our testimony. We would be happy to answer any questions you might have. Before doing so, let me reiterate that we believe the proposed rules are a step in the right direction, but that they must be revised to first remove the cloud of controversy that continually surrounds the respirable dust-sampling program. Second, builds confidence on the part of both mine operators and miners, that sampling results are reliable and representative of the dust concentrations to which miners are exposed. Third, encourages, rather than discourages, the use of all tools to protect miners where traditional controls are not effective. And fourth, encourages the introduction of new sampling technology to empower miners and operators to initiate intervention measures based upon the results of real-time sampling. Adoption of a sampling system based upon these principles will enable us to achieve the goal that we all strive to achieve: elimination of coal worker's pneumoconiosis. Thank you. MR. NICHOLS: Thank you. I'm sorry I missed part of your opening statement, and I need to step out again. But Dave, is it the industry position that this miner that Bob had the example on, where we were averaging these five samples, and this miner was exposed to greater than three milligrams on two of the samples and less than two on three of them, that the industry position is that this miner is protected? MR. BEERBOWER: I think our comment has been, Marv, that if we get to the PDM, we'll know exactly on every shift what miners are exposed to. And therefore, that situation will not occur. And so we believe that, with the PDM, exactly what Bob talked about will be taken care of and eliminated. MR. NICHOLS: We had this discussion back in 2000 about the PDM, and I believe the last hearing we had your position was that this is just around the corner. And here it is 2003, and we don't see the instrument yet. What happened? MR. BEERBOWER: Well, I guess I would respectfully say, Marv, that the agency was actively involved in some of the things that prevented it from being in use today. We had, in our dust partnership with the UMWA, we had agreement. And had MSHA involved, and had NIOSH involved, that we would be pursuing the belt-wearable device that is currently being tested. Unbeknownst to us, the agency got together with the manufacturer and insisted if they were going to provide funds, that they were insisting on their PDM-2 model, which would have provided for a one-pound cassette to be mounted on the chest of the miner to be sampled. That went on for almost, well, less than a year, but pretty close to a year, that we were unaware that that was moving along at the expense of the device that we had asked for. And so when we found that out, we made immediate corrections to the program. And so I guess there have been a lot of politics played in this thing. But I think what has been consistent has been our insistence that a real-time dust-sampling system is required. It's been the consistent support of the UMWA with us and in our partnership insisting on that. We've been meeting with the agency since 1993 developing that process. And I'm encouraged at this point that I really feel that the device is on the very near horizon that will provide what we're looking for to eliminate exposures. MR. NICHOLS: Okay. Go ahead. MR. NIEWIADOMSKI: I'd like to ask a question directed to the panel. One of your key recommendations is, to restore confidence in the sampling program, that the government take over all compliance-related sampling. By doing so, are you implying or recommending, or implying that the operators would be involved in no sampling at all? And let me just, the second part of the question is, given that, then what would be the disposition of the PDM? I mean, if the PDM is proven to be mine-worthy, would the industry then, in fact, purchase these devices? Or would they rely on MSHA to purchase these devices and monitor exposures? MR. NICHOLS: Well, I think those are all details that will have to be worked out once we see the capability of the device, George. But I would say this on the issue of operators doing sampling. We certainly would continue to do sampling for our own purposes, to make sure that what we're doing is the best that's possibly available out there to us. But those samples would not be submitted to MSHA for compliance purposes. Those would be for our testing to be used. And again, I have to keep going back to the PDM. If I have PDMs on all of the DOs in the mine, then I'll know, on an ongoing basis, exactly what our exposures are, and what actions we need to be taking. So to me, and I think to most of the folks that we represent here, that is a better example of the solution that I think would be pleasing to everyone. MR. THAXTON: I have three questions I'd like to ask. I'd like to just add to Dave's statement. There's two things. One is that as soon as the device is determined to be acceptable to both NIOSH and MSHA, then we know what we're working with. Second, what you have proposed provides no incentive for the use of PDM. So there needs to be an implementation plan for the PDM. And how we get from where we are today to that implementation, because these things are not going to be built overnight, it's going to take a while once we get to the production mode, and then we can start assimilating these into the industry and the conversion over from the present program to the use of PDMs. So those are details that have to be worked out. Those are things that we are working on now in our comments to you, and we're trying to do that through a consortium of industry, labor, and government in what would a reasonable implementation program be for the PDM. Just let me ask just a clarification of Mr. Beerbower. He indicated that monitoring of the DOs, is that something you would do on your own, for your own purpose? You would monitor each and every designated occupation? MR. BEERBOWER: Again, George, those are details we're going to have to work out. I certainly think that that is along the lines which we would be pursuing. Historically, the DO has been the occupation which is deemed to be the highest concentration. And so if he is in compliance, or he or she is in compliance, then we have pretty good assumption that everyone else would be in compliance. And we certainly are open to other suggestions that might come forward that would be better than that. MR. THAXTON: My first question actually follows along that same line on the PDM, and you can decide who's best to answer. Are you indicating that you have a desire at this time, with what you've seen on the PDM and what it's potentially capable of doing, that you're going to place those units on each and every miner, on each and every shift? Or are you proposing, as you indicated just now, that you're looking at more of a limited deployment of such devices, that you would be monitoring the DOs with those devices? MR. BEERBOWER: No, we would not be looking to put the devices on every miner. And I think that would be overkill. I don't think that's going to be necessary. What we do want to do is understand what the environment is on a section, out-by areas, and then monitor those areas which are deemed to be a hazard. MR. LAMONICA: Let me just add one comment to that. And that is, initially you have to know for sure what the designated occupation is. What, in reality, it is, so that there may be a necessity of sampling everybody on the section, say, initially until you are confident that you have properly designated the designated occupation. And then you can key on -- MR. THAXTON: In line with that, isn't the purpose of the PDM, though, is that you're able to monitor each individual? And you would be able to move that person, and make use of administrative controls? As such, does it truly represent what the DO occupation would be exposed to, given that you could make those kinds of moves, as opposed to what we currently require, which is that the sampler stay within that occupation, no matter who is there -- determining whether the current DO concept is it's true, it represents the highest concentration on the section that fits in compliance, you expect everybody else to. But if you're actually putting this unit on an individual, that unit goes where the individual does. Doesn't that destroy that concept in that fashion? MR. BEERBOWER: I don't think so. And from that standpoint, again, I think as Joe mentioned, we have to be sure of what the DO is. And if that means we have to sample two, it might mean that. I just don't know until we get into the details. But clearly, the use of administrative controls is just that, just as you defined it. That if people are overexposed or have the potential to be overexposed, that you move them, or that you replace miners at different times during the shift, or have them do different jobs. I mean, that is, in itself, the essence of administrative controls. MR. THAXTON: My second question doesn't relate to the PDM, it relates to your reference to supplemental control measures, both administrative controls and respiratory protection. Are you suggesting, under your general concept, that we should be considering allowing the use of those controls at any time it would be a selection process by the operators to determine what best is able to protect miners in any given condition? MR. BEERBOWER: Again, I can't answer that. We're still in the process, Bob, of putting together our comments to make sure. And quite honestly, we're pressed for time to do that. We wish we had more time, and we requested more time to do that. But again, those are the kinds of details we just have not gone through yet. MR. WATZMAN: Bob, let me add, just so we're clear on this, and I want to be clear based upon the way you asked the question. We are not talking about using those supplemental controls in lieu of traditional engineering and environmental controls. And I want the record to be clear on that. Because you posed the question in such a manner that it could be read into that that we were suggesting that you use those supplemental controls in lieu of the others. MR. THAXTON: Your comment earlier was that you recognized the continued use of engineering controls. The way the current proposal is written is that you would have to come to the agency first to get approval to utilize those. You said that would probably be a hampering of the operator, in order to get the best controls or best -- MR. WATZMAN: Right. It's just a time delay, Bob. And I think the current P-code debacle that we're going through on noise regulations, that's what we envision that evolving into. And so rather than doing that, what we envision this as being is a toolbox, if you will, of dust control measures and devices that the operator can choose, the miners and operators can choose from to use, if they know from the PDM that there are certain circumstances in which they are out of compliance. MR. THAXTON: The last question I have is in relation to if a PDM is deployed on particular miners. Who do you envision being allowed to make the decision as to whether a miner is being overexposed, and that action would have to be taken at that point to take care of the exposure? The idea of a PDM actually giving you real-time readings would indicate that you shouldn't have people being overexposed. You see that they're potentially being exposed to high dust concentrations that are going to result in non-compliance or overexposure versus the standard, at what point do you take action to remove that miner, or take corrective actions of adjusting your controls? At what point do you do that? And who does that? MR. BEERBOWER: Well, that's the beauty of the PDM. It allows the miner himself or herself to take those actions. For instance, if they would recognize -- the device itself, and I will defer to Erich Rupprecht who is here to give testimony today, too, on the device; he's part of R and P, which is the developer of the device. But it will actually, as I understand it, it will project ahead at any point in time in the shift, and it will project what your exposure will be at the end of the shift if you continue as you are currently being exposed. That gives the miner the opportunity, then, to, if a couple of sprays need cleaned or if they need to check their volume of air or any type of engineering control may need some additional help or improvement, that gives them the ability, or at least the indication, that something needs to be done. It also gives the operator, then, a heads-up that hey, we need to be looking at perhaps administrative controls that might be administered on the section. But I think it's going to be a mix between the miners themselves and the operators, as to what actions are taken to respond. But we will know, on a real-time basis, whether we're going to be overexposed or not. MR. NIEWIADOMSKI: John, before you ask your question, I just want to follow up to what Bob indicated. And that is the trigger of the corrective action, whether it's moving an individual or implementing some additional controls, at what concentration or how high above the standard would that be undertaken? Remember, you were saying that single samples remains a bad idea, unless it is used -- and maybe I'm mischaracterizing it, so correct me -- in conjunction with personal sampling. MR. BEERBOWER: Again, the personal dust monitor is what we're shooting for. That's what we believe is the solution. To come in and take a single sample on a bimonthly basis, and assume what it looks like we're going to be trying to assume the environment the miner is exposed to, we think is wrong. We would rather see the PDM, which is a continuous monitoring of his exposure on every shift that he works. That makes more sense to us. MR. NIEWIADOMSKI: If, for example, if the instrument indicates that if an individual continues under the same conditions, then his exposure would be 2.1, 2.3, whatever, if it's going to be above the standard, the question I'm asking -- and I'm not trying to put you on the spot -- that is, at what level you would deem that immediate corrective action needs to be taken? MR. BEERBOWER: Well, we would consider anything over two. The device has a predictive capability to say that at the end of the shift it would be X. And if that X is over two, then we would expect that immediate actions would be taken to get it back under two. MR. NIEWIADOMSKI: Thank you. MR. KOGUT: I have several questions and comments. The first one relates directly to what you were just talking about, though. You mentioned a lot of previous comments that you had submitted, industry had submitted, in response to earlier single-sample proposals. And I think Bruce said that, was it you that talked about Tom Hall, Dave? Okay. I think one of the things that you specifically mentioned was the shift-to-shift variability and locational variability. What you just said now was that you were going to, the way you see the use of the PDM would be that you would consider it an overexposure if there was an overexposure projected or ascertained for an individual shift. How do you reconcile that with your earlier comments about including shift-to-shift variability as something that should be included in assessing the accuracy of a single-shift measurement? And in particular you said that, in an example that Bob gave in his earlier presentation, where you had a couple of samples that were above three, you said the PDM would take care of that. Now, the way I read Tom Hall's comments and the industry's earlier position is that shift-to-shift variability should be taken into account in making a non-compliance determination. And since those exposures of 3.5 or 3.6 are within the normal course of shift-to-shift variability, that you would not consider that an overexposure. So how do you reconcile those two positions? MR. BEERBOWER: Very easily. And I think this is where the paradigm shift needs to take place in our thinking, as an industry and as an agency. There is a huge difference between a single shift being sampled once every two months versus a continuous dust monitor which is giving you continuous read-outs of the miner's environment on a daily basis, on every shift that he works. When you sample on an intermittent basis like that, then you do need to take into account all of the variability. When you are sampling on a continuous basis, then when we see, with the predictive nature of the PDM, that someone is going to be overexposed, we can wipe that out. And we can take care of those things, so that the variability is much, much less when you're sampling on every shift, rather than one shift every two months. So, I mean, that variability will be accounted for when you have the dust concentration on every shift that the person works. MR. KOGUT: Well, I'm still a little confused, I think. Suppose that, to use a real example, suppose that somebody is wearing one of these PDMs, and for the first four shifts that you look at, the concentration, the full-shift concentration, would be, the average full-shift concentration was, say, 1.5. And then on the fifth shift you were looking at, the concentration was at 2.3. What would be the response that you're recommending after you see that shift? MR. BEERBOWER: If during the shift the miner sees that his concentration or his exposure would be projected to be 2.3, then they would take immediate action to get it down below two. MR. KOGUT: And by immediate action, are you including administrative controls -- MR. BEERBOWER: Absolutely. MR. KOGUT: -- and rotating, job rotation? MR. BEERBOWER: Absolutely. MR. KOGUT: I see. So your solution to that kind of scenario would probably amount to something like job rotation, is that right? MR. BEERBOWER: It could. I mean, that's one of the tools that should be available. But there are many others. MR. KOGUT: I think the reason that in the hierarchy, or a reason that in the hierarchy of controls, that administrative controls such as job rotation are placed lower down in that hierarchy than environmental and engineering controls, is that when you rotate jobs, it's true that you're not allowing an individual miner to become overexposed relative to a particular limit. But what's happening is that whoever gets rotated into that job, the exposure of that person is getting increased. And so, although you're reducing the exposure to any particular miner, you're spreading the risk around a greater population. So there's a larger population at risk. And I think that that's really the primary reason why administrative controls are subordinated to engineering environmental controls. And it sounds like the way you would be using this PDM, you are taking an administrative action, job rotation, and really in that case you would be using that instead of a potential environmental or engineering control. MR. WATZMAN: John, that's incorrect. I think you're viewing it as that we would view administrative controls as the primary remedial action that could be taken, and that's incorrect. And if we left that impression, then we need to correct that. Administrative controls is but one action that could be taken in the event that the PDM predicts that if all circumstances remain unchanged, the miner would be overexposed at the end of that shift. It may be administrative controls, it may be environmental controls, it may be engineering controls, it may be some combination of all of them. But if we've left you with the impression that administrative controls would be the primary response in the event that there's a prediction of an overexposure, then we need to correct the record in that regard. I think secondly, yes, I would agree with your argument. For the sake of argument I will agree with you that rotation then causes two individuals to be exposed, rather than one individual. But the test that we must meet is a two-milligram standard. If two individuals are exposed to one milligram, we'd like to get to the point where no individuals are overexposed, or they're exposed to as low a level as is deemed possible. But I don't agree with the basis for your argument, that we have increased the health risk, because a second individual was exposed. The test that must be met is two milligrams. That is the statutory limit. You're carrying this argument, I think, to the argument that we deal with now in terms of using rotation or administrative controls where we're dealing with a carcinogen. And we've had these discussions as it relates to diesel equipment, and the agency's decision not to allow rotation for purposes of compliance with the diesel particulate matter. The same is not true here, and I don't think it's fair to carry that argument forward when we're talking about dust. MR. KOGUT: Well, my point really was just that there's a reason for subordinating administrative controls to engineering and environmental controls, and that's expanding the population at risk to me seems like the primary argument in favor of that subordination. MR. WATZMAN: Well, understand too, John, that job rotation is not the only administrative control. It could be the miner simply changing where he's standing on a working section. Or spending time differently, maybe on the amount of time a conveyor would be running, or the machine would be cutting differently. So administrative controls are not limited to job rotation only. And I think the results are well documented by NIOSH and by tech support that where you stand, for instance on a continuous miner section for the continuous miner operator and for a shear operator, is extremely important as to what your dust concentrations are going to be. MR. KOGUT: I've got some other questions, also. First I want to give some comments, because you brought up these various comments that have been brought up with respect to what should be included in the sources of error in a single-shift measurement. I want to point out, first of all, that in the July 7, 2000 proposal, which is part of this record and part of this proposal for single sample, I believe that we have already dealt with all of those proposals or suggestions from the industry as to what should be included. Our responses to those are included on page 42096. MR. WATZMAN: Jon, let me comment on that, and maybe I can -- MR. KOGUT: Let me just finish -- through 42097 of the July 7, 2000 proposal. So if all you're doing is resubmitting the same comments, I think we have the same answers. So if you're going to submit something, I would suggest that you submit responses to our responses. MR. WATZMAN: Then I will agree with you, and I will respectfully say that your response, because you responded to our concerns or our previous comments, doesn't mean that you accommodated those. We still have a disagreement. Unless I've missed something, we still have a disagreement in terms of environmental variability, and whether that is a factor that should be considered in determining what the, I'll use the phrase citable level is, on the basis of a single sample. That was not previously included. And unless I've missed it, and if I did I stand corrected, and please point that out to me. Because I go back to a document put together by NIOSH entitled "Occupational Exposure Sampling Strategy Manual." And in this they talk about strategies for sampling. When they say the full-period consecutive sample measurement is "best" in that it yields the narrowest confidence limits on the exposure estimate. And this is after considering both exposure variation and the precision accuracy of sampling and analytic methods. In our estimation, there are still sources of variability that are not included. When you make the determination as to what is a, for purposes of single sample, a citable level. And 2.33 was what was previously proposed. It remains 2.33. So in our estimation, those sources that we believe should be included, and you have responded to but did not include, still remain a point of disagreement between us. MR. NICHOLS: And let's don't devolve into a debate here about issues we've talked about for a long time. Let's -- MR. KOGUT: No, I'm getting on to something else. MR. NICHOLS: Just wait a minute. If we need to ask a clarifying question, let's do that. If the panel does not agree with this proposal, let's be clear on what they do not disagree with; let's try to keep it at that. In some of the previous hearings we've gotten to debating old issues, and I don't want to do that. The purpose here is to collect information on what these new rules require, and whether we have agreement or disagreement. So go ahead. MR. KOGUT: Okay. Well, just in response to your question to me, where you asked if we've addressed that vocational variability issue, you'd like to know where it is. In the July 7, 2000 proposal, it's under the measurement objective on pages 42089 through 42090. And then it's also discussed in the appendices to that notice. In response to the material that Tom Hall introduced about the probability of erroneous citation, that's dealt with in some technical detail in appendix C of the February 3, 1998 notice, which is also a part of this record. And it's summarized in the current notice on page 10825. But the primary technical justification or the technical response to the issue of erroneous non-compliance determinations is in appendix C of the February 3, 1998 notice. Just one other thing in response to what Dave Beerbower said about the skewed distributions of production. What you said about two samples that are not valid for every one that is, that would hold if you're randomly sampling the shifts. Now, you only get that ratio if you're randomly sampling the shifts. Particularly on the operator samples, we would expect that the operator would know in advance which shift there's going to be maintenance on, which shift he's not expecting full production on, so he would not sample shifts on which he expects the production to be low. MR. BEERBOWER: I'm going to say, Jon, as an operator, we expect full production on every shift. MR. KOGUT: Okay. The other thing is that you said that if it's a skewed distribution, then it would be some other ratio, or even worse. Actually, the way that the VPL, the verification production limit, is formulated as a percentile rather than some function of the mean of standard deviation, that's a non-parametric criterion. So whatever that ratio is, it's going to be the same regardless of the shape of distribution. MR. BEERBOWER: I disagree with that, Jon, and I'll tell you why. MR. KOGUT: Well, that's a technical issue, and -- MR. BEERBOWER: If we have 30 samples, and at the beginning of that 30-sample cycle we were in very good conditions and at high production. And in the last 20 samples, we had rock or bad roof that we ran into, or water that reduced production by 30 percent, I could be sampling for at least 10 or 12 shifts to get a good sample. And that's the skewing that I was talking about. MR. KOGUT: Yes, okay, you're talking about skewing over time -- MR. BEERBOWER: That's exactly right. MR. KOGUT: -- rather than the actual shape of the -- MR. BEERBOWER: Exactly right. MR. KOGUT: I understand. Okay. MR. FORD: I've got a question. And that is, has any representative of either the NCA or BCOA had any discussions with the company designing the PDM device concerning the cost of a PDM device to an operator, when the device becomes commercially available? MR. WATZMAN: No. Specific discussions with the designer of the device? No. MR. FORD: Just another follow-up question. So then is it correct to say that, at this time at least, you don't have any cost estimate whatsoever of what you might think the PDM device would cost? MR. WATZMAN: No, I wouldn't say that, either. I mean, we have heard what they believe it may cost. But you know, I don't think they even know. And I would defer to Erich when he testifies. I mean, I'm not sure that even they know and can tell you affirmatively exactly what it will cost today. We're not to that point. MR. FORD: Okay. One last question. And I realize this is a big question. When we know that you don't want to put the PDM device when it becomes commercially available on every miner, and then also realize on the other end we really don't know how it's going to be implemented and how many people you're going to put it on if we ever get it into the mine -- and realizing those are big ifs -- is there any price range in the PDM-1 device that you could specifically say, a reasonable price range, where industry could not accept it? MR. WATZMAN: In our discussions with R and P, they've given us a range that again is extremely dependent on volume. So until we see what the regulation looks like and how many of these devices are going to be bought, it's impossible to make those projections. But the ranges that we have heard are acceptable, at least in our estimation, to what costs we could bear. MR. FORD: Right. And I should get those ranges from the -- MR. WATZMAN: I think it's better if you ask Mr. Rupprecht. MR. FORD: I understand, okay. MR. KOGUT: I have actually one more question to Dave Beerbower. You said just now that you try to achieve your maximum production on every shift. What I want to know is, what is it that limits your production rate on, say, a long wall? What's the limiting factor on the production? MR. BEERBOWER: Jon, I mean, the list is enormous. It can be belt delays, it can be hard cutting, it can be bad roof. It could be water on the face, it could be any of those numbers. Maintenance issues certainly are all involved. MR. KOGUT: Do you ever limit the production on a longwall in order to comply with the two-milligram limit? MR. BEERBOWER: Absolutely not. Absolutely not. MR. KOGUT: Would you include the speed and depth of the cut on a long wall, would you include those among engineering controls? MR. BEERBOWER: I think I'd rather look at those as administrative controls. Because, again, it's not really engineering, it's more of an operating-type issue that you can change on whim. We do that -- MR. KOGUT: That's a fine line, though. MR. BEERBOWER: -- you know, part-cutting or something like that, we'll do that. Or if it's bad roof, we'll shorten the cut up, things like that. So I wouldn't consider that to be an engineering control. MR. KOGUT: What if somebody designed the regulator on the -- MR. NICHOLS: Jon, we need to move on here. MR. KOGUT: -- speed of the cut, would that be an engineering control? MR. BEERBOWER: Again, I think it's administrative. Speed is, to me, administrative. MR. KOGUT: Okay. MR. NICHOLS: Okay, Jon, we've got to move on. MR. REYNOLDS: I have a couple questions. I just want to clarify. I understand this is your preliminary comments and you will be providing detailed comments later, but I just wanted to clarify that the position of the panel is that you do support the use of personal dust monitors, and you believe their use would be most effective once you've identified high-exposure areas. You're talking about using them in specific occupations in the mine. And you don't foresee a situation where the industry would want to or need to use PDMs on all miners, on all shifts. Everybody's nodding your head, but -- MR. BEERBOWER: It's overkill. I mean, I don't think that's -- MR. REYNOLDS: I just want to clarify it for the record and the people at the hearing. You do not -- MR. BEERBOWER: That's correct. The answer is that what you have stated is correct. MR. REYNOLDS: Okay. You don't believe there would be any circumstance in the future where the industry would support using personal dust monitors for every miner. MR. BEERBOWER: If you bought them, we might. MR. REYNOLDS: If we bought them, and included all the record-keeping requirements and the data to be created about every miner and -- MR. BEERBOWER: Sure. And the magnets, and the calibration, sure. MR. WATZMAN: Where there is a situation -- I don't want to walk away from this thing in saying it's an absolute impossibility. If we take a look at all the people in one section, and all their exposures are high, that's a different case than what we traditionally think of is that there will probably be one, maybe two, that are high, and some that are very low. And what we're saying is, for the very low there would not be a necessity to have 24/7 with a PDM. But that depends on what we find on that section. We've got to think beyond what the conditions are today. We've got to look to the future; what's it going to be then? One of the problems with these regulations is that they get outdated as technology moves forward. Then we're back to this type of hearing again. So I would qualify our answer on that matter. MR. REYNOLDS: There's one other matter I wanted to clarify, too. With regard to the, the scheme of the proposal is that the operator designs a plan, and the operator tests the plan to ensure that the engineering controls will maintain respirable dust levels within the standard. And what Dave had to say was that it was too burdensome for the operator, because it is believed that the operator would have to take at least three samples for every valid sample to get the 67 percentile of production. And the other issue was that Joe had mentioned that the operators want to get out of the sampling business. And that even if we call it something else, this is still a compliance sampling. The industry would prefer that MSHA basically conduct all the compliance sampling, I mean conduct all the verification sampling for the first 30 days a section operates. MR. BEERBOWER: You know, again, we're in a position where the verification of the dust plan we think is unnecessary when you have a PDM. MR. REYNOLDS: We don't, though. We don't have one yet. MR. BEERBOWER: I understand that. But again, we don't want to be doing any sampling. You heard that loud and clear. That is correct. MR. REYNOLDS: Okay. I just want to verify again, you do not, you would prefer to have MSHA doing as much sampling as necessary during the opening of a section to meet the stringent requirements that are in this proposal for verification samples. MR. BEERBOWER: Understand, Larry, what we're saying with plan verification is, when a mine has a plan, it submits it to MSHA. MSHA looks at it. There aren't mines out there coming up with some, you know, we're only going to put two sprays on a shear, and submitting that to MSHA for approval, and getting that approved. That doesn't happen. MSHA has a footprint by which they're looking at all dust control plans. And if they feel that that plan will be successful in maintaining the dust level below two milligrams, then it is approved. Now, whether you come in -- MR. REYNOLDS: Under the provision -- MR. BEERBOWER: Well, whatever you call it. Once it's approved, then we're allowed to operate under those conditions. Then MSHA can come in and take a compliance sample. It doesn't have to be a verification sample. MR. REYNOLDS: Okay, I'm talking in terms of what the proposal calls for. MR. BEERBOWER: I understand. We disagree with the proposal. MR. REYNOLDS: And the proposal is based on the recommendation of the advisory committee, that we have a verification, that the operator verifies the controls -- MR. BEERBOWER: But that can be done through the regular compliance sampling program. It doesn't need to be special sampling, and it certainly doesn't need to be done by the operators. MR. REYNOLDS: But a key element is -- there's a key element in the proposal, which was to get the issue of production into the sampling, to make sure that we're sampling at production levels that people actually work in. MR. BEERBOWER: I understand. MR. REYNOLDS: And if we were to just do compliance samples, rather than the verification samples, we wouldn't be doing that. MR. BEERBOWER: Why not? Why? MR. REYNOLDS: Because -- MR. BEERBOWER: I mean, the example Bob showed did exactly that. In fact, it factored it in. MR. REYNOLDS: During the first 30 days of the section -- MR. BEERBOWER: I don't care when you sample it. Come in any time you want. MR. KOGUT: Are you suggesting that we base a non-compliance determination on that formula that Bob used to extrapolate the production level and ventilation levels? MR. BEERBOWER: Well, I find it interesting in that the operator samples we voided if they don't meet the tonnage levels, but MSHA samples would be factored. I'm not sure how you justify one versus the other. MR. KOGUT: The formula that Bob was talking about didn't have anything to do with making a non-compliance determination. It had to do with MSHA's internal decision as to whether to do a follow-up, another sample in the next bimonthly period. That's a very different thing from doing a non-compliance determination. MR. BEERBOWER: Is it, if it's over 2.33? MR. KOGUT: You mean over 2.33 after you do the extrapolation? MR. BEERBOWER: Yes. MR. KOGUT: Well, there's uncertainty in the extrapolations. MR. BEERBOWER: And what would you do then? MR. KOGUT: I'm not suggesting that we make a non-compliance determination based on that formula. I was asking you if you were proposing to do that. MR. BEERBOWER: MSHA will have to make their own determinations on what you're going to do on writing citations. I'm not in the citation business; you are. We're interested in getting the dust control levels down to where we are assured that miners are not going to be overexposed. Now, however you decide you want to write a citation is your business. But we're going to get the dust levels down with a PDM one way or the other. MR. THAXTON: I have one final question, and then we're through. In your discussions of the PDMs and what we would like to find out, is it your contention that we should modify the proposal to make the use of personal continuous dust monitors, if and when they become available, mandatory at all coal mines? Or are you saying that we should continue to allow some operations to utilize the current sampling technique, as well as the PDM? MR. BEERBOWER: Bob, we're not prepared to make those comments at this time. We will do that before the end of the comment period. But there's still a lot of details that we have to work out in our counter-proposal that we'll be submitting to you. But we certainly will take that into consideration. MR. THAXTON: I would only ask, if it's possible, if you could give us a copy of the presentation that you made to us, it would be helpful. MR. BEERBOWER: Well, it's a work-in-progress. At the end of the comment period, when we're ready to come forward with what our proposal is, that's when. MR. NIEWIADOMSKI: Marv, let me ask this. I'm going to make it the final question. MR. WATZMAN: I wouldn't bet on this being the final one. (Laughter.) MR. NIEWIADOMSKI: What I heard is that you're perfectly satisfied with the current plan approval process. MR. BEERBOWER: Absolutely not. MR. WATZMAN: Current? MR. NIEWIADOMSKI: You're talking about the process of approving the dust control parameters in mine ventilation plans. MR. BEERBOWER: No, we are not. MR. NIEWIADOMSKI: You're not? MR. BEERBOWER: No, we are not. MR. NICHOLS: Okay. Are you going to leave us any of your testimony today? MR. WATZMAN: We will, if we've made some changes, we'll get them to you in the next day or two. I just need to put everything together in one document. MR. THAXTON: There were some documents you said you were going to give to us. MR. WATZMAN: Yes. And those I have, and I can give that to you and to the reporter. MR. NICHOLS: Okay, thanks. MR. BEERBOWER: Thank you, gentlemen. MR. NICHOLS: Does the court reporter need a break? Okay. Erich? MR. RUPPRECHT: My name is Erich Rupprecht. That's spelled R-U-P-P-R-E-C-H-T. And I am attending this meeting to represent Rupprecht and Patashunek Company, Inc., which many people know as R and P. And I will be referring to us as R and P in the interest of time. We've been involved in the development and commercialization of particle mass measurement systems for over 20 years, and are located in Albany, New York. And I would like to thank MSHA for the opportunity to make this oral presentation as part of the public hearings that this committee has been conducting in recent weeks. During the past few years R and P has participated in a NIOSH-sponsored project to develop a personal continuous dust monitor. And the resulting device is a single-piece unit that R and P calls the PDM, or some people would call it the PDM-1, that is designed to assess the exposure of individual miners in underground coal mines. Previous work on an R and P machine-mounted dust monitor and a two-piece personal continuous dust monitor, also known as the PDM-2, was jointly funded by NIOSH and MSHA. We would also like to acknowledge the strong support for these projects by other stakeholders as well, such as miners and their representative organizations, and mining companies, along with leading industry groups. I would like to make some comments today with respect to the rules being proposed by MSHA concerning plan verification in 30 CFR Part 70, 75, and 90. And specifically, I would like to describe the advances that could be realized for miners, mine operators, and mine regulators through the use of a personal continuous dust monitor. First, just a little bit of background. R and P has developed a number of particle measurement systems over the past decade that have contributed to improvements in the quality of the air that all of us breathe above-ground. These include real-time instrumentation for diesel engine manufacturers to help develop diesel engines with reduced particular matter emissions. R and P has also been at the forefront of ambient particulate matter measurements in cities, tribal lands, and other areas such as national parks, which US EPA-approved continuous real-time monitors and immigrated manual samplers. Most recently we developed a real-time monitor for the very challenging measurement of particle emissions from smokestacks. This new system has received a US EPA conditional method approval for use at coal-burning power plants, and is also the subject of a newly-approved method by ASTM, formerly known as the American Society for Testing and Materials. R and P is committed to innovation in the field of particulate matter measurement, and to crafting new technologies that enable the monitoring of airborne particular matter concentrations in challenging environments. An example of our company's commitment to develop new measurement technologies for real-world needs is the personal dust monitor, or PDM. R and P's PDM continually measures the amounts of particles collected on a filter while sampling the mine atmosphere from within a miner's breathing zone. The device is small enough to be work on the belt of a miner, in place of the current cap-lamp battery, and provides real-time coal dust exposure information to miners under actual operating conditions. The technology in the PDM is based upon first principles of physics, and is not an inferred mass measurement that could be affected by particle properties, such as particle size, color, or composition. The monitor's filter-based mass readings are as accurate and as reproducible as the weighing of filters on a gravitational balance in a laboratory. The PDM represents a technological breakthrough, by measuring an individual miner's exposure to airborne particulate matter during the course of a shift. And we believe the unit can be a powerful tool for both miners and mine operators, with feedback concerning the mine atmosphere made available on an ongoing basis. The monitor travels with the miner during an entire shift, and provides continuous feedback of the total average and projected exposure of a miner to airborne particulate matter. We believe that this platform provides the real-time on-site information to miners and mine operators to demonstrate compliance with dust exposure standards set by Congress. The real-time feedback generated by the unit provides the ability to take administrative actions when those are appropriate in response to the dust exposure of individual miners. Tamper-evident features built into the monitor's hardware and firmware and its ability to store the results from a month's worth of 12-hour shifts internally could make it also an attractive tool to mine operators, as well. I'm sorry, to mine inspectors, as well. We would also like to suggest the use of the PDM as an engineering tool to monitor areas in underground mines to determine the average particle concentration and training information at fixed locations. Implementing the same filter-based mass measurement technology in both personal and fixed monitoring applications could provide the basis for comparing dust-loading results directly, avoiding the potential for introducing uncertainties from the use of different technologies. The final form taken by the verification rules concerning respirable dust in coal mines will be the result of the many factors that MSHA is taking under consideration. It is not the place of R and P to comment on the exact manner in which we might think that personal continuous dust monitors should be implemented in underground coal mines. We feel strongly, however, that ignoring the new capabilities offered by the PDM could jeopardize the health of many miners, present and future. We applaud the interest expressed by a number of this committee's members during a meeting that I attended before, which was the one in Washington, Pennsylvania, to seek input concerning the appropriate use of the PDM. And we would encourage industry organizations and mine workers' groups to offer concrete suggestions to this committee during the comment period concerning the implementation of PCDMs in a constructive manner. Echoing the views expressed by an industry representative during the Washington, Pennsylvania meeting of about two weeks ago, we believe that the current wording of the proposed ventilation plan verification rule does not provide suitable incentive for the use of PCDMs. The implementation of PCDMs should not, in our opinion, be an afterthought of the regulation, but a new centerpiece to provide timely, accurate, reliable information to miners, mine operators, and mine regulatory authorities concerning dust exposure levels. We believe that the new rule should be written to ensure the use of the best technology in a constructive manner. And we suggest that the approval of the R and P PDM by the Secretary of Labor should trigger a phase-in period of PCDM rules, during which the implementation of personal monitors would be increasingly strongly encouraged. The new PDM should be viewed as a significant augmentation of the integrated filter sampling program currently administered by MSHA. The PDM has advanced through a number of technological hurdles during its multi-year development. In laboratory testing carried out recently at the Pittsburgh Laboratory of NIOSH using a variety of coal types, the monitor demonstrated equivalent performance to the current integrated filter method. In the final phase of its development, the unit is about to go underground in a number of coal mines to confirm its performance under actual working conditions. R and P is confident that the upcoming mine trials will be successful, and that the prototype instruments developed under the current NIOSH contract will form the basis of a commercially-available measurement technique with important health benefits for miners, mine regulators, and mine operators. R and P is committed to the commercialization of the PDM in collaboration with the important stakeholders: with MSHA, NIOSH, miners and their representatives, and industry. Additional investments in injection molding and other processes will be required on our part to take the PDM from its present prototype configuration into a commercial form. And we will seek input from stakeholders to help ensure that the final device meets their needs in terms of physical configuration and information processing and storage capability. With widespread implementation of the PDM, we anticipate that the unit price will be significantly less than $10,000, including support software and the base station used for battery charging and data downloading. Projected availability of the commercial unit is during calendar year 2004, with the exact timing dependent upon a number of factors, such as the time required for the Department of Labor approval process. In order to launch a commercial product, there has to be a market. In this regard, R and P is planning to approach interested stakeholders following the successful completion of the NIOSH underground mining tests to solicit the purchase of initial quantities of the PDM by each of a number of parties. This can serve to acquaint early adopters with the new measurements of technology through first-hand experience, and will provide R and P with the clear signal that the underlying interest exists for the commercialization of the innovation. This ends my prepared presentation concerning the PDM within the context of the proposed PCDM regulations, and the potential benefits that we believe exist for the industry-at-large. In addition, I have two technical comments to make concerning the proposed MSHA rules. First, we strongly support the definition of respirable dust based upon standards of the International Standards Organization, ISO. This would provide comparability of US dust exposure measurements with those of other countries, and lead to better-defined measurements of those particles with the potential for the greatest human health impact. We will refer to pages 10806 and 10879 of the proposed rules in this regard. Secondly, pages 10827 and 10879 suggest that the collection filters used in the PDM may not be appropriate for quartz analysis. We would propose that the final rules should provide sufficient flexibility for the future use of filter cartridges from PCDMs for quartz analysis. Preliminary work in this area is showing good promise, and points to the possibility that PDM filter cartridges could, in fact, be used in the future for both mass measurements and quartz analysis. I would like to thank the committee for allowing me the opportunity to provide comments concerning the recognition of personal continuous dust monitors as part of the new MSHA rule-making. We believe that the PDM holds significant potential to improve the convenience and relevance of underground dust concentration measurements for the protection of miners' health, and seek to work together with all interested parties to maximize the benefits from the measurement technique. And I do have one with me, so that at the appropriate time, either during a break or if you would like me to show one, I could do that as well. MR. THAXTON: The committee has seen them. We will not take the committee time to do it at this time. We would like to continue with Erich, as far as your testimony. MR. REYNOLDS: Actually, since he's referenced the PDM, we should have a picture and a description of what it is, like we did before, for people. If it's a particular one, if you could just identify which one it is, and where it is. MR. RUPPRECHT: I believe it's a picture of a PDM shown by Dr. Wade. MR. REYNOLDS: It's the same thing as Dr. Wade? MR. RUPPRECHT: It's the same device as what was shown at the first meeting in Pennsylvania that I attended, and the same device that was shown by Dr. Wade. I always seize the opportunity to show interested parties. MR. THAXTON: At this time, because of the list of speakers, we need to go ahead with some questions for you. Because there were a couple things that were brought up that we'd like to follow up on. Two things. Are you planning to market the PDM technology without the cap lamp to other industries? In other words, is this technology only applicable right now to the coal industry, or are you applying that technology to be utilized by other industries to also monitor dust levels? MR. RUPPRECHT: We have used our core technology, called TEOM, Teaford Element Oscillating Microbalance, in more and more applications over time, where we feel that that measurement technique really brings an advantage to protection of the environmental health or human health. And yes, we're beyond this initial application of the TEOM technology in this form factor for coal mine. We foresee in future years also to look for other applications in metal/non-metal mines perhaps, or in other occupational fields, in occupational hygiene, for this type of device. MR. THAXTON: So that could also impact on the demand for the instrument, so that it would affect the commercialization, is what I'm getting at. MR. RUPPRECHT: Right. And I think it is in everyone's interest, or certainly in many people's interest, to see this used in coal mines, as well as others. Anything that can be done to drive up the volume would have a good effect with the prices. MR. THAXTON: The second question I had is that you indicated this device does provide a lot of benefits; it's very desirable benefits. If this device does provide such desirable benefits, why do you think that it's necessary for this committee to place things in the rule that actually provide incentives for its use? If the device on its own provides such valuable information, and is desirable, why wouldn't you think that people would want to make use of the device on its own merits? MR. RUPPRECHT: There would certainly be some companies or some interests that would use it on its own merits. But to use it constructively to the full extent that it could be used on occupations that are subject to the highest exposures, and to enable that change in paradigm, really requires some recognition on the part of the new rules, I believe, to make the best use of the PDM. MR. THAXTON: So are you suggesting, then, that we should make these units mandatory at mines? MR. RUPPRECHT: That is a decision that is up to MSHA. And one consideration could be that there could be a certain phase-in period, because obviously you can't make 10,000 or 2,000 of these overnight. But that is certainly a route that you may want to consider. And further consideration is to what extent miners within mines would be equipped with these, and that's been part of the discussion so far. MR. THAXTON: Do you believe the technology would work its way into the industry without it being made mandatory by law? MR. RUPPRECHT: I do not think that it would work its way into the industry to the extent to realize the potential of this device to protect human health, as compared to it being incorporated in the rule-making that you are now considering. MR. THAXTON: We have heard several numbers thrown out over the past months as to the anticipated current pricing of the units versus what it could be in the future. We realize that it depends on volume of units, it depends on paying for the technology, it depends on the demand and a phase-in-type period. Can you just give us what your stance is at this time, given what you know about the instrument, what is the range? We realize you can't tie it down exactly, but give us what your range of cost for the current units are individually? Considering that these would be looked at not only by mines that employ three or four hundred miners, but also mines that employ as little as seven to 10 miners. MR. RUPPRECHT: At the present time, with the uncertainties that still exist in what's actually going to be in it, and with some final decisions about the final design of the device, I would say that the best statement that I could make right now is that the cost, once we get it into production quantities, would be significantly less than $10,000. What does that mean? Whether that means $4,000, or $8,000, or $7,000, I really can't say right now. MR. THAXTON: Or $9,999.99. MR. RUPPRECHT: If the quantities are there -- I don't consider one dollar to be significant. MR. NIEWIADOMSKI: I have a couple questions. You had mentioned in your opening statement that the proposal does not provide suitable incentives for the use of the PDMs. And you also indicated that you would recommend a phase-in period. Is that one of the incentives that you're recommending? Or what do you mean by, what other incentives would you recommend that MSHA consider? MR. RUPPRECHT: I think today there is no PDM that is ready to go into the mines. So today, you cannot require a rule that will go into effect six months from now to require PDMs to go into mines. What we feel is something to consider is that, through input from mine workers and industry and the various perspectives that exist, that a structure be put in place that says once a PCDM, the PDM, once a PCDM has received the approval of the Secretary of Labor, that, then, kicks a transition period off, during which there would be then a phase-in of the structure of rules that I think should rely increasingly upon the PDM to determine what the exposure is underground. So obviously today, there can't be anything. But I think that there is sufficient interest on the part of a lot of the constituencies here, both industry and mine workers, to put together that framework that would then come into effect once the approval is realized for the first PCDM. MR. NIEWIADOMSKI: Given your experience with the MMRDM and the PDM-2 which you apply the same technology, of course, more miniaturized in the current design, are you confident that the PDM-1 will withstand the rigors of a mining environment? Given the way, I mean, the pounding and so forth. Do you think that the technology will survive the punishment that is anticipated? MR. RUPPRECHT: Absolutely. I alluded to some of the other applications in which our mass measurement technique is being employed. Some of those involve temperatures up to 900 degrees c, where they are being used for catalyst research. And the new applications, where we have also attracted a lot of interest just for environmental protection, is in the use of the technique where we put the mass sensor itself inside a smokestack, and have it run inside the smokestack under smokestack conditions. So, yes. MR. NIEWIADOMSKI: But those are more in a fixed position, stationary position, rather than being on a person. And the pounding that of course that equipment will take. I'm talking about the impact. Because remember the problems we had with the MMRDM? One of the issues was durability, okay? The PDM-2 was durability. Those were key issues, weren't they? MR. RUPPRECHT: Yes. And when these first six go underground, the plastic cases in which these first six are encased will not survive the rigors of mine -- and that's one of the points I made, is that there certainly are a few more steps, but those are engineering steps to go through -- one of those is clearly to get the injection molding done at a $50,000 to $70,000 expense with the right material, in order to make sure that that is accomplished. MR. NIEWIADOMSKI: Thank you. MR. REYNOLDS: I have a couple questions. When you mentioned you anticipated the cost to be under $10,000, and that would include the actual device and the charging station and other equipment, and also the software -- MR. RUPPRECHT: Some basic software for collecting data. MR. REYNOLDS: I wanted to ask you, when you were talking about the basic software, I know we can get real-time measurements, and you can get in-the-shift measurements. The software that you're developing at this point, what do you mean in terms of long-term data collection, long-term exposure data? MR. RUPPRECHT: One of the great things about software is that it is so flexible. And we asked that same question ourselves, and that's one of the points that I was referring to when I expressed that we would want to work together with mine workers, industry, and government to determine what type of values should be downloaded, how should they be stored, and so on. And since it's a software type of issue. MR. REYNOLDS: Would the instrument have the capability of like measuring an individual's exposure over an entire working lifetime? If we had the -- MR. RUPPRECHT: Potentially, yes, absolutely. With the proper tracking of an employee, number of tags-along, with either downloading from the PDM -- MR. REYNOLDS: So theoretically we would have the information by a personal identifier for somebody that was there during their entire working career, if the software was so designed. MR. RUPPRECHT: If that person wore the PDM every day, yes. MR. REYNOLDS: Okay. MR. KOGUT: I wonder if you could describe a little bit more what the underground field-testing is going to consist of. In particular, are you going to be able to come up with any estimates of the operational lifetime of these units? Are you going to do any accelerated life testing or anything like that? MR. RUPPRECHT: I personally have not been privy to the test program that is being worked out by NIOSH and other interested parties for the below-ground testing. So I don't have the knowledge to be able to answer that. MR. KOGUT: Do you have any other estimates? Any independent estimates of the lifetime? MR. RUPPRECHT: As a company we manufacture our products to have long lives. You can look at what we manufacture in other applications, and we will use the best engineering principles and practices to design and choose the final materials of construction for this. But generally the time -- MR. KOGUT: Are you going to have a five-year money-back guarantee? MR. RUPPRECHT: Generally, the equipment that we make carries good, solid warranties. We stand behind what we do, and they have long lives. But I really don't have a specific answer to that right now. Right now our main focus is in working together with the individuals at MSHA, NIOSH, and industry and mining groups to go through the underground mining process. Once that is completed satisfactorily, then we will be turning our attention to those issues. MR. FORD: I'd like to ask a couple questions. You made the statement twice that through widespread use of the PDMs, you could maintain a price significantly below $10,000. Based on that statement I wanted to ask you, has your company conducted any studies that show the decrease-in-production price of the PDM in relationship to an increase in the demand for such devices? MR. RUPPRECHT: We ordinarily do those types of studies for other products that we make. We have done some preliminary work here, as well. However, recently our focus has been on these final tasks, and will be shifting more to looking at manufacturing costs, pricing, and how do we design it for the best manufacturability, serviceability. That will be coming soon, not far from now. But that's a normal sort of thing that we do, yes. MR. FORD: I understand that through the underground testing, that might be modified. MR. RUPPRECHT: Correct. There may be certain parameters that are identified, where we may need to beef up this or that. MR. FORD: Right. But what I'm trying to get at is, probably you've done some sort of study or examination to get you to the statement that through widespread use, it will be less than $10,000. And I'm just asking that, is it possible that we can have a copy of those statements or those studies or those analyses that you've done? MR. RUPPRECHT: At the present time we don't have anything formal. I can tell you, however, where we will be soliciting some first sales to kick things off, initially that the selling price would be some measure above $10,000. Because even if we produce these in quantities of 25 or 50, the manufacturing costs would drive up our necessary selling price into that range. So we will do everything that we can to promote the widespread use of this technology. Because we don't just want to use it in coal mining. This is an obvious and very important first application, but certainly we want this to be of the best widespread benefit. MR. FORD: Right. And again, I don't want to keep hitting this point -- and this is not a question, this is a statement -- that if you do have any sort of studies like the one we're talking about now, before the record closes, whatever timing that is, could you please provide them to us. MR. RUPPRECHT: Okay. MR. FORD: The other thing I wanted to ask is that, along those same lines, assuming that the in-mine testing that's going to be conducted in the next couple months reflect your best estimates of how you believe it will come out, do you have any indication of how long it would be before the device can become commercially available? I mean, a time period. And based on volume, also? MR. RUPPRECHT: Certainly our experience is that initially the production quantities, that when manufacturers are small, and what we will initially try to do is, upon successful completion of the underground mining tests, to gather together a small number, a number of orders from early adopters, so that we perhaps will have a total order of somewhere in the range of 25 to 30 to give us some practice, and to set the wheels in motion. And we won't earn anything off of those. That's just going to be eaten up in the processes required to get things going, like the injection molding and so on. And we, as a company, have made things in large quantities before. I do want to point that out. For example, the air samplers that are used in the fine particulate matter network in the United States by the US EPA for the new fine particulate regulations that went into effect in the late 1990s, we produced 75 percent of the sequential variety of those. And the sequential variety represents about 90 percent of those that are out there. And those are much larger in size than what we're talking about here. So we have the capability of entering into manufacturing. We as a company have the ISO 9001 certification up to its latest revision, which is the year 2000 revision. And we're the first company in our industry to have that. In terms of timing, the best I can do right now, because you don't know what delays can come into the process and the exact -- MR. FORD: That's why I ask. MR. RUPPRECHT: -- time for the actual approval process by the Secretary of Labor, my best statement right now is the one I also read, which would be sometime during the year 2004, hopefully earlier than later. If, for example, the testing and report by NIOSH were completed by September of this year, then it would be conceivable that the first batch of these, if there weren't large engineering modifications, would be completed sometime in the middle of 2004. But once again, there are some uncertainties. MR. FORD: The cost we're talking about today, something widespread, less than $10,000, does that include the actual price to the operator? Or does that not include like distribution cost that has to be tacked onto that? MR. RUPPRECHT: It's a general estimate. And the cost of the distribution really depends upon how these units are going to be purchased, whether it's going to be done through individual mine operators, where in a case like that we could sell directly from R and P to the mine operators and cut out the middleman. Or whether some other distribution makes best sense to serve our customers. But I would think that in the case of the government purchasing certain quantities directly, or these being purchased directly by the mine operators, that universe is fairly small. And that could be done directly between R and P and those entities. MR. FORD: When the PDM device becomes commercially available, will other companies besides your own company be able to manufacture and sell the device? MR. RUPPRECHT: No. Our plan is to remain the sole manufacturer, as we have been for other devices that we have developed. And I'll give you one example of one of those devices, which is a continuous monitor for looking ambient air quality measurements. In the US we hold a 75-percent market share. All other instruments are government-approved holding the other 25 percent internationally. If you take the entire world together, we hold perhaps about a 50-percent market share or so. We price it right. We price it right, and provide the service necessary for users to use our technology correctly. It doesn't make sense for us to develop something, and then to fall flat on our face because the price is wrong, or we don't provide the service. MR. FORD: I've got a couple more questions, and that's it. Just a couple more. After the PDM-1 device is used on a shift, and before it can be used on another shift, can you talk about what kind of annual maintenance needs to be performed on that device? Like does it have to be cleaned? Or do parts have to be replaced or recharged? And then at the very end, can you give us a range about what you think the annual cost of that maintenance would be? MR. RUPPRECHT: I think the first question, you may have misspoken, but what the daily maintenance is when you take it off at the end of the shift. There is a docking station, which was shown, I believe, at the first session of this committee, where the sampler would then be removed from the miner's belt and put into that docking station. That serves two purposes. One is to recharge the batteries, which is a process that takes on the order of eight hours or so. And the other purpose is to download the data stored in that monitor into some sort of computer system. The other thing that you need to do is to replace the filter, the collection filter in that monitor with a new collection filter. We had the hardware here to demonstrate that also at the first meeting. We have it here. And that's a very simple process, in which a filter is removed and a new filter put on. The cost per filter is typical for filters. The teflon filters that you often get for sampling in mines or ambient air generally range somewhere around eight dollars each or so, and this would be in that same sort of ballpark. MR. FORD: But how about like the battery? Eventually does it, can you use it for the full year and recharge it? Or does it eventually have to be rebought? MR. RUPPRECHT: We're using the very latest -- and one of the keys to the small size and features that we're able to pack into that device is that we are using the very latest in battery technology. And we're using lithium ion batteries that are used in the computer area. And those typically do not have memory effects, which is the case with other battery technologies. I would anticipate that the change interval for the batteries would be over one year. MR. FORD: And one last question. That is, we talked about the life of the PDM-1 in the mine. And your statement was that it's difficult to say what that life would be, because we really haven't had the in-mine testing yet. But again, assuming your best estimates, let's say the in-mine testing goes as you believe it would go, or the best it could go, what do you think would be the life of the PDM-1? MR. RUPPRECHT: I think everyone here acknowledges that the conditions underground are very strenuous. And we will not be making our final choices concerning materials and so on in a vacuum, and we will seek as much input on an engineering level from groups represented here so we make the right decisions. I think especially important is the housing material that's chosen, and the way the housing is constructed. Our ambient particulate monitors are designed with a 10-year life in mind. I would think that one would want to shoot for a lifetime here, in this case, in the range of five to seven years or so. MR. FORD: Thank you. MR. THAXTON: Thank you. MR. REYNOLDS: One last question, Erich. The patent on the TEOM, do you recall what year it was granted? MR. RUPPRECHT: The original TEOM patent has expired. But in the form in which we are using the TEOM oscillator here, where we're using the momentum compensation, which is one of the keys to make it work, that patent is only on the order of two or three years old. And other pieces of our equipment are also covered by patents. MR. THAXTON: Thank you. Okay, we're going to take five minutes. (Whereupon, a short recess was taken.) MR. DERICK: My name is Link Derick, D-E-R-I-C-K. I represent 20 Mile Coal Company, an affiliate of RAG American Coal Holdings. I appreciate the opportunity to talk today. The comments I have, the written comments I'm going to read from will be incorporated into RAG Coal Holding comments, so I won't hand them in today. But I do have some exhibits for what I'm talking about that I will give to the panel today. On plan verification on the mean air velocity, several parameters for dust control can be maintained consistent throughout the cutting sequence for continuous mining sections, such as water sprays and scrubber quantities. However, some are not feasible. Without a booster pump on the working sections, the water pressure may drop as the cutting sequence advances, or as the total section advances. The mean air velocity is dependent on tubing length, and may vary by 100 percent or more. The lowest possible exposure, we should always strive for the lowest possible exposure. And that may cause a wide variance, depending on many factors. The ventilation plan must list the minimums, since you cannot operate below the minimum values. You may normally have large blast-open cross-cut air quantities, but when rooming that quantity may drop significantly. A section may be closer to the mouth of the panel, and have excess air to assure adequate air is available at the back of the panel. If higher-than-stated quantities are present and the dust concentrations are below the allowable limit, then everyone should be pleased. If there is a question, MSHA can and has requested in the past that the parameters be lowered to match the plan for their plan approval verification. One of the attachments I have is an example of the mean air velocity. And we recently used this with some discussions with District Nine personnel, and since then have put it in a more formal format. So I'm going to hand that out to the panel now, with some other exhibits that are attached. What the exhibit shows is cutting from one cross-cut on 250-foot centers to another. And it shows the difference of true-A and true-B, but shows the mean air velocity for each cut. And as can be seen, it shows a difference when fans are moved after certain shifts, and indicates that the mean air velocity can change upwards of 100 percent just from fans moving. So on plan verification it would be possible for a single shift to maybe cut back to a minimum. But as you can see, this is one cut to another, the parameters changed on a working section. So it might not be quite that easy, and it may not be that wise, to reduce to the lowest level, when that may only occur for one cut out of an entire section mining cycle. Next, the 060 application versus designated occupation. This comment is talking about sampling multiple occupations under the current regulations or a current request. MSHA has mandated most longwall mines to sample the 060 designated area versus the designated occupation. At the end of the shift, the 060 concentration does not represent the personal exposure of anyone on the face. Then true dust exposure of the miners is not being tracked. The operator should have the option of sampling multiple occupations, or MSHA sample multiple occupations, when administrative controls are used to rotate personnel from downwind of the shear. This should definitely be allowed if all personnel at or downwind of the shear are utilizing airstream helmets, and compliance is achieved solely by administrative controls, and no credit is given for the airstream helmet. Administrative controls are equal to engineering controls in most other health-related compliance issues. Not mandating 060 is allowed under current regulation, since nothing prohibits this interpretation or application. On the 060, during the first few times that was done, up to 100 passings of the pump occurred, which is not very reliable for monitoring a person's exposure. Airstream helmets. We understand that OSHA has listed the protection factor of an airstream helmet to be 25, which means an exposure of 0.08 milligrams per cubic meter versus 2.0 milligrams per cubic meter at the compliance level. MSHA has proposed a factor of four, with the intention of compliance with the 2.0 milligram per cubic meter standard, which would be an exposure of 0.5 milligrams per cubic meter if the current standard is met. We continue to support the lowest possible exposure by utilizing airstream helmets, and especially because of the additional safety benefits that are provided, such as head protection from possible small pieces of coal, side and front eye protection, the cool filtered air, and the attached hearing protection. Most of our miners have made positive comments about the airstream helmet usage, and several injuries definitely have been prevented by their usage. Airstream helmets have been utilized at some RAG longwall mines since 1989. The quartz and dust calculation, 100 micrograms of quartz. The intent of the quartz standard is to keep the exposure to quartz to 100 micrograms or less. This is the five percent of the 2,000 micrograms of total respirable dust at the two-milligram standard. The calculation of a new total respirable dust level based on dividing the percent of quartz into 10 penalizes many mines without ever even exceeding the standard. All samples should be analyzed for quartz in the two milligram of total respirable dust, and the 100 micrograms of quartz should not be exceeded. I have an attachment. I'm going to read some first, and it's part of your attachment. The attachment is two ways. One is on a small-print eight and a half by 11, and I took portions of that so it's clearer to go through. But I want to read this first. The quartz concentration of a sample cassette cannot be assumed that if the dust load increases, the quartz percent remains the same. Most effective dust-control measures are possible on the coal dust portion of the sample from cutting or transporting of coal. At the same time, the quartz from the intake dust and shield movement or roof rock is more difficult to control. The attached exhibit indicates a hypothetical example of how the dust standard can be lowered and lowered, without ever exceeding the two-milligram standard or the 100 micrograms of quartz. The existing regulations could be complied with by directing more coal dust to a roof-bolter machine, or possibly by using belt air to the face in either a longwall or continuous miner section. This could be an option if the total dust exposure is low, however the sample is high in quartz and the coal dust is low in quartz. This possibility was probably unintentional in the regulation, but may be counter-productive to exposing miners to higher dust levels to achieve compliance with the quartz standard. This defeats our objective of the lowest possible exposure for miners. Turn to the examples. The hypothetical situation, which is sometimes close to reality, is on a longwall, took four major sources of dust: the intake, the belt, the shear, and the shields. And in the example I did, taking 12 percent quartz in the intake at a two-milligram load, three percent quartz on the belt at a .6-milligram load, three percent quartz on the shear at a .6-milligram load, and 10 percent quartz on the shields at a .4-milligram load, equals compliance with the two-milligram-per-cubic-meter standard. At the same time, that equates out to 100 micrograms, 24 micrograms of quartz for the intake, 18 micrograms of quartz for the belt, 18 micrograms for the shear, 40 micrograms for the shields. Which again is compliance with the 100-microgram standard. Applying the 100 micrograms divided by the 2,000 micrograms total dust in the two-milligram standard produces the five percent quartz, which equates to the current two-milligram standard. This example indicates compliance with the dust standards. But since it is exactly on the allowable limits for both respirable dust and quartz, an operator would begin dust reduction measures. Second page talks about taking the belt air away from the face. The weight of the quartz and coal dust is removed from the formula, and the resulting other three have been left the same, which now you have 1.2 milligrams per cubic meter of total dust, and 82 micrograms of quartz. Both in compliance with the existing standards. However, by taking that measure, you now have 82 micrograms of quartz divided by 1200 micrograms total, and have a 6.8 percent quartz, by percent. Dividing that into the 10, that section now has a 1.47 milligram-per-cubic-meter standard, which shows that the shear dust could be significantly higher, and in this case could be doubled, from 0.6 milligrams to 1.2 milligrams, and still be in compliance with both standards. The most feasible dust control measure would be to direct the belt air away from the face. This would direct the crusher and tailpiece discharge dust away from the working face. By removal of this dust, the standard reduces because of that fraction of the sample that is removed is lower in quartz. The shear dust could now be doubled, and still result in compliance. However, this is against the practice of the lowest possible exposure. The third page is additional dust controls on the shear. Additional measures take the shear down to a 0.4 milligram and a three-percent quartz, which, doing the same as I read before, would result in a 7.6 percent quartz. Both total weight would now be one milligram, which is in compliance with the two milligram. The quartz would be at the 100 micrograms of quartz. However, a new standard of 1.32 milligrams per cubic meter. At this point the shear dust could technically be tripled, and still remain at 1.8 milligrams per cubic meter totally, and still be in compliance with the 100 micrograms of quartz. Recommendations for the proposed dust regulations, option of multiple occupations versus 060 designation. In lieu of the 060 designation, sampling of multiple occupations should allow for several administrative options to control exposure. Two common administrative-type controls are possible for working downwind of the shear on the longwall face. One, the operators can simply be rotated to avoid an overexposure. And second, the safe zone can be provided near the tailgate, where a person could spend their time during a portion of the mining cycle that their tasks are not required. Some employees prefer this position to limit their walking of the face. Optional switch to 100 micrograms weight versus percent. The setting of the standard to 100 micrograms of quartz and testing each sample for that weight will add assurance to compliance for this fraction of the total dust, since it creates a concern of its own. Airstream helmet relief for current non-compliance. We have conducted our own testing, and have also reviewed similar testing on the efficiency of airstream helmets on longwall mining faces, and have determined that the protection factor has ranged from three to six under actual conditions. This protection factor accounts for the high velocities, occasional lifting of the visor, and normal employee movements that are present on the longwall face that result in a slight reduction of the efficiency. Testing has been done with both airstream helmet testing on a fixed-location mannequin, and by wearing of the cyclone alongside the nose of an employee. Recommendation one for the airstreams. If added in the ventilation plan, the district manager should be able to allow for a protection factor of two for personnel downwind of the shear, for a maximum exposure outside the helmet of four milligrams per cubic meter. Recommendation number two. If added in the ventilation plan, the district manager should be able to allow for a protection factor of two for quartz, as long as the total dust remains in compliance with the two-milligram standard. This would allow the outside of the helmet exposure to 200 micrograms out of the total 2,000 micrograms of total respirable dust. The allowance for the protection factor could be for several reasons. The need may be required for normal conditions, but present throughout a panel, or could be for conditions unique to certain portions of a panel, such as roof problem areas where movement of the shields is required immediately. As a general comment, on the 1.38 MRE conversion calculation, in reviewing the dust results of both MSHA and operator samples on MSHA website, the concentration does not appear to be the weight difference times 1.38 MRE conversion that we understand. It varies up to 1.46, and this occurs for samples with a sampling time of 480 minutes. That concludes my comments. MR. NICHOLS: Thank you, Link. Anybody have any questions of Link? MR. NIEWIADOMSKI: I have one question. Are you recommending that the agency propose enforcing a separate quartz standard of 100 micrograms per cubic meter? MR. DERICK: Yes. MR. NIEWIADOMSKI: So what you're saying, you want us to -- currently we set the standard based on a percentage of quartz. MR. DERICK: Yes. If you go in the information provided on the smaller sheet, the quartz example, this is an actual recent sample of a longwall dust set 0.5 milligrams per cubic meter. It came back to 12 percent of quartz. It results in a 0.833 standard. However, that was only 25 percent of the total dust allowed and 60 percent of the quartz limit. Now, that sample would be one where the operator has to take the third sample and average it in. But the assumption currently is that, with that .5 milligram per cubic meter standard, that the current regulation assumes that if that atmosphere then went to two milligrams, that quartz percentage would remain at 12 percent. And that is not what is normally going to happen. Typically, intake quartz and shield quartz is going to remain constant. The additional dust is probably going to come from this cutting of the coal. MR. NIEWIADOMSKI: So your recommendation is that the agency enforce the two-milligram standard for coal mine dust, and for quartz a separate standard of 100 micrograms per cubic meter. MR. DERICK: Yes. And that we analyze each sample. MR. NIEWIADOMSKI: For each sample. MR. DERICK: Yes. MR. NIEWIADOMSKI: Thank you. MR. NICHOLS: Thanks, Link. David Hales, San Juan Coal Company. MR. HALES: It's still good morning. My name is David Hales. I am the underground safety coordinator at San Juan Coal Company. That's Hales, H-A-L-E-S. I've been employed in the underground coal mining industry for the past 28 years. And during my career I've operated all types of mining equipment: continuous miners, longwall equipment, conventional mining -- the list goes on and on. I've been a front-line supervisor and a CM section development work room and tiller mining, first mining, supervising longwall production and down shifts supervised during set-up and recovery operations. And during the past 13 years of my career, I've worked in safety management. I've had the good fortune to work for some of the safest mining operations in the world, and I appreciate the opportunity to participate in this public hearing today. The San Juan Coal Company has reviewed the proposed rules for single-shift sampling and ventilation plan verification. And this review has resulted in our identifying a list of issues or areas of concern, and I'll detail those concerns with these comments. First, we feel that the proposed rule requires operators to increase dust exposures for our miners. The case for protecting miners from the effects of elevated levels of respirable coal dust has been clearly made in the past. In our view, this fact appears to be ignored by a proposal that would require our miners to be exposed to higher-than-normal levels of dust through the proposed ventilation plan verification process. Not overexposures per the standard, but certainly higher levels than they're being exposed to today. The studies referenced in the preamble refer to the fact that relative risk is lower with decreased exposures, and relative risk is higher with higher accumulative exposures. If this information is correct, why would MSHA propose a rule that will undoubtedly assure increasing the dust exposures for our miners? The proposed rule does not recognize those proactive operators that have devised ventilation plans, controls, and procedures that are currently achieving dust exposures far less than the maximum allowable concentration. As written, these mines will be penalized, and their miners forced to be exposed to higher-than-normal levels of dust because of the prescriptive nature of this verification process. Given a choice of being exposed to 0.6 milligrams per cubic meter or 2.0 milligrams per cubic meter, I feel our miners will choose the former. Except this rule, as currently proposed, won't allow it. MSHA has proposed limits on how far you can exceed the ventilation plan minimums. If an operator can achieve less than one milligram, greater than 115 percent of the plan minimums, that operator will now need to reduce the level of controls, and thereby increase the exposure to miners in order to prove to MSHA that the minimum achieved in the plan will achieve two milligrams or less. If an operator is already achieving less than that allowable standard, and is exceeding the minimum stated in their plan, what's to be achieved through this process, other than increasing those exposures? All of this is required, regardless of the MSHA and/or operator sampling history that has been compiled over the mine's history. MSHA might argue that all an operator needs to do is put those levels in their plan, and that will be good enough. There are problems associated with that approach. An operator might take that bait and make those changes. Then if one of those extra controls stops working, the operator is cited for failing to comply with the ventilation plan, even though the exposures are not exceeded. It seems that operators must prove that they can attain two milligrams before they can attain less. This rule as written will serve to encourage some operators to remain dust levels at no lower than the applicable standard. Taken literally, it could actually result in prohibiting an operator from doing more, without risking increasing citations. In our view, this proposed plan verification process will result in higher-than-normal dust exposure for our miners, and serve no other purpose at our mine. Our ventilation plan minimums are being exceeded and dust exposure levels encountered are less than half of the allowable standard. If we can achieve that now, why should our miners be forced to undergo this plan verification process? Two, the regulated ability to implement the use of supplemental controls. Conditions that could result in a request for the use of supplementary controls are often of short duration, sometimes as short as a shift or two. This proposed process provides for MSHA to have 30 days to evaluate a supplemental controls request. The operator then gets five days to respond with a new ventilation plan and PAPR protection program, then another 30 days before anything is verified. Then another five days for the operator to submit the administrative controls proposal. Then add another 30 days for validating true sampling. And all of this without any reference to the resources MSHA will utilize to perform these tasks. Does this mean that production must stop during MSHA's consideration of the supplemental controls request? Does this mean production can continue without adding the controls? This would seem to assure an unnecessary increase in the dust exposures for miners. If miners are to be protected, ventilation systems and dust controls must be less prescriptive, and must be allowed to be more immediately responsive to the dynamic environment that exists in an underground mine. The ability to use such supplementary controls should be left to the discretion of the operator. Such supplementary controls could then be implemented and reduce exposures from the first shift on which conditions changed. Allowing MSHA 30 calendar days to make this decision is unreasonable, if not unconscionable. The prescriptive approach that has been proposed will only serve to assure miners are exposed to higher-than-necessary dust levels while awaiting MSHA approval. Today if an operator observes that conditions in the mine have changed, the operator can add the additional controls necessary to cope with the situation, even if those specific controls are not listed in the vent plan. The parameters can be exceeded to the point that an operator can achieve the lowest concentration attainable. Under this proposal, that ability is taken away. It seems reasonable that a district manager would be able to approve a plan based on samples that have been collected in the past, and there should be no requirement to go through this process if dust levels being achieved are already low. Number three, issues surrounding the verification production level. The verification production level can change with variations in mining conditions. This can occur overnight. The proposed rule is not clear concerning how an operator goes about modifying that VPL when such changes occur. Is this yet another ventilation plan amendment request, and another approval process, that in turn results in additional verification? What additional resources does MSHA propose for management of these new processes? They were not readily identifiable in the published documents. And this implies that the approval processes are to be managed by existing resources. We see that would result in a further bogging down of the ventilation plan approval process itself. Another issue is that of determining whether a VPL has been exceeded on 33 percent of all production shifts. Due to limitations of resources, MSHA can take weeks to evaluate and approve such things as ventilation change requests or ventilation plan amendments. Some have gone without final action for months. District offices do not have the resources to manage this proposed requirement. In addition, the proposed rule does not address what an operator is allowed to do while this verification is pending. If shift length and the VPL are to be included in the ventilation plan, how will these issues be addressed? Occasionally a mine will encounter a condition such as poor roof at the tailgate. An operator may need to keep miners over into the next shift to mine past this poor roof. Since this would exceed the shift length as stated in the plan, does working overtime constitute a plan violation? The proposal says that plan violations will not be issued for exceeding the stated VPL. However, section 37-A-1 of the current regulation requires an operator to follow the provisions of the approved plan. It would seem that if an operator must include those shift lengths and production levels in the approved plan, and those items were exceeded, the operator would have violated the plan. We can find no proposal to change the language of 37-A-1 and how it would be enforced contained in this proposed rule. Item four, establishing limits on exceeding ventilation plan parameters. The rule reiterates a previous stance that engineering controls shall be the primary means of protecting miners. It then goes on to limit how much protection can be afforded, by limiting the amount that plan minimums can be exceeded. There is no explanation of where the 115-percent maximum came from. When you consider the variability in instrumentation, this proposal could mean there is less than five-percent leeway. It's not uncommon to have 10-percent vari